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

The “Victory” of the Court of Arbitration for Sport at the European Court of Human Rights: The End of the Beginning for the CAS

My favourite speed skater (Full disclosure: I have a thing for speed skaters bothering the ISU), Claudia Pechstein, is back in the news! And not from the place I expected. While all my attention was absorbed by the Bundesverfassungsgericht in Karlsruhe (BVerfG or German Constitutional Court), I should have looked to the European Court of Human Rights in Strasbourg (ECtHR). The Pechstein and Mutu joint cases were pending for a long time (since 2010) and I did not anticipate that the ECtHR would render its decision before the BVerfG. The decision released last week (only available in French at this stage) looked at first like a renewed vindication of the CAS (similar to the Bundesgerichtshof (BGH) ruling in the Pechstein case), and is being presented like that by the CAS, but after careful reading of the judgment I believe this is rather a pyrrhic victory for the status quo at the CAS. As I will show, this ruling puts to rest an important debate surrounding CAS arbitration since 20 years: CAS arbitration is (at least in its much-used appeal format in disciplinary cases) forced arbitration. Furthermore, stemming from this important acknowledgment is the recognition that CAS proceedings must comply with Article 6 § 1 of the European Convention of Human Rights (ECHR), in particular hearings must in principle be held in public and decisions freely available to all. Finally, I will criticise the Court’s finding that CAS complies with the requirements of independence and impartiality imposed by Article 6 § 1 ECHR. I will not rehash the  well-known facts of both cases, in order to focus on the core findings of the decision. More...

ISLJ International Sports Law Conference 2018 - Asser Institute - 25-26 October - Register Now!

Dear all,

Last year we decided to launch the 'ISLJ Annual International Sports Law Conference' in order to give a public platform to the academic discussions on international sports law featured in the ISLJ. The first edition of the conference was a great success (don't take my word for it, just check out #ISLJConf17 on twitter), featuring outstanding speakers and lively discussions with the room. We were very happy to see people from some many different parts of the world congregating at the Institute to discuss the burning issues of their field of practice and research.

This year, on 25 and 26 October, we are hosting the second edition and we are again welcoming well-known academics and practitioners in the field. The discussions will turn around the notion of lex sportiva, the role of Swiss law in international sports law, the latest ISU decision of the European Commission, the Mutu/Pechstein ruling of the European Court of Human Rights, or the reform proposal of the FIFA Regulations on the Transfer and Status of Players. It should be, it will be, an exciting two days!

You will find below the final programme of the conference, please feel free to circulate it within your networks. We have still some seats left, so don't hesitate to register (here) and to join us.

Looking forward to seeing you and meeting you there!

Antoine

Football Intermediaries: Would a European centralized licensing system be a sustainable solution? - By Panagiotis Roumeliotis

Editor's note: Panagiotis Roumeliotis holds an LL.B. degree from National and Kapodistrian University of Athens, Greece and an LL.M. degree in European and International Tax Law from University of Luxembourg. He is qualified lawyer in Greece and is presently working as tax advisor with KPMG Luxembourg while pursuing, concomitantly, an LL.M. in International Sports Law at Sheffield Hallam University, England. His interest lies in the realm of tax and sports law. He may be contacted by e-mail at ‘p.roumeliotis@hotmail.com’.


Introduction

The landmark Bosman Ruling triggered the Europeanization of the labour market for football players by banning nationality quotas. In turn, in conjunction with the boom in TV revenues, this led to a flourishing transfer market in which players’ agents or intermediaries play a pivotal role, despite having a controversial reputation.

As a preliminary remark, it is important to touch upon the fiduciary duty of sports agents towards their clients. The principal-agent relationship implies that the former employs the agent so as to secure the best employment and/or commercial opportunities. Conversely, the latter is expected to act in the interest of the player as their relationship should be predicated on trust and confidence, as much was made clear in the English Court of Appeal case of Imageview Management Ltd v. Kelvin Jack. Notably, agents are bound to exercise the utmost degree of good faith, honesty and loyalty towards the players.[1]

At the core of this blog lies a comparative case study of the implementation of the FIFA Regulations on working with intermediaries (hereinafter “FIFA RWI”) in eight European FAs covering most of the transfers during the mercato. I will then critically analyze the issues raised by the implementation of the RWI and, as a conclusion, offer some recommendations. More...



