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

Operación Puerto Strikes Back!

Forget the European Championship currently held in France or the upcoming Olympic Games in Rio. Doping scandals are making the headlines more than ever in 2016. From tennis star Sharapova receiving a two-year ban for her use of the controversial ‘meldonium’, to the seemingly never-ending doping scandals in athletics. As if this was not enough, a new chapter was added on 14 June to one of the most infamous and obscure doping sagas in history: the Operación Puerto.

The special criminal appeal chamber,  the Audiencia Provincial, has held that the more than 200 blood bags of professional athletes that have been at the center of the investigations since 2006 can be delivered to the relevant sporting authorities, such as the Spanish Anti-Doping Agency (AEPSAD), WADA, the UCI and the Italian Olympic Committee (CONI). In other words, there is now a good chance that the identities of the involved athletes might eventually be revealed.

Source: http://www.telegraph.co.uk/sport/othersports/cycling/9834122/Operation-Puerto-doctor-Eufemiano-Fuentes-treated-tennis-players-athletes-footballers-and-a-boxer.html

This case note will analyze the court’s ruling and summarize its most important findings. Given the amount of time passed since the scandal first came to light (2004), the blog will commence with a short background summary of the relevant facts. More...

FIBA/Euroleague: Basketball’s EU Competition Law Champions League- first leg in the Landgericht München. 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.

On 3 June 2016, the Landgericht München (“Munich Regional Court”) ordered temporary injunctions against the International Basketball Federation (“FIBA”) and FIBA Europe, prohibiting them from sanctioning clubs who want to participate in competitions organized by Euroleague Commercial Assets (“ECA”). The reasoning of the Court is based on breaches of German and EU competition law provisions. FIBA and FIBA Europe are, according to the judge, abusing their dominant position by excluding or threatening to exclude national teams from their international competitions because of the participation of their clubs in the Euroleague. This decision is the first judicial step taken in the ongoing legal battle between FIBA and ECA over the organization of European basketball competitions.

This judgment raises several interesting points with regard to how the national judge deals with the alleged abuse of a dominant position by European and international federations. A few questions arise regarding the competence of the Munich Regional Court that may be interesting to first look at in the wake of an appeal before examining the substance of the case. More...

The Müller case: Revisiting the compatibility of fixed term contracts in football with EU Law. By Kester Mekenkamp

Editor’s note: Kester Mekenkamp is an LL.M. student in European Law at Leiden University and an intern at the ASSER International Sports Law Centre.

On 17 February 2016, the Landesarbeitsgericht Rheinland-Pfalz delivered its highly anticipated decision in the appeal proceedings between German goalkeeper Heinz Müller and his former employer, German Bundesliga club Mainz 05.[1] The main legal debate revolved around the question (in general terms) whether the use of a fixed term contract in professional football is compatible with German and EU law. 

In first instance (see our earlier blog posts, here and here), the Arbeitsgericht Mainz had ruled that the ‘objective reasons’ provided in Section 14 (1) of the German Part-time and Fixed-term Employment Act (Gesetz über Teilzeitarbeit und befristete Arbeitsverträge, “TzBfG”), the national law implementing EU Directive 1999/70/EC on fixed-term work, were not applicable to the contract between Müller and Mainz 05 and therefore could not justify the definite nature of that contract.[2] In its assessment the court devoted special attention to the objective reason relating to the nature of the work, declining justifications based thereupon.[3] Tension rose and the verdict was soon labelled to be able to have Bosman-like implications, if held up by higher courts.[4] More...

The EU State aid and Sport Saga: Hungary revisited? (Part 2)

On 18 May 2016, the day the first part of this blog was published, the Commission said in response to the Hungarian MEP Péter Niedermüller’s question, that it had “not specifically monitored the tax relief (…) but would consider doing so. The Commission cannot prejudge the steps that it might take following such monitoring. However, the Commission thanks (Niedermüller) for drawing its attention to the report of Transparency International.”

With the actual implementation in Hungary appearing to deviate from the original objectives and conditions of the aid scheme, as discussed in part 1 of this blog, a possible monitoring exercise by the Commission of the Hungarian tax benefit scheme seems appropriate. The question remains, however, whether the Commission follows up on the intent of monitoring, or whether the intent should be regarded as empty words. This second part of the blog will outline the rules on reviewing and monitoring (existing) aid, both substantively and procedurally. It will determine, inter alia, whether the State aid rules impose an obligation upon the Commission to act and, if so, in what way. More...

The Rise and Fall of FC Twente

Yesterday, 18 May 2016, the licensing committee of the Dutch football federation (KNVB) announced its decision to sanction FC Twente with relegation to the Netherland’s second (and lowest) professional league. The press release also included a link to a document outlining the reasons underlying the decision. For those following the saga surrounding Dutch football club FC Twente, an unconditional sanction by the licensing committee appeared to be only a matter of time. Yet, it is the sanction itself, as well as its reasoning, that will be the primary focus of this short blog.More...

The EU State aid and Sport Saga: Hungary’s tax benefit scheme revisited? (Part 1)

The tax benefit scheme in the Hungarian sport sector decision of 9 November 2011 marked a turning point as regards the Commission’s decisional practice in the field of State aid and sport. Between this date and early 2014, the Commission reached a total of ten decisions on State aid to sport infrastructure and opened four formal investigations into alleged State aid to professional football clubs like Real Madrid and Valencia CF.[1] As a result of the experience gained from the decision making, it was decided to include a Section on State aid to sport infrastructure in the 2014 General Block Exemption Regulation. Moreover, many people, including myself, held that Commission scrutiny in this sector would serve to achieve better accountability and transparency in sport governance.[2]

Yet, a recent report by Transparency International (TI), published in October 2015, raises questions about the efficiency of State aid enforcement in the sport sector. The report analyzes the results and effects of the Hungarian tax benefit scheme and concludes that:

“(T)he sports financing system suffers from transparency issues and corruption risks. (…) The lack of transparency poses a serious risk of collusion between politics and business which leads to opaque lobbying. This might be a reason for the disproportionateness found in the distribution of the subsidies, which is most apparent in the case of (football) and (the football club) Felcsút.”[3]

In other words, according to TI, selective economic advantages from public resources are being granted to professional football clubs, irrespective of the tax benefit scheme greenlighted by the Commission or, in fact, because of the tax benefit scheme. More...

