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

A World Cup Without the World? How Trump’s Travel Ban Contradicts FIFA’s Values - By Rasoul Rahmani

Editor's note: Rasoul Rahmani is a PhD Candidate at the Faculty of Law, University of Turku, Finland. His doctoral research examines sports governance and human rights, with a focus on how EU law, particularly recent CJEU rulings, is reshaping the autonomy of sports governing bodies and the institutional implications of these developments.

 

The Ban and Its Expansion

On 4 June 2025, President Donald Trump imposed sweeping entry restrictions on nationals from 12 countries: Afghanistan, Burma, Chad, Republic of the Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Somalia, Sudan, and Yemen. The proclamation made clear that “these restrictions distinguish between, but apply to both, the entry of immigrants and non-immigrants”; including those traveling on visitor visas for business and tourism, precisely the category under which World Cup fans would enter the United States.

The President invoked his Executive Order of 20 January 2025, which declared it “the policy of the United States to protect its citizens from aliens who intend to commit terrorist attacks, threaten our national security, espouse hateful ideology, or otherwise exploit the immigration laws for malevolent purposes.”[1] Alongside these complete bans, he imposed partial restrictions on seven additional countries: Burundi, Cuba, Laos, Sierra Leone, Togo, Turkmenistan, and Venezuela.

The restrictions expanded drastically on 16 December 2025. Five more nations joined the fully banned list; Burkina Faso, Mali, Niger, South Sudan, and Syria along with individuals holding Palestinian Authority-issued travel documents. Laos and Sierra Leone were upgraded from partial to full bans. Most significantly, 15 countries were added to the partial restriction category: Angola, Antigua and Barbuda, Benin, Côte d'Ivoire, Dominica, Gabon, The Gambia, Malawi, Mauritania, Nigeria, Senegal, Tanzania, Tonga, Zambia, and Zimbabwe.

By December 2025, the travel restrictions encompassed 39 countries plus Palestinian Authority passport holders; a staggering expansion of barriers to entry for what is supposed to be a celebration of global unity. 


One Billion People Locked Out

The scale of exclusion is breathtaking. According to the latest population data, the fully banned countries represent 479.3 million people. The partially restricted nations account for another 537.6 million. Combined, over 1.017 billion people, more than one-eighth of the world’s population, face barriers to entering the World Cup’s primary host nation.

This mass exclusion stands in jarring contradiction to FIFA President Gianni Infantino’s repeated promises that 2026 would be “the greatest and most inclusive FIFA World Cup in history”; a World Cup  which is projected to have 6.5 million attendees in the host countries. The tournament expanded from 32 to 48 teams precisely to embrace more of the world. Yet as the field grew more diverse, the host country’s doors slammed shut.

Of the 42 nations already qualified for World Cup 2026, four face direct impact  from Trump’s restrictions. Iran and Haiti, home to 104.1 million people combined, are under full entry bans. Côte d'Ivoire and Senegal, representing 47.9 million people, face partial restrictions. Among the nations competing for the remaining six spots, Iraq (full ban) and DR Congo (partial restriction) could also qualify, potentially raising the total to six affected teams.

The geographic reality compounds the problem. Of the tournament’s 104 matches, the United States will host 78, while Mexico and Canada together host only 26. For fans from banned or restricted countries, only the handful of matches in Toronto, Vancouver, Mexico City, Guadalajara, and Monterrey remain accessible. The vast majority of the World Cup, including likely knockout rounds in American cities, will be beyond their reach.

The ban carves out exemptions for athletes, coaches, and support staff  competing in “major” events like the World Cup and the 2028 Olympics. But fans, athletes’ families, and journalists receive no such consideration. Iranian supporters, who brought 20,000 passionate voices to Qatar 2022, now face a dream deferred. Haiti’s vibrant fan base, a joyful presence at the 2023 Women’s World Cup, finds itself similarly sidelined. The policy creates a two-tier system: the teams can play, but their people cannot watch.


FIFA’s Hollow Response

In a carefully choreographed White House meeting attended by President Donald Trump and FIFA President Gianni Infantino, the U.S. Department of State unveiled the FIFA Priority Appointment Scheduling System, dubbed "FIFA PASS", for World Cup 2026 ticket holders attending matches in the United States. The service promises every fan who purchases a ticket the opportunity to obtain a prioritized visa interview.

Yet this solution is nothing more than window dressing. While expedited interviews may help fans from unrestricted countries navigate bureaucracy more smoothly, it remains fundamentally unclear, and deliberately unaddressed, how the system would function for passport holders from the 39 banned or restricted nations. A faster path to rejection is no path at all.

Contrast FIFA’s tepid response with the International Olympic Committee’s principled stand when faced with a comparable situation (not identical). When Indonesia denied visas to Israeli athletes and officials for the 53rd FIG Artistic Gymnastics World Championships in October 2025, the IOC responded with immediate, forceful condemnation. The organization expressed “great concern” and “regret,” emphasizing that “all eligible athletes, teams and sports officials must be able to participate in international sports competitions and events without any form of discrimination from the host country, in accordance with the Olympic Charter and the fundamental principles of non-discrimination, autonomy and political neutrality.”[2] The message was unambiguous: violate the principles of inclusive access for athletes and support staff, and you forfeit the privilege of hosting.

The comparison to Indonesia is instructive not because the violations are identical-they are not- but because both cases involve host nations imposing discriminatory entry barriers that undermine the inclusive, global nature of international sporting competitions. Indonesia’s complete ban on Israeli participants was more severe in scope; America’s ban affects fans and journalists rather than athletes. Yet both violate the same fundamental principle: that major sporting events should be accessible to all eligible participants and their supporters without discrimination based on nationality.

The IOC treated Indonesia’s violation as a serious breach of Olympic principles requiring immediate consequences. FIFA, by contrast, has treated the U.S. ban as a non-issue warranting no public comment, let alone corrective action. The different responses reveal not different principles, but different calculations about which hosts can be challenged and which cannot.


A Friendship More Valuable Than Principles

FIFA’s paralysis becomes comprehensible when viewed through the lens of Gianni Infantino’s relationship with Donald Trump. Since assuming the FIFA presidency in February 2016, Infantino has cultivated an unusually close bond with the American leader. He has been a frequent White House visitor throughout Trump’s presidencies, their meetings marked by mutual praise and conspicuous displays of camaraderie.

Independent human rights organizations have repeatedly accused Infantino of violating FIFA’s duty of political neutrality. The most egregious example came in December 2025, when FIFA awarded its inaugural Peace Prize to Trump, a sitting political leader presiding over the very policies that exclude a billion people from accessing the World Cup. According to media reports, the FIFA Council was not even consulted on this decision, suggesting it was Infantino’s personal initiative.

Human Rights Watch captured the absurdity with biting clarity: “FIFA’s so-called peace prize is being awarded against a backdrop of violent detentions of immigrants, national guard deployments in U.S. cities, and the obsequious cancellation of FIFA’s own.” anti-racism and anti-discrimination campaigns

That last point deserves emphasis. At the Club World Cup held in the United States in summer 2025, FIFA conspicuously dropped its anti-racism messaging, the very campaigns it had championed at Qatar 2022, where it backed “no discrimination” armbands and introduced enhanced disciplinary codes “to fight racism more efficiently and decisively.” The sudden abandonment of these principles on American soil suggests a troubling calculation: FIFA’s values are negotiable depending on the host’s political sensitivities.

Most damning of all, this close relationship has produced no tangible benefits for the fans Trump’s policies exclude. Both Iran and Haiti, the two fully banned qualified teams, will play all their group stage matches in U.S. cities, not in Canada or Mexico. If Infantino’s friendship with Trump held any real value for the sport, surely it would manifest in exemptions for fans whose teams earned their place on the pitch. Instead, the friendship appears entirely one-directional: FIFA accommodates Trump’s preferences while receiving nothing in return for football’s global community.

The uncomfortable truth is that Infantino seems unwilling to risk his personal relationship with Trump by publicly criticizing policies that fundamentally contradict FIFA’s stated mission. In this calculation, diplomatic access to the White House trumps the organization’s commitment to inclusion, non-discrimination, and the unifying power of football.


Violating FIFA’s Own Statutes

The travel ban does not merely contradict FIFA’s rhetoric; it directly violates the organization’s foundational legal documents. Article 3 of the FIFA Statutes declares: “FIFA is committed to respecting all internationally recognised human rights and shall strive to promote the protection of these rights.” The commitment is absolute, not conditional on political convenience.

