The Pechstein decision of the Oberlandesgericht of Munich is “ground-breaking”, “earth-shaking”, “revolutionary”, name it. It was the outmost duty of a “German-reading” sports lawyer to translate it as fast as possible in order to make it available for the sports law community at large (Disclaimer: This is not an official translation and I am no certified legal translator). Below you will find the rough translation of the ruling (the full German text is available here), it is omitting solely the parts, which are of no direct interest to international sports law.

The future of CAS is in the balance and this ruling should trigger some serious rethinking of the institutional set-up that underpins it. As you will see, the ruling is not destructive, the Court is rather favourable to the function of CAS in the sporting context, but it requires a fundamental institutional reshuffling. It also offers a fruitful legal strategy to challenge CAS awards that could be used in front of any national court of the EU as it is based on reasoning analogically applicable to article 102 TFEU (on abuse of a dominant position), which is valid across the EU’s territory.

Enjoy the read! 

Antoine

PS: The translation can also be downloaded at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2561297

OLG München · 15 January 2015 · Az. U 1110/14 Kart

Part 1. The facts (omitted)

Part 2. Holdings of the Court

A. The claim is partially receivable

I. The international competence of the German courts (omitted)

67 - II. The arbitration clause signed on the 2 January 2009 by the appellant (Pechstein) and the respondent nr 2 (ISU) does not preclude access to the ordinary courts

68 - To this end the question whether the CAS, designated by the arbitration clause, can be considered a real arbitration tribunal, despite the fact the parties have no equal influence on its composition, can stay open. The arbitration clause would also be null in that case.

1. […]

2. […]

71 - 3. The arbitration clause is in the present case inapplicable because it goes against antitrust law

a) […]

aa) […]

bb) […]

75 - b) The arbitration clause signed on the 2 January 2009 between Pechstein and ISU is invalid based on Art. 34 EGBGB, §134 BGB, §19 Abs. 1, Abs.  4 Nr. 2 GWB.

76 - aa) The ISU is a monopolist on the market for the access to Speed-Skating World Championships and therefore in a dominant position in the sense of §19 Abs.1, Abs 4 Nr. 2 GWB.

77 - An economic activity, in the sense of the German Act against restraints of Competition (GWB), is any activity consisting of offering goods or services on a market. If this condition is fulfilled, the fact that an activity is linked to sport cannot preclude the application of the Competition rules (C-49/07 MOTOE v. Greece). Sports associations offering their services on the market of sports competitions are to be considered undertakings.

78 - In the present case, the market for the organisation of the World Championships in speed skating is the relevant market. Contrary to the view of ISU, the participation to the event cannot be supplanted by the participation in national competitions, due to the worldwide interest it triggers and the connected side revenues that successful athletes can hope for.

79 – […]Moreover, it is not convincing to argue that international events as the Open Belrus Cup, the Cup of Kazakhstan, the Dutch Classics or the International Race-Seniors could trigger the same interest and be substitutable to the World Championships.

80 - ISU is thus, because of the “One-place-principle”[1], the only provider on the market for the organisation of World Championships in Speed-Skating and therefore, due to the absence of competition, a monopolist in a dominant position in the sense of § 19 Abs. 2 Nr. 1 GWB.

81 - bb) An undertaking in a dominant position is prohibited under § 19 Abs. 1, Abs. 4 Nr. 2 GWB from demanding payment or other business terms which differ from those which would very likely arise if effective competition existed.

82 - Hence, the ISU could not require Pechstein to agree to the arbitration clause signed on 2 January 2009.

83 - (1) The notion of terms of trade is be understood broadly. It comprises everything that can be agreed on contractually, including an agreement to arbitrate disputes excluding the recourse to national courts.

84 - aaa) Contrary to the opinion of ISU, the applicability of § 19 Abs. 1, Abs. 4 Nr. 2 GWB is not precluded because the signing of the arbitration clause was mandated to ISU by the International Convention Against Doping in Sport from the 19^th October 2005 ratified by Switzerland.

85 - The Convention does not include a rule imposing a duty to conclude an arbitration clause in favour of CAS. Rather, it refers in Art. 4 §1 to the principles of the World Anti-Doping Code, which in turn in Article 13.2.1 provides that in cases involving international competitions or international athletes, appeals against anti-doping decisions can only be submitted to CAS. It cannot be assumed, despite the compliance mandate that the Code imposes to its signatories in Article 23.2.2, that the Convention includes this provision in the fundamental principles to which the State parties have to abide following Art.4 §1. Moreover, the obligations stemming from Art. 4 par.1 require transposition by the national states as foreseen by Art.5 1) of the Convention. It is not clear from the submissions of ISU that Switzerland has introduced any law that would impose to ISU the duty to sign arbitration clauses in favour of CAS.