International and European Sports Law – Monthly Report – April 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 might have overlooked.  


The Headlines

This month saw the conflict between FIBA Europe and the Euroleague (more precisely its private club-supported organizing body, Euroleague Commercial Assets or ‘ECA’) becoming further entrenched. This dispute commenced with FIBA creating a rival Basketball Champions League, starting from the 2016-2017 season with the hope to reinstate their hold over the organization of European championships. The ECA, a private body that oversees the Euroleague and Eurocup, not only decided to maintain its competitions but also announced it would reduce them to a closed, franchise-based league following a joint-venture with IMG. In retaliation, FIBA Europe suspended fourteen federations of its competition (with the support of FIBA) due to their support for the Euroleague project.More...


The boundaries of the “premium sports rights” category and its competition law implications. 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.

In its decisions regarding the joint selling of football media rights (UEFA, Bundesliga, FA Premier league), the European Commission insisted that premium media rights must be sold through a non-discriminatory and transparent tender procedure, in several packages and for a limited period of time in order to reduce foreclosure effects in the downstream market. These remedies ensure that broadcasters are able to compete for rights that carry high audiences and, for pay TV, a stable number of subscriptions. In line with these precedents, national competition authorities have tried to ensure compliance with remedy packages. The tipping point here appears to be the premium qualification of sport rights on the upstream market of commercialization of sport TV rights.

This begs the question: which sport TV rights must be considered premium? More...

Unpacking Doyen’s TPO Deals: TPO and Spanish football, friends with(out) benefits?

Update: On 14 April footballleaks released a series of documents concerning Sporting de Gijón. Therefore, I have updated this blog on 19 April to take into account the new information provided.  

Doyen Sports’ TPO (or TPI) model has been touted as a “viable alternative source of finance much needed by the large majority of football clubs in Europe". These are the words of Doyen’s CEO, Nélio Lucas, during a debate on (the prohibition of) TPO held at the European Parliament in Brussels last January. During that same debate, La Liga’s president, Javier Tebas, contended that professional football clubs, as private undertakings, should have the right to obtain funding by private investors to, among other reasons, “pay off the club’s debts or to compete better”. Indeed, defendants of the TPO model continuously argue that third party investors, such as Doyen, only have the clubs’ best interests in mind, being the only ones capable and willing to prevent professional football clubs from going bankrupt. This claim constitutes an important argument for the defendants of the TPO model, such as La Liga and La Liga Portuguesa, who have jointly submitted a complaint in front of the European Commission against FIFA’s ban of the practice.[1]

The eruption of footballleaks provided the essential material necessary to test this claim. It allows us to better analyse and understand the functioning of third party investment and the consequences for clubs who use these services. The leaked contracts between Doyen and, for example, FC Twente, showed that the club’s short term financial boost came at the expense of its long-term financial stability. If a club is incapable of transferring players for at least the minimum price set in Doyen’s contracts, it will find itself in a financially more precarious situation than before signing the Economic Rights Participation Agreement (ERPA). TPO might have made FC Twente more competitive in the short run, in the long run it pushed the club (very) close to bankruptcy.

More than four months after its launch, footballleaks continues to publish documents from the football world, most notably Doyen’s ERPAs involving Spanish clubs.More...

International and European Sports Law – Monthly Report – March 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 might have overlooked. 

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 Headlines

The Belgian Court of Appeal released its judgment this month regarding Doyen’s legal battle against the FIFA TPO ban. The Appeal Court confirmed the first instance decision and ruled out any provisional measures to block the ban’s implementation (for an in depth review, see our blog post). More importantly, the Court reaffirmed that Swiss based sport federations are liable in front of EU Members’ States courts when EU competition law is involved. That means the next important step for this legal battle is whether or not the European Commission is going to open a formal proceeding (Doyen already lodged a complaint) to assess the compatibility, and more importantly, the proportionality of the TPO ban with EU law. Only a preliminary ruling by the CJEU could hasten the decision if one of the European national courts, hearing a case brought by Doyen (France or Belgium), decided to refer a preliminary question.More...


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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

Conference - ISLJ Annual Conference 2024 - 24-25 October - Asser Institute - The Hague

On 24 and 25 October 2024, the Asser Institute in The Hague will host the 2024 edition of the  International Sports Law Journal (ISLJ)  Conference. The ISLJ is the leading academic journal in transnational sports law and governance and is proud to provide a platform for transnational debates on the state of the field. The conference will address a number of issues of interest to the ISLJ and its readers. 

Register HERE

Drivers and effects of reform in transnational sports governance 

Transnational sports governance seems to be in a permanently unstable state of crisis and reform. At regular interval, international sports governing bodies face scandals triggered by corruption investigations or human rights violations, as well as adverse judidicial decisions. These are often followed by waves of institutional reforms, such as the creation of new bodies (E.g. the Athletics Integrity Unit), the adoption of new codes and regulation (such as Codes of Ethics) or human rights commitments (e.g. FIFA and the IOC’s Human Rights Policy/Strategy). This dynamic of crisis and reform will be at the heart of this year’s ISLJ conference, as a number of panels will critically investigate the triggers, transformative effects and limited impacts of reforms in transnational sports governance.  

