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

A New Chapter for EU Sports Law and European Citizenship Rights? The TopFit Decision - By Thomas Terraz

Editor’s note: Thomas Terraz is a third year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.

 

1.     Introduction

Christmas has come very early this year for the EU sports law world in the form of the Court of Justice of the European Union’s (CJEU) judgment in TopFit eV, Daniele Biffi v Deutscher Leichtathletikverband eV by exclusively analyzing the case on the basis of European citizenship rights and its application to rules of sports governing bodies that limit their exercise. The case concerned an Italian national, Daniele Biffi, who has been residing in Germany for over 15 years and participates in athletic competitions in the senior category, including the German national championships. In 2016, the Deutscher Leichtathletikverband (DLV), the German Athletics Federation, decided to omit a paragraph in its rules that allowed the participation of EU nationals in national championships on the same footing as German citizens. As a result, participation in the national championship was subject to prior authorization of the organizers of the event, and even if participation was granted, the athlete may only compete outside of classification and may not participate in the final heat of the competition. After having been required to compete out of classification for one national championship and even dismissed from participating in another, Mr. Biffi and TopFit, his athletics club based in Berlin, brought proceedings to a German national court. The national court submitted a request for a preliminary ruling to the CJEU in which it asked essentially whether the rules of the DLV, which may preclude or at least require a non-national to compete outside classification and the final heat, are contrary to Articles 18, 21 and 165 TFEU. Articles 18 and 21 TFEU, read together, preclude discrimination on the basis of nationality against European citizens exercising their free movement. The underlying (massive) question here is whether these provisions can be relied on by an amateur athlete against a private body, the DLV.

Covered in a previous blog, the Advocate General’s (AG) opinion addressed the case from an entirely different angle. Instead of tackling the potentially sensitive questions attached with interpreting the scope of European citizenship rights, the opinion focused on the application of the freedom of establishment because the AG found that participation in the national championships was sufficiently connected to the fact Mr. Biffi was a professional trainer who advertised his achievements in those competitions on his website. Thus, according to the AG, there was a sufficient economic factor to review the case under a market freedom. The CJEU, in its decision, sidelined this approach and took the application of European citizenship rights head on.

The following will dissect the Court’s decision by examining the three central legal moves of the ruling: the general applicability of EU law to amateur sport, the horizontal applicability of European citizenship rights, and justifications and proportionality requirements of access restrictions to national competitions. More...

International and European Sports Law – Monthly Report – April and May 2019. 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 

Caster Semenya learns that it is not always easy for victims of discrimination to prevail in court

The world of sport held its breath as the Secretary General of the Court of Arbitration for Sport (CAS) Matthieu Reeb stood before the microphones on 1 May 2019 to announce the verdict reached by three arbitrators (one of them dissenting) in the landmark case involving the South African Olympic and world champion Caster Semenya. Somewhat surprisingly, the panel of arbitrators came to the conclusion that the IAAF’s regulations requiring female athletes with differences of sexual development to reduce their natural testosterone level below the limit of 5 nmol/L and maintain that reduced level for a continuous period of at least six months in order to be eligible to compete internationally at events between 400 metres and a mile, were necessary, reasonable and proportionate to attain the legitimate aim of ensuring fair competition in female athletics, even though the panel recognised that the regulations were clearly discriminatory. Ms Semenya’s legal team decided to file an appeal against the ruling at the Swiss Federal Tribunal. For the time being, this appears to be a good move since the tribunal ordered the IAAF at the beginning of June to suspend the application of the challenged regulations to Ms Semenya with immediate effect, which means that Ms Semenya for now continues to run medication-free.

 

Champions League ban looms on Manchester City

On 18 May 2019, Manchester City completed a historic domestic treble after defeating Watford 6-0 in the FA Cup Final. And yet there is a good reason to believe that the club’s executives did not celebrate as much as they would under normal circumstances. This is because only two days before the FA Cup Final the news broke that the chief investigator of the UEFA Club Financial Control Body (CFCB) had decided to refer Manchester City’s case concerning allegations of financial fair play irregularities to the CFCB adjudicatory chamber for a final decision. Thus, the chief investigator most likely found that Manchester City had indeed misled UEFA over the real value of its sponsorship income from the state-owned airline Etihad and other companies based in Abu Dhabi, as the leaked internal emails and other documents published by the German magazine Der Spiegel suggested. The chief investigator is also thought to have recommended that a ban on participation in the Champions League for at least one season be imposed on the English club. The club’s representatives responded to the news with fury and disbelief, insisting that the CFCB investigatory chamber had failed to take into account a comprehensive body of irrefutable evidence it had been provided with. They eventually decided not to wait for the decision of the CFCB adjudicatory chamber, which is yet to be adopted, and meanwhile took the case to the CAS, filing an appeal against the chief investigator’s referral.

