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

Caster Semenya’s Legal Battle Against Gender Stereotypes: On Nature, Law and Identity - By Sofia Balzaretti (University of Fribourg)

Editor's note: Sofia Balzaretti is a Graduate research assistant and a PhD candidate at the University of Fribourg (Switzerland) where she is writing a thesis on the Protection against Gender Stereotypes in International Law. In addition to research in human rights and feminist legal theory, she has also carried out some research in legal philosophy and on the relationship between gender and the law.

 

The International Association of Athletics Federations (IAAF), the monitoring body of track and field athletics, regularly submitted South African middle distance runner and Olympic gold medalist Mokgadi Caster Semenya to sex verification tests when it began questioning her sexual characteristics and speculating whether her body belonged on the Disorder of Sex Development (DSD) spectrum. DSD Syndrome is often defined as an “intersex condition” which affects the clear development of either/or genitalia, gonads and chromosomes into one distinctive sex or another. The spectrum of the intersex condition is particularly wide, and the disorder can sometimes be minimal - some cases of female infertility can actually be explained by an intersex condition.

The IAAF deemed the controversial sex verification tests necessary on the grounds that it was required to prove Semenya did not have a “medical condition” which could give her an “unfair advantage”. It was eventually found that, because of an intersex trait, Semenya did have abnormally high levels of testosterone for a woman, which, in the IAAF’s opinion, justified a need for regulatory hormonal adjustments in order for her to keep competing in the women’s category. The IAAF also funded research to determine how ‘hyperandrogenism’ affects athletic performance. In 2018, it issued Eligibility Regulations on Female Classification (“Athlete with Differences of Sexual Development”) for events from 400m to the mile, including 400m, hurdles races, 800m and 1’500m. The IAAF rules indicated that in case of an existing high level of testosterone, suppression or regulation by chemotherapy, hormonal castration, and/or iatrogenic irradiation was mandatory in order to take part in these events.

Semenya and her lawyers challenged the IAAF Regulations in front of the CAS, who, in a very controversial decision, deemed the Regulations a necessary, reasonable and proportionate mean “of achieving the aim of what is described as the integrity of female athletics and for the upholding of the ‘protected class’ of female athletes in certain events” (§626). More...

International and European Sports Law – Monthly Report – June and July 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 European Court of Justice finds that rule of a sports association excluding nationals of other Member States from domestic amateur athletics championships may be contrary to EU law

On 13 June 2019, the European Court of Justice (ECJ) delivered a preliminary ruling at the request of the Amtsgericht Darmstadt (Local Court Darmstadt, Germany) filed in the course of the proceedings involving Mr Daniele Biffi, an Italian amateur athlete residing in Germany, and his athletics club TopFit based in Berlin, on the one hand, and the German athletics association Deutscher Leichtathletikverband, on the other. The case concerned a rule adopted by the German athletics association under which nationals of other Member States are not allowed to be awarded the title of national champion in senior amateur athletics events as they may only participate in such events outside/without classification. The ECJ’s task was to decide whether or not the rule in question adheres to EU law.

The ECJ took the view that the two justifications for the rule in question put forward by the German athletics association did not appear to be founded on objective considerations and called upon the Amtsgericht Darmstadt to look for other considerations that would pursue a legitimate objective. In its judgment, the ECJ analysed several important legal questions, including amongst others the applicability of EU law to amateur sport or the horizontal applicability of European citizenship rights (for detailed analysis of the judgment, please see our blog written by Thomas Terraz).

Milan not featuring in this season’s edition of Europa League following a settlement with UEFA

On 28 June 2019, the Court of Arbitration for Sport (CAS) rendered a consent award giving effect to a settlement agreement between UEFA and the Milan Football Club, under which the Italian club agreed to serve a one-year ban from participation in UEFA club competitions as a result of its breaches of UEFA’s financial fair play regulations over the 2015/2016/2017 and the 2016/2017/2018 monitoring periods, while the European football’s governing body agreed to set aside previous decisions of the Investigatory and Adjudicatory Chamber of its Club Financial Control Body which had found Milan guilty of the respective breaches.   

