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

Blog Symposium: The “Athlete Patient” and the 2015 World Anti-Doping Code: Competing Under Medical Treatment. By Marjolaine Viret and Emily Wisnosky

Introduction: The new WADA Code 2015
Day 1: The impact of the revised World Anti-Doping Code on the work of National Anti-Doping Agencies
Day 3: Proof of intent (or lack thereof) under the 2015 World Anti-Doping Code
Day 4: Ensuring proportionate sanctions under the 2015 World Anti-Doping Code

Editor's Note
Marjolaine Viret: An attorney-at-law at the Geneva bar, specialising in sports and health law. Her doctoral work in anti-doping was awarded a summa cum laude by the University of Fribourg in early 2015. She gained significant experience in sports arbitration as a senior associate in one of Switzerland’s leading law firms, advising clients, including major sports federations, on all aspects of anti-doping. She also holds positions within committees in sports organisations and has been involved in a variety of roles in the implementation of the 2015 WADC. Her book “Evidence in Anti-Doping at the Intersection of Science & Law” is scheduled for publication in 2015.

Emily Wisnosky: An attorney-at-law admitted to the California bar, she currently participates in the WADC 2015 Commentary research project as a doctoral researcher. She also holds an LLM from the University of Geneva in International Dispute Settlement, with a focus on sports arbitration. Before studying law, she worked as a civil engineer. More...





Blog Symposium: The impact of the revised World Anti-Doping Code on the work of National Anti-Doping Agencies. By Herman Ram

Introduction: The new WADA Code 2015
Day 2: The “Athlete Patient” and the 2015 World Anti-Doping Code: Competing Under Medical Treatment
Day 3: Proof of intent (or lack thereof) under the 2015 World Anti-Doping Code
Day 4: Ensuring proportionate sanctions under the 2015 World Anti-Doping Code

Editor's note
Herman Ram is the Chief Executive Officer of the Anti-Doping Authority the Netherlands, which is the National Anti-Doping Organization of the country. He has held this position since 2006. After working twelve years as a librarian, Herman Ram started his career in sport management in 1992, when he became Secretary general of the Royal Netherlands Chess Federation. In 1994, he moved on to the same position at the Netherlands Badminton Federation. He was founder and first secretary of the Foundation for the Promotion of Elite Badminton that was instrumental in the advancement of Dutch badminton. In 2000 he was appointed Secretary general of the Netherlands Ski Federation, where he focused, among other things, on the organization of large snowsports events in the Netherlands. Since his appointment as CEO of the Anti-Doping Authority, he has developed a special interest in legal, ethical and managerial aspects of anti-doping policies, on which he has delivered numerous presentations and lectures. On top of that, he acts as Spokesperson for the Doping Authority. Herman Ram holds two Master’s degrees, in Law and in Sport Management. More...




Blog Symposium: The new WADA Code 2015 - Introduction

Day 1: The impact of the revised World Anti-Doping Code on the work of National Anti-Doping Agencies
Day 2: The “Athlete Patient” and the 2015 World Anti-Doping Code: Competing Under Medical Treatment
Day 3: Proof of intent (or lack thereof) under the 2015 World Anti-Doping Code
Day 4: Ensuring proportionate sanctions under the 2015 World Anti-Doping Code

On 1 January, a new version of the World Anti-Doping Code (WADC or Code) entered into force. This blog symposium aims at taking stock of this development and at offering a preliminary analysis of the key legal changes introduced. The present blog will put the WADC into a more general historical and political context. It aims to briefly retrace the emergence of the World Anti-Doping Agency (WADA) and its Code. It will also reconstruct the legislative process that led to the adoption of the WADC 2015 and introduce the various contributions to the blog symposium.More...






To pay or not to pay? That is the question. The case of O’Bannon v. NCAA and the struggle of student athletes in the US. By Zlatka Koleva

Editor's note
Zlatka Koleva is a graduate from the Erasmus University Rotterdam and is currently an Intern at the ASSER International Sports Law Centre.