Seraing vs. FIFA: Why the rumours of CAS’s death have been greatly exaggerated

Rumours are swirling around the decision (available in French here) of the Court of Appeal of Brussels in the case opposing RFC Seraing United to FIFA (as well as UEFA and the Belgian Football Federation, URSBFA) over the latter’s ban on third-party ownership. The headlines in various media are quite dramatic (see here and here), references are made to a new Bosman, or to a shaken sport’s legal system. Yet, after swiftly reading the decision for the first time on 29th August, I did not have, unlike with the Pechstein ruling of the Oberlandesgericht München, the immediate impression that this would be a major game-changer for the Court of Arbitration for Sport (CAS) and the role of arbitration in sports in general. After careful re-reading, I understand how certain parts of the ruling can be misunderstood or over-interpreted. I believe that much of the press coverage failed to accurately reflect the reasoning of the court and to capture the real impact of the decision. In order to explain why, I decided to write a short Q&A (including the (not water-proof) English translations of some of the key paragraphs of the decision).

 More...

New Article Published! The Olympic Charter: A Transnational Constitution Without a State?

My latest article has just been published online by the Journal of Law and Society. It is available open access here.

The article stems from a conference organised by Jiri Priban from Cardiff University on Gunther Teubner's idea of societal constitutionalism applied to transnational regimes. My role was to test whether his descriptive and normative framework was readily applicable to the lex sportiva, and in particular its overarching "constitutional" text: the Olympic Charter.

As you will see my conclusion is mixed. I find that the Olympic Charter (OC) displays many constitutional features and is even able to regularly defend successfully its autonomy vis-à-vis national states and their laws. However, while I document some inception of limitative constitutional rules, such as the ban on discrimination or the principle of fair play, I also conclude that those have limited impact in practice. While constitutional changes to the OC can be triggered by scandal, resistance and contestation, as illustrated by the emergence of environmental concerns after the Albertville Games and the governance reshuffle of the IOC after the Salt Lake City scandal, I am also sceptical that these were sufficient to tackle the underlying problems, as became obvious with the unmatched environmental damage caused by the Sotchi Games in 2014.

In conclusion, more than sporadic public outrage, I believe that the intervention of national law and, even more, European Union law will be capable and needed to rein the Olympic regime and impose external constitutional constraints on its (at least sometimes) destructive operations.

Here is the abstract of the article: This article examines various aspects of Teubner's theory of societal constitutionalism using the lex sportiva as an empirical terrain. The case study focuses on the operation of the Olympic Charter as a transnational constitution of the Olympic movement. It shows that recourse to a constitutional vocabulary is not out of place in qualifying the function and authority of the Charter inside and outside the Olympic movement. Yet, the findings of the case study also nuance some of Teubner's descriptive claims and question his normative strategy.

Good read! (And do not hesitate to share your feedback)


New Position - Internship in International Sports Law - Deadline 15 August


The T.M.C. Asser Instituut offers post-graduate students the opportunity to gain practical experience in the field of international and European sports law.  The T.M.C. Asser Instituut, located in The Hague, is an inter-university research institute specialized in international and European law. Since 2002, it is the home of the ASSER International Sports Law Centre, a pioneer in the field of European and international sports law. More...


Human Rights Protection and the FIFA World Cup: A Never-Ending Match? - By Daniela Heerdt

Editor’s note: Daniela Heerdt is a PhD candidate at Tilburg Law School in the Netherlands. Her PhD research deals with the establishment of responsibility and accountability for adverse human rights impacts of mega-sporting events, with a focus on FIFA World Cups and Olympic Games. She recently published an article in the International Sports Law Journal that discusses to what extent the revised bidding and hosting regulations by FIFA, the IOC and UEFA strengthen access to remedy for mega-sporting events-related human rights violations.


The 21st FIFA World Cup is currently underway. Billions of people around the world follow the matches with much enthusiasm and support. For the time being, it almost seems forgotten that in the final weeks leading up to the events, critical reports on human rights issues related to the event piled up. This blog explains why addressing these issues has to start well in advance of the first ball being kicked and cannot end when the final match has been played. More...