This was not the first intervention of the CAS related to Milan’s (non-)compliance with UEFA’s financial fair play regulations. In July 2018, the CAS annulled the decision of the Adjudicatory Chamber of the UEFA Club Financial Control Body of 19 June 2018 which was supposed to lead to the exclusion of the Italian club from UEFA club competitions for which it would otherwise qualify in the next two seasons (i.e. 2018/2019 and 2019/2020 seasons). Following such intervention of the CAS – which concerned the 2015/2016/2017 monitoring period – it may have appeared that Milan would eventually manage to escape a ban from participation in UEFA club competitions for breaches of UEFA’s financial fair play regulations. However, Milan’s case was again referred to the Adjudicatory Chamber of the UEFA Club Financial Control Body in April 2019 – this time its alleged breaches of UEFA’s financial fair play regulations concerned the 2016/2017/2018 monitoring period – and such referral apparently forced Milan into negotiations with UEFA which led to the settlement agreement ratified by the CAS.      

Swiss Federal Tribunal gives Caster Semenya a glimmer of hope at first but then stops her from running at the IAAF World Championships in Doha

Caster Semenya’s legal team brought an appeal to the Swiss Federal Tribunal in late May against the landmark ruling of the CAS which gave the IAAF the green light to apply its highly contentious Eligibility Regulations for Female Classification (Athlete with Difference of Sexual Development) preventing female athletes with naturally elevated levels of testosterone from participating in certain athletic events unless they take medication to supress such levels of testosterone below the threshold of five nmol/L for a continuous period of at least six months. The appeal yielded some positive partial results for Caster Semenya early on as the Swiss Federal Tribunal ordered the IAAF on 3 June 2019 to suspend the implementation of the contested regulations. However, the Swiss Federal Tribunal overturned its decision at the end of July which means that Caster Semenya is no longer able to run medication-free and this will most likely be the case also when the 2019 IAAF World Athletics Championships kick off in Doha in less than one month’s time. The procedural decisions adopted by the Swiss Federal Tribunal thus far have no impact on the merits of Caster Semenya’s appeal.More...

Book Review - Football and the Law, Edited by Nick De Marco - By Despina Mavromati (SportLegis/University of Lausanne)

 Editor's Note: Dr. Despina Mavromati, LL.M., M.B.A., FCIArb is an Attorney-at-law specialized in international sports law and arbitration (SportLegis) and a Member of the UEFA Appeals Body. She teaches sports arbitration and sports contracts at the University of Lausanne (Switzerland) and is a former Managing Counsel at the Court of Arbitration for Sport.


This comprehensive book of more than 500 pages with contributions by 53 authors and edited by Nick De Marco QC “aims to embody the main legal principles and procedures that arise in football law”. It is comprised of 29 chapters and includes an index, a table of football regulations and a helpful table of cases including CAS awards, UEFA & FIFA Disciplinary Committee decisions and Football Association, Premier League and Football League decisions. 

The 29 chapters cover a wide range of regulatory and legal issues in football, predominantly from the angle of English law. This is logical since both the editor and the vast majority of contributing authors are practitioners from England.

Apart from being of evident use to anyone involved in English football, the book offers additional basic principles that are likely to be of use also to those involved in football worldwide, including several chapters entirely dedicated to the European and International regulatory framework on football: chapter 3 (on International Federations) gives an overview of the pyramidal structure of football internationally and delineates the scope of jurisdiction among FIFA and the confederations; chapter 4 explains European law and its application on football deals mostly with competition issues and the free movement of workers; and chapter 29 deals with international football-related disputes and the Court of Arbitration for Sport (CAS).

