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

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...


International and European Sports Law – Monthly Report – January 2016

Editor’s note: Our first innovation for the year 2016 will be a monthly report compiling 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 world of professional sport has been making headlines for the wrong reasons in January. Football’s governing body FIFA is in such a complete governance and corruption mess that one wonders whether a new President (chosen on 26 February[1]) will solve anything. More recently, however, it is the turn of the athletics governing body, IAAF, to undergo “the walk of shame”. On 14 January the WADA Independent Commission released its second report into doping in international athletics. More...


International Sports Law in 2015: Our Reader

This post offers a basic literature review on publications on international and European sports law in 2015. It does not have the pretence of being complete (our readers are encouraged to add references and links in the comments under this blog), but aims at covering a relatively vast sample of the 2015 academic publications in the field (we have used the comprehensive catalogue of the Peace Palace Library as a baseline for this compilation). When possible we have added hyperlinks to the source.[1]

Have a good read. More...

Goodbye 2015! The Highlights of our International Sports Law Year

2015 was a good year for international sports law. It started early in January with the Pechstein ruling, THE defining sports law case of the year (and probably in years to come) and ended in an apotheosis with the decisions rendered by the FIFA Ethics Committee against Blatter and Platini. This blog will walk you through the important sports law developments of the year and make sure that you did not miss any. More...

Asser International Sports Law Blog | Sports Politics before the CAS: Early signs of a ‘constitutional’ role for CAS? By Thalia Diathesopoulou

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

Sports Politics before the CAS: Early signs of a ‘constitutional’ role for CAS? By Thalia Diathesopoulou

It took almost six months, a record of 26 witnesses and a 68 pages final award for the CAS to put an end to a long-delayed, continuously acrimonious and highly controversial presidential election for the Football Association of Thailand (FAT). Worawi Makudi can sit easy and safe on the throne of the FAT for his fourth consecutive term, since the CAS has dismissed the appeal filed by the other contender, Virach Chanpanich.[1]

Interestingly enough, it is one of the rare times that the CAS Appeal Division has been called to adjudicate on the fairness and regularity of the electoral process of a sports governing body. Having been established as the supreme judge of sports disputes, by reviewing the electoral process of international and national sports federations the CAS adds to its functions a role akin to the one played by a constitutional court in national legal systems. It seems that members of international and national federations increasingly see the CAS as an ultimate guardian of fairness and validity of internal electoral proceedings. Are these features - without prejudice to the CAS role as an arbitral body- the early sign of the emergence of a Constitutional Court for Sport?


The CAS as reviewer of electoral proceedings in sports governing bodies

The CAS Appeal Division jurisprudence reviewing electoral processes in sports governing bodies, albeit still at a nascent stage, has provoked vivid reactions due to its potential impact. One of the particularly significant values of retracing this case-law is found not in the outcomes of the decisions, but in the way the panels have scrutinized the electoral processes.[2]

On 27 September 2010, the CAS shaked the chess world by rendering its decision on the validity of Kirsan Illymzhinov’s candidature for the presidency of the Fédération Internationale des Echecs (FIDE).[3] Namely, the CAS proceedings were initiated by Karpov 2010 Inc. and five national federations (of France, Germany, Switzerland, Ukraine and the US) against FIDE. The claimant alleged the invalidity of the presidential ticket of Illymzhinov, who had been nominated by the Russian Chess Federation as their candidate for the FIDE presidential election. The majority of the CAS panel considered that it had jurisdiction to decide on the National Federations’ claims and proceeded with the merits. Taking into consideration the FIDE’s practice on membership requirements for candidates on a presidential ticket and its compliance with the text of FIDE Electoral Regulations, the CAS confirmed the validity of Illymzhinov’s ticket and dismissed the appeal. Had the CAS accepted the arguments of the claimant, Anatoly Karpov would have been declared new FIDE President. FIDE welcomed the award, since it sets straightforward and transparent standards for the electoral proceedings, putting, therefore, an end to what was perceived as frivolous claim against FIDE.

Three years later, the CAS was asked again to review electoral proceedings, this time involving the Union Cycliste Internationale (UCI). In fact, five national federations asked the UCI Executive Board to submit to the CAS a request for interpretation of Article 51.1 of the UCI Constitution concerning the nomination of prospective candidates for office of President of UCI. The federations claimed that the language of Article 51.1, which required that any Presidential candidate be nominated by the ‘federation of the candidate’, was ambiguous: it was unclear whether the provision was allowing an individual to be nominated by any federation of which the candidate is a member or whether only a nomination from the home federation of the candidate was allowed. The UCI rejected the request to bring the case before the CAS and declared that the UCI Congress was the only competent authority to decide on issues linked to the elections. Nevertheless, it is remarkable that the parties regarded the CAS as the ultimate guardian of fair and democratic elections, which could, “provide a much-needed degree of certainty for UCI delegates in knowing that the current and future candidates standing for election are in fact eligible to do so”.