Call for papers: Annual International Sports Law Conference of the International Sports Law Journal - 25 & 26 October - Asser Institute, The Hague

 Call for papers: Annual International Sports Law Conference of the International Sports Law Journal

Asser Institute, The Hague

25 and 26 October 2018

The editorial board of the International Sports Law Journal (ISLJ) is inviting you to submit abstracts for its second ISLJ Annual Conference on International Sports Law, which will take place on 25 and 26 October at the Asser Institute in The Hague. The ISLJ published by Springer in collaboration with Asser Press is the leading academic publication in the field of international sports law. Its readership includes academics and many practitioners active in the field. This call is open to researchers as well as practitioners. 

We are also delighted to announce that Prof. Franck Latty (Université Paris Nanterre), Prof. Margareta Baddeley (Université de Genève), and Silvia Schenk (member of FIFA’s Human Rights Advisory Board) have confirmed their participation as keynote speakers.

Abstracts could, for example, tackle questions linked to the following international sports law subjects:

  • The interaction between EU law and sport
  • Antitrust and sports regulation
  • International sports arbitration (CAS, BAT, etc.)
  • The functioning of the world anti-doping system (WADA, WADC, etc.)
  • The global governance of sports
  • The regulation of mega sporting events (Olympics, FIFA World Cup, etc.)
  • The transnational regulation of football (e.g. the operation of the FIFA Regulations on the Status and Transfer of Players or the UEFA Financial Fair Play Regulations)
  • The global fight against corruption in sport  
  • Comparative sports law
  • Human rights in sport 

Please send your abstract (no more than 300 words) and CV no later than 30 April 2018 to a.duval@asser.nl. Selected speakers will be informed by 15 May.

The selected participants will be expected to submit a draft paper by 1 September 2018. All papers presented at the conference are eligible for publication in a special edition of the ISLJ.  To be considered for inclusion in the conference edition of the journal, the final draft must be submitted for review by 15 December 2018.  Submissions after this date will be considered for publication in later editions of the Journal.

The Asser Institute will cover one night accommodation for the speakers and will provide a limited amount of travel grants (max. 300€). If you wish to be considered for a grant please justify your request in your submission. 

Stepping Outside the New York Convention - Practical Lessons on the Indirect Enforcement of CAS-Awards in Football Matters - By Etienne Gard

Editor’s Note: Etienne Gard graduated from the University of Zurich and from King's College London. He currently manages a project in the field of digitalization with Bratschi Ltd., a major Swiss law firm where he did his traineeship with a focus in international commercial arbitration.

1. Prelude

On the 10th of June, 1958, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, widely known as the “New York Convention”, was signed in New York by 10 countries.[1] This rather shy figure progressively grew over the decades to now reach 157 signatory countries, turning the New York Convention into the global recognition and enforcement instrument it is today. As V.V. Veeder’s puts it, “One English law lord is said to have said, extra judicially, that the New York Convention is both the Best Thing since sliced bread and also whatever was the Best Thing before sliced bread replaced it as the Best Thing.”[2]

However, among the overall appraisal regarding the New York Convention, some criticisms have been expressed. For instance, some states use their public policy rather as a pretext not to enforce an award than an actual ground for refusal.[3]  A further issue is the recurring bias in favor of local companies.[4] Additionally, recognition and enforcement procedures in application of the New York Convention take place in front of State authorities, for the most part in front of courts of law, according to national proceeding rules. This usually leads to the retaining of a local law firm, the translation of several documents, written submissions and one, if not several hearings. Hence, the efficiency of the New York Convention as a recognition and enforcement mechanism comes to the expense of both money and time of both parties of the arbitral procedure.

In contrast with the field of commercial arbitration, where the New York Convention is often considered the only viable option in order to enforce an award, international football organizations, together with the Court of Arbitration for Sport (“CAS”), offer an effective enforcement alternative. This article aims at outlining the main features of the indirect enforcement of CAS awards in football matters in light of a recent case. More...



The International Partnership against Corruption in Sport (IPACS) and the quest for good governance: Of brave men and rotting fish - By Thomas Kruessmann

Editor's note: Prof. Thomas Kruessmann is key expert in the EU Technical Assistant Project "Strengthening Teaching and Research Capacity at ADA University" in Baku (Azerbaijan). At the same time, he is co-ordinator of the Jean-Monnet Network "Developing European Studies in the Caucasus" with Skytte Institute of Political Studies at the University of Tartu (Estonia).