86 - The fact that the ISU may have felt that it had to sign arbitration clauses in favour of CAS due to other non-legal reasons, as for example to preserve its recognition by the IOC, is irrelevant in the context of this competition law analysis. 

87 – bbb) Omitted

88 - (2) The imposition of an arbitration clause by the organizer of International sporting competitions is not per se an abuse of a dominant position.

89 - aaa) In fact, sound and weighty arguments speak in favour of avoiding to leave to the many potentially competent national courts the duty to deal with disputes arising between athletes and International federations in the framework of international competitions, and instead to refer them to a single sports tribunal. In particular, a uniform competence and procedure can preclude that similar cases be decided differently, and therefore safeguard the equal opportunities of athletes during the competitions.

90 - bbb) Contrary to the view of the first instance court, arbitration agreements between a dominant organizer of international sports competitions and the athlete taking part in these competitions are not per se invalid due to the lack of free will of the athlete.

91 - Omitted

92 - Art 6 par. 1 ECHR is opposed to the validity of an arbitration agreement to which one of the parties has not acquiesced. But, if consent is present, the sole fact that this consent was necessary economically to be able to exercise one’s profession is not sufficient to constitute a violation of the rights warranted by Art.6 par.1 ECHR. 

93 - (3) Nevertheless, the fact that ISU required from Pechstein to sign an arbitration agreement in favour of CAS is an abuse of dominant position.

94 - It can be assumed that, due to the above-mentioned advantages, athletes would agree to the competence of a neutral arbitral tribunal if free competition would prevail on the market for the organisation of international competitions. However, an arbitration clause in favour of CAS would not be agreed under normal circumstances, as the one-sided designation of the potential arbitrators favours the associations (the International federations – such as the ISU – the national Olympic Committees and the International Olympic Committee) involved in disputes with athletes as regard the composition of the arbitral panel. Athletes accept this arrangement only because they have to in order to participate in international sporting competitions. 

95 - aaa) The aforementioned sports associations have a decisive influence on the selection of the persons acting as CAS arbitrators

96 – a-1) Pursuant to the CAS procedural rules of 2004, in place at the moment of the signing of the arbitral convention, the parties have to select an arbitrator amongst the list of CAS arbitrators compiled by ICAS [R33 par.2 of the procedural rules and S6. Nr.3 of the Statutes].

97-103 […]The Court goes on to describe the composition of the ICAS as provided for in article S4 and the mode of selection of the arbitrators included on the CAS list as provided for in article S14 of the statutes. 

104 - These provisions regulating the selection of the potential CAS arbitrators favour the sports associations in disputes against athletes, thus embedding a structural imbalance that is threatening the neutrality of CAS.

105 - Sports association hold, with 12 members directly designated by them, the majority in ICAS. Already through this situation they enjoy, due to the majority rule applying in ICAS’ decision-making procedure, a favourable position that enables them to have a decisive influence on the composition of the list of CAS arbitrators. Furthermore, due to the fact that the 12 members previously designated by the sporting associations nominate them, the independence of the 8 other members of ICAS is also not preserved. Even the CAS statutes themselves do not assume the independence of the ICAS members and of the CAS arbitrators, as they require that the last 4 ICAS members and the last fifth of CAS arbitrators be independent from the organisations which were responsible for the nomination of all the other previous members of both ICAS and the CAS arbitrators list.

106 - This disproportionate influence creates the risk that the persons included on the CAS arbitrators list predominantly or even entirely favour the side of the sporting associations over the athletes. This is also true concerning the arbitrators that are not suggested by the sporting association, but are selected in view to protect the interest of athletes or on the basis of their independence, as they are designated by ICAS members chosen by the sporting associations. A balanced influence of the parties on the composition of the arbitral tribunal that would be needed to safeguard its independence is thus not provided. Such a structural deficiency threatens the neutrality of the arbitral tribunal; this is independent of the fact whether the persons included on the CAS list of arbitrators are in any way linked to the sports associations, as this would actually open the possibility to challenge their nomination. Even when the personal integrity of the persons included on the CAS list is not affected, there is a potential risk that arbitrators share the worldview of the sports associations rather than the one of the athletes.

107 - The imbalance in favour of the sports associations is not offset by the fact that the CAS arbitrators’ list comprises a minimum of 150 persons, as the risk of a potential capture by the sports associations extends to each one of them.

