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 ISU Commission's Decision and the Slippery Side of Eligibility Rules - By Stefano Bastianon (University of Bergamo)

Editor’s note: Stefano Bastianon is Associate Professor in European Law at the University of Bergamo and lawyer admitted to the Busto Arsizio bar. He is also member of the IVth Division of the High Court of Sport Justice (Collegio di Garanzia dello sport) at the National Olympic Committee.

1. From the very beginning, the outcome of the ISU case was highly predictable, at least for those who are familiar with the basics of antitrust law. Nevertheless, more than twenty years after the Bosman judgment, the sports sector has shown the same shortsightedness and inability to see the forest for the trees. Even this attitude was highly predictable, at least for those who know the basics of sports governance. The final result is a clear-cut decision capable of influencing the entire sports movement. More...



Human Rights as Selection Criteria in Bidding Regulations for Mega-Sporting Events – Part II: FIFA and Comparative Overview – By Tomáš Grell

The first part of this two-part blog examined the new bidding regulations adopted by the IOC and UEFA, and concluded that it is the latter who gives more weight to human rights in its host selection process. This second part completes the picture by looking at FIFA's bidding regulations for the 2026 World Cup. It goes on to discuss whether human rights now constitute a material factor in evaluating bids to host the mega-sporting events organised by these three sports governing bodies. More...

Human Rights as Selection Criteria in Bidding Regulations for Mega-Sporting Events – Part I: IOC and UEFA – By Tomáš Grell

Editor’s note: Tomáš Grell holds an LL.M. in Public International Law from Leiden University. He contributes to the work of the ASSER International Sports Law Centre as a research intern.


It has been more than seven years since the FIFA Executive Committee awarded the 2022 World Cup to Qatar. And yet only in November 2017 did the Qatari government finally agree to dismantle the controversial kafala system, described by many as modern-day slavery. Meanwhile, hundreds of World Cup-related migrant workers have reportedly been exposed to a wide range of abusive practices such as false promises about the pay, passport confiscation, or appalling working and living conditions.[1] On top of that, some workers have paid the highest price – their life. To a certain extent, all this could have been avoided if human rights had been taken into account when evaluating the Qatari bid to host the tournament. In such a case, Qatar would not have won the bidding contest without providing a convincing explanation of how it intends to ensure that the country's poor human rights record will not affect individuals, including migrant workers, contributing to the delivery of the World Cup. An explicit commitment to abolish the kafala system could have formed an integral part of the bid.

Urged by Professor John Ruggie and his authoritative recommendations,[2] in October 2017 FIFA decided to include human rights within the criteria for evaluating bids to host the 2026 World Cup, following similar steps taken earlier this year by the International Olympic Committee (IOC) and UEFA in the context of the Olympic Winter Games 2026 and the Euro 2024 respectively. This two-part blog critically examines the role human rights play in the new bidding regulations adopted by the IOC, UEFA, and FIFA. The first part sheds light on the IOC and UEFA. The second part then takes a closer look at FIFA and aims to use a comparative analysis to determine whether the new bidding regulations are robust enough to ensure that selected candidates abide by international human rights standards.More...


International and European Sports Law – Monthly Report – November 2017. By Tomáš Grell

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

 

The Headlines

FIFA and FIFPro sign landmark agreement

A six-year cooperation agreement concluded between FIFA and FIFPro on 6 November 2017 puts an end to protracted negotiations which began after the latter had filed in September 2015 a complaint with the European Commission, challenging the validity of the FIFA transfer system under EU competition law. This agreement, together with an accord reached between FIFA, FIFPro, the European Club Association, and the World Leagues Forum under the umbrella of the FIFA Football Stakeholders Committee, should help streamline dispute resolution between players and clubs, avoid abusive practices in the world of football, or contribute to the growth of professional women's football. In addition, the FIFA Football Stakeholders Committee is now expected to establish a task force to study and conduct a broader review of the transfer system. As part of the deal, FIFPro agreed to withdraw its EU competition law complaint.