The notion that “fish rots from the head down” is known to many cultures and serves as a practical reminder on what is at stake in the current wave of anti-corruption / integrity and good governance initiatives. The purpose of this blog post is to provide a short update on the recent founding of the International Partnership against Corruption in Sport (IPACS), intermittently known as the International Sports Integrity Partnership (IPAS), and to propose some critical perspectives from a legal scholar’s point of view.

During the past couple of years, the sports world has seen a never-ending wave of corruption allegations, often followed by revelations, incriminations and new allegation. There are ongoing investigations, most notably in the United States where the U.S. Department of Justice has just recently intensified its probe into corruption at the major sports governing bodies (SGBs). By all accounts, we are witnessing only the tip of the iceberg. And after ten years of debate and half-hearted reforms, there is the widespread notion, as expressed by the Council of Europe’s (CoE’s) Parliamentary Assembly (PACE) Resolution 2199/2018 that “the sports movement cannot be left to resolve its failures alone”. More...



Asser International Sports Law Blog | Selected procedural issues –and questions– arising out the Caster Semenya Judgment of the Swiss Federal Tribunal - By Despina Mavromati

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

Selected procedural issues –and questions– arising out the Caster Semenya Judgment of the Swiss Federal Tribunal - By Despina Mavromati

Editor's note: Dr Despina Mavromati is an attorney specializing in international sports law and arbitration (Sportlegis Lausanne) and a UEFA Appeals Body Member. She teaches sports arbitration and sports contracts at the University of Lausanne, Switzerland

 

As the title indicates, this short note only deals with selected procedural issues and questions arising out of the very lengthy Semenya Judgment. In a nutshell, the SFT dismissed Semenya’s appeal to set aside the CAS Award, which had denied the request of Caster Semenya (Semenya, the Athlete) to declare unlawful the Differences of Sex Development (DSD) Regulations of World Athletics (formerly IAAF).[1]

At the outset, it has to be reminded that the CAS Award dealt with the merits of the Semenya case in a final and binding way by rendering an arbitral award according to Article R59 of the CAS Code (and Article 190 of the Swiss Private International Law Act – PILA). Therefore, the SFT did not act as an appellate court but rather as a cassatory court, entitled to review only whether the exhaustively enumerated grounds for annulment set out in Article 190 (2) PILA were met (and provided that they were properly invoked and substantiated in the motion to set aside said award).

 

The granting - and subsequent lifting - of the suspensive effect of the DSD Regulations

This was one of the few cases in sports arbitration where the SFT granted an urgent interim relief (mesures superprovisionnelles), by ordering World Athletics to suspend the implementation of the DSD Regulations, only to lift such relief shortly afterwards for lack of prima facie “reasonable chances of success”. The fate of the motion to set aside the CAS Award appeared to be ominous already at that stage. Another relatively recent case where the SFT granted interim relief (only to revoke it later) was the Guerrero case. 

 

Legal interest of a federation in order to “support” its member athletes

According to the admissibility conditions of the Law on the Federal Tribunal (LTF), the party filing a motion to set aside a CAS award must have a current interest worthy of protection. It is e.g. extremely difficult to meet this condition in a case relating to a competition that already took place. It One must also have a “personal” legal interest worthy of protection (see the SFT judgment in the matter of FIFA v. P. Guerrero & WADA). World Athletics contested the “personal” legal interest of Athletics South Africa but the SFT drew the distinction between this case and one of its previous judgments (the Guerrero case), where FIFA had contested a doping-related sanction imposed by the CAS before the SFT. Other than in the Guerrero case, the Athlete’s national federation (ASA) had not previously rendered a decision on the Athlete; moreover, national federations are directly concerned by the DSD Regulations to the extent that they need to actively collaborate with their international federation for their effective implementation (Semenya Judgment, at 4.1.3) This means that, in similar cases in the future, member federations have also standing to challenge the validity of such regulations.

 

Waivers to appeal to the SFT against CAS awards are invalid, full stop.

