Asser International Sports Law Blog

Editor's note: This is the (belated) fifth part/act of our blog series on the Russian eligibility cases at the CAS ad hoc Division in Rio. The other acts are available at:

Act V: Saving the last (Russian) woman standing: The Klishina miracle

Darya Klishina is now an Olympic celebrity. She will enter the history books not because she won a gold medal or beat a world record. Instead, her idiosyncrasy lies in her nationality: she was the sole Russian athlete authorized to stand in the athletics competitions at the Rio Olympics. And yet, a few days before the start of the long jumping contest in which she was due to take part, the IAAF surprisingly decided to revoke her eligibility (‘And Then There Were None’). But Klishina appealed the decision to the CAS ad hoc Division and, as all of you well-informed sports lawyers will know, she was allowed to compete at the Olympics and finished at a decent ninth place of the long jump finals.

Two important questions are raised by this case:

Why did the IAAF changed its mind and decide to retract Klishina’s authorization to participate?
Why did the CAS overturn this decision?

A. The IAAF’s second thoughts over the implication of Klishina

What happened between 9 July, when Klishina was first green lighted by the IAAF Doping Review Board (DRB) and 10 August when the DRB revoked its previous decision to let her compete? Basically, the publication of the McLaren Report, and especially evidence showing “that the Applicant had been directly affected and tainted by the State-organised doping scheme described in the IP Report”.[1] More concretely, according to the Report, Klishina was affected in the following three ways:

i. “a sample collected on 26 February 2014, yielding a T/E ratio of 8.5, had been subject to a "SAVE" order by the Ministry of Sport on 3 March 2014;

ii. a sample collected on 17 October 2014 and subsequently seized by WADA December 2014 was found to bear marks and scratches consistent with the removal of the cap and contained urine from the Applicant but also from another female athlete; and

iii. a sample collected on the occasion of the 2013 IAAF World Championships in Moscow was also found to bear marks and scratches consistent with the removal of the cap.”[2]

In its original decision, the DRB had reserved its right “to reconsider the Applicant’s case should information ever be brought to its attention (including but not limited to as a result of the current investigation being conducted by Professor McLaren on behalf of WADA) that the Doping Review Board considers is such as to undermine the basis upon which the application was accepted”.[3] Thus, unsurprisingly, the CAS acknowledged that the DRB had the competence to reconsider the eligibility granted to the athlete. Nonetheless, surprisingly, it found that such reconsideration was not legitimate in light of the new information gathered.

B. The surprising decision of CAS to let Klishina jump

Klishina won in front of the CAS. From the outset this is a surprising decision, since she was at least as implicated in the IP Report as numerous other Russian athletes who were barred from entering the Games.[4] Indeed, she had clearly profited from being “saved” by the Russian Ministry of Sport. So why on earth would the CAS decide to let her jump?

This decision is intimately linked with the legal basis of the original decision of the DRB. Despite the repeated view of the IOC that the IAAF policy was stricter than its own,[5] the Klishina case demonstrates that this is not universally true in practice. The main point was that the IAAF’s DRB had recognized that since 1 January 2014, Klishina “had been subject to fully compliant drug testing in- and out-of-competition”[6] and therefore fulfilled the criteria enshrined in the IAAF Competition rule 22.1A(b). This was based on the following factual findings:

“The fact that she had spent 632 days out of Russia, being 86.6% of her time, in the Relevant Period;
She had relocated permanently to the United States in March 2014 and had been trained under a US coach since October 2013;
She regularly competes in competitions on the international circuit;
A total of 11 samples had been collected from the Applicant outside of Russia in the Relevant Period;
1 sample had been collected by the IAAF since June 2016 and sent for analysis by a laboratory outside of Russia.”[7]