108 - a-2) Moreover, an imbalance in favour of the sports associations is also grounded in the fact that in the appeal procedure before CAS, when the parties have not managed to agree on a name (see R 50 par.1 procedural rules 2004), the president of the panel is designated by the president of the appeal division of CAS, while the president of the appeal division is himself nominated by ICAS, which is structurally dependent on the sporting associations, through a simple majority decision. In this way, the sports associations can also exercise an indirect influence on the third member of the arbitral panel competent to deal with a specific dispute. The trust of the parties in the independence and impartiality of an arbitral tribunal is eroded when there are reasons to fear that the judge facing them has been designated specifically in regard of the specific case at hand. Thus, it is necessary to take measures to combat the sheer possibility and suspicion of a manipulation of the designation of the judge.

109 - bbb) There is no rational justification for such an imbalance in favour of the sports associations 

110 - Contrary to the arguments of the ISU, a shared interest of the sports associations and the athletes cannot justify such an imbalance, as especially in disputes between athletes and sports associations no shared interest can be identified, to the contrary opposing interests are facing each other. In this regard, the fact that sports functionaries were often athletes in the past is also not a sufficient guarantee to ensure that the interests of the athletes are adequately protected.

111 - The circumstance that in a dispute between an international sports association and an athlete, the national sports association decides to support the athlete – as it was the case here in front of CAS - is not sufficient to challenge the fundamental homogeneity of the interests of the sports association. Surely, the national sports association concerned might have a specific interest that their own successful athlete be cleared, but other national sports associations do not share this interest so much that from a general point of view one can assume a homogeneity of the interests.[…]

112 - Finally, the argument of the ISU regarding the lack of organisation of the athletes that would hinder their participation in the drafting of the CAS arbitrators list must be rejected. If it would be impossible to involve athletes in the drafting of the list then athletes should be freed from their duty to nominate an arbitrator from the list, and be authorized to pick the arbitrator they wish – possibly under the condition of abstract qualification requirements.

113 - ccc) The reason why athletes accept to subject their disputes with sports associations to an arbitration tribunal, the composition of which is mainly determined by sports associations, is solely linked to the monopoly position of the sports associations. If the athlete could participate to the World Championship while agreeing to the competence of a neutral arbitration tribunal, we can safely assume that only this arbitration clause would be agreed upon to the detriment of the arbitral tribunal structurally favourable to the sports associations.

114 – Omitted

115 - ddd) The departure from arbitration agreements that would have been signed under normal conditions of competition strips Pechstein from her fundamental right of constitutional rank, flowing from the rule of law principles, to access to national courts and to a legally mandated judge (Art. 101 Abs. 1 Satz 2 GG). Hence, the arbitration agreement goes beyond the intensity threshold required for the recognition of an abuse of dominant position. 

116 - eee)[…] German law specific considerations to the notion of abuse of dominance not directly linked to the sporting context.

117 - (4) No need to discuss the other arguments raised by Pechstein against the CAS. […]

118 - cc) The arbitral convention is contrary to the ban on abuses of dominant position ((§ 19 Abs. 1, Abs. 4 Nr. 2 GWB) and therefore null and void on the basis of § 134 BGB. [...]

119 - c) The contradictory behaviour of Pechstein cannot justify refusing to grant her access to the ordinary courts.

120 - Based on its wording the arbitration clause covers a wide scope of potential disputes. The fact that Pechstein claims damages in front of the ordinary courts does not stand in contradiction with the fact that she challenged the doping sanction in front of CAS.  Even if the appeal to CAS would constitute a, legally doubtful, recognition of its competence to deal with the doping sanction, it would not entail that this recognition extends to every potential other dispute between the parties.

121 - Moreover, it has not been demonstrated by the ISU, nor is it clearly understandable, why, based on good faith, it could legitimately rely on the expectation that Pechstein would refer other disputes to CAS. Indeed, the fact that the arbitral convention underlying CAS competence is the result of an abuse of a dominant position by the ISU speaks out against any such legitimate expectations.

122 - 4. The fact that Pechstein signed, in the framework of the arbitral procedure involving her doping sanction, the Order of Procedure from the 29 September 2009, does not constitute an arbitration clause barring access to the ordinary courts, as it was in any case only referring to the specific dispute before CAS. Thus, it cannot constitute a valid arbitration agreement covering other disputes.

123 - III. Pechstein’s complaint is partially admissible. […]

124 – 128 Omitted

129 - B. As far as the complaint is admissible it is not yet ready for decision. Contrary to the view of the first instance court, the complaint cannot be discarded on the basis of the res judicata effect of the CAS award.