Furthermore, in September 2014, the Nigeria Football Federation’s (NFF) President, Chris Giwa, appealed FIFA’s order to vacate his post to the CAS in his last-ditch effort to hold onto the presidency and despite FIFA’s threat to suspend the NFF in the event he would stay president. The CAS dismissed his request for provisional measures on the ground that the request was without object, as FIFA decided that “two cumulative conditions mentioned in the Emergency Committee’s decision dated 3 September 2014 had been complied with and that therefore the NFF would not be finally suspended”. Indeed, at the last minute, Giwa abandoned his post and therefore the order was not valid anymore. It is noticeable again that CAS was called to be the final arbiter of a contested election.

However, it is in the Thai case that the CAS for the first time was given broad authority to review several irregularities in the electoral process. Namely, the appellant, Chanpanich, challenged the validity of the presidential election for the FAT before the CAS, alleging the existence of a plethora of procedural irregularities- starting from the adoption of the 2013 Statues of the Electoral Code - so severe as to flaw the election entirely. In addition, the appellant requested from the CAS panel to issue guidelines as to the manner in which such elections were to be held. On the basis of a specific arbitration agreement, the CAS admitted jurisdiction on the dispute and proceeded with the merits. The CAS was asked to address the following set of irregularities and breaches: the alleged interference of the FAT Secretary General (‘M.’) and of the Secretary of the Electoral Committee (‘U.’) with the electoral process; the unlawful amendment in the composition of the Electoral Appeal Committee; the violation of basic standards of procedural fairness (no proper hearing, no present parties, limited documentation) in the proceedings before the Electoral Appeal Committee; and the participation in the voting process of ineligible delegates, i.e. non-members and members of the FAT Executive Committee. In scrutinizing the electoral process, the CAS relied first on the text itself of the FAT 2013 Statutes and Electoral Code, which were adopted on the basis of FIFA’s fundamental principles of separation of powers, accountability and transparency, and under the FIFA supervision, and then on the factual evidence. On the ground of the lack of sufficient evidence in conjunction with the rules of the Electoral Code, the CAS rejected the alleged irregularities.

With regard to the CAS’s reasoning, two remarks can to be made. Firstly, although the FAT Congress acted in breach of Article 4 of the Electoral Code by allowing the members of the electoral bodies to be appointed by the candidates themselves on the basis of a mandate granted to them by the Congress and along a repartition agreed by the candidates, the CAS chose to qualify this breach as a “deviation” which should be tolerated due to ‘political reasons’.[4] Namely, the CAS panel embraced the “good intentions”[5] of the FAT Congress to pave the way to an electoral process based on consent, healing, therefore, the violation of the Electoral Code. As a result of this “deviation”, according to the CAS, the parties should accept the consequences it produced. This assessment leads to the second remark. With regard to the alleged violation of procedural fairness, the CAS recognized that the Appeal Electoral Committee had limited time to render its decision, because of the delayed previous decision of the Electoral Committee. However, since the Electoral Committee was composed by Chanpanich - pursuant to the above mentioned deal between the candidates and the Congress -, the appellant had to accept the consequences of this situation. These assessments seem at least questionable: the CAS qualifies a clear breach of the Electoral Code as “deviation”[6] and then declares that the parties are responsible for the problems provoked by this “deviation”!

It is remarkable that although the CAS has been given broad reviewing authority, it chose to stick to an ‘ostrich like behaviour. It refused to proceed with a true control of the conformity of the electoral process with the relevant electoral code and left the door open for more ‘behind the curtains’ irregularities, which would be based on the consent of the Congress and the candidates. Thus, it seems that the CAS is adopting a very cautious, hands-off, approach when reviewing electoral proceedings.


The emerging constitutional role of the CAS: A shift towards a sui generis function for arbitration?

From the above brief overview of the CAS jurisprudence, two major trends can be identified: the diminishing autonomy of national and international federations in deciding on their internal electoral proceedings (1) and the growing readiness of the members of sports federations to have recourse to the CAS to control the fairness of the electoral proceedings in sports governing bodies. So far, the CAS Appeal Division has ruled over the eligibility of the potential candidates for the presidential elections of sports federations as well as over the regularity, validity and procedural fairness of the electoral process itself. At this point, it has to be noticed that, apart from the sports federations’ electoral processes, the CAS has also been asked to rule on the validity of the pre-electoral practices of the candidates for the election to the IOC Athlete’s Commission.[7] By controlling as well the electoral process of the IOC Commissions the CAS adds more credentials to its function as guarantor of fair and democratic electoral proceedings in international sports.