FIFA strengthens its human rights commitment amid reports of journalists getting arrested in Russia

It is fair to say that human rights have been at the forefront of FIFA's agenda in 2017. Following the establishment of the Human Rights Advisory Board in March and the adoption of the Human Rights Policy in June this year, in November FIFA published the bidding regulations for the 2026 World Cup. Under these new regulations, member associations bidding to host the final tournament shall, inter alia, commit themselves to respecting all internationally recognised human rights in line with the United Nations Guiding Principles on Business and Human Rights or present a human rights strategy on how they intend to honour this commitment. Importantly, the human rights strategy must include a comprehensive report that is to be complemented and informed by a study elaborated by an independent expert organisation. Moreover, on 9 November 2017, the Human Rights Advisory Board published its first report in which it outlined several recommendations for FIFA on how to further strengthen its efforts to ensure respect for human rights.

While all these attempts to enhance human rights protection are no doubt praiseworthy, they have not yet produced the desired effect as reports of gross human rights abuses linked to FIFA's activities continue to emerge. Most recently, Human Rights Watch documented how Russian police arrested a newspaper editor and a human rights defender whose work focused on exposing World Cup-related corruption and exploitation of migrant construction workers. On a more positive note, a bit of hope comes with the announcement by a diverse coalition, including FIFA, UEFA, and the International Olympic Committee, of its intention to launch a new independent Centre for Sport and Human Rights in 2018.

More than 20 Russian athletes sanctioned by the Oswald Commission for anti-doping rule violations at the Sochi Games   

November has been a busy month for the International Olympic Committee, especially for its Oswald Commission. Established in July 2016 after the first part of the McLaren Independent Investigation Report had been published, the Oswald Commission is tasked with investigating the alleged doping violations by Russian athletes at the 2014 Winter Olympic Games in Sochi. Its first sanctions were handed down last month. As of 30 November 2017, the Commission chaired by the IOC Member Denis Oswald sanctioned 22 athletes (see here, here, here, here, here, and here) who competed at the Sochi Olympics in the following sports: biathlon, bobsleigh, cross country skiing, skeleton, and speed skating. The Commission published its first full decision on 27 November 2017 in the case against the cross country skier Alexander Legkov, a gold and silver medallist from the Sochi Olympics, who was ultimately banned for life from attending another Olympics.More...

Statement on the European Commission's ISU Decision by Ben Van Rompuy and Antoine Duval

Editor's note: We (Ben Van Rompuy and Antoine Duval) are at the origin of today's decision by the European Commission finding that the International Skating Union's eligibility rules are contrary to EU competition law. In 2014, we were both struck by the news that ISU threatened lifetime ban against speed skaters wishing to participate in the then projected Icederby competitions and convinced that it was running against the most fundamental principles of EU competition law. We got in touch with Mark and Niels and lodged on their behalf a complaint with the European Commission. Three years after we are pleased to see that the European Commission, and Commissioner Vestager in particular, fully embraced our arguments and we believe this decision will shift the tectonic structure of sports governance in favour of athletes for years to come.


Here is our official statement:

Today is a great day for Mark Tuitert and Niels Kerstholt, but more importantly for all European athletes. The European Commission did not only consider the International Skating Union's eligibility rules contrary to European law, it sent out a strong message to all international sports federations that the interests of those who are at the centre of sports, the athletes, should not be disregarded. This case was always about giving those that dedicate their lives to excelling in a sport a chance to compete and to earn a decent living. The majority of athletes are no superstars and struggle to make ends meet and it is for them that this decision can be a game-changer.

However, we want to stress that this case was never about threatening the International Skating Union’s role in regulating its sport. And we very much welcome the exceptional decision taken by the European Commission to refrain from imposing a fine which could have threatened the financial stability of the International Skating Union. The International Skating Union, and other sports federations, are reminded however that they cannot abuse their legitimate regulatory power to protect their economic interests to the detriment of the athletes.

We urge the International Skating Union to enter into negotiations with representatives of the skaters to devise eligibility rules which are respectful of the interests of both the athletes and their sport.

Since the summer of 2014, it has been our honour to stand alongside Mark and Niels in a 'David versus Goliath' like challenge to what we always perceived as an extreme injustice. In this fight, we were also decisively supported by the team of EU Athletes and its Chance to Compete campaign.