130 - I. It is true that the procedural relevance of a foreign arbitral awards, in particular its res judicata effect, does not necessitate a particular recognition process; but, this implies that the fundamental conditions for the recognition be fulfilled, which is not the case in the present instance.

131 - II. The recognition of the CAS award – which would anyway only be possible if CAS would constitute a proper arbitral tribunal – would go contrary to the public order. Consequently, the CAS award cannot be recognized due to § 1061 Abs. 1 Satz 1 ZPO in relation with Art. V par. 2. b) of the New York Convention on the recognition and enforcement of foreign arbitral awards from the 10^th June 1958.

132 - 1. An arbitral award violates the ordre public, and is thus not recognizable, when it leads to an outcome that is obviously incompatible with the fundamental principles of German law, and therefore breaches the prime foundations of the German legal order. However, not any decision potentially contrary to German mandatory laws constitutes a violation of the ordre public. 

133 - Fundamental provisions of competition law are part of the ordre public exception to the recognition of arbitral awards in the sense of Art. 5 par.2 b) New York Convention (CJEU, 4 June 2009, C-8/08 - T-Mobile Netherlands BV u.a./Raad van hestuur van de Nederlandse Mededingingsautoriteit; CJEU, 13. July 2006 - C-295-298/04 - Vincenzo Manfredi/Lloyd Adriatico Assicurazioni SpA;  CJEU 1. June 1999 - C-126/97 - Eco Swiss China Time Ltd/Benetton International; [...])

134 - 2. Thus the CAS award cannot be recognized

135 - a) In the present case the ISU was barred by § 19 Abs. 1, Abs. 4 Nr. 2 GWB from imposing the arbitration agreement onto Pechstein. The recognition of an award based on an agreement contrary to competition law would perpetuate the abusive conduct of the ISU, which would be contrary to the objective underlying the ban on abusive practices imposed by the competition rules. This is further confirmed by the fact that Pechstein disposes, on the basis of § 33 Abs. 1 Satz 1 GWB, of a right to require the ISU to remedy the consequences of the forced arbitration clause. This includes the fact that the ISU cannot rely on the CAS award issues on the basis of this arbitration agreement.

136 - Omitted

137 - b) The question whether with Pechstein’s appeal to CAS or her signing of the Order of Procedure a new arbitration agreement was concluded can stay unanswered.  Indeed, this would also constitute a perpetuation of the abuse of a dominant position by the ISU. Pechstein had no other credible option available to obtain the right to participate to the Winter Olympics taking place between the 12 and 28 February 2010 in Vancouver, but to appeal to CAS on the basis of the arbitral agreement of the 2 January 2009.  A recourse to the Swiss courts was in light of their jurisprudence, as confirmed later by the ruling of the Swiss Federal tribunal on the CAS award, not particularly promising. Similarly, a request for an order to be authorised to participate to the Olympics in front of the German courts can hardly be deemed a reliable alternative mean due to the uncertainties related to the assessment of their international competence in that matter.

138 - III. Due to the impossibility to recognize the CAS award, German Courts are not bound by its findings in their evaluation of the legality of the doping sanction in order to assess the legitimacy of Pechstein’s damage claims. 

[1] The concept of « Ein-Platz-Prinzip » is specific to German law and qualifies the fact that sports associations are monopolists by nature.

Editor’s Note: Oytun Azkanar holds an LLB degree from Anadolu University in Turkey and an LLM degree from the University of Melbourne. He is currently studying Sports Management at the Anadolu University.

Introduction

On 19 October 2017, the Turkish Professional Football Disciplinary Committee (Disciplinary Committee) rendered an extraordinary decision regarding the fixing of the game between Manisaspor and Şanlıurfaspor played on 14 May 2017. The case concerned an alleged match-fixing agreement between Elyasa Süme (former Gaziantepspor player), İsmail Haktan Odabaşı and Gökhan Sazdağı (Manisaspor players). The Disciplinary Committee acknowledged that the evidence relevant for proving the match-fixing allegations was obtained illegally and therefore inadmissible, and the remaining evidence was not sufficient to establish that the game was fixed. Before discussing the allegations, it is important to note that the decision is not only significant for Turkish football but is also crucial to the distinction between disciplinary and criminal proceedings in sports.

Background of the Case

During the last weeks of the 2016/2017 season in Turkish 2^nd Division League, three teams, namely Manisaspor, Şanlıurfaspor and Gazişehir Gaziantep, were competing to avoid relegation. At the penultimate week, Manisaspor played against Şanlıurfaspor and won the game. Gazişehir Gaziantep also won its match. As a consequence of these results, Şanlıurfaspor was relegated to a lower division. At the end of the season, on 5 July 2017, Şanlıurfaspor claimed that the club Gazişehir Gaziantep had attempted to influence the outcomes of the games and Şanlıurfaspor appealed to the Turkish Football Federation (TFF).