Since its emergence in the mid-1980s, the CAS’s role as the arbitral body competent to resolve international sporting disputes arising from appeals of decisions of sports governing bodies has evolved significantly. The CAS Appeal Division has mainly played a role in disciplinary matters, in doping cases for example, or contractual disputes, as in cases concerning transfers in football. Nonetheless, it seems as if it is also about to become an important institutional player in ‘constitutional’ disputes involving the political structure of sports governing bodies. By deciding on the eligibility of the candidates, on the composition of the electoral body, or on the conformity of the electoral proceedings with the applicable electoral code and minimum standards of fairness, the CAS acts not unlike a constitutional court of the international sports world. This functional evolution appears to be the reflexive answer of the CAS to the disputes submitted to it by sports governing bodies.


The unsettled interplay between Sports Politics and the CAS: an emerging political role for the CAS?

The review of electoral proceedings can also imply a political role – from a sporting point of view - of the CAS, bringing to the surface the thorny issue of the political role of arbitrators in general. In the Thai case, the CAS in a remarkable obitur dictum declared its duty to settle “a legal dispute according to the law”, denying, thereby, any intention to enter the field of sports politics. It recognized, though, the political implications “at least from a sporting point of view” of its award on the governance of FAT.[8] The panel was clear: it did not want to address sports politics, “let alone politics tout court”[9]. The CAS insisted on its legal role “rendering unto sports the things that are sport and to courts the things that are legal”[10]. This assessment is not surprising. There is a widespread view that judges and arbitrators only apply the law, irrespective of their policy beliefs and backgrounds. This de-politicization of the arbitral process, however, masks the fact that arbitral tribunals are composed of human beings, who are consciously or not driven by non-legal factors, such as the political and sociological factors. The CAS panels do not constitute an exception. A brief look at the CAS jurisprudence demonstrates in the view of the author of this blogpost that CAS panels are more likely to adopt a pro-international sports governing bodies approach, acting very cautiously when it is called to interpret their regulations and their decisions. Similarly, the CAS is aware of the significant impact of its rulings on the governance of sports and their de facto precedential value at the international and even national levels of sports.[11] Consequently, its awards have become increasingly self-referent, leaving a small room for divergent interpretations.

However, it is the author’s opinion that the CAS, even when acting as a “neutral” arbitral tribunal reviewing the electoral processes, will inevitably grapple with the political dimensions of those decisions. Despite the declaration of the Thai panel that it would abstain from any involvement in sports politics, the Panel, as noted above, justified a breach of the Electoral Code as mandated by political reasons and particularly by the overriding goal to guarantee electoral process based on the consent of FTA’s members. This decision was not neutral: in practice the panel decided who was to be president of the FTA. This is a highly political decision and it is a duty of CAS to be aware and reflexive of its impact when opting for one legal interpretation over the other.

In overall, a modicum of sports politics does not seem totally incompatible with the CAS role. 


Conclusion

The former President of the IOC and founder of the CAS, Juan Antonio Samaranch, had a dream: he envisaged the CAS as a “kind of Hague court for the sports world”[12]. In fact, 30 years after, and despite its permanent roots in arbitration, it seems that the CAS is becoming the Supreme Court of world sport. The CAS is a legal chameleon, being one day a quasi-criminal Court and the next a constitutional one. However, its increasing tendency to scrutinize the political processes at play in sports governing bodies is probably one of its least developed, but also most intriguing functions.

It remains to be seen whether the CAS will continue to be prudent and deferent when reviewing electoral processes, or whether it has the potential to morph into a more audacious, and maybe more “political”, constitutional role.


[1] CAS 2013/A/3389, Virach Chanpanich v The Football Association of Thailand

[2] A Erbsen, ‘The Substance and Illusion of Lex Sportiva’ in I Blackshaw and others (eds) The Court of Arbitration for Sport 1984-2004 (The Hague, TMC Asser Press 2006), 441.

[3] 2010/0/2166, National Chess Federation of France et al. v.FIDE

[4] CAS 2013/A/3389 (n 1) paras 122-123

[5] Ibid, para 123.

[6] Ibid

[7] CAS 2012/A/2913 Mu-yen Chu & Chinese Taipei Olympic Committee v.

International Olympic Committee (IOC) & CAS 2012/A/2912 Koji Murofushi & Japanese Olympic Committee v. International

Olympic Committee

[8] CAS 2013/A/3389 (n1), para 115

[9] Ibid

[10] M Beloff QC, ‘Is there such a thing as Sports Law’ (2011) 33 The Circuiteer 13

[11] G Kaufmann Kohler, ‘Arbitral Precedent: Dream, Necessity or Excuse?’ (2007) 23 Arbitration International (3) 357

[12] ‘ Speech Delivered by Mr Juan Antonio Samaranch’ (1982) 176 Olympic Review 314, 317

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