 

The Brussels Court of Appeal dismisses Striani’s appeal on jurisdictional grounds

The player agent Daniele Striani failed to convince the Brussels Court of Appeal that it had jurisdiction to entertain his case targeting UEFA’s financial fair play regulations. On 11 April 2019, the respective court dismissed his appeal against the judgment of the first-instance court without pronouncing itself on the question of compatibility of UEFA’s financial fair play regulations with EU law. The court held that it was not competent to hear the case because the link between the regulations and their effect on Mr Striani as a player agent, as well as the link between the regulations and the role of the Royal Belgian Football Association in their adoption and enforcement, was too remote (for a more detailed analysis of the decision, see Antoine’s blog here). The Brussels Court of Appeal thus joined the European Court of Justice and the European Commission as both these institutions had likewise rejected to assess the case on its merits in the past.

 

Sports Law Related Decisions

 

Official Documents and Press Releases

CAS

FIFA

IOC

UEFA

WADA

Other


In the news

Doping

Football

Other

 

Academic Materials

Books

International Sports Law Journal

Other


Blog

Asser International Sports Law Blog

Law in Sport

Other


Upcoming Events

League of Legends European Championships - Challenging the Boundaries of Sport in EU Law - By Thomas Terraz

Editor’s note: Thomas Terraz is a third year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.


1.     Introduction

The surge of e-sports has stimulated a lively discussion on the essential characteristics of sport and whether e-sports, in general, can be considered a sport. However, one should not overlook the fact that e-sports encompass a broad range of video games that fundamentally differ from one another. Thus, as one commentator recently underlined, “the position of video games and the e-sport competitions based on them should be analysed on a case-by-case basis.”[1] In this spirit, this blog aims to provide a concise analysis of one of these e-sports, League of Legends (LoL), and one of its main competitions, the League of Legends European Championship (LEC), to assess whether it could be considered a sport in the sense of EU law. The LEC offers a fascinating opportunity to examine this issue especially since the previous European League of Legends Championship Series (EU LCS) was rebranded and restructured this year into the LEC. More...



Will the World Cup 2022 Expansion Mark the Beginning of the End of FIFA’s Human Rights Journey? - 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.


About three years ago, the Fédération Internationale de Football Association (FIFA) adopted a new version of its Statutes, including a statutory commitment to respect internationally recognized human rights. Since then, FIFA undertook a human rights journey that has been praised by various stakeholders in the sports and human rights field. In early June, the FIFA Congress is scheduled to take a decision that could potentially undo all positive efforts taken thus far.

FIFA already decided in January 2017 to increase the number of teams participating in the 2026 World Cup from 32 to 48. Shortly after, discussions began on the possibility to also expand the number of teams for the 2022 World Cup hosted in Qatar. Subsequently, FIFA conducted a feasibility study, which revealed that the expansion would be feasible but require a number of matches to be hosted in neighbouring countries, explicitly mentioning Bahrain, Kuwait, Oman, Saudi Arabia and the United Arab Emirates (UAE). One does not have to be a human rights expert to be highly alarmed by this list of potential co-hosting countries. Nevertheless, the FIFA Council approved of the possibility to expand in March 2019, paving the way for the FIFA Congress to take a decision on the matter. Obviously, the advancement of the expansion decision raises serious doubts over the sincerity of FIFA’s reforms and human rights commitments. More...



How Data Protection Crystallises Key Legal Challenges in Anti-Doping - By Marjolaine Viret

Editor's Note: Marjolaine is a researcher and attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences. Her interests focus on interdisciplinary approaches as a way of designing effective solutions in the field of anti-doping and other science-based domains. Her book “Evidence in Anti-Doping at the Intersection of Science & Law” was published through T.M.C Asser Press / Springer in late 2015. She participates as a co-author on a project hosted by the University of Neuchâtel to produce the first article-by-article legal commentary of the 2021 World Anti-Doping Code. In her practice, she regularly advises international federations and other sports organisations on doping and other regulatory matters, in particular on aspects of scientific evidence, privacy or research regulation. She also has experience assisting clients in arbitration proceedings before the Court of Arbitration for Sport or other sport tribunals.


Since the spectre of the EU General Data Protection Regulation (‘GDPR’) has loomed over the sports sector,[1] a new wind seems to be blowing on anti-doping, with a palpable growing interest for stakes involved in data processing. Nothing that would quite qualify as a wind of change yet, but a gentle breeze of awareness at the very least.

