2015 was a good year for international sports law. It started early in January with the Pechstein ruling, THE defining sports law case of the year (and probably in years to come) and ended in an apotheosis with the decisions rendered by the FIFA Ethics Committee against Blatter and Platini. This blog will walk you through the important sports law developments of the year and make sure that you did not miss any.

The Court of Arbitration for Sport challenged by German Courts 

The more discrete SV Wilhelmshaven ruling came first. It was not even decided in 2015, as the ruling was handed out on 30 December 2014. Yet, unless you are a sports law freak, you will not have taken notice of this case before 2015 (and our blog). It is not as well known as the Pechstein ruling, but it is challenging the whole private enforcement system put in place by FIFA (and similar systems existing in other SGBs). Indeed, the ruling foresees that before enforcing a sanction rendered by FIFA, the national (or in that case regional) federation must verify that the award underlying the sanction is compatible with EU law. The decision has been appealed to the Bundesgerichtshof (BGH) and a final ruling is expected in 2016.

Later on, in January, the Oberlandesgericht München dropped its legal bomb in the Pechstein case. The court refused to recognize the CAS award sanctioning Claudia Pechstein with a doping ban, as it was deemed contrary to German antitrust rules. The reasoning used in the ruling was indirectly challenging the independence of the CAS and, if confirmed by the BGH, will trigger a necessary reform of the functioning and institutional structure of the CAS. Paradoxically, this is a giant step forward for international sports law and the CAS. The court acknowledges the need for CAS arbitration in global sport. However, justice must be delivered in a fair fashion and the legitimacy of the CAS (which relies on its independence from the Sports Governing Bodies) must be ensured (see our long article on the case here).

We will see how the BGH will deal with these cases in 2016. In any event, they constitute an important warning shot for the CAS. In short, the CAS needs to take EU law and itself seriously. If it truly addresses these challenges, it will come out way stronger.

The new World Anti-Doping Code and the Russian Doping Scandal

On the doping front, 2015 is the year in which the new World Anti-Doping Code (WADC) came into force (see our Blog Symposium). The Code introduces substantial changes in the way the anti-doping fight is led and modifies the sanction regime applicable in case of an adverse analytical finding. It is too early to predict with certainty its effects on doping prevalence in international sports. For international sports lawyers, however, it is in any event a fundamental change to the rules applicable to anti-doping disputes, which they need to get closely acquainted with.

The new World Anti-Doping Code was largely overshadowed by the massive doping scandal involving Russian sports, which was unleashed by an ARD documentary (first released in 2014) and revived by the crushing report of the Independent Commission mandated by the World Anti-Doping Agency to investigate the matter. This scandal has shaken the legitimacy of both the anti-doping system and the International Association of Athletics Federations (IAAF). It has highlighted the systematic shortcomings of the anti-doping institutions in Russia, and, the weakness of the control exercised on these institutions at a transnational level, be it by IAAF or WADA.

In 2015 again, doping proved to be a scourge intimately linked with international sports. The confidence and the trust of the public, and of clean athletes, in fair sports competitions is anew put to the test. WADA, which was created in the wake of another massive doping scandal in the nineties, has shown its limits. In practice, the decentralization of the enforcement of the WADC empowers local actors, who are very difficult to control for WADA. Some decide to crackdown on Doping with criminal sanctions (see the new German law adopted in December 2015), others prefer to collaborate with their national athletes to improve their performances. The recent proposals at the IOC level aiming at shifting the testing to WADA can be perceived as a preliminary response to this problem. Yet, doing so would entail huge practical difficulties and financial costs.

EU law and sport: 20 years of Bosman and beyond

2015 was also the year in which the twentieth anniversary of Bosman was commemorated through multiple conferences and other sports law events. The ASSER International Sports Law Centre edited a special edition of the Maastricht Journal of European and Comparative Law and a book celebrating the legacy of the ruling is forthcoming with the publisher Springer. The ruling did not have the dramatic effects predicted at the time of the decision, since football is still alive and kicking. Surely, it has given way to new challenges and sharply accelerated the transnationalization of football (and sport in general). A key legacy of Bosman is that this transnationalization, which goes hand in hand with the commercialization of sport, cannot side-line an essential category of stakeholders: the athletes.