Şanlıurfaspor’s claims mainly focused on the recording of the talk between Nizamettin Keremoğlu (Vice-President of Gazişehir), Elyasa Süme (a former Gaziantepspor player), Gökhan Sazdağı (Gazişehir player who was on loan at Manisaspor at the time) and İsmail Haktan Odabaşı (Manisaspor player). The recording was leaked and uploaded on Youtube. The content of the recording clearly demonstrates that incentives were provided to Manisaspor players by Gazişehir in order to encourage them to win against Şanlıurfaspor. Furthermore, Gökhan Sazdağı confessed in the recording that he had been involved in match-fixing before and that this would not be his first time. In addition, Gaziantepspor claimed that Elyasa Süme was involved in match-fixing. On 20 July 2017, based on these serious allegations and the incriminating evidence publically released, the TFF referred Şanlıurfaspor’s application to the Turkish Football Federation Ethics Committee (Ethics Committee). Following the Ethics Committee’s report, the TFF subsequently referred the case to the Disciplinary Committee for determining the possible sanctions to be imposed on Gazişehir Gaziantep, Nizmettin Keremoğlu, Elyasa Süme, Gökhan Sazdağı and İsmail Haktan Odabaşı. Finally, on 19 October 2017, the Disciplinary Committee decided that the evidence relevant for proving match-fixing was illegally obtained and the remaining evidence was not enough to establish an instance of match-fixing.

Separating Disciplinary and Criminal Proceedings

It is generally accepted that in sports law disciplinary proceedings are to be treated differently than criminal investigations.[1] In countries like Turkey, match-fixing and/or match-fixing attempts also constitute a crime. Article 11(1) of the Act on the Prevention of Violence and Disorder in Sports stipulates that a person providing advantages or benefits in order to influence the final result of a game shall be punished with imprisonment from five to twelve years. Article 11(5) of the same regulation also states that in case of commission of the offense by offering or promising incentive pay with the intention of enabling one team to win a match, only half of the punishment is to be imposed.

On the other hand, match-fixing and incentives also appear in Article 58 of the Turkish Football Disciplinary Instruction. The said provision makes clear that it is forbidden to influence the outcome of the games illegally or unethically. Incentives fall also within the scope of this provision. In case of a breach, individuals will face a life-long ban. In case of an attempt at match-fixing or of the provision of unlawful incentives, clubs will be sanctioned by at least a 12 points deduction.

It is important to note that Turkish prosecutors have not yet opened a criminal investigation for the allegations related to the provision of incentives, even if the allegations and evidence are serious.

The Position of FIFA, UEFA, and CAS with respect to Match-Fixing Allegations and Binding Rules for Turkish Authorities     

FIFA as the world's governing body of football has put in place significant provisions regarding match-fixing and corruption in football. Article 69 FIFA Disciplinary Code stipulates that anyone who unlawfully influences the outcomes of football games can be banned from taking part in any football-related activity for life. Furthermore, Article 3.10 FIFA Code of Conduct also highlights the importance of zero tolerance for bribery and corruption.  

UEFA president Michael Platini announced in 2011 that a zero tolerance policy was adopted by UEFA regarding match-fixing, and that all match-fixing allegations would be seriously investigated. Moreover, as evidenced in Sport Lisboa e Benfica Futebol SAD, Vitoria Sport Clube de Guimaraes v. UEFA and FC Porto Futebol SAD, UEFA is not bound by national associations’ decisions in this regard.

A zero-tolerance policy requires that match-fixing attempts be punished heavily. This does not mean, however, that there is no standard of proof for match-fixing allegations. According to the CAS, match-fixing allegations must be proved to its comfortable satisfaction. [2] Comfortable satisfaction is defined by the CAS as a standard that is higher than the civil standard of “balance of probability” but lower than the criminal standard of “proof beyond a reasonable doubt”.[3] In my view, considering the evidence in the case of Şanlıurfaspor, in particular the recordings and the statements of the clubs, it should be accepted that the standard of proof for match-fixing allegations was met.