Finally, we wish to extend a special thank you to Commissioner Vestager. This case is a small one for the European Commission, but Commissioner Vestager understood from the beginning that small cases do matter to European citizens and that European competition law is there to provide a level playing for all, and we are extremely grateful for her vision.


Dr. Ben Van Rompuy (Leiden University) and Dr. Antoine Duval (T.M.C. Asser Instituut)

A Good Governance Approach to Stadium Subsidies in North America - By Ryan Gauthier

Editor's Note: Ryan Gauthier is Assistant Professor at Thompson Rivers University in Canada. Ryan’s research addresses the governance of sports organisations, with a particular focus on international sports organisations. His PhD research examined the accountability of the International Olympic Committee for human rights violations caused by the organisation of the Olympic Games.


Publicly Financing a Stadium – Back in the Saddle(dome)

Calgary, Canada, held their municipal elections on October 16, 2017, re-electing Naheed Nenshi for a third term as mayor. What makes this local election an interesting issue for sports, and sports law, is the domination of the early days of the campaign by one issue – public funding for a new arena for the Calgary Flames. The Flames are Calgary’s National Hockey League (NHL) team, and they play in the Scotiabank Saddledome. More...




Illegally obtained evidence in match-fixing cases: The Turkish perspective - By Oytun Azkanar

Editor’s Note: Oytun Azkanar holds an LLB degree from Anadolu University in Turkey and an LLM degree from the University of Melbourne. He is currently studying Sports Management at the Anadolu University.

 

Introduction

On 19 October 2017, the Turkish Professional Football Disciplinary Committee (Disciplinary Committee) rendered an extraordinary decision regarding the fixing of the game between Manisaspor and Şanlıurfaspor played on 14 May 2017. The case concerned an alleged match-fixing agreement between Elyasa Süme (former Gaziantepspor player), İsmail Haktan Odabaşı and Gökhan Sazdağı (Manisaspor players). The Disciplinary Committee acknowledged that the evidence relevant for proving the match-fixing allegations was obtained illegally and therefore inadmissible, and the remaining evidence was not sufficient to establish that the game was fixed. Before discussing the allegations, it is important to note that the decision is not only significant for Turkish football but is also crucial to the distinction between disciplinary and criminal proceedings in sports. More...

Report from the first ISLJ Annual International Sports Law Conference - 26-27 October at the T.M.C. Asser Instituut

Close to 100 participants from 37 different countries attended the first ISLJ Annual International Sports Law Conference that took place on 26-27 October 2017 in The Hague. The two-day programme featured panels on the FIFA transfer system, the labour rights and relations in sport, the protection of human rights in sport, EU law and sport, the Court of Arbitration for Sport, and the world anti-doping system. On top of that, a number of keynote speakers presented their views on contemporary topics and challenges in international sports law. This report provides a brief summary of the conference for both those who could not come and those who participated and would like to relive their time spent at the T.M.C. Asser Institute.More...

International and European Sports Law – Monthly Report – October 2017. By Tomáš Grell

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

Multi-Club Ownership in European Football – Part II: The Concept of Decisive Influence in the Red Bull Case – By Tomáš Grell

 

Introduction 

The first part of this two-part blog on multi-club ownership in European football outlined the circumstances leading to the adoption of the initial rule(s) aimed at ensuring the integrity of the UEFA club competitions (Original Rule) and retraced the early existence of such rule(s), focusing primarily on the complaints brought before the Court of Arbitration for Sport and the European Commission by the English company ENIC plc. This second part will, in turn, introduce the relevant rule as it is currently enshrined in Article 5 of the UCL Regulations 2015-18 Cycle, 2017/18 Season (Current Rule). It will then explore how the UEFA Club Financial Control Body (CFCB) interpreted and applied the Current Rule in the Red Bull case, before drawing some concluding remarks.  More...