The question is then whether the new information, indicating that Klishina was implicated and benefitted from the Russian doping scheme, recognized as valid by the Panel[8], could justify revisiting the first decision. In other words, could this new information lead to reconsidering the eligibility of Klishina under the regime of IAAF Competition rule 22.1A(b) on which the original decision was based? To assess this, the Panel starts by pointing out that the rule “is not the same as the decision of the IOC Executive Board made after the publication of the IP Report. (…) As the parties agreed, the IOC Executive Board decision is not in evidence in this case and decisions of the Ad hoc Panel of the CAS for the Games of the XXXI Olympiad in Rio de Janeiro as to the application of, or the terms of, the IOC Executive Board decision are not applicable”.[9]

The CAS Panel insists that the IAAF’s DRB “was comfortably satisfied that during the Relevant Period the Applicant satisfied each of the criteria set out in the Rule for exceptional eligibility, notwithstanding the suspension of the National Federation”.[10] Furthermore, “in making its findings, the DRB was aware of, and took no account of, tests conducted in Russia and that it was cognisant of inadequacies in the system of testing in Russia, for which RusAF had been suspended”.[11] Those are decisive conclusions that will lead to the second decision being set aside. The CAS Panel was of the view “that the conclusion reached in the Second Decision, and the basis for that decision, are not in accordance with the Rule which was purportedly invoked”.[12] It is so, because “the further evidence considered by the DRB for the purposes of the Second Decision did not undermine its finding in the First Decision that the Applicant was eligible to compete by reason of her compliance with the Rule”.[13] This analysis leads to an unfair solution as the undisputed evidence points at Klishina profiting not once but on three occasions from the Russian doping scheme and still this evidence is not considered as relevant to reconsider the IAAF’s original decision to let her jump.

This decision is grounded on the following legal reasoning: the Panel considers that the “implication [of Klishina in the State-doping system] is not relevant to the application of criteria which, if fulfilled, mean that for the purposes of the Rule [22 IAAF], the Applicant is not affected or tainted by the failures of the National Federation”.[14] The CAS Panel is of the view that the IAAF Rule “provides for a mechanism or a basis by which an athlete is granted exceptional eligibility”.[15] And this “mechanism is fulfilment of the two criteria which, for this athlete, was established by the DRB in the First Decision”.[16] Thus, the “fact that the athlete was subjected to or the subject of drug testing that was not fully compliant during the Relevant Period does not derogate from the fact that she was, during the Relevant Period (that is, ‘a sufficiently long period’), subject to fully compliant drug testing in- and out-of- competition by reason of the fact that she was during that time training in and resident in the United States and not in Russia”.[17] Additionally, “there is no evidence to suggest that the testing that she was subject to was other than equivalent in quality to the testing to which her competitors were subject”.[18] In other words, “an athlete may have undergone non-compliant testing while concurrently being subject to fully compliant testing and still fulfil the second criterion”.[19] This is comforted by the fact “that the Rule is addressed to the suspension of any International Federation for failure to put in place an adequate system and the impact on the eligibility of the athlete” and the “criteria are directed to the establishment by an athlete that he or she is outside the country of his or her National Federation during the Relevant Period”.[20] Hence, it “is not addressed to the implication of an athlete in a defective system”.[21] Instead, “it states that an athlete is taken not to be affected or tainted by the action of the National Federation if he or she was subject to other, compliant systems outside of the country”.[22] In a nutshell, for the CAS Panel, the “relevant question is not whether the athlete was affected by the Russian System, or how, or whether she had knowledge of the way in which the system worked”.[23] No, the only question is “whether she fulfilled the criteria of the Rule”.[24] And the answer to that question is: she did early July; and she still does in August!

This case is disconcerting as it contradicts the line of cases regarding the implication of athletes in the IP Report discussed a few days ago. The CAS relied on the ambiguous wording of the IAAF provision to offer an escape route to Klishina. In doing so, it disregarded the spirit and objective of the provision, which was to provide a mechanism for athletes who were not personally tainted by the Russian doping scandal to participate in IAAF competitions. Yet, another aspect of the case is even more bizarre. Why did the IOC not block the eligibility of Klishina on the basis of paragraph 2 of the IOC Decision? She was undoubtedly implicated and benefited from the scheme. In fact, only one of the three sources of implication provided by McLaren should (and would) have been enough for the IOC Review Panel and the CAS arbitrator reviewing her eligibility to discard her from the Olympics. It did not happen, Zeus only knows why…

