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.

The Headlines

ISLJ Annual Conference on International Sports Law 

On 26 and 27 October 2017, the T.M.C. Asser Institute in The Hague will host the first ever ISLJ Annual International Sports Law Conference. This year's edition will feature panels on the Court of Arbitration for Sport, the world anti-doping system, the FIFA transfer regulations, human rights and sports, the labour rights of athletes, and EU law and sport. We will also welcome the following distinguished keynote speakers:

• Miguel Maduro, former Advocate General at the European Court of Justice and former head of the FIFA's Governance Committee;
• Michael Beloff QC, English barrister known as one of the 'Godfathers' of sports law;
• Stephen Weatherill, Professor at Oxford University and a scholarly authority on EU law and sport;
• Richard McLaren, CAS Arbitrator, sports law scholar and former head of the World Anti-Doping Agency's investigation into the Russian doping scandal.

You will find all the necessary information related to the conference here. Do not forget to register as soon as possible if you want to secure a place on the international sports law pitch! [Please note that we have a limited amount of seats available, which will be attributed on a 'first come, first served' basis.]

FC Red Bull Salzburg and RB Leipzig given the green light to participate in the 2017/2018 UEFA Champions League

In July, UEFA published the decision on eligibility of FC Red Bull Salzburg and RB Leipzig to participate in the 2017/2018 edition of the UEFA Champions League, handed down by the Adjudicatory Chamber of the UEFA Club Financial Control Body ('CFCB') on 16 June 2017. Having examined the clubs' submissions and, in particular, taking note of multiple personal and other changes made by FC Red Bull Salzburg, the CFCB Adjudicatory Chamber concluded that the company Red Bull did not have a decisive influence over the Austrian club in the sense of Article 5.01(c)(iv) of the UEFA Champions League Regulations 2015-2018 Cycle, 2017/2018 Season. Simultaneously, the CFCB Adjudicatory Chamber held that FC Red Bull Salzburg was not able to exercise by any means a decisive influence in the decision-making of RB Leipzig (or vice versa) at the time when the decision in question was delivered. In the end, both clubs were given the green light to participate in the 2017/2018 edition of the UEFA Champions League as the CFCB Adjudicatory Chamber believed it would not threaten the integrity of the UEFA's flagship club competition.

The CAS award in International Ski Federation v. Therese Johaug and the Norwegian Olympic and Paralympic Committee and Confederation of Sports

On 22 August 2017, the CAS published its award rendered in the dispute featuring the International Ski Federation, the Norwegian cross-country skier Therese Johaug and the Norwegian Olympic and Paralympic Committee and Confederations of Sports ('NIF'). By way of reminder, the seven-time world champion tested positive for Clostebol in September 2016. Consequently, the NIF Adjudication Committee imposed a 13-month period of ineligibility on Johaug, effective as of 18 October 2016. Not satisfied with the length of the sanction, the International Ski Federation filed an appeal with the CAS on 6 March 2017, asking the latter to lengthen Johaug's ban to at least 16 months. Despite the Norwegian's otherwise clean anti-doping record, the CAS eventually sided with the International Ski Federation and lengthened Johaug's ban to 18 months, effective as of 18 October 2016. As a result, she will now miss the 2018 Winter Olympic Games in Pyeongchang.

Sara Errani banned from professional tennis for two months

The Italian female tennis player Sara Errani is currently serving a two-month ban imposed on her by an Independent Tribunal appointed under Article 8.1 of the 2017 Tennis Anti-Doping Programme. This sanction is a direct consequence of an out-of-competition doping control test which took place on 16 February 2017 and revealed the presence of Letrozole in the body of the former French Open finalist. Apart from not being eligible to enter any tournament before 3 October 2017, Errani is also obliged to return prize money she earned at events played during the period between 16 February 2017 and 7 June 2017, given that all her results achieved during the said period were disqualified. It should be noted, however, that the Italian Anti-Doping Agency reportedly petitioned the CAS to lengthen Errani's ban, and thus it will be the CAS that will have the final word on the matter.