Asser International Sports Law Blog | Sport and EU Competition Law: uncharted territories - (I) The Swedish Bodybuilding case. By Ben Van Rompuy

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

Sport and EU Competition Law: uncharted territories - (I) The Swedish Bodybuilding case. By Ben Van Rompuy

The European Commission’s competition decisions in the area of sport, which set out broad principles regarding the interface between sports-related activities and EU competition law, are widely publicized. As a result of the decentralization of EU competition law enforcement, however, enforcement activity has largely shifted to the national level. Since 2004, national competition authorities (NCAs) and national courts are empowered to fully apply the EU competition rules on anti-competitive agreements (Article 101 TFEU) and abuse of a dominant position (Article 102 TFEU).

Even though NCAs have addressed a series of interesting competition cases (notably dealing with the regulatory aspects of sport) during the last ten years, the academic literature has largely overlooked these developments. This is unfortunate since all stakeholders (sports organisations, clubs, practitioners, etc.) increasingly need to learn from pressing issues arising in national cases and enforcement decisions. In a series of blog posts we will explore these unknown territories of the application of EU competition law to sport.

We kick-start the series with a recent investigation of the Swedish National Competition Authority (NCA) into a so-called duty of loyalty clause applied by the Swedish Bodybuilding and Fitness Federation (Svenska Kroppskulturförbundet, SKKF).[1]

Source: http://www.scmp.com/photos/recent/all/1046780


The facts

The SKKF is the only national member of the International Bodybuilding Federation (IFBB) and organises various championships in the sport of bodybuilding and fitness in Sweden. It is essential for Swedish clubs, individual athletes, and officials to be a member of the SKKF as this is prerequisite for participation in IFBB international competitions.

The IFBB’s rules and regulations form an integral part of the SKKF’s Statutes. According to the SKKF’s rules, members who compete or otherwise participate in contests that are not approved or authorised by the SKFF or IFBB can be fined or suspended (i.e. the duty of loyalty clause). Athletes who have taken part in an unsanctioned event must also test for doping, at their own expenses, before they are allowed to compete at SKKF or IFBB events again.

In October 2013, BMR Sport Nutrition AB, a manufacturer of nutritional and bodybuilding supplements that also occasionally organises unsanctioned bodybuilding and fitness events in Sweden, filed a complaint before the NCA alleging that this rule violates Article 101 TFEU and Chapter 2, Article 1 of the Swedish Competition Act as it prevents event organisers from effectively competing with the SKKF (i.e. they are deprived from the chance to gather the human resources necessary for a successful event). The complainant submitted evidence that the threat of a fine and/or the withdrawal of their license by the SKKF effectively deterred athletes from participating in non-sanctioned events.


The context

The Swedish bodybuilding case follows a 2011 decision of the NCA, which ordered the Swedish Automobile Sports Federation (Svenska Bilsportförbundet, SBF) to abolish its rules preventing members from participating in motorsport events not authorized by the KKF.[2] On appeal by SBF, the Swedish Market Court upheld the decision in its entirety.[3]

This “precedent” case dealt with two duty of loyalty clauses in the SBF’s Common Rules prohibiting officials and contestants, licensed by the SBF, to officiate or participate in motor sport events other than those organised by the SBF or its member clubs. A violation of these provisions could result in a fine and/or withdrawal of the licence to officiate or compete in SBF events.

The NCA and the Market Court established that the contested rules constituted a decision by an association of undertakings. While the NCA had only applied national competition law, the Market Court, having defined the organisation of motorsport competitions in Sweden as the relevant product market, found that trade between the Member States was affected and therefore also applied Article 101 TFEU. According to the Court, the mere existence of the rules considerably distorted competition because they led to an absolute ban for SBF members to participate in non-sanctioned events. It concluded that, even if the rules would be regarded as serving a legitimate objective, the total ban could not be considered proportional to achieving such an objective. Moreover, the Court concluded that the restriction of competition could not benefit from an exemption under Article 101(3) TFEU or Chapter 2, Article 1 of the Swedish Competition Act.

While the Market Court’s judgment is far from innovative and carefully followed the proportionality test adopted by the Court of Justice in Meca-Medina, the case drew much media attention and raised concerns and criticism from the Swedish sports movement. Having demonstrated the remedial potential of EU competition law to challenge organisational sporting rules, it was only a matter of time before further national enforcement action would result from this case. 