It is with this spirit in mind, and a little push of the ASSER International Sports Law Centre, that the European Commission decided to open an investigation into the rules of the International Skating Union (ISU) barring, under the threat of a life ban, speed skaters (and any other affiliate) from joining speed skating competitions which are not condoned by the ISU. Though the case is rather low profile outside of the Netherlands, this is an important step forward for the EU Commission, as it had not opened an EU competition law investigation in sporting matters in almost 15 years. Many other competition law complaints (e.g. TPO or Formula 1) involving sport are currently pending in front of the EU Commission, but it is still to decide whether it will open a formal investigation. 2015 is also the year in which we have desperately expected the release of the EU State aid decisions regarding football clubs, and amongst them Real Madrid, but in the end this will be a matter for 2016.

FIFA and the chaotic end of the Blatter reign

FIFA is not the only SGB to have put an abrupt end to the (very) long reign of its great leader (think of the messy downfall of Diack at the IAAF). Yet, when talking about FIFA and football, the resonance of a governance crisis goes well beyond any other. It is truly a global problem, discussed in nearly all news outlets. This illustrates very much how a Swiss association became a global public good, for which an Indian, Brazilian, American or European cares as much as a Swiss, who is in traditional legal terms the only one able to influence FIFA’s structure through legislation. The global outrage triggered by the progressive release by the US authorities of information documenting the corrupt behaviour of FIFA executives has led to two immediate consequences: a change of the guard and a first reform of the institution.

There are now very few FIFA Executive Committee members left who were present in 2010 for the election of Qatar as host city for the 2022 World Cup. The long-time key figures of FIFA, Blatter, Platini and Valcke, are unlikely to make a comeback any time soon. And, the upcoming February election of the new FIFA president is more uncertain than ever with five candidates remaining. Simultaneously, FIFA has announced some governance reforms, which aim at enhancing the transparency of its operation and the legitimacy of its decision-making. We are living through a marvellous time of glasnost and perestroika at FIFA. The final destination of this transformative process remains unknown. There are still some major hurdles to overcome (starting with the one association/one vote system at the FIFA congress) before FIFA is truly able to fulfil its mission in a transparent, accountable and legitimate manner. We hope it will be for 2016!

The ASSER International Sports Law Blog in 2015

Finally, a few words on our blog in 2015. In one year we have published 60 posts, our most-read-blog concerned the Pechstein ruling that was read 3054 times.

Our peak day was reached on 4 September with 621 page views (thanks to a great post on the Essendon case by @jrvkfootball).

Our readers are based all around the world, but the majority is based in the EU and the US.

We hope to be able to keep you interested and busy in 2016 and we wish you a great year!

The ASSER International Sports Law Blog Team

The European Commission has published the “Study on Sports Organisers’ Rights in the EU”, which was carried out by the ASSER International Sports Law Centre (T.M.C. Asser Institute) and the Institute for Information Law (University of Amsterdam). 

The study critically examines the legal protection of rights to sports events (sports organisers’ rights) and various issues regarding their commercial exploitation in the field of media and sports betting, both from a national and EU law perspective.  

In a number of posts, we will highlight some of the key findings of the study. 

“It was Hyde, after all, and Hyde alone, that was guilty.” 

In recent years, numerous national and European sports organisers have called for the adoption of a specific right to consent to the organisation of bets (“right to consent to bets”), by virtue of which no betting operator could offer bets on a sports event without first entering into a contractual agreement with the organiser. 

