Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

International and European Sports Law – Monthly Report – April 2016. By Marine Montejo

Editor’s note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.  


The Headlines

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


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

Editor’s note: Marine Montejo is a graduate from the College of Europe in Bruges and is currently an Intern at the ASSER International Sports Law Centre.

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

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

Guest Blog - Mixed Martial Arts (MMA): Legal Issues by Laura Donnellan

Editor's note: Laura Donnellan is a lecturer at University of Limerick. You can find her latest publications here.


Introduction

On Tuesday the 12th of April, João Carvalho passed away in the Beaumont Hospital after sustaining serious injuries from a mixed martial arts (MMA) event in Dublin on the previous Saturday. The fighter was knocked out in the third round of a welterweight fight against Charlie Ward. Aside from the tragic loss of life, the death of Carvalho raises a number of interesting legal issues. This opinion piece will discuss the possible civil and criminal liability that may result from the untimely death of the Portuguese fighter.

It is important to note at the outset that MMA has few rules and permits wrestling holds, punching, marital arts throws and kicking. MMA appears to have little regulation and a lack of universally accepted, standardised rules. There is no international federation or governing body that regulates MMA. It is largely self-regulated. MMA is not recognised under the sports and governing bodies listed by Sport Ireland, the statutory body established by the Sport Ireland Act 2015 which replaced the Irish Sports Council. MMA is considered a properly constituted sport so long as the rules and regulations are adhered to, there are appropriate safety procedures, the rules are enforced by independent referees, and it appropriately administered.

The Acting Minister for Sport, Michael Ring, has called for the regulation of MMA. Currently there are no minimum requirements when it comes to medical personnel; nor are there any particular requirements as to training of medical personnel. The promoter decides how many doctors and paramedics are to be stationed at events. In February 2014 Minister Ring wrote to 17 MMA promoters in Ireland requesting that they implement safety precautions in line with those used by other sports including boxing and rugby.

Despite this lack of regulation, this does not exempt MMA from legal liability as the discussion below demonstrates.More...



Guest Blog - The Role of Sport in the Recognition of Transgender and Intersex Rights by Conor Talbot

Editor's note: Conor Talbot is a Solicitor at LK Shields Solicitors in Dublin and an Associate Researcher at Trinity College Dublin. He can be contacted at ctalbot@tcd.ie, you can follow him on Twitter at @ConorTalbot and his research is available at www.ssrn.com/author=1369709. This piece was first published on the humanrights.ie blog.

Sport is an integral part of the culture of almost every nation and its ability to shape perceptions and influence public opinion should not be underestimated.  The United Nations has highlighted the potential for using sport in reducing discrimination and inequality, specifically by empowering girls and women.  Research indicates that the benefits of sport include enhancing health and well-being, fostering empowerment, facilitating social inclusion and challenging gender norms.

In spite of the possible benefits, the successful implementation of sport-related initiatives aimed at gender equity involves many challenges and obstacles.  Chief amongst these is the way that existing social constructs of masculinity and femininity — or socially accepted ways of expressing what it means to be a man or woman in a particular socio-cultural context — play a key role in determining access, levels of participation, and benefits from sport.  This contribution explores recent developments in the interaction between transgender and intersex rights and the multi-billion dollar industry that the modern Olympic Games has become.  Recent reports show that transgender people continue to suffer from the glacial pace of change in social attitudes and, while there has been progress as part of a long and difficult journey to afford transgender people full legal recognition through the courts, it seems clear that sport could play an increasingly important role in helping change or better inform social attitudes.More...



Unpacking Doyen’s TPO Deals: The Final Whistle

Footballleaks is now operating since nearly half a year and has already provided an incredible wealth of legal documents both on TPO (and in particular Doyen’s contractual arrangements) and on the operation of the transfer system in football (mainly transfer agreements, player contracts and agents contracts). This constant stream of information is extremely valuable for academic research to get a better grip on the functioning of the transfer market. It is also extremely relevant for the shaping of public debates and political decisions on the regulation of this market. As pointed out on the footballleaks website, it has triggered a series of press investigations in major European news outlets.

In this blog, I want to come to a closure on our reporting on Doyen’s TPO deals. In the past months, we have already dealt with the specific cases of FC Twente and Sporting Lisbon, reviewed Doyen’s TPO deals with Spanish clubs, as well as discussed the compatibility of the TPO ban with EU law. In the Sporting Lisbon case, Doyen has since earned an important legal victory in front of the CAS (the ensuing award was just published by Footballleaks). This victory should not be overstated, however, it was not unexpected due to the liberal understanding of the freedom of contract under Swiss law. As such it does not support the necessity of TPO as an investment practice and does not threaten the legality (especially under EU law) of FIFA’s ban.

In our previous blogs on Doyen’s TPO deals we decided to focus only on specific deals, Twente and Sporting Lisbon, or a specific country (Spain). However, nearly six months after the whole footballleaks project started, we can now provide a more comprehensive analysis of the TPO deals signed by Doyen. Though, it is still possible that other, yet unknown, deals would be revealed, I believe that few of Doyen’s TPO agreements are still hidden. Thanks to footballleaks, we now know how Doyen operates, we have a precise idea of its turnover, its return on investments and the pool of clubs with which it signed a TPO agreement. Moreover, we have a good understanding of the contractual structure used by Doyen in those deals. This blog will offer a brief synthesis and analysis of this data.More...





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

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

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

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

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

International and European Sports Law – Monthly Report – March 2016. By Marine Montejo

Editor’s note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked. 

Marine Montejo is a graduate from the College of Europe in Bruges and is currently an Intern at the ASSER International Sports Law Centre.


The Headlines

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


Doyen’s Crusade Against FIFA’s TPO Ban: The Ruling of the Appeal Court of Brussels

Since last year, Doyen Sports, represented by Jean-Louis Dupont, embarked on a legal crusade against FIFA’s TPO ban. It has lodged a competition law complaint with the EU Commission and started court proceedings in France and Belgium. In a first decision on Doyen’s request for provisory measures, the Brussels Court of First Instance rejected the demands raised by Doyen and already refused to send a preliminary reference to the CJEU. Doyen, supported by the Belgium club Seraing, decided to appeal this decision to the Brussels Appeal Court, which rendered its final ruling on the question on 10 March 2016.[1] The decision (on file with us) is rather unspectacular and in line with the first instance judgment. This blog post will rehash the three interesting aspects of the case.