Epilogue

These five blogs have discussed the awards rendered by the CAS ad hoc Division in Rio involving Russian athletes wishing to compete at the Olympics. In general, the CAS has been willing, with few exceptions (Efimova and Klishina), to approve the ineligibility of Russian athletes. Rightfully, in my view, the CAS has supported the IFs that have opted for a strict approach in dealing with the eligibility of Russian athletes for the Rio Olympics. The CAS has also unsurprisingly rebutted the blunt rule of the IOC excluding Russian athletes who were previously sanctioned for doping. But, it has surprisingly let Klishina jump, in spite of all the factual elements pointing at her being implicated in, and having profited from, the Russian State-doping scheme. Overall, the CAS ad hoc Division has served its purpose as a review instance well, forcing the IFs and the IOC to properly justify their decisions and providing an avenue for the Russian athletes to be heard.

These cases also highlight the variety/plurality of responses to the Russian doping scandal and its impact on the eligibility of Russian athletes for the Rio Olympics. It seems that some IFs have taken WADA’s call for a strong response of the SGBs seriously. Unfortunately, and this is one of the negative consequences of the IOC’s decision to not decide, due to a lack of information, it is impossible to assess the different policies of the IFs which have not faced (due to their reluctance to act or else) a challenge of their eligibility decisions in front of the CAS ad hoc Division. In light of recent revelations concerning the International Swimming Federation (FINA) it is likely that a number of IFs decided to interpret narrowly the IOC criteria and waved through the overwhelming majority of Russian athletes without a proper check.

Finally, the awards show that CAS arbitrators would have been ready to condone a general exclusion of Russian athletes, with a narrow exception for those not tainted by the scandal or who could not benefit from the scheme because they were residing outside of the Russian Federation (this is very much the position adopted in the recent decision of the CAS in the dispute between the Russian Paralympic Committee and the International Paralympic Committee). The CAS recognized the seriousness of the situation and the collective responsibility of Russian sports organizations. It seemed also ready to follow up on this collective responsibility by endorsing collective sanctions that would most likely have been found compatible with the Russian athletes ‘natural rights’. Hence, ultimately, the IOC’s decision to let the Russian athletes compete at the Rio Olympics may have been politically unavoidable, but was certainly not legally mandated. I leave you to appreciate whether this decision is compatible with the IOC’s proclaimed fundamental values and its commitment to enforcing the World Anti-Doping Code. What is certain, however, is that the World Anti-Doping System needs an overhaul (for some reform proposals/directions see here) sooner rather than later.

[1] CAS OG 16/24 Darya Klishina v. IAAF, para. 2.12.

[2] Ibid.

[3] Ibid., para. 2.8.

[4] See Act II of this blog series.

[5] See CAS OG 16/13 Anastasia Karabelshikova and Ivan Podshivalov v.  World Rowing Federation (FISA) and International Olympic Committee (IOC), para. 7.14 and CAS OG 16/12 Ivan Balandin v. FISA & IOC, para. 7.22.

[6] CAS OG 16/24 Darya Klishina v. IAAF, para. 7.3.

[7] Ibid., para. 7.14.

[8] Ibid., paras 7.40-45.

[9] Ibid., para. 7.24.

[10] Ibid., para. 7.34.

[11] Ibid., para. 7.35.

[12] Ibid., para. 7.46.

[13] Ibid.

[14] Ibid., para. 7.56.

[15] Ibid.

[16] Ibid.

[17] Ibid., para. 7.57.

[18] Ibid.

[19] Ibid., para. 7.58.

[20] Ibid., para. 7.60.

[21] Ibid.

[22] Ibid.

[23] Ibid.

[24] Ibid.

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

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the

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

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the

The Russian Ballet at the CAS Ad Hoc Division in Rio - Act V: Saving the last (Russian) woman standing: The Klishina miracle

Asser International Sports Law Blog

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

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Garret Radle