Though the GDPR does mention the fight against doping in sport as a potential matter of public health in its recitals,[2] EU authorities have not gone so far as to create a standalone ground on which anti-doping organisations could rely to legitimise their data processing. Whether or not anti-doping organisations have a basis to process personal data – and specifically sensitive data – as part of their anti-doping activities, thus remains dependent on the peculiarities of each national law. Even anti-doping organisations that are incorporated outside the EU are affected to the extent they process data about athletes in the EU.[3] This includes international sports federations, many of which are organised as private associations under Swiss law. Moreover, the Swiss Data Protection Act (‘DPA’) is currently under review, and the revised legal framework should largely mirror the GDPR, subject to a few Swiss peculiarities. All anti-doping organisations undertake at a minimum to abide by the WADA International Standard for Privacy and the Protection of Personal Information (‘ISPPPI’), which has been adapted with effect to 1 June 2018 and enshrines requirements similar to those of the GDPR. However, the ISPPPI stops short of actually referring to the GDPR and leaves discretion for anti-doping organisations to adapt to other legislative environments.

The purpose of this blog is not to offer a detailed analysis of the requirements that anti-doping organisations must abide by under data protection laws, but to highlight how issues around data processing have come to crystallise key challenges that anti-doping organisations face globally. Some of these challenges have been on the table since the adoption of the first edition of the World Anti-Doping Code (‘WADC’) but are now exposed in the unforgiving light of data protection requirements. More...



What happens in Switzerland stays in Switzerland: The Striani Judgment of the Brussels Court of Appeals

In the last five years, the Striani case has been the main sword of Damocles hanging over UEFA’s Financial Fair Play Regulations. At the very least, the only real judicial threat they have faced (apart from the relatively harmless challenge mounted in the Galatasaray case at the CAS). Indeed, a Belgian player agent, Daniele Striani, represented by Bosman’s former lawyer Jean-Louis Dupont, attempted, in various fora, to challenge the compatibility of UEFA’s CL&FFP Regulations with EU law. Striani lodged a complaint with the European Commission (which was quickly rejected in October 2014) and initiated a private action for damages before the Brussels Court of First Instance. The latter deemed itself not competent to decide on the matter, but nevertheless accepted to order a provisory stay of the enforcement of the UEFA FFP Regulations pending a preliminary reference to the Court of Justice of the EU (see Ben van Rompuy’s blog on the case here). The CJEU unsurprisingly rejected to enter into the matter, but UEFA and Striani decided to appeal the first instance ruling to the Court of Appeal, which rendered its decision on 11 April. It is unclear at this stage whether Striani will attempt to challenge it at the Belgian Cour de Cassation (Highest Civil Court), however this would entail considerable risks and costs and his lawyers to date have not indicated that they would do so (see here). 

While the ruling of the Court of Appeal does not touch upon the much-discussed question of the compatibility of UEFA’s FFP Regulations with EU law (see our many blogs on the question here, here and here), it remains an interesting decision to discuss broader questions related to the procedural ease in challenging regulatory decisions passed by sports governing bodies (SGBs) based in Switzerland. Competition law constitutes the main legal tool available to sports stakeholders looking to challenge existing regulatory arrangements from the outside (e.g. not going through the internal political systems of the SGBs or the CAS route). Recent cases, such as the ISU decision of the European Commission, the Pechstein case in front of the German courts or the Rule 40 decision of the German competition authority, have demonstrated the potency of competition law to question the legality of the rules and decisions of the SGBs.[1] In this regard, the decision of the Brussels Court of Appeal narrows the range of parties allowed to challenge in European courts the SGBs’ rules and decisions on the basis of competition law. More...

Can European Citizens Participate in National Championships? An Analysis of AG Tanchev’s Opinion in TopFit e.V. Daniele Biffi v Deutscher Leichtathletikverband e.V. - By Thomas Terraz

Editor’s note: Thomas Terraz is a third year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.


1.     Introduction

To many it may seem obvious that athletes in a national championship should only be able to participate if they have the nationality of the relevant state. The Dutch Road Cycling National Championships should have Dutch cyclists, and the German Athletics Championships should have German athletes and so forth. However, in reality, foreign competitors are allowed to participate in many national championships in the EU, and there is a wide discrepancy between the rules of national sport governing bodies on this issue. There is no unified practice when investigating this point by country or by sport, and rules on participation range from a complete ban on foreign competitors to absolutely no mention of foreign athletes.[1] Thus, the question arises: should foreign athletes be able to participate in national sport championships?

The Court of Justice of the European Union (CJEU) will soon be required to provide an, at least partial, answer to this dilemma as a result of an application for a preliminary ruling.  A German Court has referred three questions to the CJEU on the case TopFit e.V. Daniele Biffi v Deutscher Leichtathletikverband e.V. (DLV) which in essence ask whether EU citizenship rights and in particular, the requirement of non-discrimination on the basis of nationality, should be applied to non-nationals wishing to participate in an athletics national championship in Germany. In the meantime, the Advocate General (AG), who provides a non-binding opinion to the Court before a decision is delivered, Evgeni Tanchev has delivered an interesting opinion on the case. It addresses the claims from the applicants based on EU citizenship rights and urges the CJEU to instead review the case on the basis of the freedom of establishment.