·      The jurisdiction of the Belgian courts

·      The admissibility of Doyen’s action

·      The conditions for awarding provisory measures More...

International and European Sports Law – Monthly Report – February 2016

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 eagerly awaited FIFA Presidential elections of 26 February provided for a “new face” at the pinnacle of international football for the first time since 1998. One could argue whether Infantino is the man capable of bringing about the reform FIFA so desperately needs or whether he is simply a younger version of his predecessor Blatter. More...


Book Review: Despina Mavromati & Matthieu Reeb, The Code of the Court of Arbitration for Sport—Commentary, Cases, and Materials (Wolters Kluwer International 2015). By Professor Matthew Mitten

Editor’s note: Professor Mitten is the Director of the National Sports Law Institute and the LL.M. in Sports Law program for foreign lawyers at Marquette University Law School in Milwaukee, Wisconsin. He currently teaches courses in Amateur Sports Law, Professional Sports Law, Sports Sponsorship Legal and Business Issues Workshop, and Torts. Professor Mitten is a member of the Court of Arbitration for Sport (CAS), and has served on the ad hoc Division for the XXI Winter Olympic Games in Sochi, Russia.

This Book Review is published at 26 Marquette Sports Law Review 247 (2015).


This comprehensive treatise of more than 700 pages on the Code of the Court of Arbitration for Sport (CAS) (the Code) is an excellent resource that is useful to a wide audience, including attorneys representing parties before the CAS, CAS arbitrators, and sports law professors and scholars, as well as international arbitration counsel, arbitrators, and scholars.  It also should be of interest to national court judges and their law clerks because it facilitates their understanding of the CAS arbitration process for resolving Olympic and international sports disputes and demonstrates that the Code provides procedural fairness and substantive justice to the parties, thereby justifying judicial recognition and enforcement of its awards.[1]  Because the Code has been in existence for more than twenty years—since November 22, 1994—and has been revised four times, this book provides an important and much needed historical perspective and overview that identifies and explains well-established principles of CAS case law and consistent practices of CAS arbitrators and the CAS Court Office.  Both authors formerly served as Counsel to the CAS and now serve as Head of Research and Mediation at CAS and CAS Secretary General, respectively, giving them the collective expertise and experience that makes them eminently well-qualified to research and write this book.More...


Asser International Sports Law Blog | Case note: TAS 2016/A/4474 Michel Platini c. Fédération Internationale de Football Association. By Marine Montejo

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

Case note: TAS 2016/A/4474 Michel Platini c. Fédération Internationale de Football Association. By Marine Montejo

Editor's note: Marine Montejo is a graduate from the College of Europe in Bruges and is currently an intern at the ASSER International Sports Law Centre.

On 3 June 2015, Sepp Blatter resigned as President of FIFA after another corruption scandal inside the world’s football governing body was brought to light by the American authorities supported by the Swiss prosecutor office. Two months after Michel Platini announced he would be a candidate for the next FIFA Presidential election, on 25 September 2015, the Swiss prosecutor opened an investigation against S. Blatter on an alleged disloyal payment he authorised to M. Platini. On 8 October 2015, the FIFA Ethics Committee announced both of them were provisionally suspended upon their hearings, a suspension that was later confirmed by CAS. In the end, M. Platini was sanctioned with an eight years ban from all football activities, later reduced to a six years ban by FIFA Appeal Commission on 24 February 2016. In the meantime, he withdrew his candidacy to become the next FIFA President. On 9 May 2016, after M. Platini appealed this sanction, the CAS confirmed the suspension but reduced it to four years, leading to his resignation from the UEFA presidency and the announcement of his intention to challenge the CAS award in front of the Swiss Federal Tribunal.

On 19 September, the CAS finally published the full text of the award in the dispute between M. Platini and FIFA. The award is in French as M. Platini requested that the procedure be conducted in that language. You will find below a summary of the ‘highlights’ of the 63-page decision. 


Facts of the case

The detailed analysis of the facts of the case by CAS is well worth reading as it contains a precise description of the developments giving rise to the dispute. It also describes the alleged work done by M. Platini for FIFA and the related payments received from the organisation that are also investigated by Swiss authorities.

The first meeting between M. Platini (the France 1998 World Cup organising committee co-President at that time) and S. Blatter (the contemporaneous FIFA Secretary General) was held in January 1998 where the latter asked M. Platini to be the next candidate for FIFA’s Presidential election. M. Platini refused the offer. They both met a few months later (no precise date was given in the award – simply “spring 1998”) and agreed that M. Platini would support S. Blatter’s candidature for the FIFA Presidency, forming a “ticket”. In the case of a successful outcome, M. Platini would become either one of FIFA’s directors or sports advisers. During this meeting, they allegedly also discussed the remuneration for M. Platini’s future work for FIFA. The former UEFA President said that he proposed 1 million per year, leaving the choice of currency to S. Blatter. During the CAS procedure, M. Platini and S. Blatter stated they had agreed (“oral agreement”) on remuneration of CHF 1 million for M. Platini’s sports or technical advisory services, which is roughly €900,000. Jacques Lambert (the former France 1998 World Cup organising committee chief executive) said before the CAS Panel that M. Platini had told him about that oral agreement, but also acknowledged that no other person was physically present during the meeting to confirm it. 

In the award, it is noted that M. Platini participated in the campaign in an informal manner and that M. Blatter, shortly after his election, publicly announced that he would be his “Foreign Affairs Minister”. As such, the exact position of M. Platini remained uncertain at that time. With regard to these findings, the award relied on former UEFA Secretary General Gerhard Aigner’s testimony during FIFA’s internal procedure. An internal note written by Mr. Aigner, dated 19 September 1998, questioned M. Platini’s future role at FIFA and the rumours circulating about his desire to be based in Paris; it also speculated that this seemed inappropriate for the position of FIFA sports director. He likewise questioned the CHF 1 million salary. This note was given to the members of the UEFA Executive Committee Board (meeting on 12 November 1998) but no official document was received by UEFA confirming M. Platini’s salary. More importantly, the note was added to a set of documents collected for a meeting between the UEFA President (and Secretary General) and individuals from FIFA’s Executive Committee. This meeting aimed to prepare for FIFA’s Executive Committee meeting (3 and 4 December 1998), but there is no certainty that the document was actually discussed during the meeting of 3 December. Amongst these documents, another, dated 29 November 1998 and addressed only to the European members of FIFA Executive Committee, reported once again the rumours surrounding M. Platini’s future job, this time referring to his role as “the head of a development programme” or as a “personal political advisor”. In a nutshell, by the end of 1998 there was no official announcement by FIFA on M. Platini’s position and remuneration except rumours.