The decision on appeal in the case of O’Bannon v. NCAA seems, at first sight, to deliver answers right on time regarding the unpaid use of names, images and likenesses (NILs) of amateur college athletes, which has been an ongoing debate in the US after last year’s district court decision that amateur players in the college games deserve to receive compensation for their NILs.[1] The ongoing struggle for compensation in exchange for NILs used in TV broadcasts and video games in the US has reached a turning point and many have waited impatiently for the final say of the Court of Appeal for the 9th circuit. The court’s ruling on appeal for the 9th circuit, however, raises more legitimate concerns for amateur sports in general than it offers consolation to unprofessional college sportsmen. While the appellate court agreed with the district court that NCAA should provide scholarships amounting to the full cost of college attendance to student athletes, the former rejected deferred payment to students of up to 5,000 dollars for NILs rights. The conclusions reached in the case relate to the central antitrust concerns raised by NCAA, namely the preservation of consumer demand for amateur sports and how these interests can be best protected under antitrust law. More...



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. More...





Interview with Wil van Megen (Legal Director of FIFPro) on FIFPro’s EU Competition Law complaint against the FIFA Transfer System

Editor’s note
Wil is working as a lawyer since 1980. He started his legal career at Rechtshulp Rotterdam. Later on he worked for the Dutch national trade union FNV and law firm Varrolaan Advocaten. Currently he is participating in the Labour Law Section of lawfirm MHZ-advocaten in Schiedam in the Netherlands. He is also a member of a joint committee advising the government in labour issues.

Since 1991 he is dealing with the labour issues of the trade union for professional football players VVCS and cyclists’ union VVBW. Since 2002, he works for FIFPro, the worldwide union for professional football players based in Hoofddorp in the Netherlands. He is involved in many international football cases and provides legal support for FIFPro members all over the world. Wil was also involved in the FIFPro Black Book campaign on match fixing and corruption in Eastern Europe. More...


The Scala reform proposals for FIFA: Old wine in new bottles?

Rien ne va plus at FIFA. The news that FIFA’s Secretary General Jérôme Valcke was put on leave and released from his duties has been quickly overtaken by the opening of a criminal investigation targeting both Blatter and Platini.

With FIFA hopping from one scandal to the next, one tends to disregard the fact that it has been attempting (or rather pretending) to improve the governance of the organisation for some years now. In previous blogs (here and here), we discussed the so-called ‘FIFA Governance Reform Project’, a project carried out by the Independent Governance Committee (IGC) under the leadership of Prof. Dr. Mark Pieth of the Basel Institute on Governance. Their third and final report, published on 22 April 2014, listed a set of achievements made by FIFA in the area of good governance since 2011, such as establishing an Audit and Compliance Committee (A&C). However, the report also indicated the reform proposals that FIFA had not met. These proposals included the introduction of term limits for specific FIFA officials (e.g. the President) as well as introducing an integrity review procedure for all the members of the Executive Committee (ExCo) and the Standing Committees. More...

Why the CAS #LetDuteeRun: the Proportionality of the Regulation of Hyperandrogenism in Athletics by Piotr Drabik

Editor's note
Piotr is an intern at the ASSER International Sports Law Centre.

Introduction

On 24 July the Court of Arbitration for Sport (CAS) issued its decision in the proceedings brought by the Indian athlete Ms. Dutee Chand against the Athletics Federation of India (AFI) and the International Association of Athletics Federations (IAAF) in which she challenged the validity of the IAAF Regulations Governing Eligibility of Female with Hyperandrogenism to Compete in Women’s Competition (Regulations). The Regulations were established in 2011 as a response to the controversies surrounding South African athlete Caster Semenya (see e.g. here, here, and here), and for the purpose of safeguarding fairness in sport by prohibiting women with hyperandrogenism, i.e. those with excessive levels of endogenous (naturally occurring) testosterone, from competing in women athletics competitions. Owing to the subject-matter that the Regulations cover, the case before the CAS generated complex legal, scientific and ethical questions. The following case note thus aims at explaining how the Panel addressed the issues raised by the Indian athlete. It follows a previous blog we published in December 2014 that analysed the arguments raised in favour of Ms. Chand. More...