In addition to the chapters exclusively dealing with international football matters, international perspectives and the international regulatory landscape is systematically discussed – in more or less depth, as the need might be – in several other chapters of the book, including: chapter 2 on the “Institutions” (from governing bodies to stakeholders groups in football); chapter 6 on the FIFA Regulations on the Status and Transfer of Players (RSTP); chapter 8 dealing with (national and international) player transfers; chapter 11 (on Third Party Investment) and chapter 16 on Financial Fair Play (mostly discussing the UEFA FFP Regulations); chapter 23  on disciplinary matters (very briefly discussing the disciplinary procedures under FIFA and UEFA Disciplinary rules); chapter 24 on domestic and international doping-related cases in football, with an overview of the CAS jurisprudence in this respect; and finally chapter 23 on corruption and match-fixing (with a very short description of the FIFA and UEFA regulations).

Furthermore, the book offers extensive chapters in less discussed – yet of high importance – football topics, including: chapter 13 on image rights and key clauses in image rights agreements; chapter 14 on taxation (referring also to taxation issues in image rights and intermediary fees); chapter 15 on sponsoring and commercial rights, with a guide on the principal provisions in a football sponsoring contract and various types of disputes arising out of sponsorship rights; chapter 17 on personal injury, discussing the duty of care in football cases (from the U.K.); and chapter 18 on copyright law and broadcasting (with short references to the European law and the freedom to supply football broadcasting services).

Some chapters seem to have a more general approach to the subject matter at issue without necessarily focusing on football. These include chapters 27 (on mediation) and 22 (on privacy and defamation), and even though they were drafted by reputable experts in their fields, I would still like to see chapter 27 discuss in more detail the specific aspects, constraints and potential of mediation in football-related disputes as opposed to a general overview of mediation as a dispute-resolution mechanism. The same goes for chapter 22, but this could be explained by the fact that there are not necessarily numerous football-specific cases that are publicly available. 

As is internationally known, “football law” is male-dominated. This is also demonstrated in the fact that of the 53 contributing authors, all of them good colleagues and most of them renowned in their field, only eight are female (15%). Their opinions, however, are of great importance to the book due to the subject matter on which these women have contributed, such as player contracts (Jane Mulcahy QC), player transfers (Liz Coley), immigration issues in football (Emma Mason), broadcasting (Anita Davies) or disciplinary issues (Alice Bricogne).

The book is a success not only due to the great good work done by its editor, Nick De Marco QC but first and foremost due to its content, masterfully prepared by all 53 authors. On the one hand, the editor carefully delimited and structured the scope of each topic in a logical order and in order to avoid overlaps (a daunting task in case of edited volumes with numerous contributors like this one!), while on the other hand, all 53 authors followed a logical and consistent structure in their chapters and ensured an expert analysis that would have not been possible had this book been authored by one single person.  

Overall, I found this book to be a great initiative and a very useful and comprehensive guide written by some of the most reputable experts. The chapters are drafted in a clear and understandable way and the editor did a great job putting together some of the most relevant and topical legal and regulatory issues from the football field, thus filling a much-needed gap in the “football law” literature.

Can a closed league in e-Sports survive EU competition law scrutiny? The case of LEC - 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 organizational structure of sports in Europe is distinguished by its pyramid structure which is marked by an open promotion and relegation system. A truly closed system, without promotion and relegation, is unknown to Europe, while it is the main structure found in North American professional sports leagues such as the NFL, NBA and the NHL. Recently, top European football clubs along with certain members of UEFA have been debating different possibilities of introducing a more closed league system to European football. Some football clubs have even wielded the threat of forming an elite closed breakaway league. Piercing through these intimidations and rumors, the question of whether a closed league system could even survive the scrutiny of EU competition law remains. It could be argued that an agreement between clubs to create a completely closed league stifles competition and would most likely trigger the application of Article 101 and 102 TFEU.[1] Interestingly, a completely closed league franchise system has already permeated the European continent. As outlined in my previous blog, the League of Legends European Championship (LEC) is a European e-sports competition that has recently rebranded and restructured this year from an open promotion and relegation system to a completely closed franchise league to model its sister competition from North America, the League Championship Series. This case is an enticing opportunity to test how EU competition law could apply to such a competition structure.

As a preliminary note, this blog does not aim to argue whether the LEC is a ‘real’ sport competition and makes the assumption that the LEC could be considered as a sports competition.[2]

More...