Sports Law Related Decisions

• CAS – Award delivered in the arbitration between Chunhong Liu and International Olympic Committee
• CAS – Award delivered in the arbitration between Lei Cao and International Olympic Committee
• CAS – Award delivered in the arbitration between Paolo Barelli and Fédération Internationale de Natation (FINA)
• CAS – Award delivered in the arbitration featuring the International Ski Federation (FIS), Therese Johaug and The Norwegian Olympic and Paralympic Committee and Confederation of Sports
• Sport Resolutions (UK) – Decision rendered in the case between ITF and Sara Errani
• UEFA – Decision rendered in the case concerning Rasenballsport Leipzig and FC Red Bull Salzburg

Official Documents and Press Releases

• Athletics Integrity Unit – Statement regarding the provisional suspension of two Ukrainian athletes
• CAS – Appeal filed by Tatyana Chernova dismissed
• CAS – Bulletin 2017/1
• CAS – The CAS confirms ranking of the Romanian football league 1 2016/2017
• CAS – The CAS confirms the decision rendered by the International Canoe Federation (ICF) in the case of Serghei Tarnovschi
• CAS – The CAS dismisses the appeals filed by the Bolivian Football Federation
• CAS – The CAS imposes four-year ban on Russian triple-jumper Anna Pyatykh
• CAS – The CAS reduces the ban imposed on Harold Mayne-Nicholls from three to two years
• CAS – The CAS rejects urgent application for provisional measures filed by Peter Sagan and Denk Pro Cycling GmbH
• CAS – The CAS suspends the IAAF Hyperandrogenism Regulations until the end of September 2017
• CAS – The CAS upholds the life bans imposed by the IAAF on Valentin Balakhnichev, Alexei Melnikov and Papa Massata Diack
• CAS – The CAS upholds the two-year period of ineligibility imposed on Roman Eremenko
• Deloitte – Annual Review of Football Finance
• FIFA – 2026 FIFA World Cup bidding process: FIFA receives expressions of interest
• FIFA – FIFA appoints monitoring committee to ensure oversight of Greek FA
• FIFA – FIFA suspends Sudan Football Association
• FIFA – FIFA lifts suspension of Sudan Football Association (SFA)
• FIFA – Normalisation committee appointed for Cameroonian FA
• FIFPro – Neymar deal is tip of the iceberg
• IOC – 2028 Host City Contract
• IOC – IOC approves new candidature process for Winter Olympic Games 2026
• IOC – IOC Executive Board confirms gender equality and more innovation for Winter Youth Olympic Games Lausanne 2020
• IOC – IOC makes historic decision in agreeing to award 2024 and 2028 Olympic Games at the same time
• IOC – Los Angeles declares candidature for Olympic Games 2028: IOC to contribute USD 1.8 billion to the Local Organising Committee
• IOC – Report of the IOC Evaluation Commission 2024
• IOC – Six candidates approved for IOC Athletes’ Commission elections in Pyeongchang
• Swiss Federal Tribunal – Appeal filed by Michel Platini rejected
• Tennis Integrity Unit – Briefing Note July 2017
• UNESCO – From ‘declaration to action’ at Ministerial Conference for Sport and Physical Education
• Union Cycliste Internationale (UCI) – Cycling Canada, Ontario Cycling Association, UCI and Canadian athlete Kristen Worley settle human rights application to promote inclusive sporting environments
• Union Cycliste Internationale (UCI) – Statement on Samuel Sánchez Gonzalez
• WADA – Annual report 2016
• WADA – Sierra Leone ratifies UNESCO Anti-Doping Convention
• WADA – Statement from WADA Athlete Committee
• WADA – WADA publishes RUSADA Roadmap to Code Compliance