Not comfortably satisfied? The upcoming Court of Arbitration for Sport case of the thirty-four current and former players of the Essendon football club. By James Kitching

Editor's note: James Kitching is Legal Counsel and Secretary to the AFC judicial bodies at the Asian Football Confederation. James is an Australian and Italian citizen and one of the few Australians working in international sports law. He is admitted as barrister and solicitor in the Supreme Court of South Australia. James graduated from the International Master in the Management, Law, and Humanities of Sport offered by the Centre International d'Etude du Sport in July 2012.


Introduction

On 12 May 2015, the Court of Arbitration for Sport (CAS) announced that the World Anti-Doping Agency (WADA) had filed an appeal against the decision issued by the Australian Football League (AFL) Anti-Doping Tribunal (AADT) that thirty-four current and former players of Essendon Football Club (Essendon) had not committed any anti-doping rule violation (ADRV) identified within the AFL Anti-Doping Code (AADC). The players had each been charged with using Thymosin-Beta 4 (TB4) during the 2012 AFL season.

On 1 June 2015, WADA announced that it had filed an appeal against the decision by the AADT to clear Mr. Stephen Dank (Dank), a sports scientist employed at Essendon during the relevant period, of twenty-one charges of violating the AADC. Dank was, however, found guilty of ten charges and banned for life.

This blog will solely discuss the likelihood of the first AADT decision (the Decision) being overturned by the CAS. It will briefly summarise the facts, discuss the applicable rules and decision of the AADT, review similar cases involving ‘non-analytical positive’ ADRVs relating to the use of a prohibited substance or a prohibited method, and examine whether the Code of Sports-related Arbitration (CAS Code) is able to assist WADA in its appeal.

This blog will not examine the soap opera that was the two years leading-up to the Decision. Readers seeking a comprehensive factual background should view the excellent up-to-date timeline published by the Australian Broadcasting Corporation. More...


EU Law is not enough: Why FIFA's TPO ban survived its first challenge before the Brussels Court


Star Lawyer Jean-Louis Dupont is almost a monopolist as far as high profile EU law and football cases are concerned. This year, besides a mediatised challenge against UEFA’s FFP regulations, he is going after FIFA’s TPO ban on behalf of the Spanish and Portuguese leagues in front of the EU Commission, but also before the Brussels First Instance Court defending the infamous Malta-based football investment firm Doyen Sport. FIFA and UEFA’s archenemy, probably electrified by the 20 years of the Bosman ruling, is emphatically trying to reproduce his world-famous legal prowess. Despite a first spark at a success in the FFP case against UEFA with the Court of first instance of Brussels sending a preliminary reference to the Court of Justice of the EU (CJEU), this has proven to be a mirage as the CJEU refused, as foretold, to answer the questions of the Brussels Court, while the provisory measures ordered by the judge have been suspended due to UEFA’s appeal. But, there was still hope, the case against FIFA’s TPO ban, also involving UEFA and the Belgium federation, was pending in front of the same Brussels Court of First Instance, which had proven to be very willing to block UEFA’s FFP regulations. Yet, the final ruling is another disappointment for Dupont (and good news for FIFA). The Court refused to give way to Doyen’s demands for provisional measures and a preliminary reference. The likelihood of a timely Bosman bis repetita is fading away. Fortunately, we got hold of the judgment of the Brussels court and it is certainly of interest to all those eagerly awaiting to know whether FIFA’s TPO ban will be deemed compatible or not with EU law. More...


