Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

The Kristoffersen ruling: the EFTA Court targets athlete endorsement deals - By Sven Demeulemeester and Niels Verborgh

Editor’s note: Sven Demeulemeester and Niels Verborgh are sports lawyers at the Belgium law firm, Altius.



In its 16 November 2018 judgment, the Court of Justice of the European Free Trade Association States (the EFTA Court) delivered its eagerly awaited ruling in the case involving Henrik Kristoffersen and the Norwegian Ski Federation (NSF). 

On 17 October 2016, Kristoffersen had taken the NSF to the Oslo District Court over the latter’s refusal to let the renowned alpine skier enter into a sponsorship with Red Bull. At stake were the commercial markings on his helmet and headgear in races organised under the NSF’s umbrella. The NSF refused this sponsorship because it had already granted the advertising on helmet and headgear to its own main sponsor, Telenor. Kristoffersen claimed before the Oslo District Court, that the NSF should be ordered to permit him to enter into an individual marketing contract with Red Bull. In the alternative, Kristoffersen claimed damages up to a maximum of NOK 15 million. By a letter of 25 September 2017, the Oslo District Court referred several legal questions to the EFTA Court in view of shedding light on the compatibility of the rules that the NSF had invoked with EEA law.

If rules do not relate to the conduct of the sport itself, but concern sponsorship rights and hence an economic activity, these rules are subject to EEA law. The EFTA Court ruling is important in that it sets out the framework for dealing with - ever more frequent - cases in which an individual athlete’s endorsement deals conflict with the interest of the national or international sports governing bodies (SGBs) that he or she represents in international competitions.More...

Season 2 of football leaks: A review of the first episodes

Season 2 of #FootballLeaks is now underway since more than a week and already a significant number of episodes (all the articles published can be found on the European Investigative Collaborations’ website) covering various aspect of the (lack of) transnational regulation of football have been released (a short German documentary sums up pretty much the state of play). For me, as a legal scholar, this new series of revelations is an exciting opportunity to discuss in much more detail than usual various questions related to the operation of the transnational private regulations of football imposed by FIFA and UEFA (as we already did during the initial football leaks with our series of blogs on TPO in 2015/2016). Much of what has been unveiled was known or suspected by many, but the scope and precision of the documents published makes a difference. At last, the general public, as well as academics, can have certainty about the nature of various shady practices in the world of football. One key characteristic that explains the lack of information usually available is that football, like many international sports, is actually governed by private administrations (formally Swiss associations), which are not subject to the similar obligations in terms of transparency than public ones (e.g. access to document rules, systematic publication of decisions, etc.). In other words, it’s a total black box! The football leaks are offering a rare sneak peak into that box.

Based on what I have read so far (this blog was written on Friday 9 November), there are three main aspects I find worthy of discussion:

  • The (lack of) enforcement of UEFA’s Financial Fair Play (FFP) Regulations
  • The European Super League project and EU competition law
  • The (lack of) separation of powers inside FIFA and UEFA More...

Supporters of the ISLJ Annual International Sports Law Conference 2018: Altius

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very happy to finish this series of interviews with Sven Demeulemeester from Altius, a Belgian law firm based in Brussels with a very fine (and academically-minded!) sports law team. 

1. Can you explain to our readers the work of Altius in international sports law? 

Across different sports’ sectors, Altius’ sports law practice advises and assists some of the world’s most high-profile sports governing bodies, clubs and athletes, at both the national and the international level. The team has 6 fully-dedicated sports lawyers and adopts a multi-disciplinary approach, which guarantees a broad range of legal expertise for handling specific cases or wider issues related to the sports industry. We are proud to be independent but, in cross-border matters, are able to tap into a worldwide network.

2. How is it to be an international sports lawyer? What are the advantages and challenges of the job? 

Sports law goes beyond one specific field of law. The multiplicity of legal angles keeps the work interesting, even after years of practising, and ensures that a sports lawyer rarely has a dull moment. The main downside is that the sports industry is fairly conservative and sometimes ‘political’. While the law is one thing, what happens in practice is often another. Bringing about change is not always easy. 