M. Platini’s official functions for FIFA started on 1 January 1999 but, in reality, he had commenced work for FIFA in the second part of 1998. In August 1999, M. Platini asked S. Blatter to formalise their contract (“written contract”). This was signed by M. Platini and S. Blatter (as a representative of FIFA) on 25 August 1999. This contract is the first official document where M. Platini’s role is defined as the FIFA Presidential advisor on international football issues (“la [FIFA] conseiller et l’assister, en particulier son Président, pour toutes les questions relatives au football au niveau international”). A salary of CHF 300,000 is written by hand in the document and, in the annex, daily allowances in and outside Europe are also mentioned. S. Blatter and M. Platini said that they were aware of FIFA’s financial difficulties at that time and had agreed, without formally stating the amounts and conditions for payment, that the remaining money would be paid later. M. Platini worked from his office in Paris with two other persons, and all of their expenses paid by FIFA. With S. Blatter’s authorisation, M. Platini also saw the rights from his so-called benefit plan extended. The plan was set up in 2005 for members of FIFA’s Executive Committee and remained operational for more than eight years after they left. M. Platini’s rights were exceptionally extended to the years he was the FIFA Presidential advisor; thus, it also covered 1998 to 2002 when he resigned and became a full member of FIFA’s Executive Committee.

In 2010, M. Platini sought the payment of the full amount he was due in conformity with the oral agreement. He explained that FIFA was financially stable and, notably, that its executives’ salaries had been raised substantially. An invoice was sent to FIFA that requested payment of the balance for the four years, amounting to CHF 2,000,000. The CAS Panel raised an important query at that point surrounding the amount claimed – namely, for a salary of CHF 1,000,000 per year over a period of 4 years, the Panel suggested that the amount claimed ought to have been CHF 2,800,000. M. Platini waved away the divergence by saying that he thought he received CHF 500,000 p.a. from FIFA and not only CHF 300,000. However, he had previously stated that he mentioned to S. Blatter at the time the written contract was signed that the salary was less than the one they had previously agreed to, so he should have known how much he was paid. S. Blatter explained that he did not check the accuracy of the invoice and authorised the payment. The payment was included in FIFA’s 2010 account which was approved during FIFA’s Finance Commission meeting of 2 March 2011, to which M. Platini attended as the UEFA representative. During the Swiss investigation, M. Angel Villar Llona, UEFA’s Vice-President, stated that M. Julio Grondona, President of the FIFA Finance Commission at the time, told him about the payment owed to M. Platini because the full amount could not be written down for political reasons. The payment was made on 19 November 2012.

The CAS award then discussed the presidential atmosphere around FIFA and the opening of the Swiss investigation as well as the procedure before FIFA against M. Platini. As a reminder, let’s recall that the former UEFA President was first sentenced to an eight year ban by the Adjudicatory Chamber of the FIFA Ethics Committee for several breaches of the FIFA Code of Ethics (“CEF”). This sanction was later reduced to a six year suspension by the FIFA Appeal Committee.


Substance of the case

The CAS Panel first rejected the alleged procedural wrongs raised by M. Platini’s defence after the disciplinary proceedings before FIFA. The arbitrators recalled that the Panel shall have the full power to review the facts and the law.[1] As such the appeal cures any procedural breaches that might have occurred earlier. The arbitrators also spent some time on the legal debate around the notion of proof. This discussion concerned whether FIFA needed to prove that M. Platini violated the CEF as the payment he received was without any basis and that M. Platini bears the burden to prove that such grounds existed.

- Concerning the violation of article 20 CEF (“Offering and accepting gifts and other benefits”), the FIFA Appeal Committee decision concluded that M. Platini received a CHF 2,000,000 payment in 2011 that could not be based on a contractual agreement. Consequently, this payment was said to be undue and constituted an infringement of article 20 CEF. The CAS Panel likewise came to the conclusion that there wasn’t sufficient proof to establish the existence of an oral agreement. As a consequence, the amount was paid pursuant to a non-existent legal obligation, which constituted a breach of article 20 CEF. The CAS Panel even went a step further and found that the extension of the benefit plan was also a breach of that same provision.

First, with regard to the oral agreement, the CAS award highlights that there is no direct or contemporaneous proof that such an agreement was made.[2] The only and closest element of proof the CAS Panel could find is the written contract of August 1999, which establishes the CHF 300,000 salary for M. Platini as FIFA advisor. The arbitrators also stated that this contract constitutes unambiguous proof that there was not, unless otherwise proven, another contract that stipulated a CHF 1,000,000 salary.[3] As such, the CAS Panel ruled out M. Lambert’s testimony as it is indirect and cannot constitute proof that such an agreement was legally concluded. Moreover, the Panel noted that he had first mentioned this agreement in 2015. It also did the same with the two notes coming from UEFA and M. Villar Llona’s testimony, finding that they were only proof that negotiations were ongoing at the time for M. Platini to become an advisor at FIFA; they could not constitute an actual official confirmation of the alleged remuneration. Furthermore, the CAS Panel[4] put forward that M. Blatter, during his audition before CAS, said that the oral contract was a “gentlemen’s agreement” and, as such, not legally binding. Additionally, he stated that he was not sure he had the sole competence at the time, as FIFA’s Secretary General, to negotiate such an agreement. The CAS Panel then drew the conclusion that at no point was a clear commitment given by M. Blatter regarding the alleged remuneration. The Panel also considered that the fact that FIFA paid M. Platini is not a proof that the oral agreement existed. It highlights Blatter’s “centralised and old fashioned” [5] management and concluded that the other executives at FIFA did not have any option other than to execute the orders, namely the payment of M. Platini’s bill.