What is crucial in our case is that UEFA and the CAS cannot intervene in the Turkish match-fixing proceedings due to Article 64(1) of the Statutes of the Turkish Football Federation stating that “CAS shall not, however, hear appeals on violation of the laws of the game, suspensions according to relevant provisions of the FIFA and UEFA Statutes, or decisions passed by the independent and duly constituted Arbitration Committee of the TFF”. Moreover, Article 59(3) of the Turkish Constitution provides that “the decisions of sports federations relating to administration and discipline of sporting activities may be challenged only through compulsory arbitration. The decisions of the Arbitration Board are final and shall not be appealed to any judicial authority”. On the other hand, in case of a breach, FIFA has the authority, relying on its Code of Conduct and Disciplinary Code, to take important steps in order to sanction clubs and/or individuals, even where national federations fail to do so. Therefore, on 25 October 2017, Şanlıurfaspor declared that if the Arbitration Board of the TFF did not sanction clubs and individuals who were allegedly involved in match-fixing, it would apply to FIFA to do so.

The Validity of Evidence

The main reason why the Disciplinary Committee did not find the clubs and individuals guilty of match-fixing was that the evidence, which was crucial to support the allegations, was obtained illegally. Therefore, it is of primary importance to compare this position to the one adopted by UEFA, CAS, and the Swiss Federal Tribunal with respect to the validity of illegally obtained evidence in disciplinary proceedings involving match-fixing.

UEFA’s position regarding the admissibility of evidence can be derived from specific provisions in its regulations. For instance, Article 4(2) 2017/2018 UEFA Champions League Regulations expressly states that if UEFA is comfortably satisfied that a club was involved in any activity aimed at arranging or influencing the outcome of a match, such club will be ineligible for the participation. While taking its decision, UEFA can rely on the decision of a national or international sporting body, but it is not bound by these decisions. Article 4(2) allows UEFA to punish clubs, even if they have been exonerated by other sporting bodies. Therefore, it can be concluded that if UEFA is comfortably satisfied, the validity of evidence will not be questioned. The article says nothing about the validity of evidence. In addition, even if national sports governing bodies do not punish clubs and/or individuals, UEFA is not bound by national decisions even if the evidence was illegally obtained. [4]

The CAS also supports the approach of UEFA with regard to the admissibility of evidence in match-fixing cases. According to the CAS jurisprudence, “even if evidence might not be admissible in a civil or criminal court in Switzerland, this does not automatically prevent a sports federation or an arbitration tribunal from taking such evidence into account in its deliberations”.[5] This statement clearly shows that the CAS distinguishes criminal or civil court proceedings from disciplinary proceedings. As a matter of fact, it can be argued that the CAS allows national sports governing bodies to evaluate the admissibility of match-fixing evidence less strictly than in criminal proceedings.

In general, the CAS is bound by Swiss law because it is domiciled in Switzerland. Therefore, the Swiss Federal Tribunal may annul the CAS awards if they are contrary to Swiss public policy. One could argue that a decision based on illegally obtained evidence violates Swiss public policy. Thus, the approach of the Swiss Federal Tribunal also needs to be taken into account. The Swiss Federal Tribunal discussed the admissibility of evidence in A. v The Football Federation of Ukraine. In this case, the appellant claimed that using illegally obtained evidence, violated Swiss public policy. As a response to this claim, the respondent (CAS) argued that there was an overriding public interest in preserving football’s integrity. Therefore, the evidence should have been admissible according to the CAS. The Swiss Federal Tribunal held that pursuant to Article 152(2) Swiss Private International Law Act (PILA), “illegally obtained evidence shall be considered only if there is an overriding interest in finding the truth”. In that particular case, the Swiss Federal Tribunal upheld the decision of the CAS and stated that if necessary to prove an instance of match-fixing, illegally obtained evidence was not inadmissible.

The Approach of Turkish Law against Match-Fixing

As explained above, the Act on the Prevention of Violence and Disorder in Sports and the Turkish Football Disciplinary Instruction contain significant provisions aimed at combating match-fixing. However, these rules say nothing about the admissibility of evidence. Pursuant to Article 38(6) Turkish Constitution, “findings obtained through illegal methods shall not be considered evidence”. Contrary to the PILA, the Turkish Constitution does not provide for exemptions. Additionally, Article 206(2) and 217(2) Turkish Criminal Procedure Code provide that illegally obtained evidence cannot be accepted by criminal courts in Turkey. Nevertheless, there is no definitive verdict about the admissibility of evidence in sporting disciplinary proceedings in Turkey. Furthermore, Turkish sports regulations do not contain specific rules for assessing the evidence in match-fixing allegations. Therefore, it can be argued that in Turkey, there is a loophole in disciplinary proceedings as to whether illegally obtained evidence is admissible or not.