3. What are the burning issues in international sports law that you would like to see discussed at the conference? 

 The much-anticipated overhaul of the football transfer system is eagerly anticipated and is worth a thorough debate, also in terms of possible, viable alternatives. The impact of EU law - both internal market rules, competition law and fundamental rights – can hardly be underestimated. Also, dispute resolution mechanisms within the realm of sports - and an accessible, transparent, independent and impartial sports arbitration in particular - will remain a ‘hot’ topic in the sector for years to come. Furthermore, ethics and integrity issues should remain top of the agenda, as is being demonstrated by the current money-laundering and match-fixing allegations in Belgium. Finally, in a sector in which the use of data is rife, the newly-adopted GDPR’s impact remains somewhat ‘under the radar’.

4. Why did you decide to support the ISLJ Annual International Sports Law Conference? 

The ISLJ Annual International Sports Law Conference is refreshing, both in terms of its topics and participants. The academic and content-driven approach is a welcome addition to other sports law conferences in which the networking aspect often predominates.

Supporters of the ISLJ Annual International Sports Law Conference 2018: LawInSport

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very happy to continue this series of interviews with LawInSport, a knowledge hub and educational platform for the community of people working in or with an interest in sport and the law  (many thanks to LawInSport's CEO Sean Cottrell for kindly responding to our questions).

1. Can you explain to our readers what LawInSport is about?

LawInSport is a knowledge hub, educational platform and global community of people working in or with an interest in sport and the law.

Our objective is to help people ‘understand the rules of the game™’. What does this mean? It means people in sport having access to information that enables them to have a better understanding the rules and regulations that govern the relationships, behaviours and processes within sports. This in turn creates a foundation based on the principles of the rule of law, protecting the rights of everyone working and participating in sport.  

2. What are the challenges and perks of being an international sports law 'reporter’ ?

I do not consider myself a reporter, but as the head of an organisation that has a responsibility to provide the highest quality information on legal issues in sport,  focusing on what is important and not just what is popular, whilst trying to stay free from conflicts of interests. These two issues, popularism and conflict of interest, are the two of the biggest challenges.

Popularism and the drive to win attention is, in my opinion, causing a lack of discipline when it comes to factual and legal accuracy in coverage of sports law issues, which on their own may seem harmless, but can cause harm to organisations and individuals (athletes, employees, etc).

Conflict of interest will obviously arise in such a small sector, however, there is not a commonly agreed standard in internationally, let alone in sports law. Therefore, one needs to be diligent when consuming information to understand why someone may or may not hold a point of view, if they have paid to get it published or has someone paid them to write it. For this reason it can be hard to get a full picture of what is happening in the sector.

In terms of perks, I get to do something that is both challenging and rewarding on a daily basis, and as  a business owner I have the additional benefit of work with colleagues I enjoy working with. I have the privilege of meeting world leaders in their respective fields (law, sport, business, science, education, etc) and gain insights from them about their work and life experiences which is incredibly enriching.  Getting access to speak to the people who are on the front line, either athletes, coaches, lawyers, scientists, rather than from a third party is great as it gives you an unfiltered insight into what is going on.

On the other side of things, we get the opportunity to help people through either having a better understand of the legal and regulatory issues in sports or to understand how to progress themselves towards their goals academically and professionally is probably the most rewarding part of my work. 

3. What are the burning issues in international sports law that you would like to see discussed at the conference?

  • The long-term implications of human rights law in sport;
  • The importance of meaningful of stakeholder consultation in the creation and drafting of regulations in sport;
  • Effective international safeguarding in sport.

4. Why did you decide to support the ISLJ Annual International Sports Law Conference?

We support ISLJ Annual International Sports Law Conference as it is a non-profit conference that’s purpose is to create a space to explore a wide range of legal issues in sport. The conference is an academic conference that does a great job in bringing a diverse range of speakers and delegates. The discussions and debates that take place will benefit the wider sports law community.  Therefore, as LawInSport’s objective is focused on education it was a straight forward decision to support the conferences as it is aligned with our objectives. 

Supporters of the ISLJ Annual International Sports Law Conference 2018: Women in Sports Law

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very proud to start this series of interviews with Women in Sports Law, an association launched in 2016 and which has already done so much to promote and advance the role of women in international sports law (many thanks to Despina Mavromati for kindly responding to our questions on behalf of WISLaw).