Subsequently, the CAS moved to apply Swiss national law (article 55 of the Swiss Civil Code). M. Platini said that M. Blatter acted on behalf of FIFA. The Panel firmly disagreed with him: firstly, by saying that M. Platini had not acted in good faith as he knew the written contract did not disclose the full amount he supposedly was due after the oral agreement; and, secondly, the Panel discussed the possible abuse of power by M. Blatter as he supposedly gave authorisation for remuneration that was even higher than his own and the Secretary General’s, concluding that he probably diverged from the normal course of business[6] and, as such, could not have represented FIFA’s will. As a consequence, the only valid agreement was the written contract of August 1999. Furthermore, the arbitrators could not find any proof of the alleged deferment of the final amount payable in that oral agreement and held that the only remuneration M. Platini was due was the one in the written contract. The CAS Panel was even more severe with M. Platini, of whom it found was not an “athlete without experience” but an “experienced manager in football” who should have known the importance of such a contract; this tended to demonstrate that there wasn’t any oral agreement.[7] The CAS Panel insisted that M. Platini’s claim that he waited until 2010 to ask for the full payment because of FIFA’s bad financial situation was contradicted by the facts. Moreover, M. Platini’s claims that FIFA’s executives received bonuses without justification meant that he did not act in the interest of FIFA but only in his own.[8] Finally, concerning the fact that M. Platini allegedly miscalculated the rest of his salary (CHF 500,000 per year instead of CHF 700,000) the Panel was, to say the least, not convinced by his explanation and concluded that both incoherencies on the amount and on the date of the invoice contradict M. Platini’s position.

Finally, regarding the extension of the benefit plan, the CAS Panel was straightforward by finding that M. Platini was not entitled to it during his years as FIFA’s Presidential advisor because this plan is only for members of the Executive Committee. This extension only occurred due to S. Blatter’s decision.[9] Even though no payment has been made yet as a result of this plan, the extension was also held to be a breach of article 20 CEF. 

- With regard to the violation of article 19 CEF (“Conflicts of interest”), the FIFA Appeal Committee decision concluded that M. Platini was in a situation of conflict of interest when he signed M. Blatter’s statement of support in May 2011 after he received the contested payment. He also participated in a meeting of FIFA’s Finance Commission without notifying the organisers that he was personally affected by the payment inserted into the agenda of the meeting.

On the topic of M. Blatter’s statement of support, the CAS Panel outlined that the declaration was signed by M. Platini as UEFA President and not as a FIFA official. As a consequence, article 19 CEF cannot apply in that case. However, the CAS Panel was, once again, severe with M. Platini by stating that, even though article 19 CEF cannot apply in these circumstances, there was nonetheless a conflict of interest in this case, albeit to UEFA’s disadvantage in this instance.[10]

To support his participation at FIFA’s Finance Commission in March 2011, M. Platini argued he had to replace the UEFA executive that fell sick (M. Marios Lefkaritis, UEFA treasurer). The CAS Panel concluded that M. Platini was in a situation of conflict of interest when he took part in the meeting that approved the 2010 annual report containing the CHF 2,000,000 payment he was not entitled to received. Even though the payment did not appear individually on the document, M. Platini should have disclosed during the meeting that he was personally affected. Hence, the CAS Panel stated that M. Platini could not act with integrity, independence and determination as a member of FIFA’s Finance Commission, because he had a personal interest in obfuscating that payment and making sure that FIFA’s 2010 account were adopted .[11] 

- With regard to the violation of articles 13 CEF (“General rules of conduct”) and 15 CEF (“Loyalty”), the CAS Panel did not follow the FIFA Appeal Committee decision. The arbitrators used the lex specialis derogat generali principle through which, if a behaviour falls under a general and a specific rule, only the latter rule will apply. Both provisions were applied because the acts in breach of articles 19 and 20 (specific provisions) and were not separate facts falling under articles 13 and 15 (general provisions). As a consequence, the CAS Panel concluded that there were no breaches of articles 13 and 15, but it did not spare M. Platini – it specifically stated that the Panel didn’t condone M. Platini’s behaviour nor were the former UEFA President’s actions ethical or loyal (§328 and §335). 

- Concerning the sanction. The Panel reduced the sanction to a three year suspension for the breach of article 20 CEF because of a number of mitigating circumstances. These include the added value M. Platini has given over the years to football, his cooperation in the procedure before the Panel and the fact that he is at the end of his career. The CAS Panel also took into account the fact that FIFA already knew about the undue payment in 2011 but did not start an investigation until 2015.[12]

By contrast, the CAS Panel found that the high level positions M. Platini occupied in football constituted an aggravating factor for the sanction. Likewise, the fact that he did not express any regret was also counted against him.[13] He was also sanctioned by a one year suspension for the breach of article 19 CEF which brings the total suspended period to four years (as from 8 October 2015) and a CHF 60,000 fine.


Conclusion

The arbitral award is very detailed and the justifications given by M. Platini, S. Blatter and their lawyers were examined at great length by the arbitrators. The description of the facts and the discussion of the grounds of the decision are precise and meticulous. It is striking how M. Platini’s defence appears to be the one of someone who was not very well informed about his own financial affairs. He extensively said that he was not a man of means and his arguments portrayed him as careless, negligent or even indifferent, which does not sit well with a former UEFA President. The arbitrators are not buying any of it and are severe, to say the least, in their appreciation. In particular, regarding the breach of article 20 CEF for which they highlighted that it was the most serious offense of M. Platini. However, the arbitrators, at the sanctioning stage, found mitigating factors to reduce the sanction that are surprising. Finally, after a third examination of its case, M. Platini’s sanction seems to keep on reducing whereas the offenses identified remained more or less the same.




[1] §223. « … la Formation rappelle qu’en vertu de l’article R57 du Code, le TAS jouit d’un plein pouvoir d’examen en fait et en droit… » §224. « Ainsi, la procédure devant le TAS guérit toutes les violations procédurales qui auraient pu être commises par les instances précédentes. »

[2] §234. « …qu’il n’existe aucune preuve directe et contemporaine de la conclusion dudit accord. »

[3] §235. « … Devant cet élément indiscutable, la Formation examinera ci-dessous si des éléments de preuve supplémentaires pourraient venir appuyer les explications de M. Platini et pourraient renverser la preuve résultant du texte univoque de la Convention écrite. »

[4] §253. « … au vu du style de management centralisateur et à l’ancienne de M. Blatter, les autres intervenants au sein de la FIFA n’avaient que peu de marge de manœuvre face à une instruction de ce dernier… ».

[5] §238 and 239

[6] §257. « … un contrat du type de celui de l’Accord oral dépasserait le cadre des affaires que peut conclure un représentant diligent d’une personne morale ».

