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

How 2019 Will Shape the International Sports Law of the 2020s - By Thomas Terraz

Editor’s note: Thomas Terraz is a fourth 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

As we begin plunging into a new decade, it can be helpful to look back and reflect on some of the most influential developments and trends from 2019 that may continue to shape international sports law in 2020 and beyond. Hence, this piece will not attempt to recount every single sports law news item but rather identify a few key sports law stories of 2019 that may have a continued impact in the 2020s. The following sections are not in a particular order.More...

International and European Sports Law – Monthly Report – January 2020 - By Thomas Terraz

Editor's note: This report compiles the most relevant legal news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. 

 

The Headlines

IOC Athlete Commission releases its Rule 50 Guidelines for Tokyo 2020

The IOC Athlete Commission presented its Rule 50 Guidelines for Tokyo 2020 at its annual joint meeting with the IOC Executive Board. It comes as Thomas Bach had recently underlined the importance of political neutrality for the IOC and the Olympic Games in his New Year’s message. Generally, rule 50 of the Olympic Charter prohibits any political and religious expression by athletes and their team during the Games, subject to certain exceptions. The Guidelines clarify that this includes the ‘field of play’, anywhere inside the Olympic Village, ‘during Olympic medal ceremonies’ and ‘during the Opening, Closing and other official ceremonies’. On the other hand, athletes may express their views ‘during press conferences and interview’, ‘at team meetings’ and ‘on digital or traditional media, or on other platforms. While rule 50 is nothing new, the Guidelines have reignited a debate on whether it could be considered as a justified restriction on one’s freedom of expression.

 

The IOC has made the case that it is defending the neutrality of sport and that the Olympics is an international forum that should help bring people together instead of focusing on divisions. Specifically, Richard Pound has recently made the argument that the Guidelines have been formulated by the athletes themselves and are a justified restriction on free expression with its basis in ‘mutual respect’. However, many commentators have expressed their skepticism to this view (see here, here and here) citing that politics and the Olympics are inherently mixed, that the IOC is heavily involved in politics, and that the Olympics has often served as the grounds for some of history’s most iconic political protests. All in all, the Guidelines have certainly been a catalyst for a discussion on the extent to which the Olympics can be considered neutral. It also further highlights a divide between athlete committees from within the Olympic Movement structures and other independent athlete representation groups (see Global Athlete and FIFPro’s statements on rule 50).

 

Doping and Corruption Allegations in Weightlifting 

The International Weightlifting Federation (IWF) has found itself embroiled in a doping and corruption scandal after an ARD documentary was aired early in January which raised a wide array of allegations, including against the President of the IWF, Tamás Aján. The documentary also included hidden camera interviews from a Thai Olympic medalist who admits having taken anabolic steroids before having won a bronze medal at the 2012 London Olympic Games and from a team doctor from the Moldovan national team who describes paying for clean doping tests. The IWF’s initial reaction to the documentary was hostile, describing the allegations as ‘insinuations, unfounded accusations and distorted information’ and ‘categorically denies the unsubstantiated’ accusations. It further claims that it has ‘immediately acted’ concerning the situation with the Thai athletes, and WADA has stated that it will follow up with the concerned actors. However, as the matter gained further attention in the main stream media and faced increasing criticism, the IWF moved to try to ‘restore’ its reputation. In practice, this means that Tamás Aján has ‘delegated a range of operation responsibilities’ to Ursual Papandrea, IWF Vice President, while ‘independent experts’ will conduct a review of the allegations made in the ARD documentary. Richard McLaren has been announced to lead the investigation and ‘is empowered to take whatever measures he sees fit to ensure each and every allegation is fully investigated and reported’. The IWF has also stated that it will open a whistleblower line to help aid the investigation.More...


International and European Sports Law – Monthly Report – November and December 2019- By Thomas Terraz

Editor's note: This report compiles the most relevant legal news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. 