1. Can you explain to our readers what WISLaw is about?

Women In Sports Law (WISLaw, is an international association based in Lausanne that unites more than 300 women from 50 countries specializing in sports law. It is a professional network that aims at increasing the visibility of women working in the sector, through a detailed members’ directory and various small-scale talks and events held in different countries around the world. These small-scale events give the opportunity to include everyone in the discussion and enhance the members’ network. Men from the sector and numerous arbitral institutions, conference organizers and universities have come to actively support our initiative.

2. What are the challenges and opportunities for women getting involved in international sports law?

Women used to be invisible in this sector. All-male panels were typical at conferences and nobody seemed to notice this flagrant lack of diversity. WISLaw created this much-needed platform to increase visibility through the members’ directory and through a series of small-scale events where all members, independent of their status or seniority, can attend and be speakers.

Another difficulty is that European football (soccer) is traditionally considered to be a “male-dominated” sport, despite the fact that there are so many great female football teams around the world. The same misperception applies to sports lawyers!

Last, there is a huge number of women lawyers working as in-house counsel and as sports administrators. There is a glass ceiling for many of those women, and the WISLaw annual evaluation of the participation of women in those positions attempts to target their issues and shed more light into this specific problem.

3. What are the burning issues in international sports law that you would like to see discussed at the conference?

The ISLJ Annual Conference has already set up a great lineup of topics combining academic and more practical discussions in the most recent issues in international sports law. 

4. Why did you decide to support the ISLJ Annual International Sports Law Conference?

The Asser International Sports Law Centre has promoted and supported WISLaw since the very beginning. The ISLJ Annual International Sports Law Conference was the first big conference to officially include a WISLaw lunch talk in its program, allowing thus the conference attendees to be part of a wider informal discussion on a specific topical issue and raise their questions with respect to WISLaw. Another important reason why WISLaw supports this conference is because the conference organizers are making sincere efforts to have increased diversity in the panels : this year’s ISLJ Annual International Sports Law Conference is probably the first sports law conference to come close to a full gender balance in its panels, with 40% of the speakers being women !

The proportionality test under Art. 101 (1) TFEU and the legitimacy of UEFA Financial fair-play regulations: From the Meca Medina and Majcen ruling of the European Court of Justice to the Galatasaray and AC Milan awards of the Court of Arbitration for Sport – By Stefano Bastianon

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


1. On the 20th July 2018, the Court of Arbitration for Sport (hereinafter referred to as “CAS”) issued its decision in the arbitration procedure between AC Milan and UEFA. The subject matter of this arbitration procedure was the appeal filed by AC Milan against the decision of the Adjudicatory Chamber of the UEFA Financial Control Body dated 19th June 2018 (hereinafter referred to as “the contested decision”). As many likely know, the CAS has acknowledged that, although AC Milan was in breach of the break-even requirement, the related exclusion of the club from the UEFA Europe League was not proportionate. To date, it is the first time the CAS clearly ruled that the sanction of exclusion from UEFA club competitions for a breach of the break-even requirement was not proportionate. For this reason the CAS award represents a good opportunity to reflect on the proportionality test under Art. 101 TFEU and the relationship between the landmark ruling of the European Court of Justice (hereinafter referred to as “ECJ”) in the Meca Medina and Majcen affair and the very recent case-law of the CAS. More...

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

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

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

Dear all,

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

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

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

Looking forward to seeing you and meeting you there!


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

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


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

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

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

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

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


Asser International Sports Law Blog | The CAS Ad Hoc Division in 2014: Business As Usual? - Part. 2: The Selection Drama

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

The CAS Ad Hoc Division in 2014: Business As Usual? - Part. 2: The Selection Drama

In a first blog last month we discussed the problem of the scope of jurisdiction of the Ad Hoc Division of the Court of Arbitration for Sport. The key issue was whether an athlete could get his case heard in front of the CAS Ad Hoc Division or not. In this second part, we will also focus on whether an athlete can access a forum, but a different kind of forum: the Olympic Games as such. This is a dramatic moment in an athlete’s life, one that will decide the future path of an entire career and most likely a lifetime of opportunities. Thus, it is a decision that should not be taken lightly, nor in disregard of the athletes’ due process rights. In the past, several (non-)selection cases were referred to the Ad Hoc Divisions at the Olympic Games, and this was again the case in 2014, providing us with the opportunity for the present review.