In the news

Doping

• Nina Berglund Johaug drops doping appeal
• Andy Brown Russian Federal Government approves National Anti-Doping Plan
• Nick Butler IOC Executive Board approve plans for Independent Testing Authority in time for Pyeongchang 2018
• Nick Butler IOC target October for results of Schmid and Oswald Russian doping reports
• Daniel Etchells iNADO urges principled approach from IOC to Russia sanctions
• Nick Harris Russia’s football drugs cover-up: Eight months on and still no action as ethics team are ‘denied access to evidence’
• Martha Kelner Ethiopian pharmacy given trading ban for the illegal sale of EPO
• Martha Kelner Inside the doping hotspot of Ethiopia: Dodgy testing and EPO over the counter
• Martha Kelner and James Rudd Caster Semenya could be forced to undertake hormone therapy for future Olympics
• Duncan Mackay Olympic 50km race walk gold medallist to miss World Championships after IAAF doping investigation
• The Moscow Times Russia’s Sports Minister says no chance of Winter Games doping ban
• Michael Pavitt WADA Director General claims progress being made after visiting RUSADA headquarters
• Play the Game Paralympic committees boost Russia’s bid to be reinstated in time for Pyeongchang 2018
• Radio Poland New Polish Anti-Doping Agency launched
• Reuters Suspended Russian Anti-Doping Agency appoints new director

Football

•  Mohamed Fajah Barrie The crisis in Sierra Leone football deepens as FIFA suspends congress

• David Conn Paris St-Germain signing of Kylian Mbappé looks like defiance of UEFA
• James M. Dorsey The Gulf crisis: Qatar’s 2022 World Cup moves into the firing line
• ESPN FIFA places onus on Football Federation Australia to sort out governance issues with stakeholders
• Joseph Evans Spanish, French and Brazilian firms advise on record-breaking £200 million Neymar transfer to PSG
• The Guardian Spanish FA President Ángel María Villar Llona arrested on corruption charges
• Nicholas Hirst Spanish league wants EU to referee Neymar transfer saga
• Paul MacInnes UEFA’s Aleksander Ceferin talked about a salary cap – but could it ever happen?
• Liam Morgan Cameroon official accuses FIFA of ignoring CAS verdict on disputed FECAFOOT elections
• Liam Morgan FIFA threaten to take over running of Football Federation Australia as impasse continues
• Rory Smith The owner brought the money. The agent delivered the players. Now what?
• Peter Staunton Coutinho, Van Dijk and Diego Costa: Transfer market horribly stacked against players
• Stefan Szymanski Neymar transfer exposes football’s modern-day trafficking scheme
• Andrew Warshaw Ceferin warns Euro giants that FFP still has teeth, and floats possibility of salary cap
• Joe Wright FIFA investigating Neymar complaint over unpaid Barcelona loyalty bonus

Other

• Rizwan Ali Pakistan cricketer Sharjeel Khan banned for five years
• Aaron Bauer Coates welcomes Australian Olympic Committee’s report, but defiant on bullying claims
• Ben Bloom IAAF consider formal action against BBC for grilling medical expert on live TV
• Nick Butler IOC members unanimously support 2024 and 2028 joint awarding plans
• David Conn How Bahrain uses sport to whitewash a legacy of torture and human rights abuses
• Nicholas Hirst Sports bosses on thin ice in EU antitrust probe
• Marina Hyde Los Angeles has signed up but rapacious IOC is running out of conquests
• Sean Ingle Sebastian Coe alarmed by ‘human trafficking’ revelations in athletics
• Martha Kelner General public is losing faith in scandal-ridden sports, survey claims
• Juliet Macur What qualifies a woman to compete as a woman? An ugly fight resumes
• Reuters IOC snubs Infantino and Coe in new members list
• John Varano Major sports events: Are they worth it?
• Stephen Wade Rio Olympics look to IOC for help with USD 40 million debt
• Johnny Watterson and Sarah Bardon The Olympic Council of Ireland acting to remove Pat Hickey from Olympic positions