 

The Headlines

WADA Conference and the Adoption of 2021 WADA Code Amid Calls for Reform

On November 5-7, WADA held its Fifth World Conference on Doping in Sport where it faced a busy schedule, including the adoption of the revised 2021 World Anti-Doping Code and the election of a new WADA President and Vice-President by the Foundation Board. Concerning the latter, Witold Bańka, Poland’s Minister of Sport and Tourism, was elected as WADA President and Yang Yang, a former Chinese speed skater, elected as Vice-President, replacing Sir Craig Reedie and Linda Helleland respectively.  As Helleland leaves her position, she has expressed some strong views on the state of sport governance, particularly that ‘there is an absence of good governance, openness and independence in the highest levels of international sports’. Helleland was not the only one to recently voice governance concerns, as Rob Koehler, Director General of Global Athlete, also called for a ‘wholesale structural change at WADA’, which includes giving ‘independent’ athletes a vote in WADA’s Foundation Board, ensuring a greater ‘separation of powers’ and ensuring greater protection of athletes’ rights.

In the midst of the calls for reform, the amended 2021 WADA Code and the amended International Standards were also adopted after a two year, three stage code review process. Furthermore, a major milestone in athletes’ rights was achieved with the adoption of the Athletes’ Anti-Doping Rights Acts (separate from the WADA Code), which enumerates certain basic rights to help ‘ensure that Athlete rights within anti-doping are clearly set out, accessible, and universally applicable’. On the other hand, the Act ‘is not a legal document’, which clearly circumscribes some of the potential effects the Act may have. Nonetheless, athlete representative groups have ‘cautiously welcomed’ some of the changes brought by the 2021 WADA Code, such as the ‘modified sanctions for substances of abuse violations’.

Sung Yang’s Historical Public Hearing at the CAS

After much anticipation, the second public hearing in CAS history occurred on November 15 in Montreux, Switzerland in the Sun Yang case (details of this case were discussed in August and September’s monthly report), which was livestreamed and can be seen in its totality in four different parts (Part 1, Part 2, Part 3, Part 4). This was an extremely unique opportunity, which hopefully will become a more common occurrence, to see just how CAS hearings are conducted and perhaps get a taste of some of the logistical issues that can emerge during live oral hearings. One of these problems, accurate translations, rapidly became apparent as soon as Sun Yang sat in the witness chair to give his opening statements. The translators in the box seemed to struggle to provide an intelligible English interpretation of Sun Yang and other witnesses’ statements, while Sun Yang also seemingly had trouble understanding the translated questions being posed to him. The situation degenerated to such an extent that ultimately one of WADA’s officials was called to replace the translators. However, the translation drama did not end there, since during Sun Yang’s closing statements an almost seemingly random person from the public appeared next to Sun Yang who claimed to have been requested from Sun Yang’s team to ‘facilitate’ the translation. Franco Frattini, president of the panel, questioned the identity of the ‘facilitator’ and explained that one could not just simply appear before the court without notice. Interestingly, Sun Yang’s legal team also rapidly intervened claiming that it had not been made of aware of the inclusion of the supporting translator, further complicating the matter. In the end, Sun Yang concluded his statements with the translation from the WADA official.

While it was Sun Yang’s legal team that had provided the original translators in the box, it still raises the question as to how translation at CAS could be improved to ensure a certain standard of translators. After all, quality translation is critical to the parties’ right to be heard under Article 6 (e) ECHR. Regardless, in the end, neither parties made an objection that their right to be heard was violated.