Article 4 goes further, stating that “discrimination of any kind against a country, private person or group of people on account of race, skin colour, language, religion, politics, national or social origin, property, birth or any other status is strictly prohibited and punishable by suspension or expulsion.” As pointed out by the HRW, the language could hardly be clearer: discrimination based on national origin is not just discouraged, it is grounds for the most severe penalties FIFA can impose.

Article 2a and 2g establishes FIFA’s fundamental objectives, including promoting football “in the light of its unifying, educational, cultural and humanitarian values” and preventing “all methods or practices which might jeopardise the integrity of matches, competitions, players, officials and member associations”.[3] A World Cup where qualified teams’ players’ families, supporters, and journalists cannot attend matches, as they are not included in U.S. entry exemptions, fundamentally jeopardizes the competition’s integrity in several interconnected ways. Firstly, the absence of supporters and families strips matches of their cultural and emotional meaning, turning them into hollow simulations rather than genuine contests between nations. Secondly, banning some fans while allowing others creates unfair competitive imbalances unrelated to sporting merit. Thirdly, excluding journalists from affected countries undermines transparent coverage. Finally, excluding vast populations from attending erodes the tournament’s moral and symbolic legitimacy.

FIFA’s Human Rights Policy and the FIFA World Cup 2026 Human Rights Framework reinforce these commitments. The Framework explicitly commits all host cities to stage the tournament “guided by the United Nations Guiding Principles on Business and Human Rights” and in line with FIFA’s Human Rights Policy. As mentioned by the Human Rights Watch letter to FIFA, the current United States immigration policies “directly contradict FIFA’s stated values of human rights, inclusion and global participation.”

FIFA itself has stated that “its position on inclusivity and the protection of human rights is unequivocal, and clearly laid out in the FIFA Statutes.” The organization has historically enforced these standards on host nations. During the World Cup 2022, Qatar was subjected to sustained scrutiny and pressure[4] and FIFA ensured the host became fully aware of its responsibility to adhere “to FIFA’s human rights and non-discrimination, equality and neutrality statutes, and committed to do so.” Yet for the United States, a far larger market and a more powerful political entity, FIFA has issued no such reminders, made no such demands, extracted no such commitments.[5] The double standard is glaring. 


The Hypocrisy of Selective Enforcement

FIFA presents itself as a neutral guardian of football’s “fundamental principles,” committed to human rights, unity, and the integrity of the game. Yet its recent decisions reveal a far less principled reality. From the intense moral scrutiny imposed on smaller or geopolitically weaker host nations to the striking restraint shown toward powerful Western states, FIFA’s enforcement of its own standards appears deeply selective. This pattern raises a troubling question: are FIFA’s rules applied universally, or are they calibrated according to political influence, economic power, and market value?

FIFA presents itself as a neutral guardian of football’s “fundamental principles,” committed to human rights, unity, and the integrity of the game. Yet its recent decisions reveal a far less principled reality: a pattern of enforcement that scholars have characterized as operating through “modern human rights frameworks [that are] (largely) Western-led and controlled.”[6] From the intense moral scrutiny imposed on smaller or geopolitically weaker host nations to the striking restraint shown toward powerful Western states, FIFA’s application of its own standards appears calibrated according to political influence rather than universal principles. The contrast between FIFA’s treatment of Qatar 2022 and the United States 2026 exemplifies this troubling inconsistency.

After awarding FIFA World Cup 2022 to Qatar, the Gulf state faced unprecedented international scrutiny. Human rights organizations, media outlets, and civil society groups subjected Qatar to relentless and enormous pressure, focusing on migrant labour conditions, with critics characterizing the kafala system as amounting to forced labour and accusing Qatar of being a slave state,[7] as well as LGBTQ+ rights and restrictions on alcohol consumption. While FIFA initially awarded Qatar the tournament in 2010 without imposing human rights conditions, years of sustained external pressure from the International Labour Organization, Human Rights Watch, Amnesty International, and other actors eventually prompted reforms. Qatar became the first Gulf nation to abolish the kafala system, introduce minimum wages, and permit limited trade union activity.[8]

However, such level of moral examination rarely applied to Western hosts. Much of this criticism was justified, but where is the equivalent systematic pressure on the United States, a nation with its own well-documented issues regarding migrant treatment, labour rights, and systemic discrimination, and recent immigration policies that exclude a billion people from accessing the tournament?

The answer is uncomfortable but obvious: the U.S. market is too valuable to jeopardize. American broadcasting rights, sponsorship revenues, and political influence make confrontation unthinkable for FIFA’s leadership. 

This selectivity extends beyond host nation oversight. When Russia invaded Ukraine in February 2022, FIFA condemnedthe use of force by Russia and any type of violence that same day. Four days later, on 28 February 2022, FIFA and UEFA jointly suspended Russian teams from all competitions. Notably, FIFA framed its justification narrowly, citing force majeure and competition integrity[9] rather than human rights violations or illegal war. The response demonstrated that FIFA possesses the will and the mechanisms to act decisively when a geopolitical crisis threatens football’s integrity and continuity.

No similar urgency has materialized regarding U.S. entry restrictions that exclude fans from qualified and non-qualified teams, despite the direct contradiction with FIFA’s statutory commitments. The inconsistency suggests that FIFA’s enforcement of its principles depends less on their violation than on the violator’s geopolitical influence.

When European football associations and UN experts called for action against Israel over its conduct in Gaza and treatment of Palestinian football, FIFA appealed to vague notions of “unity” and avoided substantive measures: “FIFA cannot solve geopolitical problems.”  In September 2025, the Trump administration, through its Secretary of State intervened directly to prevent Israel’s suspension, with a spokesperson declaring: We will absolutely work “to fully stop any effort to attempt to ban Israel’s national soccer team from the World Cup.”

The message is unmistakable: FIFA’s “fundamental principles” are enforced selectively, calibrated to the political power and market value of the nations involved. Russia can be excluded swiftly; the United States cannot be challenged at all. Smaller nations face stringent human rights requirements; powerful Western states receive diplomatic silence even when their policies directly contradict FIFA’s own statutes.

This pattern raises a fundamental question: is FIFA an independent governing body committed to universal principles, or does it operate within, and defer to, the framework of Western political and economic power? The answer increasingly appears to be the latter.


A Call to Action

This situation demands a response; from FIFA, from fans, and from the global football community. But these responses must take different forms, leveraging different sources of power and accountability. 

  • FIFA’s Institutional Obligations

FIFA must break its silence. The Statutes are not suggestions; they are binding commitments with enforcement mechanisms. FIFA must publicly demand that the United States provide exemptions for World Cup fans especially from all qualified nations, regardless of broader immigration policies. This is defending the integrity of FIFA’s own tournament and honouring commitments made when awarding hosting rights.

The goal is not perfect equality of access; economic disparities will always mean that wealthier fans travel more easily than those with fewer resources. What FIFA must ensure is equality in principle: that fans holding legitimate tickets face no discriminatory barriers based solely on their nationality.

If the United States refuses to provide such exemptions, FIFA must be prepared to impose consequences. At least FIFA could relocate affected teams’ matches to Canadian or Mexican venues, ensuring their supporters can attend. It could reduce the number of matches hosted by U.S. cities that fail to guarantee fan access. At minimum, it must publicly document the violation of hosting commitments and ensure this factors into future hosting decisions.

FIFA must also address a fundamental question for its governance framework: Should nations be awarded hosting rights if their immigration policies preclude the inclusive, non-discriminatory access that FIFA’s own statutes require? The organization needs clear, enforceable criteria that apply equally to all candidates, regardless of their geopolitical power or market value. The current situation demonstrates the dangers of awarding tournaments without such safeguards.

National federations, particularly those from affected countries, should formally petition FIFA to address this access crisis through official channels. Player unions can lend their institutional weight to these demands. Media coverage must continue highlighting the contradiction between FIFA’s rhetoric and its complicity through silence. These institutional pressures, channelled through formal FIFA structures, represent the proper mechanisms for holding the organization accountable to its own rules.

  • Beyond Institutions: A Fan-Led Protest

Yet even as we demand that FIFA fulfil its obligations, we cannot wait passively for institutional action that may never come. Fans themselves possess a powerful tool: visibility.