This blog will dissect the AG’s opinion to assess the main arguments put forward in relation to freedom of establishment and EU citizenship. Furthermore, it will weigh the ramifications this case may have on the boundaries of EU law in relation to sport. To fully appreciate the AG’s opinion, it is necessary to first discuss the intriguing factual and legal background colouring this case. After all, this will not be the first time the CJEU faces thorny issues concerning discrimination on the basis of nationality and sport. More...


International and European Sports Law – Monthly Report – February and March 2019. 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

The Court of Arbitration for Sport bans 12 Russian track and field athletes

On 1 February 2019, the Court of Arbitration for Sport (CAS) communicated that it had rendered another 12 decisions in the seemingly endless saga concerning the state-sponsored doping programme in Russia. These first-instance decisions of the CAS involve 12 Russian track and field athletes who were all found guilty of anti-doping rule violations based on the evidence underlying the reports published by professor Richard McLaren and suspended from participating in sports competitions for periods ranging from two to eight years. Arguably the most prominent name that appears on the list of banned athletes is Ivan Ukhov, the 32-year-old high jump champion from the 2012 Olympic Games in London.

The case was brought by the International Association of Athletics Federation (IAAF) that sought to convince the arbitrators that the athletes in question had participated in and/or benefited from anabolic steroid doping programmes and benefited from specific protective methods (washout schedules) in the period between the 2012 Olympic Games in London and the 2013 IAAF World Championships in Moscow. The CAS was acting in lieau of the Russian Athletics Federation that remains suspended and thus unable to conduct any disciplinary procedures. The athletes have had the opportunity to appeal the decisions to the CAS Appeals Arbitration Division.

Federal Cartel Office in Germany finds Rule 40 of the Olympic Charter disproportionately restrictive

At the end of February, the German competition authority Bundeskartellamt announced that it had entered into a commitment agreement with the German Olympic Sports Confederation (DOSB) and the International Olympic Committee (IOC) in which these two organisations had agreed to considerably enhance advertising opportunities for German athletes and their sponsors during the Olympic Games. The respective agreement is a direct consequence of the Bundeskartellamt’s finding that the IOC and the DOSB had abused their dominant position on the market for organising and marketing the Olympic Games by demanding that the athletes refrain from promoting their own sponsors while the Games are ongoing, as well as shortly before and after the Games. This restriction stems from Rule 40(3) of the Olympic Charter under which no competitor who participates in the Games may allow his person, name, picture or sports performances to be used for advertising purposes, unless the IOC Executive Board allows him/her to do so.

As part of fulfilling its obligations under the commitment agreement, the DOSB has relaxed its guidelines on promotional activities of German athletes during the Olympic Games. For its part, the IOC has declared that these new guidelines would take precedence over Rule 40(3) of the Olympic Charter. However, it still remains to be seen whether in response to the conclusions of the German competition authority the IOC will finally change the contentious rule.

The Grand Chamber of the European Court of Human Rights refuses to pronounce itself on Claudia Pechstein’s case

Claudia Pechstein’s challenge against the CAS brought before the European Court of Human Rights (ECtHR) has not yielded the desired result for the German athlete. On 5 February 2019, a Panel of the Grand Chamber of the ECtHR decided that the Grand Chamber would not entertain the case. This means that the judgment handed down by the 3rd Chamber of the ECtHR on 2 October 2018, in which the ECtHR confirmed that except for the lack of publicity of oral hearings the procedures of the CAS are compatible with the right to a fair trial under Article 6(1) of the European Convention on Human Rights, has now become final and binding. However, the protracted legal battle between the five-time Olympic champion in speed skating and the CAS is not over yet since there is one more challenge against the CAS and its independence pending before the German Constitutional Court.  More...

New Event! FIFA and Human Rights: Impacts, Policies, Responsibilities - 8 May 2019 - Asser Institute

In the past few years, FIFA underwent intense public scrutiny for human rights violations surrounding the organisation of the World Cup 2018 in Russia and 2022 in Qatar. This led to a reform process at FIFA, which involved a number of policy changes, such as:

  • Embracing the United Nations Guiding Principles on Business and Human Rights;
  • The inclusion of human rights in the FIFA Statutes;
  • Adopting new bidding rules including human rights requirements;
  • And introducing a Human Rights Advisory Board.

To take stock of these changes, the Asser Institute and the Netherlands Network for Human Rights Research (NNHRR), are organising a conference on the Fédération Internationale de Football Association (FIFA) and human rights, which will take place at the Asser Institute in The Hague on 8 May 2019.