A sports organisers’ right to consent to bets was first introduced in Victoria (Australia) in 2007. Yet it was the recognition of a similar right in France that created the true momentum for sports organisers to advocate its adoption at the EU or EU-wide national level. The argument is twofold. First, a right to consent to bets would entitle sports organisers to demand a “fair financial return” for the commercial exploitation of theirs sports events by betting operators. Second, it would establish a statutory obligation for betting operators to work in partnership with sports organisers to preserve the integrity of sports events. According to the contractual provisions agreed upon by the involved parties, mutual obligations (for e.g. fraud detection) and conditions of information exchange can be identified. 

A restriction to the freedom to provide services? 

From an EU internal market law perspective, it is important to note that the conditions implementing a right to consent to bets are capable of constituting a restriction of the free movement of services within the Union (within the meaning of Article 56 TFEU). Indeed, the requirement for betting operators to obtain consent for the organisation of sports bets could impede or render less attractive the free provision of gambling services.[1] 

The Court of Justice (CJ) has consistently held that restrictions on gambling activities are acceptable only if justified by an imperative requirement in the general interest and compliant with the principle of proportionality. The CJ has accepted the prevention of fraud as a legitimate objective justification. The financing of public interest activities through proceeds from gambling services, on the other hand, can only be accepted as a beneficial consequence that is incidental to the restrictive policy adopted.[2]  

It follows that a strict regulatory framework that genuinely reflects a concern to prevent the manipulation of sports events must accompany the introduction of a right to consent to bets. 

The origins of the French betting right 

With the enactment of a new gambling law in 2010, the French legislator, following case law precedent recognizing sports bets as a form of commercial exploitation of sports events, introduced a right to consent to bets in the French Sports Code. 

Interestingly, the concept of the right to consent to bets evolved considerably during the course of the legislative process.  

When the draft law opening up online gambling and betting to competition and regulation was introduced in the French parliament, the rationale of the right to consent to bets was solely expressed in terms of generating a “fair financial return” to sport. Under Chapter IX (“Provisions concerning the exploitation of sports events”) of the original draft law, the following addition to Article L.334-1 of the Sports Code was proposed: 

“The use, for commercial purposes, of any characteristic element of sporting events or competitions, notably names, calendars, data or results, requires the consent of the owners of the exploitation rights under conditions, in particular of a financial nature, defined by contract, subject to the provisions of articles L. 333-6 to L.333-9”.^[3]

On 5 March 2009, the French authorities notified the draft law to the European Commission, in accordance with the provisions of Directive 98/34/EC of 22 June 1988.[4] In its detailed opinion, the Commission stressed that several provisions of the draft law would infringe Article 56 TFEU if they were to be adopted without due consideration of the Commission’s objections. Amongst other things, the Commission rightly observed that the financing of sport through gambling revenues could not justify an obstacle to free movement, in this case the requirement to obtain consent from the sports organiser. The Commission further noted that the characteristic elements that are already in the possession of sports organisers, such as calendars, data or results, could not qualify for sui generis database right protection.  

It was only during the subsequent first reading of the draft law in the French National Assembly that the statutory recognition of the right to consent to bets was presented as a means of preserving sports integrity. On 21 July 2009, the French Minister for the Budget declared: 

“in reality, the interest of this right for sport is not financial but ethical, by requiring commercial agreements between gambling operators and the organisers of sports competitions, this right finally will give professional sport the means to make the operators share their concerns in matters of competition ethics”.^[5]

 Accordingly, the relevant provision was substantially amended to address the concerns about its compliance with the EU internal market rules. First, it no longer mentioned that the consent to the organisation of bets was related to the use of fixtures and schedules. Second, the title of Chapter IX was changed to “Provisions concerning the exploitation of sports events and the fight against fraud and cheating in the context of these events” (emphasis added). Third, multiple paragraphs were added, so as to stipulate that (1) the betting right contracts should impose obligations on betting operators concerning fraud detection and prevention and (2) the financial contribution is intended to compensate for costs incurred by sports organisers for anti-fraud mechanisms.^[6]

The proof of the pudding is in the eating  

On the basis of an in-depth assessment of the exploitation of the French right to consent to bets, the study concludes that the rationale of safeguarding the integrity of sports events did not really override its economic rationale. 