[7] §274. « … puisqu’au moment des faits… [M. Platini] n’était pas un jeune athlète sans expérience, mais un ancien footballeur de très haut niveau, ancien sélectionneur de l’Equipe de France et ancien co-Président du comité d’organisation de la Coupe du Monde FIFA en France, c’est-à-dire un dirigeant expérimenté dans le domaine du football, qui devait savoir qu’un contrat de l’importance de celui qu’il prétend avoir conclu devait être couché sur papier… Ceci démontre encore l’invraisemblance de l’Accord oral. »

[8] §276. « … En faisant cette déclaration, M. Platini semble sous-entendre que constatant que d’autres dirigeants avaient obtenu des paiements sans justification particulière, il avait lui aussi tenté de le faire. Ce faisant, il ne démontre pas avoir agi dans l’intérêt de la FIFA, dont il était membre du Comité exécutif, mais uniquement dans son intérêt personnel. »

[9] §293. « … Les courriers de M. Valcke et M. Kattner de 2009 font clairement apparaître que l’inclusion des années 1998 à mi-2002 était inhabituelle et résultait de la seule décision de M. Blatter. »

[10]§304. « … le conflit d’intérêt (qui existait bien, de l’avis de la Formation) … ».

[11] §311. « Il est ainsi évident que M. Platini ne pouvait agir avec intégrité, indépendance et détermination en tant que membre de la Commission des finances, puisqu’il avait un intérêt personnel à cacher l’existence du paiement de CHF 2'000 000 dont il avait bénéficié, afin que les comptes 2010 soient adoptés sans que ce paiement soit évoqué. »

[12] §358. « … Enfin, la Formation prend également en compte le fait que la FIFA n’a débuté l’investigation contre M. Platini qu’en 2015, et de surcroît uniquement après que l’enquête du MPC a débuté, alors qu’elle avait connaissance du paiement concerné en 2011 (même si elle ignorait à ce moment-là le véritable motif du paiement). »

[13] §359. « En revanche, la Formation considère comme facteurs aggravants le fait que M. Platini a exercé des fonctions très élevées tant à la FIFA qu’à l’UEFA et qu’il avait donc un devoir accru de respecter les règles internes de ces organisations. De surcroît, il n’a manifesté aucun repentir.

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Asser International Sports Law Blog | Regulating the human body in sports: Lessons learned from the Dutee Chand case - by Dr Marjolaine Viret & Emily Wisnosky

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

Regulating the human body in sports: Lessons learned from the Dutee Chand case - by Dr Marjolaine Viret & Emily Wisnosky

Editor's note: Marjolaine Viret and Emily Wisnosky are both editors of the ASSER International Sports Law Blog specialized in anti-doping matters, they are also involved in the World Anti-Doping Commentary project funded by the Swiss National Science Fund.

Introduction

A remarkable aspect of the run-up to the 2016 Rio Olympic Games was the stream of negative media reports portraying broad-scale public mistrust in sport, with the most prominent topic being the doping scandals in athletics and questions surrounding the participation of Russia.  

A different controversy, but one also directed at the credibility of sports, has exposed a few female Olympians to repeated, and at times rather intrusive, media scrutiny. In June 2016, it was reported that Indian track-and-field athlete Dutee Chand had qualified for the Rio Olympic Games by breaking the national record, thus to become the first Indian athlete to run the 100m at the Olympics since 1980. The attention that Dutee Chand’s qualification attracted within international media, however, was not related only to her outstanding results. It came as part of a medical, ethical and legal controversy that has existed for many years relating to ‘policing’ the male versus female divide in sports. Another athlete who has found herself in the midst of this controversy is South African runner Semenya Caster, whose participation in the Olympics has been the object of much conjecture.

The divide between male and female athletes forms the core of most sports’ competition rules, including athletics. The justification for this basic divide has rarely been questioned as such, but has been a matter for debate when it comes to handling atypical situations on both sides of the ‘dividing line’ ­ such as ‘transgender’ or ‘intersex’ athletes. A category of athletes that has, especially, been viewed as a challenge to the divide is composed of female athletes affected by ‘hyperandrogenism’, a health condition that results in naturally elevated androgen levels, including testosterone levels.

On 24 July 2015, a CAS panel rendered a decision involving Dutee Chand (“Dutee Chand” or “the Athlete”) that has fuelled the ongoing debate about the policies regulating hyperandrogenism in sport. Much has been reported in the media about the case: controversial issues include whether the CAS was the appropriate forum to assess these questions; whether the decision was appropriate, both on the merits and on the procedure; and what the consequences of the CAS award would be, for the parties, for athletics and for the sporting community at large.

Much like the current crisis surrounding doping in sports, the public attention on women with (proven or suspected) hyperandrogenism is driven by a concern that an athlete’s physiology – natural or artificially induced ­ could distort competition, destroying the ‘level playing field’ that supports the Olympic ideal. Both topics are also often brought back to the goal of protecting an athlete’s health. Parallels are further found in the strong reactions both topics evoke, and the steps taken by the regulating authorities to convince the public that everything in their power is being done to preserve a level playing field.

A less obvious but equally important point of comparison can be found in the issues both topics raise concerning the legal validity of decisions made by sports organizations, especially in a science-related context. This blog focuses on those more ‘legal’ aspects, through the prism of the decision of the CAS in the Dutee Chand matter and its legal implications. After touching briefly on the background of the case, we will comment on two aspects of the Chand award with respect to challenges in regulating hyperandrogenism in sport within the confines of the law: First from the viewpoint of a CAS panel called upon to evaluate the validity of a set of regulations, and second from the viewpoint of the sports organizations seeking to both adequately protect fairness in sport and to provide a legally valid (and effective) regulatory solution.[1]


Background of the Case

In 2014, Dutee Chand, an internationally successful, young track-and-field athlete, was provisionally suspended from participation in any athletic events by the Athletics Federation of India (the “AFI”),[2] as a result of a series of medical examinations that suggested her “male hormone” levels were elevated.[3] Dutee Chand filed an appeal against this decision to the CAS, naming both the AFI and the IAAF as respondents. She asked the CAS panel to (i) declare the Hyperandrogenism Regulations invalid, and (ii) overturn the AFI’s decision and clear her to compete. The second request for relief, however, was dropped during the course of the proceeding, thus the award addressed only the issue of the Regulation’s validity.