This one-day conference aims to take a deeper look at FIFA’s impacts on human rights and critically investigate the measures it has adopted to deal with them. Finally, we will also address FIFA’s potential legal responsibilities under a variety of human rights laws/instruments.


Preliminary Programme

9:00 Registration & Coffee

9:45 Welcome by Antoine Duval (Asser Institute) & Daniela Heerdt (Tilburg University)

10:00 Opening Remarks by Andreas Graf (Human Rights Officer, FIFA)

10:30 Panel 1: FIFA & Human Rights: Impacts

  • Zoher Shabbir (University of York) – The correlation between forced evictions and developing nations hosting the FIFA World Cup
  • Roman Kiselyov (European Human Rights Advocacy Centre) - FIFA World Cup as a Pretext for a Crackdown on Human Rights
  • Eleanor Drywood (Liverpool University) - FIFA and children’s rights: theory, methodology and practice 

12:00 Lunch

13:00 Panel 2: FIFA & Human Rights: Policies

  • Lisa Schöddert & Bodo Bützler (University of Cologne) – FIFA’s eigen-constitutionalisation and its limits
  • Gigi Alford (World Players Association) - Power Play: FIFA’s voluntary human rights playbook does not diminish Switzerland’s state power to protect against corporate harms
  • Brendan Schwab (World Players Association) & Craig Foster - FIFA, human rights and the threatened refoulement of Hakeem Al Araibi 

14:30 Break

15:00 Panel 3: FIFA & Human Rights: Responsibilities

  • Daniel Rietiker (ECtHR and University of Lausanne) - The European Court of Human Rights and Football: Current Issues and Potential
  • Jan Lukomski (Łukomski Niklewicz law firm) - FIFA and the International Covenant on Economic, Social and Cultural Rights : Obligations, duties and remedies regarding the labour rights         protected under the ICESCR
  • Raquel Regueiro Dubra (Complutense University of Madrid) - Shared international responsibility for human rights violations in global events. The case of the 2022 World Cup in Qatar.
  • Wojciech Lewandowski (Polish Academy of Sciences/University of Warsaw) - Is Bauer the new Bosman? – The implications of the newest CJEU jurisprudence for FIFA and other sport governing bodies

17:00 Closing Remarks by Mary Harvey (Chief Executive, Centre for Sports and Human Rights)


More information and registration at https://www.asser.nl/education-events/events/?id=3064

International and European Sports Law – Monthly Report – January 2019 - 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

#Save(d)Hakeem

The plight of Hakeem al-Araibi – the 25-year-old refugee footballer who was arrested last November in Bangkok upon his arrival from Australia on the basis of a red notice issued by Interpol in contravention of its own policies which afford protection to refugees and asylum-seekers – continued throughout the month of January. Bahrain – the country Hakeem al-Araibi fled in 2014 due to a (well-founded) fear of persecution stemming from his previous experience when he was imprisoned and tortured as part of the crackdown on pro-democracy athletes who had protested against the royal family during the Arab spring – maintained a firm stance, demanding that Hakeem be extradited to serve a prison sentence over a conviction for vandalism charges, which was allegedly based on coerced confessions and ignored evidence.

While international sports governing bodies were critised from the very beginning for not using enough leverage with the governments of Bahrain and Thailand to ensure that Hakeem’s human rights are protected, they have gradually added their voice to the intense campaign for Hakeem’s release led by civil society groups. FIFA, for example, has sent a letter directly to the Prime Minister of Thailand, urging the Thai authorities ‘to take the necessary steps to ensure that Mr al-Araibi is allowed to return safely to Australia at the earliest possible moment, in accordance with the relevant international standards’. Yet many activists have found this action insufficient and called for sporting sanctions to be imposed on the national football associations of Bahrain and Thailand.      

When it looked like Hakeem will continue to be detained in Thailand at least until April this year, the news broke that the Thai authorities agreed to release Hakeem due to the fact that for now the Bahraini government had given up on the idea of bringing Hakeem ‘home’ – a moment that was praised as historic for the sport and human rights movement.

Russia avoids further sanctions from WADA despite missing the deadline for handing over doping data from the Moscow laboratory 

WADA has been back in turmoil ever since the new year began as the Russian authorities failed to provide it with access to crucial doping data from the former Moscow laboratory within the required deadline which expired on 31 December 2018, insisting that the equipment WADA intended to use for the data extraction was not certified under Russian law. The Russian Anti-Doping Agency thus failed to meet one of the two conditions under which its three-year suspension was controversially lifted in September 2018. The missed deadline sparked outrage among many athletes and national anti-doping organisations, who blamed WADA for not applying enough muscle against the Russian authorities.