When Iran, Haiti, Côte d'Ivoire, or Senegal takes the field in American stadiums, supporters of their opponents, and also neutrals who cherish football’s unifying spirit, should leave sections of seats conspicuously empty in solidarity. These vacant seats, broadcast to millions worldwide, would create an undeniable visual reminder of who is missing and why.

This is not a call for general boycott of the tournament, which would harm the very teams whose fans are excluded. Rather, it is a targeted, symbolic action: empty sections during specific matches as visible protest. Supporters’ groups could coordinate which sections to leave vacant, creating clear visual patterns that television cameras cannot ignore. Social media campaigns could explain the protest to global audiences, connecting the empty seats directly to the billion people locked out. It would demonstrate that football’s community rejects discrimination even when football’s governors tolerate it.

  • The Soul of the Game

The beautiful game has always transcended borders and brought together people whom politics seeks to divide. That is its soul, its magic, its moral authority.[10] By allowing Trump’s travel ban to stand unchallenged, FIFA acts in direct contradiction to the values it claims to uphold.

The question is whether those who truly love the game, players, fans, federations, will accept this silence, or whether they will demand that FIFA honour its own principles through every avenue available: formal institutional pressure and visible, grassroots action.

FIFA must use its leverage to ensure equal access in principle. Fans, in turn, must use both their presence and their strategic absence to demand accountability when FIFA fails to act.

The world is watching. The seats are waiting. What will we choose?


[1] Executive Order 14161 “Protecting the United States From Foreign Terrorists and Other National Security and Public Safety Threats”, 20 January 2025. Available at https://www.whitehouse.gov/presidential-actions/2025/01/protecting-the-united-states-from-foreign-terrorists-and-othernational-security-and-public-safety-threats/

 

[2] More importantly, IOC backed its words with action. Its Executive Board ended all dialogue with Indonesia’s National Olympic Committee regarding hosting future events and recommended that International Federations avoid holding competitions or meetings in the country until adequate guarantees were provided.

[3] FIFA Statutes (Edition August 2024), Articles 2a and 2g.

[4] “The many critiques of Qatar were mobilizing a range of rights-claims based in international treaties or conventions… . Simultaneously, similar claims were being advanced against FIFA for failing to abide by its responsibility to respect human rights. Ultimately, this advocacy and public pressure triggered legislative and policy changes in Qatar and at FIFA.” Antoine Duval & Daniela Heerdt, How the FIFA World Cup 2022 Changed Qatar: Playing the Game of Transnational Law on a Global Pitch, 24 German Law Journal 1677 (2023).

[5] “This contrast underscores how FIFA’s claim to neutrality in human rights matters is not a principled stance but a strategically deployed position that aligns with its broader governance model. When financial interests are involved, FIFA does not hesitate to intervene, demonstrating that it possesses the capacity and institutional mechanisms to enforce binding regulations when deemed necessary. Yet, when it comes to human rights, FIFA’s commitments often remain aspirational, non-binding, or selectively enforced.” Pedro José Jaén, Angeliki Bistaraki & Mathias Schubert, The Universal Game? Deconstructing FIFA’s Human Rights Discourse, The International Sports Law Journal (2025).

[6] Shubham Jain, Resistance and Reform as Responses to Human Rights Criticism: Relativism at FIFA World Cup Qatar 2022, 24 Ger. Law J. 1691, 1701 (2023).

[7] “Qatar’s migrant workers were literally put on the world’s agenda overnight. The number of publications mentioning Qatar and“migrant workers” issued by the four organizations shows, first, that Qatar’s migrant workers were of very marginal interest to them before 2010 and, second, that their reporting or advocacy on the issue picked up quickly after the attribution of the FIFA World Cup 2022.” Antoine Duval, Spectacular International Labor Law: Ambush Counter-Marketing In the Spotlight of Qatar’s 2022 FIFA World Cup, 24 German Law Journal 1712 (2023). 

[8] Jain, supra note 6 at 1696.

[9] The bureau pointed out that the participation of the Russian teams in these competitions posed potential disruptions due to the refusals of other national associations to play against them, security concerns, and overall uncertainty related to the conflict. See CAS 25 November 2022, 2022/A/8708 (Football Union of Russia v. Fédération Internationale de Football Association et al). 

*The legal justifications advanced by both FIFA and UEFA for the suspension of Russian teams “did not link the suspensions to the illegality of Russia’s war or the human rights violations committed by Russia’s armed forces.” A. Duval, FIFA and UEFA’s Reaction to Russia’s Invasion of Ukraine: How the Neutrality of Sport Survived the War, 3 Voetbal- & Sportjuridische Zaken (2023).

 

[10] David Goldblatt, The Ball Is Round: A Global History of Football 21–22 (2006).

Last Call - ISLJ Conference 2025 - Twenty years of the World Anti-Doping Code in action - Asser Institute - 6-7 November

Dear readers,

You can still join us (in-person or virtually) on Thursday 6 November and Friday 7 November for the 2025 International Sports Law Journal (ISLJ) Conference at the Asser Institute in The Hague. This year's edition of the ISLJ conference will focus on assessing the first 20 years (2004-2024) of operation of the World Anti-Doping Code (WADC) since its entry into force in 2004. It will also discuss its future prospects, in light of the new version of the Code due to be adopted at the Busan Conference in December 2025, and the 10th Conference of the Parties to the International Convention against Doping in Sport, to be held in Paris from 20 to 22 October 2025.

The aim of the ISLJ conference is to take a comprehensive stock of the operation of the private-public transnational regulatory regime which emerged in the wake of the WADC. This regime is structured around a complex network of national and global institutions engaged in anti-doping work (WADA, NADAs, IFs, accredited laboratories) and guided by an equally complex assemblage of norms located at the global (WADC and the WADA Standards), international (UNESCO Convention against Doping in Sport), regional (Council of Europe Anti-Doping Convention), and national (various national anti-doping legislation) level. This makes for a fascinating and convoluted transnational legal construct in need of being studied, analysed and criticised by scholars. 

The conference will start with an opening speech delivered by Travis Tyggart, the CEO of USADA, who is a prominent anti-doping executive, but also a critical observer of the current operation of the world anti-doping system. It will be followed by a range of panels touching on the governance of the World anti-doping regime, the role of national institutions in its operation, the due process rights of athletes in anti-doping proceedings, the boundaries of athlete responsibility in doping cases, the main legal pillars (such as strict liability) underpinning of the WADC, and the enforcement of the WADC.


You will find the latest programme of the conference HERE


You can still register for in-person or online participation HERE


Reflecting on Athletes' Rights on the Road to the Olympic Games: The Unfortunate Story of Nayoka Clunis - By Saverio Paolo Spera and Jacques Blondin

Editor's note: Saverio Paolo Spera is an Italian qualified attorney-at-law. He holds an LL.M. in international business law from King’s College London. He is the co-founder of SP.IN Law, a Zurich based international sports law firm. Jacques Blondin is an Italian qualified attorney, who held different roles at FIFA, including Head of FIFA TMS and Head of FIFA Regulatory Enforcement. He is the co-founder of SP.IN Law. The Authors wish to disclaim that they have represented Ms. Nayoka Clunis before the Court of Arbitration for Sport in Lausanne in the context of the proceedings which led to the Award of 31 July 2024.

 

  

Every four years since more than a century,[1] a spectacular display of sportsmanship takes place over the course of a few weeks during the summer: the Olympic Games.[2]

         For thousands of athletes around the globe, the Olympic Games are “the pinnacle of success and the ultimate goal of athletic competition”.[3] In their quest to compete in the most important stage of their sport, they endure demanding and time-consuming efforts (often including considerable financial sacrifices). These endeavours occasionally lead to everlasting glory (the exploits of athletes of the calibre of Carl Lewis, or more recently, Usain Bolt[4] still resonate among sports’ observers), more often to a shorter gratification. Whether their gestures end up going down the sport’s history books or last the span of a few competitions, athletes are always the key actors of a magnificent event that continues to feed the imagination of generations of sports fans. 