The IAAF Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition (“Hyperandrogenism Regulations” or “the Regulations”) govern the eligibility of female athletes with a condition known as ‘hyperandrogenism’ to participate in the female category of athletic events. Schematically, the Regulations provide that in order to be eligible to participate in the female category, a woman must have androgen levels below the “normal male range,” which is defined as testosterone levels falling below a threshold of 10 nmol/L.[4] An athlete with testosterone levels reported above this threshold may still be allowed to compete if she establishes, by a balance of probabilities, that she “derives no competitive advantage from having androgen levels in the normal male range”.[5] Cases of suspected hyperandrogenism may be investigated according to three levels of medical assessment, potentially including tests targeting physical, laboratory, genetic, imaging, and psychological assessments. Should an athlete be eventually diagnosed with hyperandrogenism, the stakes are high: in order to return to competition, athletes need to undergo medical treatment to reduce their testosterone levels below the ‘admissible’ threshold.

Dutee Chand challenged the Regulations’ validity on several grounds, which the CAS panel considered after addressing the parties’ respective burdens and standards of proof in an initial section. The grounds examined were unlawful discrimination, lack of scientific validity, breach of proportionality, and conflict with the World Anti-Doping Code (“WADC”).


Challenges CAS panels face in assessing the validity of sports regulations

The Chand award formidably illustrates the challenges an arbitration panel faces when asked to reach a conclusion on the ‘legal validity’ of a set of sports regulations, especially when such assessment implies delving into complex scientific issues. Each of these challenges can provide valuable ‘lessons learned’ for future CAS panels confronted with comparable issues.

Reconciling the ‘abstract’ and ‘concrete’ facets of the dispute

Ostensibly, the object of the CAS proceedings was for Dutee Chand to be cleared to resume competing as a female athlete, in other words, for the decision rendered against her by the AFI to be set aside[6]. But this ‘concrete’ request for relief was dropped at the hearing, leaving the panel with only the ‘abstract’ question of the Regulation’s validity to consider. It appears that the CAS panel was asked between the lines to render an informal advisory opinion on the legitimacy of the current approach to hyperandrogenism in sport; the formal advisory opinion is an instrument no longer available under the CAS Code.[7]

This left the CAS panel in an uncomfortable position: having to decide on abstract legal questions without the benefit of a concrete set of facts to rely upon. Symptomatically, the background presented in the award regarding the Athlete’s actual situation is tenuous. The award does not even discuss whether Dutee Chand’s testosterone levels actually exceeded the 10nmol/L threshold set in the Hyperandrogenism Regulations[8]. The CAS panel simply conducted its entire assessment under the - unverified - assumption of her being genuinely an athlete with hyperandrogenism within the meaning of the Regulations.

Moreover, real questions of defence strategy relevant to counsel appearing before CAS can be raised here: had Dutee Chand not waived her request for relief directed against the AFI decision, the CAS panel would have been forced to render a final award on her case and could not have left her in the legal limbo in which she is now (see below, on the rendering of an interim rather than a final award).

The CAS has often – explicitly or through the decision of its panels ­shown ambition to act as a harmonising body, an ‘international’ or ‘supreme’ court of sport.[9] From a perspective of sports policy, that may be – depending on the opinion – a desirable objective, or an illegitimate attempt for sports governing bodies to shield their regulations from the judicial review of state courts. From a strictly legal perspective, it is questionable whether CAS panels have at their disposal the means to fulfil this ambition. CAS panels are arbitration tribunals in arbitral proceedings conducted under Swiss arbitration law. As such, they only have the power to rule on a dispute brought before them by two – or more – specific parties, and they can only render decisions on requests for relief that a party has submitted to them, within the framework of the facts put forward by the parties. Approaches such as the one taken in the Chand award should not be encouraged, especially in this odd combination in which a CAS panel would accept to rule on abstract requests for relief that are not directly decisive to the outcome of the dispute.

Allocating the burden of proof to prove or disprove the Regulation’s validity

For reasons that are not readily apparent from the award, the CAS panel separated its assessment of the Regulations’ scientific basis into two limbs: i.) one referred to as an assessment of the ‘scientific validity’ of the Regulations, for which Dutee Chand was said to have accepted the burden of proof, and ii.) one referred to as a justification for the prima facie discrimination and considered part of the proportionality assessment, for which the IAAF was assigned the burden of proof[10]. For both limbs, the CAS panel ended up holding that the party bearing the burden of proof failed to discharge its burden, due to lack of sufficient scientific evidence.

The reasoning of the CAS panels in the award makes it rather obvious that the two limbs are conceptually one and the same: Both assess the question of whether the infringement upon female athletes’ rights entailed by the Regulations could be justified by a sufficiently strong scientific basis. Assigning the burden with respect to the general ‘scientific validity’ to Dutee Chand (i.e. the use of testosterone as a valid marker for purposes of the Regulations) and the burden with respect to another aspect of ‘scientific validity’ (i.e. the threshold set in the Regulations for that marker) to the IAAF (via the proportionality test), as the panel did, created an artificial separation in the legal analysis, by dressing the same issue in two different hats.

From the viewpoint of legal technique, this separation appears questionable and unnecessarily complicated. The assumption, from a viewpoint of judicial policy, is that the separation provided the arbitrators with an argument to both support the general thinking underpinning the Regulations (i.e. the use of testosterone levels as a marker) by considering that it was not without scientific basis, while at the same time finding the Regulations lacked sufficient strength in their modalities (i.e. the extent of the advantage conferred to hyperandrogenic athletes by their testosterone levels) to be upheld.

Differentiating between fact-finding and legal appreciation

Whether sports regulations have a sufficiently strong basis in science does not pertain to the fact-finding process, but to the CAS panel’s appreciation of the legal validity ­ or justification (including proportionality) ­ of those regulations. In this particular set-up, the question of ‘scientific validity’ is thus not strictly speaking one related to the burden of proof, as the Chand award would imply, but reflects which party suffers consequences if a CAS panel is not able to make sense of the scientific state-of-knowledge. The prospect of suffering adverse consequences indirectly provides an incentive for parties to present studies and expert opinions in support of their position, but does not qualify as a burden of proof stricto sensu, which only applies to issues of fact[11].

Nevertheless, the outcome of the CAS panel’s reasoning in the Chand matter appears justified: To the extent that the Hyperandrogenism Regulations represent an infringement on certain athletes’ rights (or, as the award considered it, in cases of discrimination), such infringement or discrimination has to be justified to be considered valid. In the case of the Hyperandrogenism Regulations, the alleged justification was based on the scientific basis behind the mechanics of the regulations. Thus, if no such basis could be shown, the CAS panel was bound to consider the Hyperandrogenism Regulations invalid. The CAS panel, in the particular matter, reached the same outcome by assigning the burden of proof on the issue it ultimately declared decisive to the IAAF, i.e. whether the manner in which testosterone was used as marker in the Regulations (especially the threshold value) could claim a sufficiently solid scientific basis.