I’m A Loser Baby, So Let’s Kill Transparency – Recent Changes to the Olympic Games Host City Selection Process - By Ryan Gauthier (Thompson Rivers University)

Editor's Note: Ryan Gauthier is Assistant Professor at Thompson Rivers University in Canada. Ryan’s research addresses the governance of sports organisations, with a particular focus on international sports organisations. His PhD research examined the accountability of the International Olympic Committee for human rights violations caused by the organisation of the Olympic Games.


Big June 2019 for Olympic Hosting

On June 24, 2019, the International Olympic Committee (IOC) selected Milano-Cortina to host the 2026 Winter Olympic Games. Milano-Cortina’s victory came despite a declaration that the bid was “dead” just months prior when the Italian government refused to support the bid. Things looked even more dire for the Italians when 2006 Winter Games host Turin balked at a three-city host proposal. But, when the bid was presented to the members of the IOC Session, it was selected over Stockholm-Åre by 47 votes to 34. 

Just two days later, the IOC killed the host selection process as we know it. The IOC did this by amending two sections of the Olympic Charter in two key ways. First, the IOC amended Rule 33.2, eliminating the requirement that the Games be selected by an election seven years prior to the Games. While an election by the IOC Session is still required, the seven-years-out requirement is gone.

Second, the IOC amended Rule 32.2 to allow for a broader scope of hosts to be selected for the Olympic Games. Prior to the amendment, only cities could host the Games, with the odd event being held in another location. Now, while cities are the hosts “in principle”, the IOC had made it so: “where deemed appropriate, the IOC may elect several cities, or other entities, such as regions, states or countries, as host of the Olympic Games.”

The change to rule 33.2 risks undoing the public host selection process. The prior process included bids (generally publicly available), evaluation committee reports, and other mechanisms to make the bidding process transparent. Now, it is entirely possible that the IOC may pre-select a host, and present just that host to the IOC for an up-or-down vote. This vote may be seven years out from the Games, ten years out, or two years out. More...


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.

 

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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...



Asser International Sports Law Blog | The European Commission’s ISU antitrust investigation explained. By Ben Van Rompuy

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

The European Commission’s ISU antitrust investigation explained. By Ben Van Rompuy

In June 2014, two prominent Dutch speed skaters, Mark Tuitert (Olympic Champion 1500m) and Niels Kerstholt (World Champion short track), filed a competition law complaint against the International Skating Union (ISU) with the European Commission.


ChanceToCompeteTwitter.png (50.4KB)


Today, the European Commission announced that it has opened a formal antitrust investigation into International Skating Union (ISU) rules that permanently ban skaters from competitions such as the Winter Olympics and the ISU World and European Championships if they take part in events not organised or promoted by the ISU. The Commissioner for Competition, Margrethe Vestager, stated that the Commission "will investigate if such rules are being abused to enforce a monopoly over the organisation of sporting events or otherwise restrict competition. Athletes can only compete at the highest level for a limited number of years, so there must be good reasons for preventing them to take part in events."

Since the case originates from legal advice provided by the ASSER International Sports Law Centre, we thought it would be helpful to provide some clarifications on the background of the case and the main legal issues at stake. 


1. What are the events leading to the complaint? 

In December 2011, a private entity, Icederby International, informed the ISU of its intentions to start organising international speed skating events with an innovative competition format, combining long track and short track skating. At that time, Icerderby International was considering hosting betting activities on the races alongside the tracks. 

In January 2012, the ISU issued a revised Code of Ethics stipulating that persons subjected to the Code ought “to refrain from participating in all forms of betting or support betting or gambling related to any event/activity under the jurisdiction of the ISU”

In November 2013, Dubai is awarded the organisation of the World Expo 2020. Icederby International secured a contract to organise an annual speed skating event in Dubai as part of the programme leading up to the World Expo. The first Dubai Icederby Grand Prix Exhibition 2014 was to take place in October 2014. The organisers clarified that there would be no on-site betting activities during the planned Icederby events since betting activities are strictly prohibited in Dubai. 