Three out of four cases dealt with by the CAS Ad Hoc Division in Sochi involved an athlete contesting her eviction from the Games. Each case is specific in its factual and legal assessment and deserves an individual review.


I.               Daniela Bauer (CAS OG 14/01)

Daniela Bauer is an Austrian halfpipe freestyle skier contesting the decision by the Austrian Olympic Committee (AOC) and the Austrian Ski Federation (ASF) not to select her for the Sochi Olympic Games. Shortly before the Games, a member of the ASF had informed Ms. Bauer that she would get to participate in the Olympics if Austria were offered an additional quota place for the halfpipe competition.[1] But, when the AOC got the opportunity to fill such a quota spot, it declined to use it. It did so because “the sporting performances of the Austrian athletes in this discipline were not good enough and would adversely affect the overall perception of the Federation and its athletes at the Olympics”[2]. Hence, on 2 February 2014, the athlete decided to file an application with the CAS Ad Hoc Division against her non-selection.

She claimed that ASF and AOC had “induced legitimate expectations in the Applicant that having qualified under the FIS Rules she would be selected through the use of quota places”. Therefore, ASF and AOC “are estopped[3] from changing their course of action, i.e. from relying on their authority in any given case to decline the quota allocated to Austria”[4]. Moreover, she argued that “[t]he right of the ASF to recommend an athlete to the AOC (Rule 44.4 of the OC) as well as the right of the AOC to select an athlete for the Olympic Games (Rule 27.7.2 of the OC) cannot be exercised in an unreasonable manner”[5]. This standard of reasonableness was not met in her case because[6]:

  • “no reasons were given”;
  • “the Respondents’ discretion not to recommend and select her was exercised arbitrarily”;
  • “the applicant was never notified that reference would be made to the above-mentioned criterion of sporting perspective���;
  • “the AOC violated Rule 44.4 of the OC by not investigating whether the ASF’s non-recommendation was based on discrimination”;
  • “the AOC should accept all the quotas allocated to it, irrespective of the potential results of the nominated athletes”;
  • and she “should have been immediately informed of the decisions taken by the ASF and AOC”.

The ASF and AOC opposed that “[n]o person has the authority to bind the ASF and the AOC with respect to the Applicant’s participation in the Olympic Games” and, therefore, “[t]he AOC has the exclusive authority under Rule 27 of the OC to decide which athletes shall take part in the Olympic Games” [7].

The jurisdiction of the CAS Ad Hoc Division was not contested and the panel moved directly to the merit of the case. The panel refers to its settled case-law and reminds that “it is not in issue that it is for an NOC to select its competitors for the Olympics […] (CAS OG 08/03)”[8]. Hence, “although the Applicant satisfied the FIS minimum qualification standards and the AOC was below its maximum athlete quotas for all freestyle events, the AOC would have violated the OC by nominating her for a quota allocation for women’s halfpipe as she had not been recommended by the ASF”[9]. Even though it is acknowledged that ASF member Mr. Rijavec “may have created an expectation that the ASF would recommend to the AOC that she would be nominated for a quota allocation”, he “was not authorized to make any representations, promises or guarantees regarding whether the AOC would nominate her if she satisfied these standards”[10]. Consequently, no legitimate expectations to be selected could arise. In addition to this, the panel found that the ASF disposes of a “significant degree of subjective discretion”[11] as it does not have recourse to any objective criteria regarding the selection of freestyle skiers.[12] Nevertheless, it “has a legal duty not to be arbitrary, unfair, or unreasonable”, which it was not in this instance as “it had a legitimate sports performance justification” .[13]

Finally, the Panel, in a remarkable twist of mind, “wishes to express in clear terms that it does not condone its lack of published qualification criteria that misled the Applicant by failing to provide clear and timely notice of the performance standards she was required to meet in order to be recommended by the ASF for the nomination by the AOC to the Austrian Olympic team”. Additionally, “the panel strongly recommends that the ASF establish, identify, and publish clear criteria to enable athletes to determine in a timely manner the Olympic Games qualification standards they are required to meet” .[14] Despite these final remonstrances, the panel concludes that the claims of Ms. Bauer lack merit.