Academic Materials

• Steven A. Bank Will U.S. Soccer Be Forced to Adopt Promotion and Relegation?
• Stéphane Bermon and Pierre-Yves Garnier Serum Androgen Levels and Their Relation to Performance in Track and Field: Mass Spectrometry Results from 2127 Observations in Male and Female Elite Athletes
•  Ian S. Blackshaw International Sports Law: An Introductory Guide
• Philippe Broda Europe Versus Emerging Countries Within FIFA: Using Inflation as a Conflict Regulation Mechanism
• Namrata Chatterjee, Chiheb Kaibi, Ivan Kraljević and Adrienne Lerner A Proposal for Sport Governance Oversight
• Sherman J. Clark Why Sports Law?
• Pierre Cornu, Sabrina Cuendet and Laurent Vidal Disciplinary and Arbitration Procedures of the Sport Movement
• Despina Mavromati Disciplinary Sanctions for Misconduct in Tennis
• Rolf Ulrich et al. Doping in Two Elite Athletics Competitions Assessed by Randomized-Response Surveys

Blog

Asser International Sports Law Blog

• Mario Vigna Mitigating Circumstances and Strict Liability of Clubs in Match-fixing: Are We Going in the Wrong Direction? An Analysis of the Novara and Pro Patria Cases
• Frans de Weger and Frank John Vrolijk Overdue Payables in Action: Reviewing Two Years of FIFA Jurisprudence on the 12bis Procedure – Part I
• Frans de Weger and Frank John Vrolijk Overdue Payables in Action: Reviewing Two Years of FIFA Jurisprudence on the 12bis Procedure – Part II

Law in Sport

• Nick De Marco Betting and football’s ticking time bomb: Joey Barton v. FA
• Tiran Gunawardena, Carol Couse and Mark Hovell Trends in digital brand engagement, image rights and sponsorship deals in sport
• Andrew Haywood The lifecycle of an international athlete: Part I: Finding an agent and signing with a sports club
• Rebecca O’Kelly-Gillard and Chris Lavey Top of the league: How football clubs protect and exploit their brands in a global marketplace
• John Shea Six key lessons for clubs on the protection of minors from the FC Barcelona and Real Madrid appeals
• Dan Smith #Sport: The digital battle between sponsors, rights holders and ambush marketers
• Lloyd Thomas A brief review of China’s new 100% ‘transfer tax’ on footballers
•  Gemma White and Louis Weston Why sport needs a unified approach to sanctions for corruption offences

Others

• Andy Brown Why life bans for doping will not work
• Nick De Marco Corruption in football: Player transfers, agents and the ‘privatisation of regulation’
• Kelsey Erickson and Susan Backhouse Doping: Why some athletes are reluctant to speak out
• Howard Jacobs The latest anti-doping hysteria and the problem of reducing complicated issues to 140 characters
• Ruth Kennedy Barcelona’s claim against Neymar: Valid claim or smoke and mirrors?
• David Owen IOC likes to say it redistributes 90% of revenues, but does it? And who to?
• Roger Pielke, Jr. Inconsistencies between Johaug vs. Sharapova at CAS
• Ed Thompson Neymar’s PSG transfer and the break-even test
• Ross Tucker Testosterone, performance and intersex athletes: Will the IAAF evidence be enough?

Upcoming Events

• 26-27 October – ISLJ Annual Conference on International Sports Law, T.M.C. Asser Institute, The Hague, the Netherlands
• 26-30 November – Play the Game 2017: Riding Waves of Change, Eindhoven, the Netherlands

The last years has seen the European Commission being put under increasing pressure to enforce EU State aid law in sport. For example, numerous Parliamentary questions have been asked by Members of the European Parliament[1] regarding alleged State aid to sporting clubs.  In reply to this pressure, on 21 March 2012, the European Commission, together with UEFA, issued a statement. In this statement, the Commission held that the objectives of the UEFA’s Financial Fair Play (FFP) Regulations are consistent with the aims and objectives of European Union policy in the field of State aid. Moreover, the Commission highlighted that it is willing to cooperate with UEFA when enforcing the rules on EU State aid onto professional football. According to the Commission, when football clubs experience financial difficulties, there is a particular risk that public authorities may be tempted to grant State aid. Thus, enforcing EU rules on State aid will ensure prudent economic management by football clubs that will serve to protect both the interests of individual clubs and players as well as the football sector in Europe as a whole.