And yet, situations may occur when athletes find themselves at the mercy of their respective federations in the selection process for the Olympic Games and, should the federations fail them (for whatever reason), face an insurmountable jurisdictional obstacle to have their voice heard by the only arbitral tribunal appointed to safeguard their rights in a swift and specialised manner: the Court of Arbitration for Sport (the “CAS”).[5]

This is the story of Nayoka Clunis, a Jamaican world class hammer throw athlete who had qualified for the Olympic Games of Paris 2024 and yet, due to no fault of her own, could not participate in the pinnacle of competitions in her sport. Though eligible in light of her world ranking, she was failed by her own federation[6] [AD1] [SPS2] and ultimately found herself in the unfortunate – but legally unescapable – vacuum whereby neither the CAS Ad Hoc Division in Paris nor the ‘regular’ CAS division in Lausanne had jurisdiction to entertain her claim.  

The aim of this paper is not to discuss whether Ms. Clunis would have had a chance to successfully prove her claims and compete in Paris had her case been heard on the merits, nor to debate about the appropriateness of a national federation’s selection process (also because Ms. Clunis never challenged it, having been eligible ‘from day one’).[7] Retracing the story of a sportswoman’s dramatic misfortune, this paper aims at providing an opportunity to reflect on how effective the safeguard of athletes’ rights in the context of the Olympic Games actually is. More...

Call for contributions - Sporting Succession in Selected Jurisdictions - Edited by Jacob Kornbeck and Laura Donnellan - Deadline 1 October 2025

  

Expressions of interest are invited from colleagues who would like to contribute to an edited book on Sporting Succession in Selected Jurisdictions. Interested colleagues are invited to send their abstracts jointly to laura.donnellan@ul.ie and klausjacob.kornbeck@gmail.com. If you are unsure about how your research would fit in, please feel free to reach out to us via email before writing your abstract. Abstracts received will be included into a book proposal to be submitted to a major English-speaking publisher. Colleagues will be notified by us once we have received the reaction of the publisher, at which point we shall decide about further steps to be taken in the process. 

 

The book will be edited by Jacob Kornbeck, BSc, MA, LLM, PhD, DrPhil, Programme Manager in the European Commission (but acting strictly in a private capacity) and external lecturer at the University of Lille, inter alia, and Laura Donnellan, LLB, LLM, PhD, Associate Professor in the School of Law, University of Limerick.

 

The following incorporates the most salient ideas from a presentation made by Jacob Kornbeck at the Sport&EU Conference in Angers (June 2023). 

 

The concept of sporting succession permits making claims against sporting entities which can be considered as sporting successors to previously existing sporting entities, even where the previous entities have been wound up and have been dissolved under normal bankruptcy and succession rules. No fault is required for sporting succession to be invoked and considered, and the concept may even apply in certain cases where the previous entity has not even been dissolved legally (CAS 2023/A/9809 Karpaty FC v. FIFA, Cristóbal Márquez Crespo & FC Karpaty Halych. 18 July 2024). While the implementation of the relevant FIFA rules by national FAs has been documented comprehensively in a recent edited book (Cambreleng Contreras, Samarath & Vandellós Alamilla (eds), Sporting Succession in Football. Salerno, SLPC, 2022), no known book or article addresses the overlap, interplay and potential conflict of norms between the lex sportiva of sporting succession and the public law or successions, etc. 

 

Provisions on sporting succession were first inserted into the FIFA Disciplinary Code 2019 with the effect that, whenever a sporting entity declares bankruptcy or is otherwise wound up, the notion of sporting succession applies to its unpaid financial liabilities and may be imputed to a so-called sporting successor, even if that successor is an entity legally distinct, according to the usual rules under public law, from the previous entity. Article 14 of the FIFA Disciplinary Code 2023 governs ‘failure to respect decisions,’ understood as failure to ‘pay another person (such as a player, a coach or a club) or FIFA a sum of money in full or part, even though instructed to do so by a body, a committee, a subsidiary or an instance of FIFA or a CAS decision (financial decision), or anyone who fails to comply with another final decision (non-financial decision) passed by a body, a committee, a subsidiary or an instance of FIFA, or by CAS.’ Article 21(4) extends the scope of the provision to the ‘sporting successor of a non-compliant party’ who ‘shall also be considered a non-compliant party and thus subject to the obligations under this provision. Criteria to assess whether an entity is to be considered as the sporting successor of another entity are, among others, its headquarters, name, legal form, team colours, players, shareholders or stakeholders or ownership and the category of competition concerned.’ Further provision is made in Article 21(7). In practice, this means that a club which carries on the legacy on a previous club, drawing on its cultural capital, fan base, etc., may be liable to paid unpaid debts of that previous club. These arrangements seem unusual prima facie.

 

Organs of FIFA have power to enforce these rules and to hear appeals against such decisions, while their decisions may be appealed to the Court of Arbitration for Sport (CAS) and/or to the Swiss judiciary (see Victor Piţurcă v Romanian Football Federation & U Craiova 1948 SA (CAS 2021/A/8331) (2023) as well as well as the rulings of the Federal Tribunal in the cases Youness Bengelloun (2022) and Júlio César da Silva et Souza (2022) based on Article 190 LDIP (Federal Act on Private International Law). 

 

While the concept of sporting succession offers a striking example of a provision for specificity enshrined in a sporting regulation and applied within the sports community, its pertinence under public law remains largely unaccounted for. With the (apparent) exception of one Swiss PhD thesis (Derungs, 2022), the issues which it raises seem so far to have failed to trigger the scholarship which they might deserve, especially in a comparative legal research perspective. The aim of the envisaged edited book is to explore the issue in a comparative perspective, not only across jurisdictions but also across different branches of the law. We hope in particular to receive abstracts on the following:


  • Examples from the most representative European (and possibly extra-European) countries of overlap, interplay and potential conflict of norms between the lex sportiva of sporting succession and the public law or successions, etc. Ideally, the book should include chapters from and about the biggest European countries which are most relevant to the football industry while, at the same time, it would seem crucial that the most important legal traditions (French and German civil law, common law, Nordic law) should be represented. 
  • Perspectives of players and other stakeholders.
  • Examples from other sports than football, if appropriate.
  • Examples of overlap, interplay and potential conflict of norms between the lex sportiva of sporting succession and other branches of lex sportiva, if applicable.
  • Examples of overlap, interplay and potential conflict of norms between the lex sportiva of sporting succession, on the one hand, and new developments in sports such as AI and esports, on the other.
  • If we have overlooked a meaningful nuance, please feel free to flag this in your submission and make corresponding proposals to us. 

Please send us your abstracts jointly to laura.donnellan@ul.ie and klausjacob.kornbeck@gmail.com no later than 1 October 2025. 

Call for Papers - Long-term contracts in sport: The private foundations of sports law and governance - University of Inland Norway - Deadline 15 June

The University of Inland Norway and the Asser International Sports Law Centre invite the submission of abstracts for a workshop in Lillehammer on 4 and 5 December exploring the role of long-term contracts in sport and their characteristics through a variety of theoretical and methodological lenses.

Contracts play a crucial role in the world of sport, particularly long-term contracts. Contractual agreements form the foundation of transnational sports governance, SGBs are all formally the product of a specific time of contract (be it in the form of an association or corporation) often justifying the autonomy of sport and its private governance at a (more or less far) distance from the state.

Moreover, contracts establish long-term commitments between the parties involved, raising a variety of questions regarding the asymmetry in their positions, the scope of party autonomy, contractual mechanisms for addressing uncertainty, and their interaction with domestic and international mandatory regulations, among others. In short, it is impossible to fully understand the operation and limitations of transnational sports law and governance without investigating the many ways in which it is embedded in long-term contracts ruled by a variety of contract laws.

This workshop proposes to explore the role of long-term contracts in sport and their characteristics through a variety of theoretical and methodological lenses.

We welcome proposals touching on the following issues/case studies:

  • The concept of time in sport and the definition of ‘long-term’ in sport-related contracts;
  • The function of long-term contracts in transnational sports governance;
  • The function of long-term contracts in the operation of private dispute resolution mechanisms (CAS, BAT, FIFA DRC);
  • The transactional nature of long-term contracts in sport;
  • The relational nature of long-term contracts in sport;
  • The conflict between private autonomy and long-term contracts in sport;
  • The intersection between private and public in the operation of long-term contracts in sport;
  • Specific contractual arrangements, including:
    • Contracts of association and SGBs
    • Long-term (labour) contracts with athletes and coaches;
    • Contracts related to the organization of mega-sporting events, including host city contracts;
    • TV and media long-term contracts;
    • Sponsorship agreements;
    • and more.