II.             Clyde Getty (CAS OG 14/02)

The claimant, Mr. Getty, is an Argentinean freestyle skier competing in the aerials discipline; the respondent is the International Ski Federation (FIS). This is a case also related to the attribution of an additional quota spot to participate to the Sochi Olympic Games. On 24 January the Argentinean Ski Federation (FASA) received an email from the FIS informing it that it was allocated a quota spot for the aerials competition in Sochi. The FASA immediately informed Mr. Getty of the good news. However, later that day, after confirming its interest in the spot, the federation received a second email from FIS stating that FASA “does not have an athlete that is eligible to participate in the Aerials men event” and therefore cannot get the spot misleadingly offered in the first email. Henceforth, Mr. Getty decided to challenge his proclaimed ineligibility to participate to the Olympics in front of the CAS Ad Hoc Division. 

Mr Getty claims that he is “eligible to be entered into the Sochi Games by the Argentinean NOC irrespective of his current FIS points”[15]. He is of the opinion that FIS rules are ambiguous on the selection process for quota spots and therefore should be interpreted in his favour on the basis of the contra preferentem principle.[16] Moreover, he argues that “FIS is estopped from denying [him] a quota place” [17]. In other words, Mr. Getty claims FIS had prompted legitimate expectations, especially after the 24 January  email, that he would be participating to the Sochi Olympic Games. Finally, Mr Getty submits that denying him the participation in the Sochi Games “would be unfair and contrary to the spirit of the Olympic Movement” [18]. He bases his claim, amongst many other things, on the fact that he is the only freestyle athlete representing South America and that his “dedication to sport is an inspiration to many” [19]. The FIS disputes these claims and points out that “the Applicant’s description of the qualification procedure is incorrect and misleading” [20]. In fact, Mr. Getty never reached the minimum points for eligibility, nor is any alternative qualification criterion accessible. Likewise, the FIS is not estopped, as it could not create any legitimate expectations with its email.

The jurisdiction of the CAS Ad Hoc Tribunal was not contested and the panel proceeded directly to the merit. As a preamble, the arbitrators remind that “[u]nder Swiss law, the interpretation of statutes has to be rather objective and always start with the wording of the rule”[21]. After reviewing the wording of the FIS’s regulations, the panel concludes that, in the present case, “[a] good faith common sense reading leads to the conclusion that the rules unambiguously require all competitors to meet the individual eligibility requirements” [22]. Additionally, “[t]he fact that the Applicant cannot point to a single instance in the past where an athlete was allowed to compete in the Olympic Games without meeting the eligibility requirements […] is further evidence of this conclusion” [23].

Moreover, the FIS is not deemed estopped from denying Mr. Getty a quota place for the Sochi Olympic Games. In this regard, the Panel notes that “FIS never made during the qualification period a representation that Mr. Getty was eligibile” [24], nor is there “evidence that during the qualification period Mr. Getty received from FIS an individual assurance that he was eligible” [25], and “the fact that COA might ultimately obtain a quota place did (and could) not suggest that FIS would waive the minimum individual qualification requirement for any athlete assigned to that quota place” [26], most importantly “all correspondence between FASA or COA and FIS on 24 October 2014 did not contain any express and individual reference to Mr. Getty”[27]. This is a fundamental difference compared to the existing precedents invoked by Mr. Getty. Indeed, in those cases “the athlete had been given specific and individual assurances about his eligibility” (CAS OG 02/06 & CAS OG 08/02) or “the international federation changed its rules with retroactive effects, depriving an athlete of the eligibility that could be assumed on the basis of prior rules”[28] (CAS 2008/O/1455).

