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

WISLaw Blog Symposium - Rule 40 of the Olympic Charter: the wind of changes or a new commercial race - By Rusa Agafonova

Editor's note: Rusa Agafonova is a PhD Candidate at the University of Zurich, Switzerland   

The Olympic Games are the cornerstone event of the Olympic Movement as a socio-cultural phenomenon as well as the engine of its economic model. Having worldwide exposure,[1] the Olympic Games guarantee the International Olympic Committee (IOC) exclusive nine-digit sponsorship deals. The revenue generated by the Games is later redistributed by the IOC down the sports pyramid to the International Federations (IFs), National Olympic Committees (NOCs) and other participants of the Olympic Movement through a so-called "solidarity mechanism". In other words, the Games constitute a vital source of financing for the Olympic Movement.

Because of the money involved, the IOC is protective when it comes to staging the Olympics. This is notably so with respect to ambush marketing which can have detrimental economic impact for sports governing bodies (SGBs) running mega-events. The IOC's definition of ambush marketing covers any intentional and non-intentional use of intellectual property associated with the Olympic Games as well as the misappropriation of images associated with them without authorisation from the IOC and the organising committee.[2] This definition is broad as are the IOC's anti-ambush rules.More...

How 2019 Will Shape the International Sports Law of the 2020s - By Thomas Terraz

Editor’s note: Thomas Terraz is a fourth year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.

 

1.     Introduction

As we begin plunging into a new decade, it can be helpful to look back and reflect on some of the most influential developments and trends from 2019 that may continue to shape international sports law in 2020 and beyond. Hence, this piece will not attempt to recount every single sports law news item but rather identify a few key sports law stories of 2019 that may have a continued impact in the 2020s. The following sections are not in a particular order.More...

Balancing Athletes’ Interests and The Olympic Partner Programme: the Bundeskartellamt’s Rule 40 Decision - By Thomas Terraz

Editor’s note: Thomas Terraz is a fourth year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.

 

1        Introduction

The International Olympic Committee (IOC), after many years of ineffective pushback (see here, here and here) over bye law 3 of rule 40[1] of the Olympic Charter (OC), which restricts the ability of athletes and their entourage to advertise themselves during the ‘blackout’ period’[2] (also known as the ‘frozen period’) of the Olympic Games, may have been gifted a silver bullet to address a major criticism of its rules. This (potentially) magic formula was handed down in a relatively recent decision of the Bundeskartellamt, the German competition law authority, which elucidated how restrictions to athletes’ advertisements during the frozen period may be scrutinized under EU competition law. The following blog begins by explaining the historical and economic context of rule 40 followed by the facts that led to the decision of the Bundeskartellamt. With this background, the decision of the Bundeskartellamt is analyzed to show to what extent it may serve as a model for EU competition law authorities. More...

International and European Sports Law – Monthly Report – February and March 2019. By Tomáš Grell

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

The Court of Arbitration for Sport bans 12 Russian track and field athletes

On 1 February 2019, the Court of Arbitration for Sport (CAS) communicated that it had rendered another 12 decisions in the seemingly endless saga concerning the state-sponsored doping programme in Russia. These first-instance decisions of the CAS involve 12 Russian track and field athletes who were all found guilty of anti-doping rule violations based on the evidence underlying the reports published by professor Richard McLaren and suspended from participating in sports competitions for periods ranging from two to eight years. Arguably the most prominent name that appears on the list of banned athletes is Ivan Ukhov, the 32-year-old high jump champion from the 2012 Olympic Games in London.

The case was brought by the International Association of Athletics Federation (IAAF) that sought to convince the arbitrators that the athletes in question had participated in and/or benefited from anabolic steroid doping programmes and benefited from specific protective methods (washout schedules) in the period between the 2012 Olympic Games in London and the 2013 IAAF World Championships in Moscow. The CAS was acting in lieau of the Russian Athletics Federation that remains suspended and thus unable to conduct any disciplinary procedures. The athletes have had the opportunity to appeal the decisions to the CAS Appeals Arbitration Division.