Decree No. 2010-614 requires the betting right marketing contracts to specify information and transparency obligations imposed on operators to detect fraud and prevent the risk of harm to the integrity of sports events.^[7] Contrary to the relatively strong language about the stipulation of “information and transparency obligations” imposed on the operators, Decree No. 2010-614 merely requires the holder of the right to consent to bets to specify in the contracts the measures it “intends” to introduce for preventing the risk for the integrity of the events in question. However, the law does not mandate the effective implementation of these integrity measures. Furthermore, although the compensation paid for the right to organise bets must take account “in particular the costs incurred in detecting and preventing fraud”, there is no guarantee that the income is allocated to fraud prevention and detection. 

If Member States would consider introducing a right to consent to bets, it appears critical from an EU law perspective that it is genuinely designed to protect a non-economic public interest objective in a proportional manner. The Victorian (Australia) regulatory regime is recommended as a best practice model. Here, the financial return is truly a compensation for the integrity assurances given by the sports bodies. Before a sports body is legally entitled to exercise the right to consent to bets, it must first invest time and resources into developing adequate integrity mechanisms. Furthermore, in case the sports body fails to fulfil its contractual obligations, the gambling regulator may revoke its ability to exercise the right to consent to bets. Indeed, the rights and obligations in the betting right agreements must work both ways: sports betting operators are also entitled to expect that the sports organisers truly implement the integrity policies.  

For a detailed exploration of the virtues of a right to consent to bets and the challenges of adopting such a mechanism from a legal, institutional, and practical perspective, check out the full study available at http://ec.europa.eu/sport/news/2014/study-on-sport-organisers-rights_en.htm.

[1] All measures that prohibit, impede or render less attractive the exercise of the fundamental freedoms must be regarded as restrictions, see e.g. C-439/99 Commission v Italy [2002] ECR I-305, para. 22; Case C-205/99 Analir and Others v Administratión General del Estado [2001] ECR I-271, para. 21.

[2] See e.g. Joined Cases C 316/07, C 358/07 to C 360/07, C 409/07 and C 410/07 Markus Stoß and Others v Wetteraukreis and Others [2010] ECR I-8069, para. 104; C-67/98 Questore di Verona v Diego Zenatti [1999] ECR I-7289, para. 36; Judgment of the EFTA Court in Case 3/06 (Ladbrokes) para. 63.

[3] Unofficial translation by the research team (“L’utilisation, à des fins commerciales, de tout élément caractéristique des manifestations ou compétitions sportives, notamment leur dénomination, leur calendrier, leurs données ou leurs résultats, ne peut être effectuée sans le consentement des propriétaires des droits d’exploitation, dans des conditions, notamment financières, définies par contact, sous réserve des dispositions des articles L. 333-6 à L. 333-9”).

[4] Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (1998) OJ L 204/37. This “Transparency Directive” requires Member States to notify their rules on information society services in draft form, and generally observe a standstill period of at least three months before formal adoption, in order to allow other Member States and the European Commission to raise concern about potential trade barriers within the EU.

[5] Assemblée Nationale, Audition de M. Éric Woerth, ministre du budget, des comptes publics, de la fonction publique et de la réforme de l'État au cours de la réunion du 21 Juillet 2009.

[6] In the context of the second reading of the draft law in the French Senate, the rapporteur of the Finance Committee welcomed this solution to accommodate the European Commission’s concerns regarding Article 52. Sénate, Rapport n° 209 (2009-2010) de M. François Trucy, fait au nom de la commission des finances, déposé le 19 janvier 2010.

[7] Décret no. 2010-614 du 7 Juin 2010 relatif aux conditions de commercialisation de droits portant sur l’organisation de paris en relation avec une manifestation ou compétition sportives, Article 2.