Finally, the Panel also held that the fact that the participation of Mr. Getty to the Sochi Games would be in line with the Olympic spirit is a matter of policy. These concerns are for “FIS to consider when adopting the eligibility rules for the Olympic games; they are not for this Panel which is only asked to apply the existing rules”[29]. Even though the Panel is sympathetic to the athlete’s drive to participate to the Sochi Olympic Games it rejects the application filed by Mr. Getty.


III.           Maria Birkner (CAS OG 14/03)

The final, and maybe most complex and controversial case, is the one involving a well-known Argentine alpine skier: María Birkner. The National Olympic Committee for Argentina (COA) and the Argentinean Ski Federation (FASA) are the respondents in the proceedings. On 20 January 2014 the FASA told Ms. Birkner that she was not selected for the Sochi Olympic Games. This decision not to select her is challenged in front of the CAS Ad Hoc Division.

Ms. Birkner claims “that she was discriminated against on the basis of her being a member of her family”[30]. For a number of reasons, she claims that the Federation has purposefully conspired to banish her from its activities and to exclude her from the Olympic games[31]. Chiefly, she claims the federation has purposefully informed her after the final decision of the existence of specific selection criteria and of a technical committee in charge of the selection. As discussed in the previous blog, the jurisdiction of the Ad Hoc Division was challenged and the panel found that it did not have jurisdiction. Nonetheless, it decided to consider the merits of the case anyway.

The arbitrators brushed aside any bias against the family of Ms. Birkner noting that two of her siblings were present in Sochi and that her brother had even the privilege of carrying the Argentinean Flag during the opening ceremony.[32] Furthermore, in the eyes of the panel, the claimant failed to establish that the qualification process, the Technical Committee and the selection criteria used were biased against her.[33] Indeed, “it cannot be said that the selection criteria said to be applied were arbitrary or unreasonable”[34]. The panel considers that the recriminations of Ms. Birkner against the selection process, especially the allegations of a bias from the part of the Technical Committee and that the other skiers had previous knowledge of the main selection criteria were not sufficiently substantiated and could not be established for the sake of this procedure.

The panel is of the view that the situation is similar to the one of the Bauer case discussed above. Therefore, it recalls the holding of the Bauer Panel observing that “there was a legal duty not to be arbitrary, unfair or unreasonable in the application of objective criteria or in the exercise of subjective discretion but that the exercise of discretion was not so characterised where there was a legitimate sports performance justification for selection”[35]. It finds that “a discretion based on “the evolution and projection in the future” [as invoked by the FASA] is not arbitrary, unfair or unreasonable” [36]. Nevertheless, the panel refers to the obiter holding in the Bauer case and “recommends that FASA establishes, identifies and publishes clear criteria in a timely manner to enable athletes to understand those criteria and the Olympic Games qualification standards that they are required to meet in order to be recommended for selection by COA” [37]. In the present case, “a dedicated athlete with an outstanding history of representing her country, who had successfully competed in many international as well as national events, was devastated by the decision made not to select her, when she had believed that, on the criteria that she had mistakenly understood had applied, she would represent her country at the Sochi Olympic Games” [38].

Conclusion: Deference is not enough 

Selection disputes constitute a big part of the CAS Ad Hoc Division’s caseload.[39] This is probably inevitable, as the non-selection for the Olympic Games is often the toughest setback faced by an athlete in her career. The Sochi cases do not fundamentally sidestep the existing case law of the CAS Ad Hoc Division in this regard. The deference to the subjective criteria used by the National Olympic Committee’s (NOCs) and the International federations (Ifs) is reaffirmed, unless those criteria are applied in an “arbitrary, unfair or unreasonable” way. Furthermore, an athlete can hardly rely on any legitimate expectations, unless he has been offered personally and officially a spot to participate to the Olympic Games. Hence, a non-selection can only be challenged successfully in the most extreme cases. However, when the behaviour of the federation is, to say the least, ambiguous as in the Birkner case, a very heavy burden of proof lies on the shoulder of the athlete to turn this ambiguity into the recognition of an “arbitrary, unfair or unreasonable” behaviour. 