In March 2014, the ISU nonetheless issued a statement (Communication No. 1853) saying that, because the competitions organised by Icederby International are “possibly being closely connected to betting”, they would not sanction them. The ISU also threatened that anyone participating in events organised by Icederby International would become persona non grata within the ISU. 


2. Persona non grata … what does that mean?  

According to the ISU Eligibility rules,[1] a person skating or officiating in an event not sanctioned by the ISU and/or its Members (i.e. the individual national associations) becomes ineligible to participate in ISU activities and competitions (Rule 102, para. 2 (ii)). This sanction applies not only to the skaters, but also to coaches, trainers, doctors, team attendants, team officials, judges, referees, volunteers, and anyone else engaging in a relation with the ISU.  

A person who is or has been ineligible may be reinstated as an eligible person (Rule 103, para. 1). However, this does not apply to a skater that participated in a non-sanctioned event (Rule 103, para. 2). In other words, once a skater participates in an event not organised or promoted by the ISU, he or she is banned for life from participating in the Winter Olympic Games or any of the ISU events such as the World and European Championships. In practice this would put an end to the athlete’s sporting career. 


3. Why is the ISU allegedly violating the EU competition rules? 

The complainants contend that the ISU Eligibility Rules, in particular Rule 102, as well as its enforcement by the ISU in the case at hand, constitutes a violation of Articles 101 and 102 TFEU. The main premise of the complaint is that the sanction of a lifelong ban cannot be considered inherent and proportionate to the pursuit of any legitimate objective.

The ISU Eligibility Rules are laid down in the ISU General Regulations, which the Members of the ISU have adopted. This is a decision taken by an association of associations of undertakings, within the meaning of Article 101(1) TFEU. By their very nature, the restrictions imposed by the Eligibility Rules have the potential to restrict competition because they raise virtually insurmountable barriers to entry and expansion on the market for the organisation of international speed skating events (i.e. the organisation of such events require access to the human resources controlled by the ISU). This directly and manifestly affects the interests of the skaters (and ultimately has the potential to harm the welfare of sports fans). 

Additionally, the ISU and its Members enjoy a position of collective dominance, which amounts to an absolute monopoly, on the market for the organisation of international speed skating events.[2] The ISU Eligibility Rules enable the ISU (and its Members) to prevent or impede effective competition on the market for international speed skating events. In short, the complainants argue that the ISU effectively abuses its powers to foreclose competitors on this and other related markets. The ISU Eligibility Rules are not simply there “on the books” but are actively invoked by the ISU to deter skaters (and officials etc.) from breaching these rules by participating/officiating in non-sanctioned events.[3] 

The initiative to launch the Icederby International Competitions exemplifies that there is a demand for more international speed skating events in addition to those that the ISU administers, both in terms of new competition formats and competing events. This need is also evident from the limited prize money that is available for long track and short track skaters in ISU sanctioned international speed skating events. The prize money available for individual skaters in a typical season with 21 international speed skating competitions (13 long track / 8 short track) is a minimum of $ 0 and maximum of $ 109,000 (long track) / $ 31,900 (short track). If speed skaters would be able to participate in the Dubai Icederby Grand Prix, which is but one out-of-season single event, they would earn individually a minimum of $ 37.650 and a maximum of $ 130,000. In other words, a short track skater could earn more by simply participating in the Icederby event than he/she would be able to earn by winning all of the ISU sanctioned international competitions during an entire season. 

While the ISU’s decision not to sanction the Icederby International Competitions is an important contextual element, the complainants are not asking the European Commission to denounce that decision. Rather, their complaint focuses entirely on the disproportionate sanction prescribed by Rule 102(2) of the ISU General Regulations. Because Icederby International is the first major organisation that wishes to organise international speed skating events without the ISU’s approval, the radical anti-competitive nature of the ISU Eligibility Rules has only now manifested itself. Any other (future) initiative to organise a non-sanctioned international speed skating event would likewise face the disproportionate restrictions imposed by the ISU Eligibility Rules. 