Accounting for the role of scientific uncertainty

A truly important message to retain from the CAS award on scientific validity is the crucial role that ‘scientific uncertainty’ bears for the legal rule-making or adjudicative process. ‘Scientific uncertainty’ here refers to situations in which no consensus can be found within the scientific community, in which various expert positions coexist, or in which experts agree that the state-of-knowledge does not allow for a definitive answer. In all cases, the science is ‘unsettled’ in a manner that makes it impossible for the legal actors to extract a clear-cut finding that would suit their purposes. By nature, situations of ‘scientific uncertainty’ are the most likely to lead to legal disputes. CAS panels are frequently confronted with this constellation in doping matters or other science-related disputes brought before them.

The result of the panel’s assessment of the scientific foundations for the Regulations – whether desirable or not, justified or not – was hence utterly predictable. It was pre-determined from the moment the CAS panel decided that the IAAF would have the burden of proof on the very issue that would ultimately prove decisive for the outcome of a dispute. Allocating the burden of proof on a scientific issue amounts to assigning to one party (or one category of party) the risk of scientific uncertainty. Since disputed scientific issues are likely to result in the panel being unable to make up its mind one way or another, thus having to fall back on the burden of proof, the party that carries this risk of scientific uncertainty is almost certain to lose its case.

(Avoiding) reaching a legal conclusion on a highly sensitive issue

At the end of their analysis, the CAS arbitrators reached the conclusion that the IAAF had not discharged its burden of proof and that they were therefore unable to uphold the validity of the Hyperandrogenism Regulations based on the evidence before them[12]. The logical (and legal) consequence would have been for the panel to render a final award in accordance with these conclusions and grant the athlete’s request for relief. However, the panel took a different – and unusual ­ option, of issuing a decision they referred to as “interim award” instead.

One fails to see the rationale for such a decision. The approach may well be pragmatic, since it relieved (at least temporarily) the CAS panel of the need to make a final binding decision on a complex social and political issue, and allowed Dutee Chand to resume competition while at the same time providing a (provisional) framework for international athletic competitions with respect to participation of hyperandrogenic athletes.[13] However, issuing an “interim award” in this matter is not justifiable from the perspective of arbitration law. This is all the more true given that none of the parties appears to have requested the issuing of a preliminary decision in the proceedings, nor even to have contemplated this type of outcome. Its legitimacy under the CAS Code – which is conceived to guarantee an efficient procedural framework on CAS proceedings – is equally questionable. Moreover, the choice of issuing an ‘interim award’ has far-reaching legal and practical consequences for the dispute that further call into doubt the nature of Dutee Chand’s ‘victory’, including the following:

  • The CAS proceeding number ‘CAS 2014/A/3759’ is not closed. The CAS panel remains formally constituted for the remainder of the two-year period assigned to the IAAF. If the IAAF does not submit further evidence, the CAS panels will need to make a final award taking note of such failure and drawing the consequences thereof, which could then be appealed before the Swiss Supreme Court;
  • The “interim award” can only be appealed to the Swiss Supreme Court on very restrictive grounds under the Swiss Private International Law Act (Article 190, para. 3). Only an appeal for grounds of irregular composition of the tribunal or lack of jurisdiction could be filed, none of which would seem of relevance to the present matter. The other grounds for challenging an arbitral award – in particular the right to be heard or public policy – cannot be raised in an appeal against an interim award. This de facto bars the parties from appealing the award before the elapse of the two-year period; and
  • The award does not acquire a res iudicata effect and cannot be enforced, though it binds the panel itself to its own determinations (as opposed to a mere procedural order).[14] Its effect for other athletes potentially concerned by decisions made under national regulations implemented to reflect the Hyperandrogenism Regulations is thus uncertain. In theory, but for the panel’s expectations that the IAAF will act based on the sport hierarchy, a national federation that was not a party to the dispute could still make a decision against an athlete.

While CAS panels may order further evidentiary measures on their own initiative and request a party to adduce further evidence, the CAS Code certainly does not envisage that a party could be given a period of two years to do so. Rendering an interim award in these circumstances could be considered to amount to a denial of justice, i.e. a refusal by the CAS panel to rule on the request for relief properly submitted to it. The time limit granted unilaterally, to one of the parties only, could also be seen as conflicting with equality of the parties.[15] Should the IAAF return with additional evidence during the two-year period, would Dutee Chand also be granted an equivalent time limit to respond to the evidence?


Challenges sports organisations face in navigating the interface between law and science

The debate surrounding the definition of male and female is a complex one, not only in sport but in various domains of society. This means that a sports organisation’s task of making policy decisions that adequately account for these complexities is far from straightforward.

Unlike former policies in sport, the manner in which the IAAF – and other sports federations based on the policy of the IOC – set out to deal with hyperandrogenism as of 2012 does not formally aim at defining an athlete’s sex. Hence, it does not represent a ‘gender or sex testing’ process stricto sensu. Instead, the CAS panel in the Dutee Chand case acknowledged that whether a person is to be considered ‘female’ from the viewpoint of participation in athletics relies on the criterion of whether a person is a female as a matter of law[16]. The Hyperandrogenism Regulations do not – at least not from a legal viewpoint ­ purport to decide whether someone is female or not. Ironically, this shift in approach that was to take away from sports authorities the controversial power to assign a ‘gender’ to an individual for purposes of taking part in its competitions is precisely what has brought those authorities into the dilemma of having to introduce corrective factors in the name of a level playing field.

Indeed, the Regulations seek to police a divide based on an issue of law (whether someone is a female ‘as a matter of law’) through a corrective factor that relies on a biological parameter, which is an issue of fact (the person’s level of testosterone); an approach that is bound to lead to a sense of unfairness in borderline situations. Undoubtedly, one major flaw in the system was that the corrective factor had the effect of excluding athletes from the category into which they fit as a matter of law, without offering them the option to compete in the category in which the corrective factor would place them. The IOC Medical & Scientific Commission statement subsequently issued (see below, in the concluding remarks) encourages a solution whereby legally female athletes who fail to meet the requirements of Hyperandrogenism Regulations would be authorized to compete in the male category. This solution would at least have the merits of removing this blatant inconsistency of the system. However, one can legitimately wonder if, de facto, it would not have the same effect of excluding hyperandrogenic women from elite competition entirely.