Following the expiry of the respective deadline, it appeared that further sanctions could be imposed on the Russian Anti-Doping Agency, but such an option was on the table only until WADA finally managed to access the Moscow laboratory and retrieve the doping data on 17 January 2019. Shortly thereafter, WADA President Sir Craig Reedie hailed the progress as a major breakthrough for clean sport and members of the WADA Executive Committee agreed that no further sanctions were needed despite the missed deadline. However, doubts remain as to whether the data have not been manipulated. Before WADA delivers on its promise and builds strong cases against the athletes who doped – to be handled by international sports federations – it first needs to do its homework and verify whether the retrieved data are indeed genuine.  

British track cyclist Jessica Varnish not an employee according to UK employment tribunal

On 16 January 2019, an employment tribunal in Manchester rendered a judgment with wider implications for athletes and sports governing bodies in the United Kingdom, ruling that the female track cyclist Jessica Varnish was neither an employee nor a worker of the national governing body British Cycling and the funding agency UK Sport. The 28-year-old multiple medal winner from the world and European championships takes part in professional sport as an independent contractor but sought to establish before the tribunal that she was in fact an employee of the two organisations. This would enable her to sue either organisation for unfair dismissal as she was dropped from the British cycling squad for the 2016 Olympic Games in Rio de Janeiro and her funding agreement was not renewed, allegedly in response to her critical remarks about some of the previous coaching decisions.

The tribunal eventually dismissed her challenge, concluding that ‘she was not personally performing work provided by the respondent – rather she was personally performing a commitment to train in accordance with the individual rider agreement in the hope of achieving success at international competitions’. Despite the outcome of the dispute, Jessica Varnish has insisted that her legal challenge contributed to a positive change in the structure, policies and personnel of British Cycling and UK Sport, while both organisations have communicated they had already taken action to strengthen the duty of care and welfare provided to athletes.  

 

Sports Law Related Decisions


Official Documents and Press Releases

 

In the news

Doping

Football

Other


Academic Materials

International Sports Law Journal

Other


Blog

Law in Sport

Other

 

Upcoming Events

Asser International Sports Law Blog | Sports Politics before the CAS II: Where does the freedom of speech of a Karate Official ends? 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 II: Where does the freedom of speech of a Karate Official ends? By Thalia Diathesopoulou

On 6 October 2014, the CAS upheld the appeal filed by the former General Secretary of the World Karate Federation (WKF), George Yerolimpos, against the 6 February 2014 decision of the WKF Appeal Tribunal. With the award, the CAS confirmed a six-months membership suspension imposed upon the Appellant by the WKF Disciplinary Tribunal.[1] At a first glance, the case at issue seems to be an ordinary challenge of a disciplinary sanction imposed by a sports governing body. Nevertheless, this appeal lies at the heart of a highly acrimonious political fight for the leadership of the WKF, featuring two former ‘comrades’:  Mr Yerolimpos and Mr Espinos (current president of WKF). As the CAS puts it very lucidly, "this is a story about a power struggle within an international sporting body"[2], a story reminding the Saturn devouring his son myth.

This case, therefore, brings the dirty laundry of sports politics to the fore. Interestingly enough, this time the CAS does not hesitate to grapple with the political dimension of the case.


Background and Facts of the Case: ‘The K on its way’ to leadership battles 

The third successive failure of the WKF to have Karate included in the Programme of the 2020 Tokyo Olympics -after the failed campaigns for inclusion in the 2012 London and 2016 Rio Olympics, respectively- spared disappointment in the ranks of the WKF and gave rise to a political war, led by the former ‘crony’ Mr Yerolimpos who used these failures to challenge WKF president Espinos. 

In the wake of concerns raised by some members of national Karate federations, in June and July 2013, the Appellant emailed the WKF Treasurer twice, questioning the lack of transparency on financial matters and challenging the leadership of the current president. The second email where the Appellant directly accused  Espinos of serious mismanagements was copied to all Executive Committee (EC) members and to the presidents of all Karate NF‘s. Following this “dirty manifesto” - in the words of WKF Treasurer[3], Espinos considered that the Appellant’s behavior amounted to a serious breach of the necessary relationship of confidence with the president. As a result, by application of Article 14.7 of the WKF Statutes, he revoked by email the Appellant from his position as Secretary General of WKF. The email battle continued with the Appellant accusing Espinos of manipulating the democratic processes. However, on 14 August 2013, the Appellant’s revocation was ratified by the EC members through an electronic vote, pursuant to Article 13.20 of the WKF Statutes. 