It is undisputed that an international sports federation, such as the ISU, may legitimately assert the interests of the sport it administers. Yet it is doubtful that the ISU could rely on its Code of Ethics (that only applies to events and activities “under the jurisdiction of the ISU”) to render ineligible any person skating or officiating in events in compliance with national laws. Sole participation in a non-sanctioned speed skating event should not constitute a threat to the integrity of speed skating that would justify a total ban. 


4. What is the remedial scope of EU competition law? 

The ISU Eligibility rules and the ISU’s conduct deprive speed skaters from the benefits that a situation of fair and open competition on the market for the organisation of international speed skating events would offer them. The scope for intervention on the basis of EU competition law is evident from previous decisional practice. 

In the FIA case, the European Commission was confronted with similar rules contained in several regulations notified by the Fédération International de l’Automobile (FIA). The International Sporting Code of the FIA provided that no licence holder could participate in an international Formula One event that is not entered on the FIA calendar. Anyone that would not comply with this provision would have their licence withdrawn and thus would be excluded from any event authorized by FIA. This and other restrictive rules led the Commission to make, in its Statement of Objections, the preliminary assessment that FIA “was using its regulatory powers to block the organization of races which competed with the events promoted or organized by FIA (i.e. events from which FIA derived a commercial benefit”.[4] The Commission eventually closed the case after having reached a settlement with FIA, which provided inter alia that FIA no longer would prevent teams and circuit owners to participate in and organise other races provided that essential requisite safety standards are met.[5] 

More recently, National Competition Authorities (NCAs) have also intervened on the basis of national and EU competition law. For example: 

  • In Sweden, the Market Court confirmed that two clauses in the Swedish Automobile Sports Federation (SBF)’s Common rules, according to which its members were forbidden from participating as drivers and event staff in races not sanctioned by the SBF, violated Article 101 TFEU.[6] The Court therefore upheld the decision of the Swedish NCA, which obliged the SBF to amend its Common rules so that they no longer prevent licence holders from applying for, participating in or being functionaries at unsanctioned motor races.[7] In 2014, the Swedish NCA also closed an investigation into a loyalty clause applied by the Swedish Bodybuilding Association (SKKF) after the SKFF committed no longer to suspend or fine athletes, coaches, officials or judges for participating in non-sanctioned competitions.[8]

  • In Italy, the NCA launched antitrust investigations into the regulations and conduct of the national motor sports federation (ACI) and equestrian sports federation (FISE) under Articles 101 and 102 TFEU. The FISE investigation focused on clauses forbidding FISE members from participating in equestrian events and activities organized by other entities (subject to exclusion from the federation). The investigation was closed after FISE committed to remove the anti-competitive clauses from its statutes. FISE also committed to allow the use of its affiliated clubs’ facilities by independent event organizers.[9] The ACI investigation focused on several regulatory and statutory provisions intended to limit access to the market for the organization of motor sport events for competitors. In 2009, the NCA adopted a commitment decision after the ACI undertook to inter alia allow its members to participate in events not organized by the federation.[10]

    In Ireland, the NCA opened an investigation into a rule of Show Jumping Ireland (SJI) that prevented members of the SJI to compete at unaffiliated show jumping events. The case was closed after the SJI committed to amend the rule to address the competition concerns. Since then, members of SJI who enter into unaffiliated show can only be penalized if the show has not signed up to the specified Health and Safety Standards and has not provided the SJI with evidence of adequate insurance.[11] 

Two important lessons can be drawn from this decisional practice. 

First, save for compliance with objective technical safety standards, the decisional practice has consistently found that rules prohibiting the participation of its members in non-sanctioned events violated Articles 101 and/or 102 TFEU and had to be abolished. Evidently, to be deemed proportional, the sports federation would still be required to prove that a certain non-sanctioned event would be less safe than its own events.[12] 

Second, all national cases dealt with rules of national federations. In the Swedish bodybuilding case (2014), the contested rule was the national equivalent of a clause contained in the Constitution of the International Bodybuilding Federation. Yet the remedial action was purely national in scope. The SKKF committed no longer to apply the restriction in Sweden, but the rule continues to be enforced by the IFBB and all other European member federations. The much wider scope of the parties affected by a rule from an international sports federation makes it necessary to tackle the restriction at the EU level. 