Football in the midst of international law and relations 
As the war in Gaza and Russia’s invasion of Ukraine continue to rage, it has become even clearer that the football world can hardly be entirely abstracted from international relations. Yet, FIFA and UEFA continue to insist on their neutrality and to deny that their governance is (or should be) affected by the world’s political affairs. During the conference, we will engage with case studies in which football is entangled with international politics and law. In particular, the speakers will delve into the role of FIFA and UEFA in such situations and on the legal standards and processes that should be applied throughout their decision-making.  

Olympic challenges of today and tomorrow 
While the Paris 2024 Olympics have come to a close, the legal questions they have raised are far from exhausted. Instead, the Olympics have highlighted new issues (such as the question of the legality of the hijab ban imposed by the French Federation on its athletes) or old ones (such as the question whether Olympians should be remunerated by the IOC or the international federations), which will be discussed by our speakers. Finally, with the help of our keynote speaker, Prof. Jules Boykoff, a longstanding critique of the current Olympic regime, we will explore the IOC’s capacity to adapt to challenges while resisting radical change to the current model of olympism.   

Download the full programme 

Online participation available 
Following the success of our webinar option in the past years, we are once again allowing online participation to the conference at an affordable price. Thus, we hope to internationalise and diversify our audience and to reach people who are not in a position to travel to The Hague.  

We look forward to welcoming you in person in The Hague or digitally to this new iteration of the ISLJ conference. 

Register HERE

Speakers 


Register HERE


Conference - Empowering athletes’ human rights: Global research conference on athletes’ rights - Asser Institute - 23 October

The newly launched ‘Global Sport and Human Rights Research Network’, an initiative jointly hosted by the T.M.C. Asser Instituut and the Centre for Sport and Human Rights, together with the European Union-funded project ‘Human Rights Empowered Through Athletes Rights (H.E.R.O.)' is organising an in-person conference on October 23 at the Asser Institute in The Hague, to map the field of athletes' rights and engage in critical discussions on protection of these rights and how to prevent rights violations.

The one-day conference will kick off with a presentation by the H.E.R.O. team on their research results, followed by a short panel discussion. The rest of the day will be filled with four panels on different aspects related to the topic of athletes’ human rights, with speakers from academic institutions around the world.

Check out the full programme HERE and register for free HERE

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Luxembourg calls…is the answer from Nyon the way forward? Assessing UEFA’s response to the ECJ’s ISU judgment - By Saverio Spera

 

Editor's note: Saverio P. Spera is an Italian qualified attorney-at-law. He has practiced civil and employment law in Italy and briefly worked at the Asser International Sports Law Centre before joining FIFA in 2017. Until May 2024, he has worked within the FIFA legal division - Litigation Department, and lectured in several FIFA sports law programmes. In the spring of 2024 he has co-founded SP.IN Law, a Zurich based international sports law firm.

 

 

On 21 December 2023 a judicial hat-trick stormed the scene of EU sports law. That day, the European Court of Justice (the “ECJ”) issued three decisions: (i) European Superleague Company, SL v FIFA and UEFA (Case C-333/21); (ii) UL and SA Royal Antwerp Football Club v Union royale belge des sociétés de football association ASBL (Case C-680/21)and (iii) International Skating Union (ISU) v. European Commission – Case C-124/21.

These judgments were much scrutinised (see herehere and here) in the past 6 months. For the reader’s relief, this paper will not venture into adding another opinion on whether this was a fatal blow to the foundation of EU sports law or if, after all, the substantive change is minimal (as persuasively argued here). It will analyse, instead, UEFA’s recent amendments of its Statutes and Authorisation Rules governing International Club Competitions (the “Authorisation Rules”) and whether these amendments, clearly responding to the concerns raised in the ISU judgment with respect to the sports arbitration system,[1] might pave the way for other Sports Governing Bodies (SGBs) to follow suit and what the implications for CAS arbitration might be. More...

Women’s Football and the Fundamental Right to Occupational Health and Safety: FIFA’s Responsibility to Regulate Female Specific Health Issues - By Ella Limbach

Editor's noteElla Limbach is currently completing her master’s degree in International Sport Development and Politics at the German Sport University Cologne. Her interests include human rights of athletes, labour rights in sport, the intersection of gender, human rights and sport and the working conditions in women’s football. Previously, she graduated from Utrecht University with a LL.M in Public International Law with a specialization in International Human Rights Law. This blog was written during Ella's internship at the Asser Institute where she conducted research for the H.E.R.O. project. The topic of this blog is also the subject of her master's thesis.

Women’s football has experienced exponential growth over the past decade, though the professionalization of the women’s game continues to face barriers that can be tied to the historical exclusion of women from football and insufficient investment on many levels. While attendance records have been broken and media coverage has increased, the rise in attention also highlighted the need for special accommodations for female footballers regarding health and safety at the workplace. Female footballers face gender specific circumstances which can have an impact on their health such as menstruation, anterior cruciate ligament (ACL) injuries and the impact of maternity. As the recent ILO Brief on ‘Professional athletes and the fundamental principles and rights at work' states “gender issues related to [occupational health and safety] risks are often neglected (p. 23).” While it could be argued that from a human rights point of view article 13(c) of the Convention on the Elimination of Discrimination of Women stipulates “the right to participate in […] sports [on an equal basis to men],” reality shows that so far practices of men’s football were simply applied to women’s football without taking into consideration the physiological differences between male and female players and the implications that can have for female players’ health. The ILO Declaration on Fundamental Principles and Rights at Work(ILO Declaration, amended in 2022) includes “a safe and healthy working environment” as one of the fundamental rights at work (Art. 2e). This begs the question whether the scope of the right to occupational health and safety at the workplace includes the consideration of female specific health issues in women’s football. More...