To entirely reframe the approach to sex categories in sport – without the mixture of legal and biological corrective factors chosen in the Hyperandrogenism Regulations – would suppose one of the following:

  1. redefining the definition of ‘sex’ for purposes of sports categories based only on biological criteria, i.e. the level of testosterone or other biological factors deemed appropriate,
  2. abandoning the use of corrective factors, and referring to an individual’s sex exclusively as a matter of law, or
  3. abandoning any form of sports category related to sex and/or gender altogether.

It seems predictable that any of these options would imply some sort of compromise and entail new legal challenges. In particular, it is important to note that even if one should simply abandon any regulation on hyperandrogenism (or, more generally, on intersex matters), the question of how to legally define a ‘female’ would remain. In particular, the CAS panel in the Chand matter noted that whether someone is a male or female “is a matter of law”[17]. This immediately raises a follow-up question, namely: “what law?”. And, of equal importance, how does the applicable law approach this question? Options could range from self-identification to reliance on a complex set of scientific criteria, with each solution bringing its own challenges. Relying exclusively, as has been suggested[18], on the manner in which a person was raised and/or perceives him-/herself within society might prove difficult to crystallize into a firm legal criterion.

Even as sports regulations strives towards fairness and removing barriers to ‘pure’ competition, it must be recognized that the best that sports organizations can aim for in this context is to strike a reasonable balance between seeking a level playing field and celebrating natural advantages. On a deeper level, it also supposes a discussion as to how lawyers can and/or may make decisions that will profoundly affect individuals when science appears unable to provide the data needed to make sound legal choices.

 

Concluding remarks

Perhaps the most striking aspect of the Chand matter ­ as revealed by its aftermath ­ is the limited impact a CAS award addressing abstract legal issues can exert in practice.

The Chand award did not end the hyperandrogenism debate. In November 2015 – over four months after the Chand award was published ­ the IOC Medical & Scientific Commission, after holding a Consensus Meeting on Sex Reassignment and Hyperandrogenism, reaffirmed its position by insisting on the need to have rules in place “for the protection of women in sport and the promotion of the principles of fair competition”. The statement also encourages the IAAF, with support of other sports organizations, “to revert to CAS with arguments and evidence to support the reinstatement of its hyperandrogenism rules”. The IOC’s reaction to the interim award rendered shows that little progress was made in resolving the dispute over the validity of the Hyperandrogenism Regulations. As an only sign of a shift in its position, the statement recommends that “to avoid discrimination, if not eligible for female competition the Athlete should be eligible to compete in male competition”.[19] The new IOC position, which in effect represents a step towards considering the testosterone threshold as the only decisive criterion for determining the boundary between male and female athletes, immediately triggered critical reactions – both as to the modalities of its adoption and as to its contents – on part of circles close to Dutee Chand’s defence and opposed to regulations on hyperandrogenism.

Thus, the CAS award does not seem to have altered either camp’s position. This may be in part a side effect of the panel’s decision to opt for an interim award, but also demonstrates more generally the limitations on the power of law, regulatory bodies and judicial authorities to resolve disputes of such scientific and ethical dimension.


[1] For a more detailed analysis of the Chand award, see M Viret and E Wisnosky, Controlling “Femaleness” in Sports: Regulatory challenges at the intersection of health, performance and identity, in A Duval and A Rigozzi, eds., Yearbook of International Sports Arbitration, to be published.

[2] CAS 2014/A/3759, Dutee Chand v. AFI & IAAF, 24 July 2015.at [27]­[28]. As reported in the award, the text of the Decision Letter read in relevant part: “Based on your medical reports received from Sports Authority of India and a copy of the same has already been handed over to you by SAI in person, you are hereby provisionally stopped from participation in any Competition in athletics with immediate effect.

To be eligible for participation, you are further advised to follow the annexed IAAF guidelines”. [27]. Ms. Chand stated that the letter incorrectly enclosed the IAAF Sex Reassignment Regulations rather than the Hyperandrogenism Regulations [28].

[4] Hyperandrogenism Regulations, art. 6.5(i).

[5] Hyperandrogenism Regulations, art. 6.5(ii).

[6] Dutee Chand initially submitted two requests for relief, namely that a.) “[T]he Hyperandrogenism Regulation[s] be declared invalid and void; and, b.)[T]he Decision Letter [note: rendered by the AFI against Ms. Chand] be set aside and she be declared eligible to compete (Chand award at [104]).

[7] CAS’ consultation proceedings were abrogated in the 2012 review of the CAS Code.

[8] Chand award at [36]

[9] “The ‘Digest of CAS Awards 1986-1998’ recorded the emergence of a lex sportiva through the judicial decisions of the CAS. It is true that one of the interests of this court is to develop a jurisprudence that can be used as a reference by all the actors of world sport, thereby encouraging the harmonisation of the judicial rules and principles applied within the sports world.” (CAS Digest II, Reeb, p. xxix).

[10] A detailed analysis of the CAS panel’s reasoning can be found in Viret and Wisnosky 2016.

[11] For more details, see Viret and Wisnosky 2016, on the lack of clear distinction between issues of fact (which parties can agree upon) and issues of law, such as the burden and standard of proof and scientific validity (which is for a hearing panel to decide) in the Chand award.

[12] Chand award at [536].

[13] J Paulsson, Assessing the Usefulness and Legitimacy of CAS, SchiedsVZ 2015, pp. 263-269, p. 269.

[14] G Kaufmann-Kohler and A Rigozzi, International Arbitration: Law and Practice in Switzerland, Oxford University Press, Oxford 2015, paras 7.105-7.106.

[15] See Chand award at [442]. In particular, the Athlete accepted the burden of proof with respect to the “issue of scientific basis” of the Hyperandrogenism Regulations, a burden that the CAS panel considered had equally not been discharged.

[16] Chand award at [510]

[17] Chand award at [510].

[18] See e.g. M Genel, J L Simpson and A de la Chapelle, The Olympic Games and Athletic Sex Assignment, Journal of the American Medical Association, Published online August 04, 2016.

[19] IOC (2015) IOC Consensus Meeting on Sex Reassignment and Hyperandrogenism November 2015

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