5. What are the next procedural steps? 

Since this is the first time in more than a decade that the European Commission is conducting an in-depth antitrust investigation in the field of (regulatory aspects of) sport, the decision to open proceedings delivers a powerful message. 

The opening of an in-depth antitrust investigation does not prejudice the finding of a violation of the European competition rules, however. It only signals that (1) the initial assessment led to the conclusion that there are “reasonable indications of a likely infringement” and (2) the Commission will further pursue the case as a matter of priority with a view to adopting a decision.[13] The Commission will thus allocate recourses on the case and endeavour to resolve the case in a timely manner.

Unless the Commission would in the end conclude that there is not sufficient evidence to find an infringement, the case will be resolved through the adoption of a prohibition or commitment decision.  

The ISU could offer commitments suitable to address the competition concerns arising from the investigation. The Commission might then conclude that there are no longer grounds for actions. Instead of formally establishing a violation of the EU competition rules, a commitment decision will simply make those commitments legally binding. In the alternative, the Commission will proceed to a prohibition decision, requiring the ISU to bring the infringements to an end. For this purpose, it may impose on the ISU remedies proportionate to the infringement committed and necessary to bring the infringement to an end and impose a fine. 


6. Why is this case so important? 

Needless to say, the stakes are significant and extend well beyond the sport of speed skating. 

Only a handful of international sport federations have truly experienced the “Bosman effect” and faced scrutiny of their regulatory overreach under the European competition rules. The fact that most international sports federations are based in Switzerland, outside the EU, may further explain a lack of awareness about the need to comply with EU competition law. Of course, this does not mean they are immune: anti-competitive practices that appreciably affect the EU market are drawn into the net of EU competition law. 

While the compliance of sporting rules with EU competition law needs to be assessed on a case-by-case basis, the European Commission did present an indicative list of sporting rules that are likely to infringe Articles 101 and 102 TFEU in its 2007 White Paper on Sport. Rules shielding sports associations from competition are mentioned. Other than in the area of revenue generating activities related to sport (in particular the sale of sports media rights), however, the body of competition case law at the EU level dealing with organisational sporting rules is limited. Even though sports associations usually have practical monopolies in a given sport, the remedial potential of EU competition law to influence their regulatory actions (that often have significant economic consequences) remains underexplored.[14]  

The Commission’s decision to pursue this case therefore has an important precedent-setting value. This is particularly true for the numerous international sports federations that also disproportionally restrict athlete participation in unsanctioned events with penalties ranging from fines, periods of ineligibility, and lifetime bans. For instance: 

  • International Federation of Volleyball (FIVB): since 2009, all athletes that take part in unauthorized beach volleyball events will have their membership withdrawn for all FIVB competitions (period of ineligibility up to a life ban).[15] Surprisingly, different sanctions apply to participation in volleyball competitions of non-FIVB recognized organizations (e.g. a fine on the club involved of CHF 30.000 and suspension of the club, teams, players, and officials involved for a period up to two years).[16]

  • International Swimming Federation (FINA): any affiliated member having any kind of relationship with non-affiliated bodies shall be suspended for a minimum period of one year up to a maximum period of two years.[17]

    International Netball Federation (INF): any person participating in any capacity in an unsanctioned event is automatically ineligible to participate in INF events for a minimum of 12 months thereafter.[18]

    International Gymnastics Federation (FIG): gymnasts taking part in unsanctioned competitions or exhibitions may not claim to be eligible to participate in the Olympic Games.[19]

    International Cricket Council (ICC): other than in exceptional circumstances, a person participating in unofficial cricket events shall not be selected or permitted to participate in official events for a minimum of one year thereafter.[20]

    International Hockey Federation (FIH): any athlete or other individual participating in an unsanctioned event is automatically ineligible for one year to participate in any FIH event.[21]

The mere threat of drastic sanctions, combined with the general lack of objective, transparent, and non-discriminatory rules governing the authorization of international sports events, enables federations to de facto block events that could compete with the events they organise and promote. In the absence of sufficient procedural safeguards, this clearly raises concerns about a conflict of interest between a federation’s power to authorise the organisation of events and the federation’s commercial interests in promoting its own events.