The International Cricket Council and its human rights responsibilities to the Afghanistan women's cricket team - By Rishi Gulati

Editor's note: Dr Rishi Gulati is Associate Professor in International Law at the University of East Anglia (UK) and Barrister in Law. He has a PhD from King’s College London, Advanced Masters in Public International Law from Leiden University, and a Bachelor of Laws from the Australian National University. Amongst other publications, he is the author of Access to Justice and International Organisations (Cambridge University Press, 2022). He has previously worked for the Australian Government, has consulted for various international organizations, and regularly appears as counsel in transnational cases.

On 1 December 2024, Jay Shah, the son of India’s powerful Home Minister and Modi confidante Amit Shah, will take over the role of the Independent Chair of the International Cricket Council (ICC). This appointment reflects the influence India now has on the governance of cricket globally. A key test Jay Shah will face is whether or not the ICC should suspend the Afghanistan Cricket Board (ACB) from its membership as Afghanistan no longer maintains a women’s cricket team contrary to the organization’s own rules, as well as its human rights responsibilities. More...

[Call for Papers] - International Sports Law Journal - Annual Conference - Asser Institute, The Hague - 24-25 October 2024 - Reminder!

The Editors of the International Sports Law Journal (ISLJ) invite you to submit abstracts for the next edition of the ISLJ Conference on International Sports Law, which will take place on 24 and 25 October 2024 at the Asser Institute in The Hague. The ISLJ, published by Springer and TMC Asser Press, is the leading academic publication in the field of international sports law and the conference is a unique occasion to discuss the main legal issues affecting international sports and its governance with renowned academic experts.

We welcome abstracts from academics and practitioners on all issues related to international and transnational sports law and their impact on the governance of sport. We also welcome panel proposals (including a minimum of three presenters) on specific issues of interest to the Journal and its readers. For this year’s edition, we specifically invite submissions on the following themes and subthemes:


Reformism in transnational sports governance: Drivers and impacts

  • Legal and social drivers of reforms in transnational sports governance   
  • The role of strategic litigation (before the EU/ECtHR/National courts) as a driver of reform;
  • The role of public/fan pressure groups on clubs, competition organisers and governments as a driver of change.
  • The impact of internal reforms in transnational sports governance: Cosmetic or real change? (e.g. IOC Agenda 2020+5, FIFA governance reforms, CAS post-Pechstein changes, WADA sfter the Russian doping scandal)
  • Emerging alternatives to private sports governance – the UK’s Independent Football Regulator.


The organization and regulation of mega sporting events: Current and future challenges 

  • Mega-sporting events as legalized sites of digital surveillance 
  • Greening mega-sporting events (e.g. carbon neutral pledges, environmental footprints of events, the impact of multiple hosting sites)
  • Mega-sporting events and the protection of human rights and labour rights (e.g. Paris 2024 Social Charter, Euro 2024 human rights commitments)
  • The Olympic Games and athletes’ economic rights (remuneration/advertisement)
  • Reviews of the legal issues raised at Euro 2024 in Germany and the Paris 2024 Olympic Games
  • Previews of the legal issues likely to have an impact on the FIFA 2026 World Cup and the Milano-Cortina 2026 Winter Olympic Games


Please send your abstract of 300 words and CV no later than 15 July 2024 to a.duval@asser.nl. Selected speakers will be informed by 30 July.

The selected participants will be expected to submit a draft of their paper by 1 October 2024. Papers accepted and presented at the conference are eligible for publication in a special issue of the ISLJ, subject to peer-review. 

The Asser Institute will provide a limited number of travel & accommodation grants (max. 300€). If you wish to be considered for a grant, please explain why in your submission.


[New Event] Feminist theory and sport governance: exploring sports as sites of cultural transformation - 9 July -15:00-17:00 - Asser Institute


This seminar is part of the Asser International Sports Law Centre's event series on the intersection between transnational sports law and governance and gender. Dr Pavlidis will present her take on feminist theories and sport governance by exploring sports and in particular Australian rules football and roller derby as sites of cultural transformation.

Register HERE

Australian rules football is Australia's most popular spectator sport and for most of its history it has been a men's-only sport, including in its governance and leadership. This is slowly changing. Roller derby on the other hand has been reinvented with an explicitly DIY (Do It Yourself) governance structure that resists formal incorporation by 'outsiders'. This paper provides an overview of sport governance in the Australian context before focusing in on these two seemingly disparate sport contexts to explore the challenges of gender inclusive governance in sport.

Dr Adele Pavlidis is an Associate Professor in Sociology with the School of Humanities, Languages and Social Science at Griffith University in Australia. She has published widely on a range of sociocultural issues in sport and leisure, with a focus on gender and power relations. Theoretically her work traverses contemporary scholarship on affect, power and organisations, and she is deeply interested in social, cultural and personal transformation and the entanglements between people, organisations, and wellbeing.

We look forward to hearing Dr Pavlidis present on this topic, followed by reflections and comments by Dr Åsa Ekvall from the Erasmus Center for Sport Integrity & Transition, and Dr Antoine Duval from the T.M.C. Asser Institute. There will also be a Q&A with the audience.

Download the latest programme here 

Register HERE


[Call for papers] - International Sports Law Journal - Annual Conference - Asser Institute, The Hague - 24-25 October 2024

The Editors of the International Sports Law Journal (ISLJ) invite you to submit abstracts for the next edition of the ISLJ Conference on International Sports Law, which will take place on 24 and 25 October 2024 at the Asser Institute in The Hague. The ISLJ, published by Springer and TMC Asser Press, is the leading academic publication in the field of international sports law and the conference is a unique occasion to discuss the main legal issues affecting international sports and its governance with renowned academic experts.