Conclusion

The fight against match-fixing is vital for sports governing bodies. This article has demonstrated that UEFA, CAS, and the Swiss Federal Tribunal share the same view that illegally obtained evidence is not always inadmissible when used to evidence an instance of match-fixing. In my view, the Disciplinary Committee disregarded the approach of UEFA, CAS, and the Swiss Federal Tribunal, and instead followed the practice of the Turkish Criminal Court. Because match-fixing is also a breach of the Turkish Act on the Prevention of Violence and Disorder in Sports, it is the duty of criminal courts in Turkey to assess whether the evidence was obtained legally or not. However, as a disciplinary body, the Disciplinary Committee was not forced to deny the admissibility of illegally obtained evidence. I believe it should have followed the established practices of UEFA, FIFA, and the CAS, and assess the available evidence to determine whether it met the comfortable satisfaction standard of proof. Hence, based on the confession recorded in the YouTube video, the Disciplinary Committee should have decided that the individuals concerned, at a minimum, attempted to fix the match and it should have imposed the corresponding sanctions.   

___________________________

[1] Adam Lewis and Jonathan Taylor, Sport: Law and Practice (Bloomsbury, 3rd ed, 2014) 249.

[2] Michael J Beloff et al, Sports Law (Hart Publishing, Second edition, 2012) 188.

[3] Beşiktaş Jimnastik Kulübü v UEFA [2013] CAS 2013/A/3258 [119].

[4] Public Joint-Stock Company “Football Club Metalist” v. Union des Associations Européennes de Football (UEFA) & PAOK FC [2013] CAS 2013/A/3297 [8.8].

[5] Public Joint-Stock Company “Football Club Metalist” v. Union des Associations Européennes de Football (UEFA) & PAOK FC [2013] CAS 2013/A/3297 [2].

Editor's note: This is the second part/act of our blog series on the Russian eligibility cases at the CAS ad hoc Division in Rio.

• Act I: Saved by the Osaka Déjà-Vu

Act II: On being implicated

Paragraph 2 of the IOC Decision: “The IFs to examine the information contained in the IP Report, and for such purpose seek from WADA the names of athletes and National Federations (NFs) implicated. Nobody implicated, be it an athlete, an official, or an NF, may be accepted for entry or accreditation for the Olympic Games.”

The second, and by far largest, wave of complaints involved Russian athletes barred from the game under paragraph 2 of the IOC Decision. None of those were successful in their appeals as the CAS sided with those IFs which took a tough stance with regard to the Russian State doping system. The first set of cases turned on the definition of the word “implicated” in the sense of paragraph 2 of the IOC Decision. In this regard, on 2 August the IOC sent a communication to the IFs aiming at providing some general guidelines. It reads as follows:

"In view of the recent appeals filed by Russian Athletes with CAS, the IOC considers it necessary to clarify the meaning of the notion "implicated" in the EB Decision.

The IOC does not consider that each athlete referred to in the McLaren Lists shall be considered per se "implicated. It is for each International federation to assess, on the basis of the information provided in the McLaren lists and the Independent Person Report, whether it is satisfied that the Athlete in question was implicated in the Russian State-controlled doping scheme.

To assist the International Federations in assessing each individual case, the IOC wishes to provide some information. In the IOC's opinion, an athlete should not be considered as "implicated" where:

·       The order was a "quarantine".

·       The McLaren List does not refer to a prohibited substance which would 
have given rise to an anti-doping rule violation or;

·       The McLaren List does not refer to any prohibited substance with respect 
to a given sample."

The CAS went on to address this question concretely in three cases analysed below. [1]

A.    CAS OG 16/19 Natalia Podolskaya & Alexander Dyachenko v. ICF

Podolskaya and Dyachenko are two canoeists from Russia who were suspended by the International Canoe Federation (ICF) and removed from the Rio Games as they were deemed implicated in the IP Report. In an affidavit to the CAS, referred to in the award, Richard McLaren disclosed the facts that led to both athletes being considered implicated.