The Sochi Ad Hoc Division’s approach to selection cases is flawed with paradoxical feelings. On the one hand, it urges the Ifs and NOCs to devise and publish “clear criteria in a timely manner”, but, on the other hand, it encourages them not do so by limiting the reviewability of their subjective and blurry selection practices. In short, Panels openly favour objective and predictable schemes on which athletes can rely, while incentivizing subjective and unpredictable assessments by leaving untouched the wide scope of discretion of the Ifs and NOCs.[40] The paradoxical and irreconcilable nature of these views should lead the CAS to reconsider its approach to the selection process. The Sochi panels instinctively felt there was something fundamentally unfair with the non-selection of Ms. Bauer and Ms. Birkner. In this regard, the panels’ final incantations for change will remain unanswered if the CAS Ad Hoc Division refuses to contribute through its jurisprudence to the rise of clear selection criteria. It should impose a more stringent review of the subjective criteria used by the Ifs, by promoting a less strict understanding of the notion of “arbitrary, unfair or unreasonable” scheme and/or by alleviating the burden of proof bearing on athletes to establish the abusive nature of a selection process.

In fact, such an evolution would be in a line with the will expressed by the Olympic movement during the Olympic Agenda 2020 process to be irreproachable in terms of good governance and transparency. The existence of publicly known and clearly defined standards and rules is a hallmark of such good governance. Getting to the Olympics is just too important for athletes to be left at the mercy of the unchecked will

[1] CAS OG 14/01, point 2.5

[2] CAS OG 14/01, point 2.10

[3] For a quick introduction to the doctrine of Estoppel see :

[4] CAS OG 14/01, point 4.2 a)

[5] CAS OG 14/01, point 4.2 b)

[6] CAS OG 14/01, point 4.2 b) i) to vi)

[7] CAS OG 14/01, point 4.3 a) and c)

[8] CAS OG 14/01, point 7.5

[9] CAS OG 14/01, point 7.10

[10] CAS OG 14/01, point 7.12

[11] CAS OG 14/01, point 7.15

[12]In contrast with CAS OG 06/08 and CAS OG 06/02.

[13] CAS OG 14/01, point 7.15

[14]CAS OG 14/01, point 7.16

[15] CAS OG 14/02, point 4.2 a)

[16] CAS OG 14/02, point 4.2 a)

[17] CAS OG 14/02, point 4.2 b)

[18] CAS OG 14/02, point 4.2 c)

[19] CAS OG 14/02, point 4.2 c)

[20] CAS OG 14/02, point 4.3 a)

[21] CAS OG 14/02, point 7.4

[22] CAS OG 14/02, point 8.9

[23] CAS OG 14/02, point 8.10

[24] CAS OG 14/02, point 8.17 i.

[25]CAS OG 14/02, point 8.17 ii.

[26] CAS OG 14/02, point 8.17 iii.

[27] CAS OG 14/02, point 8.17 vi.

[28] CAS OG 14/02, point 8.17 vii.

[29] CAS OG 14/02, point 8.20

[30] CAS OG 14/03, point 4.3

[31] CAS OG 14/03, point 4.4

[32] CAS OG 14/03, point 7.4-7.7

[33] CAS OG 14/03, point 7.16-7.25

[34] CAS OG 14/03, point 7.19

[35] CAS OG 14/03, point 8.2

[36] CAS OG 14/03, point 8.3

[37] CAS OG 14/03, point 8.4

[38] CAS OG 14/03, point 8.4

[39] See the following cases : CAS OG 12/06 ; CAS OG 12/01 ; CAS OG 12/02 ; CAS OG 06/008 ; CAS OG 06/002 ; CAS OG 08/002; CAS OG 08/003; CAS OG 02/005

[40] A problem already identified by Antonio Rigozzi, which noted in 2006 that « This case law [CAS OG 06/002  & CAS OG 06/008] could lead to a switch (back) from selection based on objective criteria to more subjective process. This would be a regrettable evolution. To reduce the risk of dispute, the selecting bodies should enact objective criteria, which are easily intelligible, make sure that they are communicated to (and understood) by the athletes, and avoid any modification of the « rules of the game » during the selection » process. » A. Rigozzi, ‘The Decisions Rendered by the CAS Ad Hoc Division at the Turin Winter Olympic Games 2006’, Journal of International Arbitration, pp.453-466, p.466

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