Abstracts must be sent to Yuliya Chernykh (yuliya.chernykh@inn.no) by 15 June. 

New Training - Summer Programme on International sport and human rights - Online - 21-28 May

Since 2022, the T.M.C. Asser Instituut, in collaboration with the Centre for Sport and Human Rights, is organising the first yearly summer course on the intersection of sport and human rights. This 4th edition brings together scholars specialised in the intersection between sport and human rights with professionals working in international sport to ensure respect for human rights. We will explore contemporary human rights challenges in sports, such as the protections of human rights at mega-sporting events, access to remedy in human rights cases within the world of sport, the intersection between human rights and gender rights in international sporting competitions, and many more. 


The programme is designed to provide both deep background knowledge and actionnable insights, which will be relevant to a range of participants committed to defending human rights in international sport, including students, junior researchers, representatives of CSOs, sporting organisations, and athletes. It is structured around half days taking place online meant to accommodate as many participants as possible throughout the world. 


Check out the latest draft programme below and register HERE


Call for Papers - 20 Years of the World Anti-Doping Code in Action - ISLJ Conference 2025 - 6 & 7 November 2025


 


Call for papers

20 years of the World Anti-Doping Code in Action

International Sports Law Journal Conference 2025

Asser Institute, The Hague

6 and 7 November 2025

 

The Editors of the International Sports Law Journal (ISLJ), the Asser Institute and the Research Chair on Responsible Sport of the University of Sherbrooke invite you to submit abstracts for the ISLJ Conference on International Sports Law, which will take place on 6 and 7 November 2025 at the Asser Institute in The Hague. The ISLJ, published by Springer and T.M.C. Asser Press, is the leading academic publication in the field of international sports law and governance. The conference is a unique occasion to discuss the main legal issues affecting international sports with academics and practitioners from all around the world. 

 

The 2025 ISLJ Conference will focus on assessing the first 20 years (2004-2024) of operation of the World Anti-Doping Code (WADC) since its entry into force in 2004, while also discussing its future prospects, in light of the new version of the Code due to be adopted at the Busan Conference in December 2025 and the 10th Conference of the Parties to the International Convention against Doping in Sport, to be held in Paris from 20 to 22 October. The aim of the conference will be to take a comprehensive stock of the operation of the private-public transnational regulatory regime which emerged in the wake of the WADC.  This regime is structured around a complex network of national and global institutions engaged in anti-doping work (WADA, NADAs, IFs, accredited laboratories) and guided by an equally complex assemblage of norms located at the global (WADC and the WADA Standards), international (UNESCO Convention against Doping in Sport), regional (Council of Europe Anti-Doping Convention), and national (various national anti-doping legislations) level. This makes for a fascinating and convoluted transnational legal construct in need of being studied, analysed and criticised by scholars. 

 

Reviewing 20 years of implementation of the WADC warrants a special edition of the ISLJ Conference and of the journal, which invites scholars of all disciplines to reflect on the many questions and issues linked with it. We welcome proposals touching on the following subjects (and more): 

  • The governance of the world anti-doping regime
    • The public-private nature of this governance
    • The transparency of this governance
    • The legitimacy of this governance
    • The participatory nature of this governance
    • The role of scientific experts in this governance
  •  The normative content of the WADC and the international standards
    • The strict liability principle 
    • The privacy rights of athletes under the WADC
    • The sanctioning policy under the WADC
    • The role of the international standards in implementing the WADC
    • The compatibility of the WADC with human rights
  • The glocal implementation of the WADC
    • The role of local institutions (NADOs/Labs/NOCs) in the implementation of the WADC
    • The tension between global (WADA) and local (NADOs/Labs/NOCs) in the implementation of the WADC
    • The role of the IFs in the implementation of the WADC
    • The role of the ITA in the implementation of the WADC
    • The role of judicial bodies (national courts, disciplinary committees of IFs, CAS) and their jurisprudence in the implementation of the WADC 
  • The effectiveness of the world anti-doping regime
    • The evaluation and evolution of the effectiveness of the world anti-doping regime in preventing doping
    • The role of the media in unveiling the ineffectiveness of the world anti-doping regime
    • The role of states in hindering the effectiveness of the world anti-doping regime
    • The world anti-doping regime as a regime with a variable geometry of effectiveness
  •  The future of the world anti-doping regime: Revolution, reform or more of the same?
    • Do we need a world anti-doping regime? 
    • If we do, should it be reformed? How? 


Abstracts of 300 words and CVs should be sent no later than 1 June 2025 to a.duval@asser.nl. Selected speakers will be informed by 30 June 2025. The selected participants will be expected to submit a draft paper by 15 October 2025. 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 amount of travel and accommodation grants (max. 350€) to early career researchers (doctoral and post-doctoral) in need of financial support. If you wish to be considered for a grant, please indicate it in your submission.  


Zoom-In Webinar - The Aftermath of the Diarra Judgement: Towards a New FIFA Transfer System? - 20 November - 16:00-18:00 CET

On 4 October, the Court of Justice of the European Union shook the world of football with its Diarra ruling. The decision questions the compatibility of a key provision of the FIFA Regulations on the Status and Transfer of Players (RSTP) with European Union internal market law. The RSTP, and in particular its article 17, are the bedrock of football’s transfer ‘market’ and regulate the conditions for the transnational movement of players between clubs. In 2023, based on FIFA’s numbers, 21 801 players were transferred internationally (of which 3279 with a fee) for transfer fees amounting to USD 9.63 bn. In short, this is a market that affects a considerable number of players and is linked with the movement of large sums of money between clubs and other actors (such as intermediaries).

Register HERE

Join us on 20 November from 16:00 to 18:00 CET to take stock of the ruling's impact and discuss the steps ahead in a free Zoom-In webinar in which there will be time for a Q&A session with the speakers. The ruling has already been much commented on (see hereherehere, and here), and this zoom-in webinar will be an opportunity for participants to engage with two experts on the economic and legal intricacies of the regulation of labour relations in football. We will mostly focus on the aftermath of the judgment and the question, 'what comes next?'

Moderator: Marjolaine Viret (Université de Lausanne)

Speakers: 


Register HERE

Free Webinar - The impact of the Diarra case on the football transfer system - 18 October 2024 - 15:00 CET

The Court of Justice of the European Union has recently handed down its judgement in the Lassana Diarra case (C-650/22 FIFA v. BZ).

Given the importance of this case to the sports industry, LawInSport, the Asser Instituut and the Association for the Study of Sport and the EU (Sport & EU) are hosting a joint webinar to bring together experts to unpack and provide clarity on the complex legal, regulatory & commercial issues stemming from this case. This free webinar will be hosted from 14:00 UK time (15:00 CET) on 18 October 2024.


Register HERE 


Speakers

Our expert speakers come from academia, law and sport. Our confirmed speakers are:


Register HERE 

Asser International Sports Law Blog | Not comfortably satisfied? The upcoming Court of Arbitration for Sport case of the thirty-four current and former players of the Essendon football club. By James Kitching

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

Not comfortably satisfied? The upcoming Court of Arbitration for Sport case of the thirty-four current and former players of the Essendon football club. By James Kitching

Editor's note: James Kitching is Legal Counsel and Secretary to the AFC judicial bodies at the Asian Football Confederation. James is an Australian and Italian citizen and one of the few Australians working in international sports law. He is admitted as barrister and solicitor in the Supreme Court of South Australia. James graduated from the International Master in the Management, Law, and Humanities of Sport offered by the Centre International d'Etude du Sport in July 2012.


Introduction

On 12 May 2015, the Court of Arbitration for Sport (CAS) announced that the World Anti-Doping Agency (WADA) had filed an appeal against the decision issued by the Australian Football League (AFL) Anti-Doping Tribunal (AADT) that thirty-four current and former players of Essendon Football Club (Essendon) had not committed any anti-doping rule violation (ADRV) identified within the AFL Anti-Doping Code (AADC). The players had each been charged with using Thymosin-Beta 4 (TB4) during the 2012 AFL season.

On 1 June 2015, WADA announced that it had filed an appeal against the decision by the AADT to clear Mr. Stephen Dank (Dank), a sports scientist employed at Essendon during the relevant period, of twenty-one charges of violating the AADC. Dank was, however, found guilty of ten charges and banned for life.