We welcome abstracts from academics and practitioners on all issues related to international and transnational sports law and their impact on the governance of sport. We also welcome panel proposals (including a minimum of three presenters) on specific issues of interest to the Journal and its readers. For this year’s edition, we specifically invite submissions on the following themes and subthemes:


Reformism in transnational sports governance: Drivers and impacts

  • Legal and social drivers of reforms in transnational sports governance   
  • The role of strategic litigation (before the EU/ECtHR/National courts) as a driver of reform;
  • The role of public/fan pressure groups on clubs, competition organisers and governments as a driver of change.
  • The impact of internal reforms in transnational sports governance: Cosmetic or real change? (e.g. IOC Agenda 2020+5, FIFA governance reforms, CAS post-Pechstein changes, WADA sfter the Russian doping scandal)
  • Emerging alternatives to private sports governance – the UK’s Independent Football Regulator.


The organization and regulation of mega sporting events: Current and future challenges 

  • Mega-sporting events as legalized sites of digital surveillance 
  • Greening mega-sporting events (e.g. carbon neutral pledges, environmental footprints of events, the impact of multiple hosting sites)
  • Mega-sporting events and the protection of human rights and labour rights (e.g. Paris 2024 Social Charter, Euro 2024 human rights commitments)
  • The Olympic Games and athletes’ economic rights (remuneration/advertisement)
  • Reviews of the legal issues raised at Euro 2024 in Germany and the Paris 2024 Olympic Games
  • Previews of the legal issues likely to have an impact on the FIFA 2026 World Cup and the Milano-Cortina 2026 Winter Olympic Games


Please send your abstract of 300 words and CV no later than 15 July 2024 to a.duval@asser.nl. Selected speakers will be informed by 30 July.

The selected participants will be expected to submit a draft of their paper by 1 October 2024. Papers accepted and presented at the conference are eligible for publication in a special issue of the ISLJ, subject to peer-review. 

The Asser Institute will provide a limited number of travel & accommodation grants (max. 300€). If you wish to be considered for a grant, please explain why in your submission.


[Online Summer Programme] - International sports and human rights - 22 - 29 May 2024 - Last spots!

Join us for the first online version of our unique training programme on ‘Sport and human rights’ jointly organised by the Centre for Sport and Human Rights and the Asser Institute taking place on May 22-24 & May 27-29.

After the success of the first editions in 2022 and 2023 the programme returns, focusing on the link between the sport and human rights and zooming in on a number of topics, such as the UN Guiding Principles for Business and Human Rights and their application in sports. We will also adopt a human rights lens to sport governance and address freedom of speech, the rights of athletes, and access to remedy.

Tackling contemporary human rights challenges in sport

The programme brings together the latest in academic research with practical experiences from working in the field in an interactive package, fostering productive exchanges between the speakers and participants. Theoretical knowledge will be complemented by exposure to hands-on know-how.

Participants will have the opportunity to learn from experts from the Asser Institute, the Centre for Sport and Human Rights, and high-profile external speakers from both academia and practice.

What will you gain?

  • An extensive introduction to the emergence of the sport and human rights movement
  • A greater understanding of the normative framework for human rights standards in sport
  • A comprehensive overview of the latest developments in the interplay between gender and sports
  • Practical know-how to govern  human rights in the context of sporting organisations
  • Practical know-how to address  human rights risks in the context of day-to-day sports, including safeguarding
  • Practical know-how to access remedy in human rights disputes
  • The opportunity to engage in discussions and network with leading academics and professionals

Topics addressed in this summer programme include:

  • The emergence of the sport and human rights discussion/movement
  • The integration of human rights in the governance of sport
  • The protection of athletes’ rights
  • Access to remedy for sport-related human rights harms


Read the full programme.

Register HERE


In partnership with:

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[Call for Papers] Through Challenges and Disruptions: Evolution of the Lex Olympica - 20 September 2024 - Inland School of Business and Social Sciences

Editor's note: This is a call for papers for a workshop inviting sports lawyers and historians to reflect on how the lex olympica developed within the last 128 years through the prism of challenges and disruptions to the Olympic Games and the sharp and incremental changes they provoked.


Background

The lex olympica are legal rules the International Olympic Committee created to govern the Olympic Movement. Since the revival of the Olympic Games in 1896, the lex olympica, with the Olympic Charter taking its central place, has undergone tremendous changes. It has increased not only in volume but also in complexity and reach.

While some changes were designed to give further detail to the Olympic values, others seem to serve as responses to numerous disruptions and challenges that the Olympic Games experienced on their way. History shows that the Olympic Games faced boycotts, apartheid, armed conflicts, wars, propelled commercialisation, corruption, critique based on human rights and sustainability, pandemics, and many other obstacles.

One can see triggers for changes in specific incidents, broader societal changes, external political interests, long-term internal processes, etc., or further differentiate them according to relevant stakeholders impacting the change, such as IOC, NOCs, IFs, NFs, athletes, commercial partners, television, activist groups, NGOs, governments, host countries, etc. Regardless of their taxonomies, all these challenges met different reactions and affected the Olympic regulation in various ways. The IOC chose to distance the Olympic Games from some challenges and fully embrace others.


Keynote speakers

  • Jörg Krieger, Associate Professor, Department of Public Health and Sport Science, Aarhus University; co-leader of the Lillehammer Olympic and Paralympic Studies Center; Associate Professor II Inland Norway University of Applied Sciences.
  • Mark James,  Professor of Sports Law and Director of Research in the Manchester Law School at Manchester Metropolitan University, Editor-in-Chief of the International Sports Law Journal.