Then, on a request by the WKF Executive Bureau, the Disciplinary Tribunal (DT) of the WKF Disciplinary Legal Commission (TDC) opened disciplinary proceedings against the Appellant in order to examine whether the Appellant’s emails resulted in infringement of Article 9 of the WKF Statutes[4], i.e. his duty to act in a manner commensurate with his role at the WKF. On 30 October 2013, the DT decided to suspend the Appellant from membership of the WKF and EC for six months. It found that the Appellant’s conduct was in breach of his duties entrenched in Articles 9 and 13.2.5 of the WKF Statutes, since his criticism against the WKF president relied on subjective, unproven and unsubstantiated considerations.  More importantly, his criticism was directly circulated to the Karate NFs, without having previously debated them within the WFK Executive Bureau. The DT decision was appealed before the WKF Appeal Tribunal (AT), which on 6 February 2014 confirmed the first instance decision, finding that the content of the Appellants’ emails was prejudicial, defamatory, amounting to a serious violation of Article 9.2 and 13.25 (3) of the WKF Statutes. 

Lastly, the Appellant’s appeal before CAS dating from 26 February 2014, was set aside on 6 October 2014.       


Two main axes in the CAS reasoning 

In his appeal, the Appellant submitted a set of contentions. Specifically, he alleged: (1) the improper initiation of the disciplinary proceedings; (2) the non-identification of relevant offence in Articles 9 and 13.25.3 of the WKF Statutes; (3) the non-violation of these articles by the Appellant; (4) the violation of the principle ne bis in idem in double sanctioning the Appellant; (5) the violation of due process by the DT and AT Panels and finally; (6) the violation of the principle of proportionality in the sanctions imposed by the DT and AT Panels. 

The main focal point of the dispute lies on whether the Appellant’s defamatory emails constitute a serious misconduct and breach the relevant disciplinary provisions of the WKF Statutes. Therefore, this commentary will focus on how the CAS dealt with the interpretation of the disciplinary provisions laid down in Articles 9 and 13.25.3 of the WKF Statutes. Particularly, the commentary will map the CAS reasoning on the following issues: (a) the nature of the misconduct proscribed by the disciplinary provisions of the WKF Statutes and (b) the assessment of the duties bearing on the General Secretary of WKF in the political context of this case.

(a)The violation of Articles 9 and 13.25.3 WKF Statutes.

It is well established that a sports governing body may impose disciplinary sanctions upon its members if they are found guilty of a disciplinary offence, which has to be enshrined in the applicable rules and regulations. In the case at hand, before examining whether the Appellant by sending the above mentioned emails acted in violation of Articles 9and 13.25.3[5] WKF Statutes, the CAS has to examine what type of conduct is covered by these disciplinary provisions. In other words, how do the Articles 9 and 13.25.3 define the offence committed by the Appellant, i.e. the violation of his duty to act in the best interests of the WKF?

Firstly, the CAS takes into account that, in principle, the disciplinary provisions of sports governing bodies statutes are broadly drafted and, therefore, the principle of criminal law nulla poena sine lege does not apply in the case at issue. However, the question remains whether the broadly drafted Articles 9 and 13.25.3 encompass the allegedly offensive behavior of the Appellant. According to the Panel, it is not sufficient that the drafters of the WKF disciplinary provisions intended to entail “the multifarious forms of behavior considered unacceptable” [6] in karate, but whether they actually achieved it. Concretely, as far as Article 9.2 is concerned, the CAS proceeds by identifying two separate obligations for the members: the first entails compliance with the rules of the sport and the second refers to the maintenance of an appropriate conduct in any activity performed. Following an interpretation of the wording of Article 9.2 and particularly of the word "maintaining" which lies between the two obligations (as juxtaposed to the meaning of the word "gardant" in the French version of Article 9.2) the CAS concludes that there is an inextricable link between these obligations.[7] As a result, Article 9.2 sets two prerequisites for the fulfillment of the duty imposed: the members should comply with the rules of sport and additionally should adopt the appropriate demeanour. In practice, this means that at first, a rule has to be breached. While in the case at hand the CAS accepts that the rules of sport can be interpreted in a broad manner and refer not only to the rules of karate itself, the CAS notes that neither the Respondent nor the Panel have identified a rule proscribing the alleged offensive behavior of the Appellant. Thus, the inappropriate conduct of the Appellant cannot amount to a violation of the duty enshrined in Article 9.2.

With regard to the interpretation of the General Secretary’s duties laid down in Article 13.25.3, the CAS remarks that its scope does not overlap with Article 9.2. However, even if Article 13.25.3 is examined in isolation of the requirements of the other disciplinary provisions, the CAS notes that the Appellant’s conduct cannot be considered as amounting to an inappropriate demeanour in fulfilling his duties of maintaining relations with international federations. Indeed, the Appellant’s emails entailed a criticism against the president, involving national federations as well, but according to the CAS this criticism does not constitute a breach of the duty envisaged in Article 13.25.3.

Therefore, having concluded that the alleged conduct of the Appellant does not constitute the subject matter of any offence provided in the relevant regulations, the question whether the Appellant acted in breach of any rule has been rendered moot.