The outcome

In a statement responding to the filing of the complaint by BMR Sport Nutrition AB, the chairman of the SKKF contested the apparent analogy with the SBF (motorsport) case. He essentially put forward three reasons. First, the SKKF is a non-profit organisation that pursues an aim in the general interest (i.e. the promotion of sport) and reinvests all its income, which is insufficient to cover its costs, in its sports activities, e.g. to fund education and training activities, doping tests, and travel expenses of the national team. This precludes the assumption that it pursues an economic activity. It follows that the SKKF cannot be regarded as an undertaking for the purposes of competition law (contrary to commercially successful sports associations). Second, the SKKF does not act independently of the will of its members. Similar to trade unions, member athletes voluntarily submit themselves to the applicable regulations when they join a member club. They can move to change certain rules if they find, in a true democratic spirit, a majority for such change. Alternatively, member athletes can choose to leave their club and join another association. Third, the right of freedom of association excludes the rule-making powers of the SKKF from the ambit of the competition rules.

Nevertheless, following several meetings between the NCA and the SKKF, the latter committed no longer to suspend or fine athletes, coaches, officials or judges that participate in non-sanctioned events.[4] The requirement that they must test for doping, at their own expense, was not abolished. According to the SKFF, this requirement was necessary to comply with the IFBB anti-doping rules, which conform to the provisions of the World Anti-Doping Code.

Given the commitment of the SKKF to no longer apply the duty of loyalty clause, the NCA decided to close the investigation without concluding whether competition law had been infringed.


Commentary

Those familiar with sports-related competition law cases will surely recognize the arguments of the chairman of the SKKF to assert immunity from the application of the competition rules. While they have been tried and tested many times, also before the Union courts, these arguments keep popping up. So let’s take a closer at why they are not accepted.

Regarding the claim that the SKKF is a non-profit organisation that exclusively aims to promote the development of the sport, it must be recalled that – if there still was any doubt - in Meca-Medina the Court of Justice made clear that the qualification of a rule as “purely sporting” was insufficient to remove the body adopting that rule (or the person engaging in the activity covered by it) from the scope of the Treaty. It thus must be examined, irrespective of the nature of the rule, whether the specific requirements of the various provisions of the Treaty are met. For the purpose of the competition rules, the notion of “undertaking” is a core jurisdictional element. According to established case law, this concept covers “any entity engaged in an economic activity regardless of the legal status of the entity or the way in which it is financed”.[5]

In an attempt to escape the bite of the competition rules, various other sports associations have time and again asserted that they cannot be regarded as “undertakings” because their objective is not the pursuit of economic interests. Even when only considering their regulatory functions, this reasoning finds no support in the case law. The Court of Justice has consistently held that the concept of undertaking does not presuppose a profit-making intention. The fact that entities are non-profit making has no effect on their classification as undertakings.[6] Similarly, the fact that entities pursue cultural or social activities does not in itself prevent these activities from being regarded as economic.[7]

In the case at hand, it is clear that in addition to the SKKF, even assuming that it organises bodybuilding and fitness events without seeking to make profit, other entities like BMR Sport Nutrition AB are also engaged in that activity (and do seek to make a profit). The SKKF offers goods or services on a market in competition with others. The success or economic survival of the SKKF ultimately depends on it being able to impose its services to the detriment of those offered by other event organisers. Consequently, the SKKF must be considered as an undertaking engaged in the markets for the organisation and marketing of bodybuilding and fitness events.

Regarding the somewhat chucklesome claim that the SKKF should be qualified as a trade union (or other professional association) that cannot act independently of the will of its members, it is sufficient to stress that Article 101 TFEU also applies to “associations of undertakings”. A federation like the SKKF, the beacon of democracy it may be, is not an association of employees but (also) of member clubs that engage in economic activities. Hence, the result of the delimitation between the federation acting “in its own right” or “merely as an executive organ of an agreement between its members” is irrelevant: Article 101 TFEU still applies to its regulations.