This blog will solely discuss the likelihood of the first AADT decision (the Decision) being overturned by the CAS. It will briefly summarise the facts, discuss the applicable rules and decision of the AADT, review similar cases involving ‘non-analytical positive’ ADRVs relating to the use of a prohibited substance or a prohibited method, and examine whether the Code of Sports-related Arbitration (CAS Code) is able to assist WADA in its appeal.

This blog will not examine the soap opera that was the two years leading-up to the Decision. Readers seeking a comprehensive factual background should view the excellent up-to-date timeline published by the Australian Broadcasting Corporation. 


Factual Background

“Blackest day in Australian sport”

The Decision ultimately derived from what one media commentator dubbed the “blackest day in Australian sport” .

On 7 February 2013, the chief executives of the five biggest Australian sports appeared beside the Federal Sports Minister, Federal Justice Minister, and CEOs of the Australian Sports Anti-Doping Agency (ASADA), and Australian Crime Commission (ACC) at a press conference which detailed the findings of a twelve month inquiry into Australian professional sport. The resulting report, “Organised Crime and Drugs in Sport”, set out that the ACC had identified or suspected widespread use of peptides and hormones in Australian professional sport.

Two days prior, Essendon had requested that ASADA and the AFL investigate whether prohibited substances had been administered to its players during the 2012 season.

AFL disciplinary action

On 2 August 2013, the AFL received an interim report from ASADA and eleven days later charged Essendon and four officers with engaging “in conduct unbecoming or likely to prejudice the interests or reputation of the Australian Football League or to bring the game of football into disrepute”. Essendon and three of the officials were ultimately sanctioned.

The grounds for the charges make for sobering reading. The highlights appear below (emphasis added):

51. With the assistance of Shane Charter (Charter), a convicted drug dealer, Dank ordered various peptides, or the raw materials for such peptides. The compounding of these substances was undertaken by Nima Alavi (Alavi) at the Como Compounding Pharmacy (Como). At least some of these substances were intended by Dank for administration to players at the Club and were in fact administered to players at the Club.

67. On 8 February 2012, at a meeting of players of the Club, Dank introduced four substances that were purportedly approved for use in accordance with the Protocol…

68. Following that meeting, 38 players at the Club signed “Patient Information/Informed Consent” forms in relation to these four substances…

69. If the dosages the subject of the “Patient Information/Informed Consent” forms were administered, the playing group would receive in the order of:

(a) more than 1,500 injections of AOD-9064 and Thymosin; and

(b) more than 16,500 doses of Colostrum; and

(c) more than 8,000 doses of Tribulus.

124. During the relevant period, the Club caused the following substances to be administered to players at the Club:

(a) Actovegin;

(b) unspecified amino acids

(c) unspecified multi-vitamins;

(d) AOD-9604 creams;

(e) AOD-9604 injections;

(f) Cerebrolysin;

(g) Colostrum;

 (h) REDACTED;

(i) Lactaway;

(j) Lube-all-plus;

(k) Melatonin;

(l) Melanotan II;

(m) TA-65;

(n) Thymosin Beta 4;

(o) Traumeel; and

(p) Tribulus.

125. The use of these substances by the players was not approved by the Club’s medical staff, with the exception of AOD-9604, which was the subject of some sort of informal approval by Reid in February 2012.

126. In many instances the use of these substances failed to have proper regard to player health and safety.

127. Proper records were not maintained by the Club as to precisely which players received which of the substances referred to in paragraph 124 above, in which quantities and when, during the relevant period.


AFL Anti-Doping Tribunal

Applicable Rules

On 14 November 2014, the AFL issued identical infraction notices to the 34 players alleging use of the prohibited substance TB4 during the 2012 season in violation of Article 11.2 of the AADC. The players were provisionally suspended on the same day. The infraction notices were issued after the players were placed on the ADRV Register of Findings on 12 November 2014 by an independent Anti-Doping Rule Violation Panel pursuant to the National Anti-Doping Scheme prescribed in the Australian Sports Anti-Doping Authority Act 2006.

As the alleged misconduct occurred during the 2012 AFL season, the applicable version of the AADC was the 2010 edition. This version was effectively a mirror of the WADA Code 2009.

As such, the standards applied universally by sports disciplinary and anti-doping panels applied. Accordingly, AFL and/or ASADA bore the burden of proving each ADRV to the comfortable satisfaction of the AADT, bearing in mind the seriousness of each allegation made. Such standard of proof was greater than a mere balance of probability, but less than beyond a reasonable doubt.[1] The AFL and/or ASADA were able to establish the allegations by “any reliable means”.[2]

Decision

The hearing was conducted on various dates between December 2014 and February 2015. The Decision was announced on 31 March 2015. However, its written reasons have never been made public. As such, determining the evidence that was available has been gleaned from numerous media reports (including this comprehensive piece by Gerard Whateley), public announcements, and leaked documents. The author has also had the benefit of discussing the matter with a number of parties close to the proceedings.

It was agreed by the parties that the case against each player had two limbs:

(i)           during the 2012 AFL season, the player used (through injections) TB4; and

(ii)          TB4 was a prohibited substance on the relevant WADA Prohibited List.

As a threshold issue, the AADT was comfortably satisfied that TB4 was a prohibited substance within the category of substances set out in s2 of the 2012 WADA Prohibited List:

any pharmacological substance which is not addressed by any of the subsequent sections of the list and with no current approval by any governmental regulatory health authority for human therapeutic use”.

Thus, the case turned on the ability of ASADA to discharge its burden of proof relating to the first limb. This limb was broken down into three elements, agreed by the parties, which formed the basis of the ASADA case:

(a)          TB4 was procured from sources in China;

(b)          TB4 was obtained by Alavi, compounded and provided to Dank in his   capacity as Sports Scientist at Essendon; and

(c)           Dank administered TB4 to each player.

This was essentially the same conduct, described above, for which Essendon and its four officials were sanctioned.

Charter, Alavi and Dank all refused to appear at the hearing, and ASADA failed in a last-ditch application to the Victorian Supreme Court to compel Charter and Alavi to appear pursuant to the Commercial Arbitration Act 2011.[3] As such, ASADA’s case was wholly circumstantial, and relied, in a large part, on testimony and documents provided to it by Charter and Alavi during its investigation, and statements made by Dank in the media.

The AADT thus had an unenviable task in determining the probative value of the evidence provided by key witnesses without having the benefit of observing them under examination and cross-examination. As such, the AADT held (emphasis added):

“Having considered all the evidence relating to the credibility and reliability of Mr Alavi, Mr Charter and Mr Dank … the Tribunal finds that the credibility of each of these principal participants is at a low ebb and each man in acting as he did in his own way and for his own motive saw a golden opportunity to “feather his own nest.” Their lack of credibility is reflected when their reliability is called into question and the Tribunal is satisfied that on a number of important issues their evidence on those issues was not only unreliable but also … dishonest.

In the absence of reliable direct evidence to establish that the players had used TB4, the decision of the AADT ultimately turned on these adverse credibility findings.

In relation to the first element, ASADA led (predominantly) documentary evidence to demonstrate that two shipments of substances (in December 2011 and February 2012) were procured from China, both of which included TB4, and were provided to Alavi. A substance in the second shipment was tested in May 2012 at a laboratory connected to the University of Melbourne, and the results proved the substance was TB4. As such, the substance that was purported to be TB4 in both shipments, as a result of the test results, was TB4.

After a thorough examination of the evidence and arguments of the players, and in particular, the fact that the majority of evidence had been obtained from dishonest witnesses, the AADT held that the first shipment had occurred, but that the second shipment had not. However, the AADT still considered the veracity of the test results, and whether they gave rise to the position that TB4 was procured in the first shipment. Faced with contrasting expert reports, which gave margin for error in the test results, the AADT ultimately held that “it is possible it was [TB4], but the Tribunal is not comfortably satisfied that it was”.

In relation to the second element, the AADT was not comfortably satisfied that TB4 was compounded or provided to Dank. As a result of its findings relating to the first and second elements, the AADT did not “consider it necessary to consider the third element…as it is dependent upon the first and second elements…being established and neither has been established to the comfortable satisfaction of the Tribunal”.

Accordingly, the AADT was not comfortably satisfied that the first limb required to prove the ADRV was made out, and exonerated each player of their charge.