Federal Cartel Office in Germany finds Rule 40 of the Olympic Charter disproportionately restrictive

At the end of February, the German competition authority Bundeskartellamt announced that it had entered into a commitment agreement with the German Olympic Sports Confederation (DOSB) and the International Olympic Committee (IOC) in which these two organisations had agreed to considerably enhance advertising opportunities for German athletes and their sponsors during the Olympic Games. The respective agreement is a direct consequence of the Bundeskartellamt’s finding that the IOC and the DOSB had abused their dominant position on the market for organising and marketing the Olympic Games by demanding that the athletes refrain from promoting their own sponsors while the Games are ongoing, as well as shortly before and after the Games. This restriction stems from Rule 40(3) of the Olympic Charter under which no competitor who participates in the Games may allow his person, name, picture or sports performances to be used for advertising purposes, unless the IOC Executive Board allows him/her to do so.

As part of fulfilling its obligations under the commitment agreement, the DOSB has relaxed its guidelines on promotional activities of German athletes during the Olympic Games. For its part, the IOC has declared that these new guidelines would take precedence over Rule 40(3) of the Olympic Charter. However, it still remains to be seen whether in response to the conclusions of the German competition authority the IOC will finally change the contentious rule.

The Grand Chamber of the European Court of Human Rights refuses to pronounce itself on Claudia Pechstein’s case

Claudia Pechstein’s challenge against the CAS brought before the European Court of Human Rights (ECtHR) has not yielded the desired result for the German athlete. On 5 February 2019, a Panel of the Grand Chamber of the ECtHR decided that the Grand Chamber would not entertain the case. This means that the judgment handed down by the 3rd Chamber of the ECtHR on 2 October 2018, in which the ECtHR confirmed that except for the lack of publicity of oral hearings the procedures of the CAS are compatible with the right to a fair trial under Article 6(1) of the European Convention on Human Rights, has now become final and binding. However, the protracted legal battle between the five-time Olympic champion in speed skating and the CAS is not over yet since there is one more challenge against the CAS and its independence pending before the German Constitutional Court.  More...

Asser International Sports Law Blog | Reactions of International Sport Organisations to the Russian Invasion of Ukraine: An Overview - By Daniela Heerdt & Guido Battaglia

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

Reactions of International Sport Organisations to the Russian Invasion of Ukraine: An Overview - By Daniela Heerdt & Guido Battaglia

Editor's note:

Daniela is a researcher at the Asser Institute in the field of sport and human rights. She has a background in public international law and human rights law and defended her PhD project entitled “Blurred Lines of Responsibility and Accountability – Human Rights Abuses at Mega-Sporting Events” in April 2021 at Tilburg University. She also works as independent consultant in the field of sport and human rights for the Centre for Sport and Human Rights, or the European Parliament among other clients from the sports ecosystem

As Head of Policy and Outreach, Guido is in charge of the Centre for Sport & Human Rights engagement with governments, international and intergovernmental organisations and sports organisations. He represents the Centre at conferences, events and bilateral dialogues to reach new audiences and partners and raise public awareness and understanding of the Centre’s work .



On February 24, 2022, the Russian military invaded Ukrainian territory. What followed was an escalation of the war, day by day, causing thousands of victims and forcing millions of people to flee. On March 2, the UN General Assembly overwhelmingly adopted a resolution deploring "in the strongest possible terms" Russia's aggression against Ukraine by a vote of 141 to 5, with 35 abstentions. On March 29, Russian and Ukrainian representatives met in Istanbul for another round of negotiations. No ceasefire has been agreed and hostilities continue.

Many states, international organizations and corporations quickly took measures in response to this invasion. Hundreds of companies decided to withdraw from Russia. Some countries decided to strengthen economic sanctions against Russia and Belarus and to provide military and economic help to Ukraine. Many civil society actors mobilised to organize and provide humanitarian support for Ukraine. Interestingly, international sports organisations like the International Olympic Committee (IOC), the Fédération Internationale de Football Association (FIFA), World Athletics and many other international federations, issued statements condemning the invasion and imposed bans and sanctions on Russian and Belarussian sports bodies and athletes.

This blog post provides an overview of the measures adopted by a number of international sports federations (IFs) that are part of the Olympic Movement since the beginning of the war and analyses how they relate to the statements issued by the IOC and other sanctions and measures taken by international sports organisations in reaction to (geo)political tensions and conflict.