Russian Doping Saga Continues: WADA Compliance Review Committee Recommends Strong Sanctions

As was already discussed in August and September’s monthly report, WADA uncovered numerous inconsistencies concerning data taken from the Moscow Laboratory. After further investigation, WADA’s Compliance Review Committee has recommended that the Russian Anti-Doping Agency (RUSADA) be found non-compliant with the WADA Code. Accompanying the recommendation, the Compliance Review Committee also suggested several sanctions, which include prohibiting Russian athletes from participating in major events like the Olympic Games and ‘any World Championships organized or sanctioned by any Signatory’ for the next four years unless they may ‘dmonstrate that they are not implicated in any way by the non-compliance’. It would also see an embargo on events hosted in Russia during the same period. However, these sanctions did not go far enough for some, like Travis Tygart, chief executive of USADA, who wishes to prevent a repeat of Rio 2016 and PyeongChang 2018 ‘in which a secretly-managed process permitting Russians to compete – did not work’. On the other hand, the IOC has advocated for a softer, individual based approach that pursues ‘the rules of natural justice and respect human rights’. In the midst of these developments, the Athletics Integrity Unit also decided to charge several members of the Russian Athletics Federation (RusAF), including its President Dmitry Shlyakhtin, after a 15 month investigation for ‘tampering and complicity’ concerning a Russian athlete’s whereabouts violations.

Following many calls for strong consequences, the WADA Executive Committee met on December 9th and adopted the recommendations of the Compliance Review Committee. Athlete representatives have expressed their disappointment with the sanctions, calling the decision ‘spineless’ since it did not pursue a complete ban on Russian participation at events such as Euro 2020 and the 2020 Olympics. At this point, RUSADA has sent notice to WADA that it will be disputing the decision of WADA’s Executive Committee’s decision at the CAS.More...


Balancing Athletes’ Interests and The Olympic Partner Programme: the Bundeskartellamt’s Rule 40 Decision - By Thomas Terraz

Editor’s note: Thomas Terraz is a fourth 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 International Olympic Committee (IOC), after many years of ineffective pushback (see here, here and here) over bye law 3 of rule 40[1] of the Olympic Charter (OC), which restricts the ability of athletes and their entourage to advertise themselves during the ‘blackout’ period’[2] (also known as the ‘frozen period’) of the Olympic Games, may have been gifted a silver bullet to address a major criticism of its rules. This (potentially) magic formula was handed down in a relatively recent decision of the Bundeskartellamt, the German competition law authority, which elucidated how restrictions to athletes’ advertisements during the frozen period may be scrutinized under EU competition law. The following blog begins by explaining the historical and economic context of rule 40 followed by the facts that led to the decision of the Bundeskartellamt. With this background, the decision of the Bundeskartellamt is analyzed to show to what extent it may serve as a model for EU competition law authorities. More...

Is UCI the new ISU? Analysing Velon’s Competition Law Complaint to the European Commission - By Thomas Terraz

Editor’s note: Thomas Terraz is a fourth 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 UCI may soon have to navigate treacherous legal waters after being the subject of two competition law based complaints (see here and here) to the European Commission in less than a month over rule changes and decisions made over the past year. One of these complaints stems from Velon, a private limited company owned by 11 out of the 18 World Tour Teams,[1] and the other comes from the Lega del Ciclismo Professionistico, an entity based in Italy representing an amalgamation of stakeholders in Italian professional cycling. While each of the complaints differ on the actual substance, the essence is the same: both are challenging the way the UCI exercises its regulatory power over cycling because of a growing sense that the UCI is impeding the development of cycling as a sport. Albeit in different ways: Velon sees the UCI infringing on its ability to introduce new race structures and technologies; the Lega del Ciclismo Professionistico believes the UCI is cutting opportunities for semi-professional cycling teams, the middle ground between the World Tour Teams and the amateur teams.

While some of the details remain vague, this blog will aim to unpack part of the claims made by Velon in light of previous case law from both the European Commission and the Court of Justice of the European Union (CJEU) to give a preliminary overview of the main legal issues at stake and some of the potential outcomes of the complaint. First, it will be crucial to understand just who/what Velon is before analyzing the substance of Velon’s complaint. More...

International and European Sports Law – Monthly Report – October 2019 by Thomas Terraz

Editor's note: This report compiles the most relevant legal news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. 