Non-analytical positive “use”

The Decision is a classic non-analytical positive “use” case.[4] In this class of cases, as no adverse analytical finding is recorded, the relevant anti-doping organisation must rely on a combination of direct and/or circumstantial evidence in order to discharge its burden of proving use of a prohibited substance or method.

Comfortable Satisfaction

Prior to the implementation of the WADA Code, sports arbitration panels embryonically decided to apply a ‘comfortable satisfaction’ standard of proof; less than the criminal standard of proof beyond a reasonable doubt but more than the ordinary civil standard of proof on the balance of probabilities.[5]

This standard was preferred due to sports disciplinary cases not being criminal in nature, but rather, a private law of association type.[6] This principle has been consistently upheld and was espoused as such by the Swiss Federal Tribunal: “the duty of proof and assessment of evidence [are] problems which cannot be regulated, in private law cases, on the basis of concepts specific to criminal law”.[7]

However, precisely where this standard falls between the criminal and civil standards is unclear.[8] That anti-doping cases are presented in a quasi-criminal manner suggests they should be closer to the latter, but the private nature of sports disciplinary cases suggests that the lesser standard is more appropriate.

This distinction is significantly important to WADA overturning the Decision. In its press release after receiving the Statement of Appeal, the CAS recorded that “WADA requests that the CAS issue a new decision based on an appropriate burden of proof and evidentiary standards”. As such, it is clear that WADA considers that the standard of proof applied by the AADT was too high when considering the evidence.

However, an analysis of a number of prior decisions suggests that the standard of proof in this class of cases has always been close to the criminal standard. The jurisprudence suggests that Panels rely solely on direct and incontrovertible testimonial, documentary, and scientific evidence to sanction individuals for “use” violations.


pre WADA Code cases

In French[9], it was alleged that French used prohibited substances after the discovery of a bucket of used syringes, needles containing traces of a prohibited substance, and a supplement whose label stated that it contained a prohibited substance, inside his room at his athlete residence. The CAS, however, was not comfortably satisfied as there was “no direct evidence that Mr. French had used the material in the sense that no-one saw him use it and he has consistently denied use”.[10] Furthermore, that the label stated the name of the prohibited substance was not sufficient to prove that the supplement actually contained the prohibited substance.[11]

In A., B., C., D., E. v IOC[12], five simultaneously-decided cases, the CAS held that admissions of undertaking or performing blood transfusions, coupled with the discovery of instruments and chemicals necessary for blood-doping in their residence during the 2002 Winter Olympics, was sufficient evidence to sanction four individuals for using a prohibited method. In the absence of direct evidence against Mr. E, the only of the five whom argued that “he had nothing to do with the paraphernalia found in the chalet and that he did not perform any type of autologous or other blood manipulation while he was at the 2002 Winter Games[13], the Panel issued a warning only.[14]

In Collins[15], a case deriving from the BALCO scandal, the United States Anti-Doping Agency (USADA) relied on a cache of emails where Collins admitted to using prohibited substances (both EPO and the hybrid testosterone “cream” developed by BALCO)[16], as well as test results of independent blood and urine tests arranged by BALCO.[17] Following expert testimony, the Panel found beyond a reasonable doubt (as was required by the relevant IAAF Rules) that her blood samples demonstrated EPO use in 2002 and 2003[18] and that her urine samples demonstrated “a pattern of testosterone and epitestosterone levels that can only be explained by the illegal use of BALCO’s cream”.[19]


post WADA Code cases

In Gaines[20] and Montgomery[21], two further BALCO cases heard simultaneously, following argument on the appropriate standard, the Panels stated: (emphasis added)

From this perspective, and in view of the nature and gravity of the allegations at issue in these proceedings, there is no practical distinction between the standards of proof advocated by USADA and the Respondents. It makes little, if indeed any, difference whether a “beyond reasonable doubt” or “comfortable satisfaction” standard is applied to determine the claims against the Respondents. This will become all the more manifest in due course, when the Panel renders its awards on the merits of the USADA’s claims. Either way, USADA bears the burden of proving, by strong evidence commensurate with the serious claims it makes, that the Respondents committed the doping offences in question”.[22]

Similar to Collins, the USADA relied on a multitude of testimonial, documentary and scientific evidence to allege use of a prohibited substance. However, the Panel ultimately decided that admissions about their use of the infamous “Cream” developed by BALCO to their ex-teammate Kelli White, was “sufficient in and out of itself[23] to comfortably satisfy themselves of the athletes’ guilt.

In Hamilton[24], the Panel cited the discussion of the appropriate standard referred to in Gaines and Montgomery but did not explicitly apply it.[25] After upholding the reliability and validity of the homologous transfusion test of Hamilton’s blood samples, the Panel relied upon these test results to be comfortably satisfied that Hamilton had used a prohibited method.[26] A similar approach was undertaken by the Panel in Pechstein[27] to find that %retics peaks in her blood sample of February 2009 were abnormal and that accordingly she had used a prohibited method.

In the Cyprus case[28], WADA and FIFA appealed a decision of the Cyprus Football Association (CFA). Prior to a number of league matches, a club coach administered two pills (which he had independently sourced) to the starting line-up, claiming them to be caffeine pills and/or vitamins.[29] Two players subsequently recorded an adverse analytical finding for a prohibited substance, while five others who did not test positive admitted to investigators that they had also used the pills. Only the two players and the coach were sanctioned by the CFA. WADA alleged that the CFA had erroneously failed to sanction the five players. The Panel was not comfortably satisfied of this conclusion:

199. The Panel notes, in fact, that there is no evidence that the actual pills individually used by each of the Other Players contained a prohibited substance. Indeed some players took the pills, were subsequently tested and there was no adverse analytical finding.

200. No clear cut evidence was brought to show that…the pills administered…were “plain steroids” and not “caffeine pills” contaminated by steroids”.[30]

The most famous case in this class, albeit never reviewed by an arbitration panel, was Armstrong.[31] The USADA relied on witness testimony which provided direct evidence of Armstrong using prohibited substances or prohibited methods during the 1999, 2000, 2002, 2003, 2004, and 2005 Tour de France races. The USADA also utilised financial records linking Armstrong to the disgraced sports doctor, Dr. Michele Ferrari, as well as undertaking retesting of old samples which purportedly demonstrated EPO use at the 1999 Tour de France, and provided a “compelling argument consistent with blood doping” at the 2010 Tour de France.


Conclusions

Two overriding conclusions can be drawn.

The first is that there is no definitive answer to the question of what evidence shall be presented to prove a non-positive analytical “use” case.[32] As stated by the Panels in Gaines and Montgomery:

[d]oping offences can be proved by a variety of means; and this is nowhere more true than in “non-analytical positive” cases such as the present”.[33]

The second is that the standard of proof is significantly closer to the criminal than the civil standard. Indeed, in Gaines and Montgomery, the Panels could draw no distinction between beyond a reasonable doubt and comfortable satisfaction, taking into account the allegations raised and the sanctions requested. This elevated standard becomes clear in those matters which relied solely upon circumstantial as opposed to direct evidence.

In French and the Cyprus case, the Panels held that admissions could be relied upon only where there was unambiguous evidence that the substance used either was or contained a prohibited substance. Thus, a label on supplement packaging which lists a prohibited substance as an ingredient, or the ingestion of a pill taken from the same batch as one ingested by a teammate who subsequently tests positive, are not enough on their own to comfortably satisfy a Panel that a used substance was a prohibited substance.

Effectively, the cases require the party bearing the evidentiary burden to prove that the used substance or method was without doubt the substance or method alleged; in other words, the highest possible standard of ‘comfortable satisfaction’. Even in Pechstein, where the Panel emphatically rejected the Appellant’s request to apply a higher than normal standard of proof and stated that it would apply the “normal comfortable satisfaction standard”,[34] the Panel still blurred the lines between the two after systematically reviewing and rejecting each of the Appellant’s argument, leaving little doubt in its own mind that the use of a prohibited method was the only possible reason for the blood abnormalities.

To meet this standard, the cases articulate that only direct evidence should be adduced. This includes: admitting to using a proven prohibited substance or prohibited method; scientific evidence of which no credible explanation other than the use of a prohibited substance or prohibited method is possible; scientific evidence which demonstrates that a substance used is a prohibited substance; witness observations of use; and witness testimony of direct admissions.