Unprecedented Action: An Overview

The table (pages 9-11), updated by the Centre for Sport and Human Rights on March 30, shows that eight different kinds of measures and decisions have been taken by a number of international sports federations:

  1. Condemnation of the invasion

On the day the invasion and attack started, the IOC issued a statement condemning the Russian invasion of Ukraine as a breach of the Olympic Truce. The same day, World Athletics and the Union of European Football Associations (UEFA) issued similar statements. Almost all IFs have issued such statements by now, although with notable differences in language. While most of them condemned the invasion (see World Triathlon or World Rugby), some expressed concern for the situation hoping for a rapid peaceful resolution (see International Ski Federation or International Table Tennis Federation).

  1. Cancellation and relocation of events from Russia and Belarus

On the following day, February 25, the IOC published a new statement, in which it recommended to international federations to cancel or relocate sport events that were supposed to take place in Russia or Belarus. This triggered all IFs that had events planned in those countries to cancel or relocate these. Events like the International Volleyball Federation Men’s World Championship were removed from Russia. Moreover, some IFs that had no events planned yet committed to not including Russia or Belarus as candidates for any future events (see World Skate).

  1. Participation of Russian and Belarussian teams and athletes

On February 28, “to protect the integrity of global sports competitions and for the safety of all the participants”, the IOC issued new recommendations, this time concerning the prevention of participation of Russian and Belarussian athletes and officials in international tournaments, and where that is not possible anymore, making clear that they can only participate if no association with their country is being made. At least 39 federations followed this recommendation and issued a ban or a partial ban of Russian and Belarussian athletes, among them the Union Cycliste Internationale, the World Curling Federation, the International Handball Federation, and the International Gymnastics Federation (FIG).

The International Paralympic Committee (IPC) had initially decided to allow Russian and Belarussian Paralympians to participate in the Beijing 2022 Winter Paralympic Games of as neutrals. Threats of boycott from other nations and escalating tension in the athletes' village in Beijing led the IPC to issue a new statement 24 hours after the first one denying entry to the Paralympic Games to Russian and Belarussian Paralympians. Similar pressures were observed in football, as a number of players and Football Associations publicly stated they would refuse to play against Russia in 2022 World Cup playoffs. Subsequently, FIFA and UEFA suspended Russian clubs and national teams from all competitions on February 28. It is also worth noting here that FIFA’s and UEFA’s statements so far have not mentioned Belarus nor Belarussian athletes.

The International Judo Federation decided to provide Russian athletes with the opportunity to participate in its events only under the IJF flag, logo and anthem. Nevertheless, the Russian Judo Federation announced its withdrawal from all international events due to safety reasons.

  1. Suspension of Russian and Belarussian federations

Some IFs went beyond those recommendations and took additional actions. Five organizations, the International Tennis Federation, World Athletics, World Rugby, the International Biathlon Union and the International Bobsleigh and Skeleton Federation suspended or expressed the intention to suspend Russian and Belarussian membership, without this being recommended by the IOC. Organisations like World Triathlon had similar measures already in place due to the previous doping scandal with Russia. Even the International Paralympic Committee expressed the intention to discuss the suspension of the National Paralympic Committees of Russia and Belarus at their next general assembly.

  1. Suspension of Russian and/or Belarussian leadership representation in federation’s government structures

A handful of IFs also suspended Russian individuals that held leadership positions in their governance structures, such as the International Automobile Federation, or the International Canoe Federation, whereas the International Luge Federation suspended all Russian representatives that held functions in the organization’s Executive Board, Commissions, or Working Groups. All these decisions went beyond what was recommended by the IOC. Alisher Usmanov, the Russian President of the International Fencing Federation, was added to the UK and US sanctions list and decided to suspend exercise of his duties.

  1. Suspension and/or cancellation of sponsorship contracts

On February 28, UEFA decided to terminate all agreements with the state-owned Russian energy company Gazprom across all competitions, including the UEFA Champions League, UEFA national team competitions and the EURO 2024. This termination came only one year after it had renewed the sponsorship agreement. So far UEFA seems to be the only sport organization that took measures in relation to their sponsorship deals.