Asser International Sports Law Blog | The FIFA Business – Part 2 - Where is the money going? By Antoine Duval and Giandonato Marino

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 FIFA Business – Part 2 - Where is the money going? By Antoine Duval and Giandonato Marino

Our first report on the FIFA business dealt with FIFA’s revenues and highlighted their impressive rise and progressive diversification. In parallel to this growth of FIFA’s income, it is quite natural that its expenses have been following a similar path (see Graph 1). However, as we will see FIFA makes it sometimes very difficult to identify precisely where the money is going. Nonetheless, this is precisely what we wish to tackle in this post, and to do so we will rely on the FIFA Financial reports over the last 10 years.


 

Graph 1: FIFA Expenses in USD million (adjusted for inflation), 2003-2013.


The question of the final destination of FIFA’s money is a contentious one. Many allege that FIFA executives may be profiting directly or indirectly from the revenues amassed. In order to better understand to what end FIFA’s money is disbursed, we have gathered the data contained in FIFA’s Financial Reports over a 10 year time frame and we have adjusted the numbers for inflation, thus easing any comparison. This data is synthetized in Graphs 2 and 3.

Graph 2 provides a comparative overview of the evolution of the expenses of FIFA in absolute numbers. This shows that event-related and personnel expenses (to a lesser extent also other operating costs) have been rising, while FIFA’s expenses on development and committees and congresses have remained more or less stable. Graph 3 confirms that the evolution of FIFA’s expenses is not linear, but general lessons can be drawn. The event-related expenses have been representing more than 50% of FIFA’s expenses for 4 years out of the last 5 (2010 stands out as an outlier). The trend towards the reduction of the share of FIFA’s development expenses is clearly observable (from 25% of total expenses in 2003 to 15% in 2013). This trend was only reversed in the particular context of the South-Africa World-Cup in 2010. Besides that, the share of expenses linked to wages and personnel has remained fairly stable (from 7% in 2003 to 8% in 2013). Finally, the share of the other operating costs is difficult to compare across the years, as FIFA has changed its accountancy system. Nonetheless, one can assume that from 2007 onwards, other operating expenses and Football governance (Legal costs and Committees and Congress expenses) expenses should be read together to match the previous understanding of the notion of operating expenses. Thus, read together, operating expenses would have risen from a 16% share in 2003 to a 20% one in 2013. 

 

Graph 2: FIFA Expenses (per stream) in USD million (adjusted for inflation) 2003-2013


Graph 3: Share FIFA expenses over 2003-20013

FIFA’s expenses are concentrated on the organization of its events (see Graph 4). In 2013, 58% of the expenses incurred by FIFA were event related (Graph 3). Indeed, since 2003 FIFA’s expenses on its events have increased from USD 286 million in 2003 to USD 728 million in 2013. However, it is very difficult to extract from the reports provided by FIFA the precise objects of these expenses. It should be noted that the organizing country is tasked with the financing of the main infrastructural investments (stadium, transportation etc…), leaving little infrastructural costs bearing on FIFA. The event-related expenses can be traced back to the financing of the local FIFA World Cup Organizing Committee (the Brazilian committee received up to USD 221.6 million), prize money, travel and accommodation costs of the FIFA officials and the participating teams and other expenses. Furthermore, they also include the FIFA Club Protection programme that compensates clubs in case of injuries suffered by players while on duty with their national teams.

 

Graph 4: FIFA Event-related Expenses in USD million (adjusted for inflation), 2003-2013

 

FIFA is often keen on trumpeting its development-related investments. It is even a key argument to justify its public utility: FIFA is to favour the development of football worldwide. This myth falls partially apart when one looks at the numbers and at their recent trajectory. Indeed, as shown in Graph 5, since 2003 (omitting the exceptional South-African peak of 2010) the Development-related expenses of FIFA have remained fairly stable (139 USD million in 2003, 185 USD million in 2013), in spite of the tremendous growth of both its overall revenues and expenses. Thus highlighting that FIFA has not been very keen on developing redistribution streams in favour of its members, the players or the supporters. Furthermore, the development schemes of FIFA are notoriously lacking transparency and their ability to achieve any real trickle-down effect is not warranted. The recent corruption scandals surrounding former FIFA vice-president Jack Warner, have highlighted the risks of this development aid getting lost in the pockets of corrupted local football officials. If FIFA is serious about football development, and not only interested in PR, it should overhaul its development funding scheme, both in terms of absolute numbers and of its institutional set-up.