One further conclusion can be drawn: WADA, on the basis of its current evidence, is unlikely to overturn the Decision. The inherited ASADA case was wholly circumstantial. It did not contain direct, incontrovertible evidence from any of the classes seen in the previous cases. Its key witnesses chose not to testify, nor could they be compelled under Australian law, and nor is it likely that they can be compelled under Swiss law to attend at the CAS.[35] As such, WADA’s prospects of success hinge upon its ability to adduce new and direct evidence of the use of TB4 by the players. 


Will R57.3 of the CAS Code prevent WADA from adducing new and direct evidence?

R57 of the CAS Code provides that a Panel in the appeal arbitration division has “full power to review the facts and the law”. Appeals are heard de novo and any procedural fairness issues deriving from the first-instance are thus automatically cured. This interpretation has been upheld in numerous Awards and the Swiss Federal Tribunal.[36]

R57.3 of the CAS Code, introduced in 2013, provides one limitation: “[t]he Panel has the discretion to exclude evidence presented by the parties if it was available to them or could reasonably have been discovered by them before the challenged decision was rendered”. This is consistent with Swiss procedural law in that a document can only be adduced, at an appellate hearing, if it did not exist at the time of the first instance hearing or hearings or was not in the possession of the appellant at the time.[37]

According to Rigozzi et al, in appeals against decisions rendered by sports-governing bodies, the scope of R57.3 should extend only to those cases “where the adducing of pre-existing evidence amounts to abusive or otherwise unacceptable procedural conduct by a party”.[38]

Mavromatis characterises de novo review as “not only desirable, but also necessary for a number of reasons, to the extent that the previous instance is not an independent arbitral tribunal but the internal body of a sports federation”.[39] As such, R57.3 should be interpreted “as not to circumvent the core principle of the Panel’s full power of review[40].

In two recent Awards, the Panels held that this discretion should be exercised with caution, in situations where a party may have engaged in abusive procedural behaviour or in any other circumstances where the Panel might, in its discretion, consider it either unfair or inappropriate to admit new evidence.[41]

In SC FC Sportul Studentesc SA[42], the Sole Arbitrator excluded the principal evidence supporting the appeal as he was not provided any satisfactory explanation why it could not be submitted or adduced during the two sports-governing body proceedings.[43]

Hence, it is only in rare cases that the CAS limits its power of full review. Thus, as long as new evidence adduced by WADA is neither abusive nor can be construed as unacceptable procedural conduct, it is highly unlikely to be excluded. Levy has suggested that such exclusions may give rise to an appeal to the Swiss Federal Tribunal due to the denial of the right to be heard.[44] In any event, WADA was not a party at first instance, so it remains questionable whether R57.3 may even be utilised by the players. 


Conclusion

The biggest soap opera in the history of Australian sport will come to a conclusion some time prior to the 2016 AFL season. At the time of publishing, the CAS has recently announced the hearing timeline.

Media reports have recently suggested that WADA ordered retesting of samples obtained from the players in 2011-2012, resulting in two samples demonstrating abnormally high levels of TB4. As set out above, the previous cases suggest that only this type of direct evidence will be able to convince a Panel to the requisite standard. The challenge for WADA, given the length of the ASADA investigation, is to find it.

An independent report commissioned by Essendon published in May 2013, graphically described its supplements programme as “a pharmacologically experimental environment never adequately controlled or challenged or documented within the Club in the period under review”. It is not disputed that the players must ultimately take full responsibility for each substance that presents in their body.

However, at the same time, the gross inadequacies in the governance at Essendon during the period – failures in documentation and record keeping, lack of (proper) informed consent for the players, uncertainty in the supplements administrated, and the creation of an unsafe work environment, among others – for which the club was already heavily sanctioned and which gave rise to the investigation in the first place, ironically appears to be the main obstacle preventing WADA from discharging its burden of proof.



[1] AFL Anti-Doping Code (2010 Edition), Article 15.1.

[2] AFL Anti-Doping Code (2010 Edition), Article 15.1.

[3] ASADA v 34 Players and One Support Person [2014] VSC 635. 

[4] See e.g. Richard H McLaren, An Overview of Non-Analytical Positive & Circumstantial Evidence Cases in Sports, 16 Marq. Sports L. Rev. 193 (2006).

[5] See e.g. N., J., Y., W. v Federation Internationale de Natation CAS 98/208.

[6] Ibid.

[7] SFT, 5P83/1999, para. 3.d.

[8] Michael Straubel, Enhancing the Performance of the Doping Court: How the Court of Arbitration for Sport Can Do Its Job Better, 36 Loy. U. Chi. L. J. 1203 (2005), at 1270.

[9] Mark French vs Australian Sports Commission and Cycling Australia, CAS 2004/A/651.

[10] French at 58.

[11] French at 51.

[12] A., B., C., D. & E. v International Olympic Committee, CAS 2002/A/389, 390, 391, 392, 393.

[13] A., B., C., D. & E. v IOC at 53.

[14] A., B., C., D. & E. v IOC at 53.

[15] United States Anti-Doping Agency vs Michelle Collins, AAA No. 30 190 00658 04.

[16] Collins at 1.3, 4.1, 4.2, 4.3, 4.4.

[17] Collins at 1.3, 4.11 – 4.24.

[18] Collins at 4.16.

[19] Collins at 4.17.

[20] United States Anti-Doping Agency vs Chryste Gaines, CAS 2004/O/649.

[21] United States Anti-Doping Agency vs Tim Montgomery, CAS 2004/O/645

[22] Gaines at 36, Montgomery at 36.

[23] Gaines at 52, Montgomery at 50.

[24]Tyler Hamilton vs United States Anti-Doping Agency and Union Cycliste International, CAS 2005/A/884.

[25] Hamilton at 47.

[26] Hamilton at 91.

[27] Claudia Pechstein vs International Skating Union, CAS 2009/A/1912.

[28] World Anti-Doping Agency and Federazione International de Football Association v Cyprus Football Association, Carlos Marques, Leonel Medeiros, Edward Eranosian, Angelos Efthymiou, Yiannis Sfakianakis, Dmytro Mykhailenko, Samir Bengeloun, Bernardo Vasconcelos, CAS 2009/A/1817.

[29] WADA & FIFA v CFA et al at 14.

[30] WADA & FIFA v CFA et al at 198-200.

[31] United States Anti-Doping Agency vs Lance Armstrong, Reasoned decision of the USADA on disqualification and eligibility (10 October 2012).

[32] McLaren at 212.

[33] Gaines at 45, Montgomery at 45.

[34] Pechstein at 123-126.

[35] See this piece for an excellent analysis of the operation of the powers of compulsion within the Swiss Public International Law Act vis-à-vis Australian law: < http://sociallitigator.com/2015/05/25/essendon-supplements-saga-is-it-up-up-and-away-to-switzerland/>.

[36] see FC Sion v Federation Internationale de Football Association & Al-Ahly Sporting Club, CAS 2009/A/1880; E v Federation Internationale de Football Association, CAS 2009/A/1881; Eintracht Braunschweig GmbH & Co. KG a. A. v. Olympiakos FC CAS 2012/A/2836; SFT 4A_386/2010

[37] Article 317 of the Swiss Civil Procedure Code.

[38] Antonio Rigozzi /Erika Hassler / Brianna Quin, The 2011, 2012 and 2013 revisions to the Code of Sports-related Arbitration, in: Jusletter 3 juin 2013, at 14.

[39] Despina Mavromatis, The Panel’s Right to Exclude Evidence Based on Article R57 Para. 3 CAS Code: a Limit to CAS’ Full Power of Review, in CAS Bulletin 1/2014, at 56.

[40] Mavromatis at 56.

[41] See Zamalek Sporting Club vs Accra Hearts of Oak Sporting Club, CAS 2014/A/3518; MFK Dubnica v FC Parma, CAS 2014/A/3486.

[42] SC FC Sportul Studentesc SA v Romanian Football Federation & several players, CAS 2013/A/3286-3294.

[43] SC FC Sportul Studentesc SA at 66-70.

[44] Roy Levy, The new CAS rules – what you need to know, at < http://www.lawinsport.com/blog/roy-levy/item/the-new-cas-rules-what-you-need-to-know>.

Comments (1) -

  • sam ciccarello

    9/16/2015 3:46:05 AM |

    Very well written and presented.

    Consider your conclusion to be rational and compelling.

    Look forward to your follow up blog when the Decision is made public.

Comments are closed