  1. Withdrawing sport-related orders of honours

The February 28 recommendations of the IOC also included a decision to “withdraw the Olympic Order from all persons who currently have an important function in the government of the Russian Federation or other government-related high-ranking position”. Three Orders were withdrawn by the IOC, from Vladimir Putin, President of the Russian Federation, Dmitry Chernyshenko, Deputy Prime Minister of the Russian Federation, and Dmitry Kozak, Deputy Chief of Staff of the Presidential Executive Office. The International Swimming Federation and World Taekwondo immediately followed this recommendation, while the International Judo Federation and United World Wrestling had already taken these measures before the IOC issued their statement. Also, the IPC withdrew the Paralympic Honour from Vladimir Putin and the Paralympic Order from four other Russian government representatives.

      8. Fundraising/Donating for Ukraine

Finally on March 3, the IOC published a letter from the IOC’s president Thomas Bach calling upon the Olympic Movement to engage in humanitarian support for Ukraine through fundraising and donating. At least 15 federations followed this call, or had already set up such measures. The International Luge Federation set up an emergency aid fund for Ukraine and called upon its National Federations to donate. The International Biathlon Union launched a solidarity programme for Ukrainian biathlon, by hosting training camps for Ukrainian athletes and teams. The International Ice Hockey Federation is supporting efforts that were initiated from their national federations. Some of these efforts are dedicated to Ukrainian people in general, while others are focussing on Ukrainian athletes and teams.


A look at the Past

The unprecedented nature of these actions becomes clear when looking at other situations in which international sports issued similar sanctions and measures against national federations for their government’s political decisions and actions, or did not take any actions. When the apartheid system started in South Africa in 1948, it took the IOC 16 years to exclude South Africa from the Olympic Games and only in 1970 was the South African National Olympic Committee expelled. Another 18 years later the IOC adopted a declaration against apartheid in sports. During the Balkan war, what then was known as Yugoslavia was banned from all international events following a UN Security Council resolution, and consequently the Yugoslavian football team was prevented from participating in the Euro 1992 European Football Championships , while athletes from Yugoslavia could only compete as “Independent Olympic Participants” at the 1992 Summer Olympic Games and were not allowed to compete at the 1994 Winter Olympic Games. This is the precedent that comes closest to the current situation both in terms of its factual context and of the consequences faced by the athletes and sports organisations of the state concerned. However, unlike with the current actions of Russia, the UN Security Council had then adopted a binding resolution requiring states to bar athletes and clubs from Yugoslavia from international sporting competitions taking place on their territory. At the time, unlike now, the IOC negotiated (successfully) with the UN Security Council to allow the Yugoslav athletes to take part in the 1992 Olympics as neutral athletes.

Sadly, situations of war and conflict are currently happening in many areas of the world, particularly in the Middle East, Asia and Sub-Saharan Africa. The war in Yemen, for example, has been going on for seven years now, causing what has been referred to by the UN as the largest humanitarian crisis ever. To our knowledge, no action has been taken by the IOC or any other sport body in reaction to this war. While one should be cautious to compare situations of war and conflict, as they all are different and come with unique political dynamics and challenges, this brief historical overview and comparison shows that the sport bodies have acted in similar ways in some similar situations (the Yugoslav case), however not in all situations. It also shows that in the past, the IOC’s decisions took significantly longer, and were responding to a binding request from the UN. This is not the case in this specific conflict, where the decisions were taken with unprecedented speed and without an express UN resolution on the subject. Moreover, while in previous situations it was mainly national sport’s bodies directly impacted by the conflict that took certain measures individually, on this occasion international federations followed the IOC’s authoritative guidance and rapidly took decisions and issued sanctions.


What’s next?

Some commentators argued that these measures were exclusively taken in response to geopolitical and public pressure and thereby challenge the constant claim that sport is neutral and does not get involved in politics. The IOC and other sport bodies in return explained that these measures were adopted in response to the Russian violation of the Olympic truce, to protect the integrity, fairness and safety of competitions and athletes. According to Thomas Bach, “we (the IOC) will not fall into the trap of the cheap argument that this would be a politicisation of sport”.

Whatever the motivation for these actions may be, their long-term effect still remains to be observed. Some of them are currently being challenged before the Court of Arbitration for Sport, which may or may not result in the invalidation of some of these measures. At the same time, new (unprecedented) measures could follow.

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