The Headlines

International Sports Law Journal (ISLJ) Conference 2019

The T.M.C. Asser Institute and the Asser International Sports Law Centre held the third International Sports Law Journal (ISLJ) Conference on October 24-25. The Conference created a forum for academics and practitioners to discuss, debate and share knowledge on the latest developments of sports law. It featured six uniquely themed panels, which included topics such as ‘Transfer systems in international sports’ and ‘Revisiting the (in)dependence and transparency of the CAS’ to ‘The future of sports: sports law of the future’. The ISLJ Conference was also honored to have two exceptional keynote speakers: Moya Dodd and Ulrich Haas. To kick off the conference, Moya Dodd shared her experiences from an athlete’s perspective in the various boardrooms of FIFA. The second day was then launched by Ulrich Haas, who gave an incredibly thorough and insightful lecture on the importance, function and legal basis of association tribunals in international sport. For a detailed overview of this year’s ISLJ Conference, click here for the official conference report.

The Asser International Sports Law Centre was delighted to have been able to host another great edition of the ISLJ Conference and is thankful to all the participants and speakers who made this edition such a success.

Moving towards greater transparency: Launch of FIFA’s Legal Portal

On October 31, FIFA announced that it was introducing a new legal portal on its website that will give greater access to numerous documents that previously were kept private. FIFA explains that this is in order to help increase its transparency, which was one of the key ‘Guiding Principles’ highlighted in FIFA 2.0: The Vision for the Future released in 2016. This development comes as many sport governing bodies face increasing criticism for the opacity of its judicial bodies’ decisions, which can have tremendous economic and societal impacts. The newly available documents will include: ‘decisions rendered on the merits by the FIFA Disciplinary Committee and the FIFA Appeal Committee (notified as of 1 January 2019); decisions rendered on the merits by the FIFA Ethics Committee (notified since 1 January 2019); decisions rendered on the merits by the FIFA Players’ Status Committee and the FIFA Dispute Resolution Chamber; non-confidential CAS awards in proceedings to which FIFA is a party (notified since 1 January 2019); list of CAS arbitrators proposed by FIFA for appointment by ICAS, and the number of times they have been nominated in CAS proceedings’. The list of decisions from all the aforementioned bodies are updated every four months, according to their respective webpages. However, time will ultimately tell how consistently decisions are published. Nevertheless, this move is a major milestone in FIFA’s journey towards increasing its transparency.

Hong Kong Protests, Human Rights and (e)Sports Law: The Blizzard and NBA controversies

Both Blizzard, a major video game developer, and the NBA received a flurry of criticism for their responses to persons expressing support for the Hong Kong protests over the past month. On October 8, Blizzard sanctioned Blitzchung, a professional Hearthstone player who expressed support of the Hong Kong protest during a post-match interview, by eliminating the prize money he had won and suspending him for one year from any Hearthstone tournament. Additionally, Blizzard will cease to work with the casters who conducted the interview. With mounting disapproval over the sanctions,  J. Allen Brack, the president of Blizzard, restored the prize money and reduced the period of ineligibility to 6 months.

The NBA controversy started when Daryl Morey, the general manager of the Houston Rockets, tweeted his support for the protests in Hong Kong. The tweet garnered much attention, especially in China where it received a lot of backlash, including an announcement from CCTV, the official state broadcaster in China, that it was suspending all broadcasts of the NBA preseason games. In attempts to appease its Chinese audience, which is a highly profitable market for the NBA, Morey deleted the tweet and posted an apology, and the NBA responded by saying that the initial tweet was ‘regrettable’. Many scolded these actions and accused the NBA of censorship to which the NBA Commissioner, Adam Silver, responded that the NBA remains committed to freedom of expression.

Both cases highlighted how (e)sport organizations may be faced with competing interests to either guarantee greater protection of human rights or to pursue interests that perhaps have certain financial motivations. More...