Deadline for abstract submission: 15 June 2024

Confirmation of participation: 30 June 2024

Publication: Selected contributions will be considered for a special issue at International Sports Law Journal


Contact information

Yuliya Chernykh (Associate Professor)

yuliya.chernykh@inn.no


Organizer

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Asser International Sports Law Blog | Luxembourg calls…is the answer from Nyon the way forward? Assessing UEFA’s response to the ECJ’s ISU judgment - By Saverio Spera

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

Luxembourg calls…is the answer from Nyon the way forward? Assessing UEFA’s response to the ECJ’s ISU judgment - By Saverio Spera

 

Editor's note: Saverio P. Spera is an Italian qualified attorney-at-law. He has practiced civil and employment law in Italy and briefly worked at the Asser International Sports Law Centre before joining FIFA in 2017. Until May 2024, he has worked within the FIFA legal division - Litigation Department, and lectured in several FIFA sports law programmes. In the spring of 2024 he has co-founded SP.IN Law, a Zurich based international sports law firm.

 

 

On 21 December 2023 a judicial hat-trick stormed the scene of EU sports law. That day, the European Court of Justice (the “ECJ”) issued three decisions: (i) European Superleague Company, SL v FIFA and UEFA (Case C-333/21); (ii) UL and SA Royal Antwerp Football Club v Union royale belge des sociétés de football association ASBL (Case C-680/21)and (iii) International Skating Union (ISU) v. European Commission – Case C-124/21.

These judgments were much scrutinised (see herehere and here) in the past 6 months. For the reader’s relief, this paper will not venture into adding another opinion on whether this was a fatal blow to the foundation of EU sports law or if, after all, the substantive change is minimal (as persuasively argued here). It will analyse, instead, UEFA’s recent amendments of its Statutes and Authorisation Rules governing International Club Competitions (the “Authorisation Rules”) and whether these amendments, clearly responding to the concerns raised in the ISU judgment with respect to the sports arbitration system,[1] might pave the way for other Sports Governing Bodies (SGBs) to follow suit and what the implications for CAS arbitration might be.

 

The ISU judgement in a nutshell

On 23 June 2014, two professional speed skaters belonging to the Royal Netherlands Skating Federation (KNSB), Mr Tuitert and Mr Kerstholt, filed a complaint to the European Commission (the “Commission”) against the ISU (of which, the KNSB is a member) for an alleged violation of Article 101 and 102 TFEU by the ISU Prior Authorisation and Eligibility Rules. Three years later, on 8 December 2017, the Commission issued its decision, considering the compatibility with EU competition law of (i) the ISU Eligibility Rules (i.e., the provisions determining the conditions in which athletes could take part in skating competitions); (ii) the ISU Prior Authorisation Rules (i.e., the provisions setting out the procedure to follow in order to obtain from the ISU the authorisation to organise international skating competitions) and (iii) the ISU Arbitration Rules (i.e., the provisions establishing that, in case of disputes, the relevant ISU decision would have had to be appealed at the CAS).[2] In essence, the Commission found that the Eligibility and Prior Authorisation Rules did not satisfy the conditions required by Article 101(3) TFEU in order to benefit from an exemption and, importantly, that the Arbitration Rules had to be revised because they were reinforcing the restriction of commercial freedom already determined by the substantive rules under scrutiny. 

The ISU appealed the EC’s Decision to the General Court (the “GC”), seeking its annulment. On 16 December 2020, the GC issued its decision (the “Appealed Decision”) rejecting most of the appeal. However, the judges annulled the part of the EC’s Decision dedicated to the ISU Arbitration Rules. In essence, the GC considered that conferring exclusive jurisdiction to the CAS, a specialised arbitral tribunal capable of quickly resolving these disputes, was justified by legitimate interests linked to the specific nature of the sport.[3]

On 26 February 2021, the ISU filed an appeal to the ECJ against the ruling of the GC, while the speed skaters (supported by the Commission) filed a cross-appeal requesting to set aside the Appealed Ruling in so far as it annulled the part of the EC Decision that concerned the Arbitration Rules.  

Regarding these, the ECJ was not convinced by the GC’s conclusion that legitimate interests linked to the specific nature of sport can justify arbitration rules when they confer exclusive jurisdiction to the CAS to review decisions capable of touching upon public policy provisions of the EU (such as matters of EU competition law). Instead, it stressed that the contested Arbitration Rules concerned disputes that could arise in the context of economic activities linked to the organisation and marketing of international speed skating events. Hence, any disputes subjected to these Arbitration Rules come under EU competition law, and the relevant decision must comply with it.[4] The ECJ demanded that the court having jurisdiction to review the award perform an effective judicial review to guarantee that substantive rights – part of EU public policy – are safeguarded.[5] In this context, the ECJ also underlined that it is not sufficient to provide ex postremedies allowing parties to seek damages for violations of competition law condoned through the arbitration process.[6]


A standstill between two systems which inevitably cross paths

According to the ECJ, any provision or decision of an association of undertakings crossing the boundaries of “questions of interest solely to sport […] extraneous to any economic activity”[7] and potentially restrictive of competition must be scrutinised through the lens of EU competition law.

A problem of coexistence between two legal regimes that inevitably interact seems to be evident. On the one hand, the international sports arbitration system, with the CAS as specialised dispute resolution method and the SFT as judicial apex, and on the other EU law and the EU institutions.  

i.               The problem does not lie with the CAS in itself…

Notoriously, CAS panels do apply EU law when required.[8] The legislative basis upon which they do so is Article R58 CAS Code,[9] Article 19 of the Swiss Federal Act on Private International Law (PILA)[10]  and – depending on the circumstances – Article 187(1) PILA.[11] Over the years, CAS panels have regularly assessed the compatibility of regulations of UEFA and FIFA with EU Competition law. 