Now that UEFA is in the process of enforcing its FFP regulations on football clubs, the question remains whether the European Commission has kept its word about its part of “the deal”. In other words, is there a visible change regarding the enforcement of the EU State aid rules by the European Commission?

Article 107 of the treaty on the Functioning of the European Union (TFEU) foresees that a Member State may not aid or subsidize private parties in distortion of free competition. The State aid rules constitute one of the four policy areas forming EU competition law. The others being the rules on cartels, abuse of dominance and mergers. The European Court of Justice established long ago that EU competition Law was also applicable to sporting entities[2], but very little has ever been done or said about State aid in sport. In fact, one could easily get the impression that the Commission deliberately avoided to get its hands dirty with such problems. One famous example concerns a terrain qualification change in Madrid in the late 90’s that proved hugely advantageous for Spanish football club Real Madrid[3]. In this case, the Commission, even though agreeing that an advantage was conferred to the club, simply stated that the new qualification of the terrain in question does not appear to involve any transfer of resources by the State and could therefore not be regarded as State aid within the meaning of article 107 TFEU.

So has anything changed since then, or more specifically, since 21 March 2012? The Commission has never been famous for its celerity, meaning that it could take another few years before true change can be witnessed. The continuous delays in coming to decisions has also been one of the main points of criticism by the European Ombudsman on the way the Commission is dealing with State aid in sport. However, on a close look, one can distinguish the beginning of a shift towards active enforcement of EU State aid law in sports.

On the day of the joint statement, the Commission published a decision indicating that it would initiate a formal investigation into alleged State aid granted by Sweden for the construction of a sporting arena for ice hockey and other indoor sports in the town of Uppsala. The Swedish State notified the Commission that it had planned to grant EUR 16.5 million directly plus EUR 1.7 million for 25 years for the construction because the arena would fulfil an objective of common interest. Moreover, due to its multifunctional character, the arena would also be used for other sports and events, such as concerts. Nonetheless, the Commission had doubts as regards the necessity to use public funding for this projects and the reasons advanced by Sweden to justify the need of a completely new arena instead of renovating an old one.

The Commission’s scrutiny of State aid in the field of sport did not end there. Since March 2012 the Commission has dealt with 12 cases in which it had to decide whether to launch an official investigation or not. The cases included possible State aid to over 30 beneficiaries in six different Member States, the latest one published 9 April of this year (see table). The aid measures varied from grants for renovating old stadiums or constructing new ones, debt waivers and reduced tax-rates for certain clubs, to acquisition of a stadium by the municipality, guarantees on bank loans by the club and suspected advantageous property transfers between a club and the municipality. In five out of the 12 cases, the Commission has decided to launch an official investigation in accordance with article 108(2) TFEU.

TableStateAidInSport.pdf (95.1KB)

Launching an official investigation does not mean that the Member State in question will get sanctioned for granting unauthorized State aid. Article 108(2) TFEU allows the Member States and concerned parties, such as the beneficiaries, to submit comments and to respond to any doubts the Commission might have regarding the legality of the aid. Indeed, on 2 May 2013, in its final decision regarding the construction of a sporting arena in the town of Uppsala, the Commission concluded that the granted aid is compatible with the internal market in accordance with article 107(3)(c) TFEU[4] and is therefore authorized. Nonetheless, four cases, which will be analyzed in future blog posts, are still pending a final decision by the Commission. For now, it is fair to say that the Commission has shifted towards an active enforcement of EU State aid law in sports. However, whether the Commission is prepared to “show its teeth” and sanction the Member States who granted unlawful aid to sporting clubs remains unclear.

[1] See for example: E-005417/2011, E-004360/2011 and P-4699/09

[2] Case 36/74 Walrave and Koch, (1974)

[3] The qualification change allowed Real Madrid to sell its old training grounds. Though the exact price for the grounds remains unknown, Real Madrid was suddenly capable of buying players like Figo and Zidane for record fees.

[4] Article 107(3)(c) TFEU: “The following shall be compatible with the internal market: aid to facilitate the development of certain economic activities or of certain economic areas, where such aid does not adversely affect trading conditions to an extent contrary to the common interest”.