The ISU case will hopefully provide a much-needed reminder to sports federations that without valid justifications they cannot use their private regulatory power to foreclose competitors or hinder the freedom of EU athletes and sports personnel to exercise economic activities. 

Disclaimer: the author represents and advises the complainants in their antitrust proceedings.


[1] ISU General Regulations (2014), available at http://static.isu.org/media/165642/constitution-and-general-regulations-version-july-31-2014.pdf

[2] This has already been recognized by the German courts in the Pechstein case.

[3] In its 2014 statement (Communication No. 1853), the ISU found it opportune to remind all its members “that participation in any international ice skating competition not sanctioned by the ISU will result in the loss of eligibility of the participants”.

[4] Notice published pursuant to Article 19(3) of Council Regulation No 17 concerning Cases COMP/35.163, Notification of FIA Regulations, COMP/36.638, Notification by FIA/FOA of agreements relating to the FIA Formula One World Championship, COMP/36.776  GTR/FIA & others (2001/C 169/03), OJ C169/6-7

[5] European Commission, XXXIst Report on Competition Policy 2001, para. 221 et seq.

[6]  Swedish Market Court's ruling 2012:16 in Case A 5/11, Svenska Bilsportförbundet v Konkurrensverket (December 20, 2012) available at http://www.kkv.se/t/NewsArchive.aspx?id=529  (see also e.g. http://www.kkv.se/t/NewsPage____8672.aspx ).

[7] Konkurrensverket (Swedish Competition Authority) Decision of 13 May 2011 in Case 709/2009, available at http://www.kkv.se/upload/Filer/Konkurrens/2011/Beslut/09-0709.pdf.

[8] Konkurrensverket (Swedisch Competition Authority) Decision of 28 May 2014 in Case 590/2013, available at http://www.konkurrensverket.se/upload/Filer/Konkurrens/2014/13-0590.pdf.

[9] Autorità Garante della Concorrenza e del Mercato, Federitalia/Federazione Italiana Sport Equestri (FISE), Decision n°18285 of 28 July 2008, Bolletino n° 19/2008. 

[10] Autorità Garante della Concorrenza e del Mercato, Gargano Corse/ACI, Decision n° 19946 of 30 June 2009, Bolletino n° 23/2009.

[11] The Competition Authority, Show Jumping Ireland, case summary available at http://www.tca.ie/images/uploaded/documents/201205%20Case%20Summary%20-%20SJI.pdf

[12] Swedish Market Court's ruling 2012:16 in Case A 5/11, Svenska Bilsportförbundet v Konkurrensverket (December 20, 2012) available at http://www.kkv.se/t/NewsArchive.aspx?id=529; The Competition Authority, Show Jumping Ireland, case summary available at http://www.tca.ie/images/uploaded/documents/201205%20Case%20Summary%20-%20SJI.pdf.

[13] European Commission, Antitrust Manual of Procedures (2012), available at http://ec.europa.eu/competition/antitrust/antitrust_manproc_3_2012_en.pdf

[14] Ben Van Rompuy, "The role of EU competition law in tackling abuse of regulatory power by sports associations" (2015) 22 Maastricht Journal of European and Comparative Law 2, 174-204.

[15] FIVB, Beach Volleyball Handbook 2013, Article 9.1 and 11.3. 

[16] FIVB, Disciplinary Regulations, Article 15.2 and Sports Regulations Volleyball, Article 46.6.

[17] FINA, General Rules 2013-2017, Rule GR4.

[18] INF, General Regulations – Appendix – Regulations on Sanctioned & Unsanctioned Events: Guidance Notes (August 2013).

[19] FIG, Technical Regulations, Appendix B (Rules of Eligibility for the International Gymnastics Federation).

[20] ICC, Regulations for Approved/Disapproved Cricket and Domestic Cricket Events, Section 32.4.

[21] FIH, Regulations on Sanctioned & Unsanctioned events, Article 2.


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