The waiver to bring the case before the CAS included in the disputed DSD Regulations was, obviously, invalid to the extent that it was not the “fruit of an explicit consent” by the Athlete. The latter had thus the right to contest the CAS Award before the SFT and this federal jurisprudence has remained unaltered since the groundbreaking Cañas SFT judgment (see the Semenya Judgment at 4.2.4).

 

The CAS independence revisited – even though not questioned by the parties

Unlike other athletes, Caster Semenya did not attack the CAS Award suggesting the lack of independence or impartiality of the CAS—either as an arbitral institution or as the subjective independence of its arbitrators (see the Semenya Judgment at 5.1.2). The SFT still deemed important to repeat its jurisprudence on the institutional independence and the specialized character of the CAS, to which the parties brought their dispute (see the Semenya Judgment including all references to SFT and ECtHR case law at 5.1.2).

 

The meaning - and limits - of the SFT leitmotiv “facts established by the CAS Panel are binding upon the SFT”

This is the reason most often invoked by the SFT when declaring inadmissible a particular grievance raised by the parties as a “criticism of appellatory nature” (see also “faits constatés dans la sentence” in the Semenya Judgment at 5.2.2). It is well-known that, unlike the de novo review by the CAS under Article R57 CAS Code, the SFT will not review the facts as they were established by the CAS Panel – save for the most exceptional circumstances (see the Semenya Judgment at 5.2.3 f.).

In the particular circumstances of this case, the facts binding on the SFT did not prevent the latter from reviewing the legality of the DSD Regulations. The SFT could however only consider the facts as they were established in the CAS award and not in the parties’ version of facts, to the extent that these versions deviated from the CAS factual findings (see the Semenya Judgment at 6). As such, the starting point for such analysis (and obviously one of key importance) was the Panel’s factual finding that athletes subject to the DSD Regulations enjoy an “overwhelming” advantage over other female athletes that are not subject to such regulations (see the Semenya Judgment -“avantage insurmontable”- at 9.6.2, at 9.8.2 and 11.1).

 

Swiss law not applicable in the case at hand

With the international federation based in Monaco (an exception to the rule that international federations are based in Switzerland), the CAS Panel proceeded to the interpretation of the DSD Regulations based on the IAAF Constitution and Rules, the Olympic Charter, and Monegasque law. As such, it held that Swiss law was not applicable to the merits and the SFT confirmed such finding (See the Semenya Judgment at 5.1.1). This, however, does not seem to have any influence on the SFT’s findings to the extent that the latter is not an appellate court and should not evaluate the application of Swiss–or any other—law applied in the specific case (see the Semenya Judgment at 9.1).

 

Violation of the constitution of the panel for unduly limiting its (full) scope of review

The Athlete raised a—rather unusual—ground for annulment (particularly based on the ground of irregular composition of the tribunal) because the panel had allegedly refused to amend or complement the DSD Regulations, thereby unduly limiting its scope of review. The SFT dismissed the plea holding that the full power of review of the panel related to the control of the proportionality of the DSD Regulations and not their amendment. The SFT dismissed the plea as unfounded, even though it implicitly considered that this plea does not even fall within the scope of irregular composition of the arbitral tribunal under Article 190 (2) (a) PILA but could – at most – constitute a violation of the parties’ right to be heard (see the Semenya Judgment -with further references- at 7).

 

Violation of substantive public policy – the three pleas invoked by the Athlete

Caster Semenya’s request for annulment of the CAS Award due to a violation of substantive public policy was divided into three pleas: the violation of the principle of prohibition of discrimination, the violation of personality rights of the Athlete and the violation of the Athlete’s human dignity. In this respect, the two conflicting groups were the athletes subject to the DSD Regulations against the athletes who were not subject to the DSD Regulations.

 

Horizontal Application of the Prohibition of discrimination ?

The prohibition of discrimination as foreseen in Art. 8 (2) of the Swiss Constitution applies to the relation between individuals and the State and has no “horizontal” effect. Sports associations are considered “private” parties notwithstanding their size and thus discrimination resulting from such private parties does not form part of the essential values that form public policy. The “private” character of sports associations has long been an obstacle for athletes when invoking violations of their constitutional guarantees and was also mentioned in this judgment (at 9.4).