International and European Sports Law – Monthly Report – August and September 2019 - By Thomas Terraz

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

Another Russian Doping Crisis? Inconsistencies Uncovered in the Data from the Moscow Lab

Storm clouds are brewing once more in the Russian Doping Saga, after several inconsistencies were uncovered by WADA from data retrieved from the Moscow Laboratory. More specifically, a certain number of positive tests had been removed from the data WADA retrieved from the Moscow Laboratory compared to the one received from the original whistleblower. WADA launched a formal compliance procedure on 23 September, giving three weeks for Russian authorities to respond and provide their explanations. WADA’s Compliance Review Committee is set to meet on 23 October in order to determine whether to recommend declaring Russia non-compliant.

Russian authorities are not the only ones now facing questions in light of these new revelations. Criticism of WADA’s decision to declare Russia compliant back in September 2018 have been reignited by stakeholders. That original decision had been vehemently criticized (see also Edwin Moses’ response), particularly by athlete representative groups.

The fallout of these data discrepancies may be far reaching if Russian authorities are unable to provide a satisfying response. There are already whispers of another impending Olympic Games ban and the possibility of a ban extending to other sports signed to the WADA Code. In the meantime, the IAAF has already confirmed that the Russian Athletes would compete as ‘authorised neutral athletes’ at the World Athletics Championship in Doha, Qatar.

Legal Challenges Ahead to Changes to the FIFA Football Transfer Market

FIFA is set to make amendments to its player transfer market that take aim at setting new boundaries for football agents. These changes will prohibit individuals from representing both the buying and selling club in the same transaction and set new limits on agent commissions (3 percent for the buying club and player representative and 10 percent for the selling team). FIFA is already in the process of creating a central clearinghouse through which all transfer payments would have to pass through, including agent commissions. FIFA will be making a final decision on these proposed changes at the FIFA Council meeting on 24 October.

If these proposed changes are confirmed, they will almost certainly be challenged in court. The British trade organization representing football agents, Association of Football Agents, has already begun its preparations for a costly legal battle by sending a plea to its members for donations. It claims that it had not been properly consulted by FIFA before this decision had been made. On the other hand, FIFA claims that ‘there has been a consultation process with a representative group of agents’ and that FIFA kept ‘an open dialogue with agents’. Regardless, if these proposed changes go through, FIFA will be on course to a looming legal showdown.

CAS Public Hearing in the Sun Yang Case: One Step Forward for Transparency?

On 20 August, 2019, the Court of Arbitration for Sport (CAS) announced that the hearing in the appeal procedure of the Sun Yang case will be held publicly. It will be only the second time in its history that a public hearing has been held (the last one being in 1999, Michelle Smith De Bruin v. FINA). WADA has appealed the original decision of the FINA Doping Panel which had cleared Sun Yang from an alleged anti-doping rule violation. The decision to make the hearing public was at the request of both parties. The hearing is set to take place November 15th and is likely to be an important milestone in improving the CAS’ transparency.

Sun Yang, who has already served a doping ban for a previous violation in 2014, has also been at the center of another controversy, where Mack Horton, an Australian swimmer, refused to shake hands and stand on the podium with Sun Yang at the world championships in Gwangju. More...

ISLJ International Sports Law Conference 2019 - Conference Report - By Thomas Terraz

On October 24th and 25th 2019, the T.M.C. Asser Institute and the International Sports Law Centre hosted the International Sports Law Journal (ISLJ) Conference for a third year in a row, bringing together a group of academics and practitioners from around the world. This year’s conference celebrated the 20th year of the International Sports Law Journal, which was originally started by Robert Siekmann. Over the past 20 years, the ISLJ has aimed to be a truly international journal that addresses global topics in sports law while keeping the highest academic standards.

With this background, the conference facilitated discussions and exchanges over six differently themed panels on international sports law’s most pertinent issues and gave participants wide opportunities to engage with one another. Additionally, this year’s edition also had the great honor of hosting two distinguished keynote speakers, Moya Dodd and Ulrich Haas, who were able to share their wealth of experience and knowledge with the conference participants.

The following report aims to give an overview of the ISLJ Conference 2019 to extract and underline the fundamental ideas raised by the different speakers.More...

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...

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

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 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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