In CAS 2007/A/1287 Danubio FC v. FIFA & FC Internazionale Milano S.p.A., the panel analysed the compatibility of the FIFA solidarity mechanism with EU competition law. On that occasion, it recognised that “it is not only allowed, but also obliged to deal with the issues involving the application of EC law in the present matter”. The same conclusion was reached by other panels on several occasions over the years (see, inter aliaCAS 2009/A/1788 UMMC Ekaterinburg v. FIBA Europe e. V., In CAS 2012/A/2852 S.C.S Fotbal Club CFR 1907 Cluj S.A. & Manuel Ferreira de Sousa Ricardo & Mario Jorge Quintas Felgueiras v. FRFCAS 2014/A/3561 & 3614 IAAF & WADA).

A recent CAS award entirely revolved around the compatibility of the newly adopted FIFA Football Agents Regulations (FFAR) with EU law.[12]

The ECJ’s demands for an effective scrutiny through the lens of EU Competition law of certain types of regulations of associations of undertakings is thus met by the arbitral body having (almost invariably) exclusive jurisdiction to review them.

ii.              …but with the court which reviews its awards

However, while a CAS award can be challenged before the Swiss Federal Tribunal (SFT) on the ground of – inter alia – incompatibility with public policy,[13] Swiss public policy and EU public policy (which covers EU competition law[14]) are two very distinct concepts and the SFT (i) only takes the former into account and (ii) certainly does not refer questions to the ECJ for preliminary rulings. 

Hence, the failure to apply (or the wrong application of) EU law does not necessarily result in the setting aside of the relevant CAS award since it does not violate Swiss public policy.[15]

On a few occasions, the SFT has considered whether EU competition law is part and parcel of Swiss public policy.[16] In a judgment of 8 March 2006, the SFT rejected a request to set aside an arbitral award on the basis of a claimed incompatibility with substantive public policy due to an alleged violation of EU (and Italian) competition law. On that occasion, the SFT – once having formulated a definition of Swiss public policy[17] – determined that EU competition law does not meet the test.[18]

Thus, even if EU law is considered to be a mandatory foreign substantive law by the relevant arbitral panel, this does not make it part of the Swiss public order. The SFT seems to be content with the conclusion that the public policy weighing on the Court is different from the one weighing upon the arbitrator.[19]

Ultimately, the problem is not really the CAS per se, but the fact that it is seated in Switzerland.


Is UEFA paving a way forward to diffuse the potential conflict between CAS arbitration and EU competition law?

It is not the first time that the EU judges draw the SGBs’ attention to the fact that their rules and decisions are not adopted in a social and economic vacuum and that their (a priori legitimate) governing authority needs to account for its effects on the EU’s internal market. As illustrated in the ISU case, this extends to dispute resolution processes that are provided for in the SGBs’ rulebooks. 

UEFA has recently attempted to address these concerns by amending its Authorisation Rules and its Statutes. Article 16 of the Authorisation Rules, concerning ‘Dispute resolution’, was amended through the addition of paragraph 3 and 4 reading as follows:

3. CAS shall primarily apply the UEFA Statutes, rules and regulations and subsidiarily Swiss law. The party filing the statement of appeal and/or a request for provisional measures, whichever is filed first with CAS, shall indicate in its first written submission to CAS whether the party accepts Lausanne, Switzerland, as seat of the arbitration or if the seat of the arbitration shall be in Dublin, Ireland, in derogation of Article R28 of the CAS CodeIn the latter case, UEFA is bound by the choice of Dublin, Ireland, as seat of the arbitration and UEFA shall confirm its agreement to such seat in its first written reply to CAS. In case no seat is indicated in the first written submission to CAS, Article R28 of the CAS Code shall apply. 

4. The decision of CAS shall be deemed to be made at the seat of the arbitration determined as per paragraph (3) above. The CAS award shall mention the seat of the arbitration. The decision of CAS shall be final and binding to the exclusion of jurisdiction of any ordinary court or any other court of arbitration. This is without prejudice to the right of appeal of any party in accordance with the applicable law of the seat of the arbitration as well as the right to challenge the enforcement or recognition of a CAS award on grounds of public policy (which may include European Union public policy laws) in accordance with any applicable national or European Union procedural laws

Article 63 of Statutes, in turn, was modified in its paragraph 2 (now reading “CAS shall primarily apply the UEFA Statutes, rules and regulations and, subsidiarily, Swiss law. In addition, any party before CAS shall be entitled to raise mandatory provisions of foreign law in accordance with Article 19 of the Swiss Private International Law Act, which may include European Union public policy laws”) and an entirely new third paragraph was added to it:

3. CAS awards shall be final and binding to the exclusion of jurisdiction of any ordinary court or any other court of arbitration. This is without prejudice to the right to file an appeal against a CAS award before the Swiss Federal Tribunal in accordance with Swiss law and the right to challenge the enforcement or recognition of a CAS award on grounds of public policy (which may include European Union public policy laws) in accordance with any applicable national or European Union procedural laws or the right to file a case before a competent competition authority.

While laudable, the clarification in the Statutes does not add much to the picture. As seen, CAS panels were already applying foreign mandatory law. The new paragraph 3 does not seem to change the general balance of the UEFA arbitration rules either, since the possibility to challenge the enforcement or recognition of a CAS award existed already.

The changes to the Authorisation Rules are much more significant with regard to the CAS arbitration procedure. They concern disputes related to UEFA’s decisions not to authorise the organisation of International Club Competitions.[20]According to the Authorisation Rules, a potential organiser needs to meet administrative and financial criteria,[21]sporting and technical criteria,[22] ethical criteria,[23] sporting merit criteria,[24] and submit to UEFA a request for authorisation containing all the relevant information and supporting documents concerning the mentioned prerequisites in order to obtain authorisation to organise an International Club Competition.[25] Any dispute related to these rules has to be brought to the CAS. Yet, the appellant can derogate to Article R28 of the CAS Code and choose to have the CAS seated in Dublin rather than in Lausanne and if it does so: (A) UEFA is bound by that choice; (B) the relevant award will be subjected to setting aside proceedings before the Irish High Court (on the limited grounds of Article 34(2) of the Model Law, which include public policy, as explained here).