 

Graph 5: FIFA Development related expenses in USD million (Adjusted to inflation) 2003-2013

 

On the other hand, FIFA’s own personnel costs have grown over the last 10 years (Graph 6) from 37 USD million in 2003, to 103 USD million in 2013. FIFA employs 400 staff members at its administrative centre in Zurich. The administration of FIFA is a costly enterprise. In 2013 the operating expenses reached 219 USD million (Graph 8), this includes the personnel expenses (Graph 6), but not the football governance expenses (the Committees and Congress expenses in Graph7 and legal expenses), overall the operating cost reaches 276 USD million! Those costs, especially the one dubbed other operating costs (Graph8) are relatively obscure. What do they include? Personnel (102 USD million in 2013), information technology, buildings and maintenance (22 USD million in 2013), taxes and duties (17 USD million in 2013), depreciation and amortization (12 USD million in 2013), communications (31 USD million in 2013) and other non determined expenses (32 USD million in 2013); but without providing any more details about the concrete content of those categories. This lack of explanation can only play in the hand of those that dismiss FIFA altogether as an organization interested solely in its own wealth and well-being. One is left puzzled by the amount of the operating costs, which are neither disbursed for the organization of specific events (those are the event-related expenses in Graph 4), nor for the organization of important meetings (those are the Congress and Committees expenses in Graph 7). It may be that the FIFA building’s toilet are made of gold or that its canteen is a three-star Michelin restaurant, but if so we would like to know.

 

 

Graph 6: FIFA Personnel Expenses in USD million (Adjusted to inflation) 2003-2013


 

Graph 7: FIFA Committees and Congress Expenses in USD million (Adjusted to Inflation) 2003-2013


Graph 8: FIFA Other Operating Expenses in USD million (Adjusted to inflation)

 

Finally, FIFA has constituted a richly dotted war chest. Over the last 10 years of economic success it has amassed huge financial reserves (Graph 9), reaching up to 1453 USD million in 2013. Money lying still at a Swiss bank instead of being invested in the development of football. This money is making money for FIFA through the interests it produces. However, one can wonder why FIFA would need to hold onto such a mountain of cash, instead of redistributing in (in one way or another) to the ‘football family’. This perceived need is illustrative of the transformation of FIFA into a proper business, far remote from the interests of football and its actors.

 

Graph 9: FIFA reserves in USD million (Adjusted to inflation)

 

Conclusion: Follow the money…

We have tried to follow FIFA’s money, in order to better understand if some of the criticisms raised against the management of FIFA were justified. From a macro point of view one fact needs to be highlighted: FIFA has been making a lot more money over the last 10 years and very few of this additional money has been redistributed via its football development schemes. In fact, it is the only stream of outgoings that has seen its share in FIFA’s overall expenses drastically cut from 25% to 15% over the last 10 years. FIFA should take its development programmes seriously if it is to continue relying on them to argue its good faith and willingness to contribute to global welfare.

Moreover, one characteristics of FIFA’s financial report is the lack of transparency and readability of the data. One is challenged to figure out what certain categories concretely mean. FIFA is spending a lot for things that cannot be traced easily. At a micro-level, there is an urgent need for external observers to be able to go through the detailed account of FIFA. One of the trigger for rumoured, but also probably for real, instances of corruption lies in the fact that the supervisory mechanisms provided by public scrutiny (through the press and other institutions) is rendered moot by the accounting walls built by FIFA to isolate its spending from the public’s eye.

Eventually, FIFA must let us (and help us to) follow its money. This would be a giant step towards countering the corruption allegations being made and also legitimating the role of FIFA as the governing institution of world football. If the ‘football family’ is able to see and control the path followed by FIFA’s money, the trust in FIFA as an institution will most likely improve.

 

 


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