Regarding the claim based on the principle of freedom of association, indeed protected in the Swedish constitution as well as in the EU legal order, it is difficult to see how the duty of loyalty clause could be considered an inevitable result thereof. In any event, the Court of Justice has made clear that this right cannot be so absolute as to afford sports federations’ complete immunity from EU law.[8] In other words, the need to guarantee sports’ right of self-regulation cannot be a blank check to avoid scrutiny of measures that may conceal the pursuit of economic interest. Provided that its rules are proportional to a legitimate objective, SKKF should have nothing to fear from the competition rules.

So contrary to what the chairman of the SKKF contented, the analogy between its rule and the contested rule in the SBF (motorsport) case was accurate. A confrontation with this inconvenient truth was sufficient to convince the SKKF to commit itself to no longer suspend or fine athletes, coaches, officials or judges for participating in non-sanctioned competitions. That the requirement of a doping test (for those having participated in competing events) could remain clearly illustrates that competition law will leave unscratched restrictive sporting rules that are deemed inherent and proportionate to the organisation and proper conduct of sport. It almost makes you wonder what all the fuss is about when competition law confronts the world of sport.

One final note: the contested “SKKF” rule is the national equivalent of the clause contained in the IFBB Constitution (which forms an integral part of the SKKF’s statutes). Article 19.4.7 stipulates that:

“Any athlete or official who participates in a competition or event not approved or sanctioned by the IFBB, may be fined, suspended or expelled. The amount of the fine as well as the suspension period will be decided by the IFBB Disciplinary Commission … Once the suspension has been completed and before participating in an IFBB competition or event, the athlete must be drug tested at his or her own expenses”

Participation in an event or competition includes (but is not limited to!) competing, guest posing, giving a seminar, lecture or similar presentation, judging, officiating, allowing the use of one’s name and/or likeness for promotional purposes, and/or taking part in a non-IFBB sanctioned competition or event in any other way, shape or form.

To the IFBB and all other European member federations, who have to the author’s knowledge not decided to no longer enforce or abolish this rule: beware!


[1] Swedish Competition Authority (Konkurrensverket), 28 May 2014, Bodybuilding and Fitness Competitions, Decision dnr. 590/2013, http://www.kkv.se/upload/Filer/Konkurrens/2014/13-0590.pdf

[2] Swedish Competition Authority (Konkurrensverket) 13 May 2011, Swedish Automobile Sports Federation, Decision dnr. 709/2009, available at http://www.kkv.se/upload/Filer/Konkurrens/2011/Beslut/09-0709.pdf

[3] Swedish Market Court's ruling 2012:16 in Case A 5/11, Svenska Bilsportförbundet v Konkurrensverket (December 20, 2012), http://www.kkv.se/t/NewsArchive.aspx?id=529

[4] The SKKF notified its member athletes and clubs of the changes via its newsletter and website.

[5] Case C-41/90 Höfner and Elser [1991] ECR I-1979, para. 21.

[6] See e.g. Case C-222/04 Ministero dell'Economia e delle Finanze v Cassa di Risparmio di Firenze SpA and others [2006] ECR I-289; Case C-475/99 Firma Ambulanz Glöckner v Landkreis Südwestpfalz [2001] ECR I-8089; Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck v Commission [1980] ECR 3125; C-244/94 Fédération Française des Sociétés d’Assurances and others v Ministère de l'Agriculture [1995] ECR I-4013; Joined Cases C-115/97 to C-117/07 Brentjens’ Handelsonderneming BV v Stichting Bedrijfspensioenfonds voor de Handel in Bouwmaterialen [1999] ECR I-6025.

[7] See e.g. Joined case C-180/98 to C-184/98 Pavel Pavlov and Others v Stichting Pensioenfonds Medische Specialisten [2000] ECR I-6451; Case C‑218/00 Cisal [2002] ECR I‑691.

[8] Case C-415/93 Union Royale Belge des Sociétés de Football Association and others v Bosman and others [1995] ECR I-4921, paras. 79-80

Comments (2) -

  • penerjemah tersumpah

    12/5/2014 2:34:42 AM |

    or more specific project names that would be searchable? Sounds like it would be worth writing up.

  • Garret Radle

    6/24/2015 9:31:34 PM |

    but you sound like you know what you�re talking about! Thanks

Comments are closed