The amendment is significant. Is it revolutionary? Probably not, but it certainly shows UEFA’s willingness to appease Luxembourg and Brussels’ concerns. The Authorisation Rules are a textbook example of the type of rules whose compatibility with EU competition law might be challenged and for which access to the preliminary reference procedure ought to be available. 

Does the reform address the ECJ’s concerns as expressed in the ISU ruling? In part, undoubtedly. In the future, in cases involving the Authorisation Rules, the appellants will be able to choose to bind UEFA to an arbitral process subjected to the review of the national court of a Member State which can refer to the ECJ a preliminary reference. However, there are many more UEFA rules that can potentially infringe EU competition law which are currently outside of the scope of this new procedure.[26]

Is this a model for other SGBs to follow? Possibly. It preserves the CAS as a specialised international arbitral tribunal sitting in Switzerland (which is dear to many stakeholders for a variety of reasons) yet guaranteeing that – when it comes to some rules typically touching upon issues of EU competition law – potentially affected parties can opt to have an effective EU law review by choosing a seat of the arbitration within the EU, while at the same time being reassured about the enforceability of the award (as Ireland is signatory of the New York Convention).

This compromise appears to offer a feasible and potentially fruitful path to appease the concerns of the ECJ, while preserving the specific relationship between sports governance and the CAS. In the end, the CAS might have to be ‘EUropeanised’, but it seems high time to ensure a greater embeddedness of sports arbitration in the EU legal order in order to protect the lex sportiva from a head-on conflict with EU law and the EU institutions.


[1] As argued by Antoine Duval: “one of the least visible and yet potentially most consequential findings in the trio of decisions”.

[2] In parallel, Article 25 of the ISU Statutes provided for the possibility for athletes who wished to challenge a decision imposing a penalty of ‘loss of eligibility’ or ‘ineligibility’ on them to lodge an appeal against that decision before the CAS.

[3] Appealed Decision, para. 156.

[4] ISU judgment, para. 189.

[5] Ibid, paras. 198 – 199.

[6] Ibid, paras. 200 – 204. 

[7] It is interesting to note that the revival of the concept of ‘purely sporting rule’ by the Court has been authoritatively criticised (see here and here).

[8] For a complete overview of the interaction between EU law and the CAS, see Duval A (2015) The Court of Arbitration for Sport and EU law: chronicle of an encounter. Maastricht Journal of European and Comparative law, 22(2) 224-255.

[9] Article R58 CAS Code (law applicable to the merits): “The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision” (emphasis added)

[10] Article 19 PILA: “1. If interests that are legitimate and clearly preponderant according to the Swiss conception of law so require, a mandatory provision of a law other than the one referred to by this Act may be taken into consideration, provided the situation dealt with has a close connection with that other law. 2. In deciding whether such a provision is to be taken into consideration, consideration shall be given to its purpose and the consequences of its application, in order to reach a decision that is appropriate having regard to the Swiss conception of law”.

[11] Article 187(1) PILA: “The arbitral tribunal shall decide the dispute according to the rules of law chosen by the parties or, in the absence of such a choice, according to the rules of law with which the case has the closest connection”.

[12] The panel indeed assessed whether Article 15(2) FFAR: (i) pursued legitimate objectives recognised by the EU legal order (paras. 283 – 288); (ii) was appropriate to pursue those objectives (paras. 289 - 297) and (iii) was proportionate (paras. 298 – 310) and concluded in the affirmative with respect to each of them.

[13] See Article 190(2) lit. e) PILA.

[14] See, for instance, Case C-126/97 – Eco Swiss China Time Ltd. v Benetton International NV, [1999] ECR I-3055.

[15] See Sandra de Vito Bieri – the application of EU law by arbitral tribunal seated in Switzerland in ASA Bulletin 1/2017 (Volume 35, pages 55 – 66), who points out that the only chance for such an action to be successful would be in the improbable case in which the CAS were to find EU law applicable to the dispute but were to deny jurisdiction to decide on matter of EU law.

[16] ATF 128 III 234, consid. 4c at 242; Judgment 4P.119/1998 of 13 November 1998, consid. 1b/bb, published in ASA Bulletin 1999 at pp 529 et seq.

[17] Judgment of 8 March 2006, 4P.278/2005, consid. 2.2.3: “[…] an award is incompatible with public policy if it disregards essential and widely recognised values which, in accordance with conceptions prevalent in Switzerland, must constitute the foundation of any legal order”.

[18] In essence, the SFT did not consider competition law to be a fundamental principle of law applicable in any legal order given the different extents to which this is accepted in the various legal systems. In particular, with respect to EU competition law, the SFT observed that the values that it protects are confined to the EU because drafted in the attempt to guarantee the functioning of the European internal market, and – as such – they cannot be considered part of a more universal principle that can be shared by all countries, including Switzerland

[19] Ibid, consid. 3.3. See Landolt P. “Judgment of the Swiss Supreme Court of 8 March 2006 – A Commentary”.

[20] See Article 2 of the Rules for more details on their scope of application.

[21] Article 4 of the Rules.

[22] Article 5 of the Rules.

[23] Article 6 of the Rules.

[24] Article 7 of the Rules.

[25] Articles 8 to 12 of the Rules.

[26] There are rules admittedly escaping EU law scrutiny, however – as poignantly argued by Prof. Weatherill here – those entirely extraneous to economic activity are not many and possibly the focus should not be on their purely sporting nature but rather on the effect of their practice.

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