(b) The freedom of speech of the General Secretary of WKF

As mentioned above, the CAS had not identified a violation of the existing disciplinary provisions of the WKF. Nevertheless, it felt the remarkable urge to complement this reasoning with a broader reflection on the freedom of speech in sports governing bodies. To this end, the panel engaged in a very interesting dictum: "The Panel, however, because of first the importance of the issues; secondly out of respect for the excellent way in which the submissions were presented, thirdly against the contingency of an appeal on the Panels conclusion on the absence of any relevant offence in the WKF code, will deal with them succinctly".[8]

Herewith, the CAS underlines the right of the Appellant, and more generally of the members of sports governing bodies, to freedom of speech. This materializes more precisely in a fundamental right to criticize, in good faith, the acts and decisions of the governing authority, even if the criticism includes errors of facts. While the CAS acknowledges the political motives of the criticism, it underlines the valuable contribution of this criticism in exposing acts of mismanagement. These considerations on the democratic principle of the right to criticize those in positions of authority, are reinforced by the European Court of Human Rights’ (ECHR) jurisprudence and the principle enshrined in Article 10 of the European Convention on Human Rights.[9] In this sense, the panel takes two important steps. Firstly, it recognizes the controversial[10] applicability of rights enshrined in the European Convention on Human Rights to disciplinary proceedings of sports governing bodies, which are purely private entities, by indicating that the jurisprudence of ECHR is compulsive in jurisdictions to which it applies, and in any case is at least indicative. Secondly, the panel does not hesitate to take a clear position –from a sports politics point of view- establishing that the members of the sports governing bodies have a fundamental right to exercise their freedom of speech to criticize political authorities. It seems, therefore, that this CAS panel feels at ease with its role as a Supreme Court of Sports protecting the fundamental rights of the ‘citizens of world sports’.

In the second limb of its reasoning, the CAS suggests the rules of conduct that members of sports governing bodies should follow when exercising their established right to criticism.[11]Indeed, according to the CAS, the exercise of the right of freedom to speech is subject to two restrictions: the criticism which targets the authority of the sports’ governing body must be lawful and members must demonstrate self-restraint in the exercise of their right. In this light, the CAS finds that the Appellant did not act unlawfully or in bad faith, but he rather exceeded the limits by ignoring the internal procedures available to him. In other words, the Appellant erred in the way he chose to ventilate his criticisms against the current president. Thus, damaging the WKF’s image worldwide. This interpretation elaborated by the CAS seems to be inspired by the so called ‘balancing exercise’ between Articles 8 and 10 European Convention on Human Rights[12]: an interference in the internal affairs of a sports governing body can be justified when it is in accordance with the law and is necessary in the interests of the world sports community. 


Conclusion

In our previous blogpost, we described the CAS hands-off approach in a political conflict internal to a sports governing body. We suggested, instead, that a modicum of interventionism in sports politics would be compatible with the CAS role. In this light, the WKF case is a good illustration of a CAS panel delving into sports politics to uphold certain fundamental political rights. From the preamble to the conclusion of this award, the CAS did not hesitate to interpret the political motives of the parties and their subsequent acts. More importantly, taking into account the law making role of CAS panels in promoting consistency in international sports law, this CAS panel adds to the so-called lex sportiva a democratic resonance, preserving also the freedom of speech of members of sports governing bodies.



[1] CAS 2014/A/3516, George Yerolimpos v. World Karate Federation

[2] Ibid, para 1.

[3] Ibid, para 25.

[4] 9.1 National Federations and individual persons affiliated to the WKF shall undertake to comply with statutory norms, rules and regulations and all provisions issued by the Executive Committee.

9.2 Members shall undertake work in complete compliance with the rules governing the sport, maintaining a demeanour commensurate with the activity performed.

9.3 Any member in breach of the conditions as per points 9.1 and 9.2 above shall be liable to disciplinary action as set forth herein.

[5] The duties of a General Secretary shall be: (a) Execute the decisions taken by the Executive Committee;

(b)To maintain relationships with the continental federations, with the affiliated National Federations and with outside parties; (c) Draw up and take care of the minutes of the Executive Committee and of the Congress Meetings.

[6] CAS 2014/A/3516 (n1), para 105.

[7] Ibid, para 107.

[8] Ibid, para 115.

[9] European Convention on Human Rights, Article 10

Freedom of expression: 1. everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

[10]C Favre-Bulle and others, L’arbitrage et la Convention Européenne des Droits de l’Homme (2001), 73.

[11] CAS 2014/A/3516 (n1), para 117.

[12] ECHR 227 Axel Springer AG v Germany 39954/08 [2012] paras  84-95 & ECHR 228 Von Hannover v Germany (n2) 40660/08[2012] para 100 .

Comments are closed