Notwithstanding its insistence on the “private” character of sports associations, the SFT does seem to hesitantly develop its jurisprudence. Similar to the principles of interpretation under Swiss law, where the SFT has held that statutes of large federations must be interpreted in accordance with the principles of interpretation of a (states’) legal acts (see e.g. the Kuwait Motorsport SFT Judgment), the SFT acknowledged in the Semenya case that the relationship between an athlete and a large (international) sports association bears similarities to the relationship between an individual and a state (see the Semenya Judgment, at 9.4).

In any event, this interesting debate will have to wait for another judgment since the SFT eventually found that there was no violation of the prohibition of the principle of discrimination by following the argumentation of the CAS Panel, whereby a discriminatory measure can still be allowed if justified by a legitimate objective (in casu the principle of equality of chances). In the case at hand, the SFT relied on the assessment made by the CAS Panel which, after hearing all the arguments raised by the parties, resulted in a reasonable outcome (or at least to a “not unreasonable” outcome) (see the Semenya Judgment, at 9.4 and at 9.8.3.3).

 

Breach of personality rights and the difference from the Matuzalem judgment

On the breach of personality rights plea, the SFT reiterated its limited scope within the public policy grievance, which requires a clear and severe violations of a fundamental right. Again, the DSD Regulations were not found to fall within the (narrow) scope of Art. 27 Swiss CO, neither from the viewpoint of physical integrity nor from the viewpoint of economic freedom (see the Semenya Judgment, at 10.1).

Other than in the Matuzalem case (the first – and only SFT judgment that annulled a CAS award for violation of substantive public policy so far), the athlete would still be capable of participating in the specified competitions after complying with the conditions set out in the DSD Regulations; moreover, there was no imminent risk of their economic existence as was in the Matuzalem case, whereas the measure was found to be able to achieve the desired goal, were necessary and proportionate (see the Semenya Judgment at 10.5).

 

Violation of human dignity

The SFT seemed to endorse the CAS Panel’s findings in this respect, and concluded that the impossibility to participate in specific competitions would not amount to a violation of the athlete’s human dignity.


Should the SFT broaden the scope of public policy for sports arbitration? The SFT still says “no”

The scope of substantive public policy according to well-established jurisprudence of the SFT is extremely narrow and such limited review is compatible with the ECtHR (see the Semenya Judgment with references to the Platini Judgment at 5.2.5; see also the Semenya Judgment at 9.8.3.3). The SFT, once again, refused to broaden the scope of the public policy as a ground for annulment of CAS awards. This reminds us of a somewhat different yet analogous attempt of the parties in the SFT Judgment 4A_312/2017. The SFT had reiterated its position that there should be no different notion of public policy tailored to sports arbitration.[2]

 

Closing remarks: The Athlete’s requests for relief and the inherent limits of arbitration in similar cases

It is interesting to note that the Athlete did not appeal to the CAS against a decision finding her ineligible to compete based on the concrete application of the DSD Regulations. She rather filed a claim with the CAS attacking the legality of the DSD Regulations– for all the reasons mentioned in the CAS award and the SFT judgment.

This resulted in the CAS Panel finding – and the SFT confirming - that the DSD Regulations could not be invalidated as such but left the door open for future challenges: the DSD Regulations may prove disproportionate in their application, if e.g. it should prove impossible to apply them, in case of a specific athlete subject to the DSD Regulations where their application proves impossible or disproportionate (see the Semenya Judgment, at 9.8.3.5).

The Athlete would thus – theoretically – be able to file a new case with the CAS, once the DSD Regulations were implemented and following a potential decision on ineligibility. This shows the difficulty in directly challenging a set of regulations in cases where the hearing authority considers that it is rather their application in a concrete case that may give rise to a specific violation of athletes’ rights. The CAS panel, as an arbitral tribunal, is inherently limited by the scope of the appeal, which in the present case was Caster Semenya’s claim to have the DSD Regulations declared invalid as such.


[1] For an insightful overview of the facts behind the judgment and the findings of the SFT, see Marjolaine Viret, Chronicle of a Defeat Foretold: Dissecting the Swiss Federal Tribunal’s Semenya Decision – in the Asser International Sports Law Blog of 9 September 2020.

[2] See SFT Judgment 4A_312/2017 of 27 November 2017.
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