Regarding Podolskaya, McLaren indicated that he has retrieved electronic evidence that “reveals that on 31 July 2013 at 00:50 hours, in contravention of the International Standard for Laboratories, the Moscow Laboratory reported to email address av@sochi2014.com that sample member 2780289, belonging to a female canoe athlete taken at the Russian Championships in Moscow, was suspected for EPO and further inquired what should be done”.[2] In a quick response on 1 August 2013, Alexey Velikodniy, then vice-minister for sports, “communicated back to Laboratory that the sample number 2780289 belonged to Ms. Natalia Podolskaya and instructed the Laboratory to "SAVE"”.[3] Similarly, as far as Dyachenko is concerned, the “electronic evidence reveals that on 5 August 2014 at 12:09 hours, in contravention of the International Standard Laboratories, the Moscow Laboratory reported to Alexey Velikodniy that pre-departure sample number 2917734, collected at a Training Camp on 3 August 2014, contained a lot oftrenbolone and a little methenolone. Alexey Velikodny's response to the laboratory on 6 August 2014 at 1%:26 [sic] was that sample number 2917734 from 3 August 2014 pre-departure test belonging to Mr Alexander Dyachenko, and on instruction from "llR", should be a "SAVE".”[4] McLaren concludes that for both “Ms. Natalia Podolskaya and Alexander Dyachenko, the "SAVE" instruction signalled to the Laboratory that no further analytical bench work was to be done on the samples and the Laboratory filed a negative ADAMS report for each athlete”. [5]

In its assessment of the application of paragraph 2 of the IOC Decision by the ICF, the CAS Panel finds that the “Applicants were among five athletes so [as implicated in the IP Report] named” and that the “ICF was entitled to conclude that the Applicants failed to meet the criteria in paragraph 2”.[6] Moreover, this “conclusion has been reinforced by the evidence made available to the Panel by Professor Mclaren” and “is justified on the standard of comfortable satisfaction”.[7] The applicants, unsuccessfully, argued that they were never sanctioned for an anti-doping rule violation, and that the samples referred to in the IP Report cannot be tested anymore to prove their innocence. They also claimed that other contemporary samples returned negative and “that if they had used prohibited substances, all the tests would have returned positive”.[8] Nonetheless, WADA pointed out that “due to the nature of the substances concerned and the timing of the provision of the samples, this cannot be concluded”.[9] The Panel accepted “WADA's submission, not contradicted by the Applicants, that there are explanations consistent with the Applicant's assertion but also consistent with the taking of the prohibited substances at the relevant time”.[10]

Finally, the Russian applicants tried to fight their ineligibility under the implication criteria laid down in paragraph 2 of the IOC Decision by arguing that it was not compatible with natural justice.[11] Yet, The CAS refused to follow this line of reasoning. Instead, the Panel found that the “Applicants have challenged that decision in the CAS and have been given the opportunity to rebut that evidence”, thus they “have not been denied natural justice or procedural fairness”.[12]

B.    CAS OG 16/21 Elena Anyushina & Alexey Korovashkov v. ICF & RCF 

Anyushina and Korovashkov are also two canoeists from Russia. Similar to Podolskaya and Dyachenko, they were suspended on 26 July 2016 by the ICF and removed from the Rio Games as they were deemed implicated in the IP report. However, Anyushina was quickly reinstated and declared eligible to compete at the Games by the IOC.[13] The procedure was, consequently, limited to Korovashkov. He was deemed implicated because, as outlined by Richard McLaren in his affidavit:

"On 15 August 2014 at 09:22 hours, in contravention of the International Standard for Laboratories, the Moscow Laboratory reported to Alexey Velikodniy that sample number 2916461, collected 10 August 2014 in connection with an International Competition being held in Moscow, contained a lot of marijuana that was certainly above the threshold. (The /CF website reflects that the /CF Canoe Sprint World Championships took place in Moscow from the 8-10 August 2014)Alexey Velikodniy's response to the Laboratory on 18 August 2014 at 08:59 identified that sample number 2916461 belonged to Mr. Alexey Korovashkov and instructed that it should be a 'SAVE." Alexey Velikodniy also notes that Mr. Alexey sample is under investigation. Mr. Korovashkov's sample number 2916461 was reported negative in ADAMS."[14]

The Russian canoeist argued that the “evidence concerning the relevant sample on which the ICF relies to support its decision is unreliable”, because “there is no "threshold" provided for marijuana in WADA Technical Document TD 2013DL of 11 May 2013 concerning Decision Limits for the Confirmatory Quantification of Threshold Substances”.[15] In his view, “[i]f there is no threshold, it is unlikely that the laboratory would have provided such odd information to Alexey Velikodniy rather than reporting the threshold itself; the evidence does not resemble a laboratory report
Correspondence could not have been authored by the laboratory's employees, who are fully aware that they would be required to calculate and then state the actual result”.[16] The Panel rebutted this argument by pointing out that, in fact, the relevant WADA document included a threshold for Cannabinoids.[17] The Panel concluded that “the evidence is that the State sponsored doping system was applied to the Second Applicant so as to prevent a positive report of marijuana over the threshold for that substance”.[18] Consequently, Korovashkov was deemed implicated in the IP Report. The Panel did display its sympathy with the Russian athlete, as it pointed out that “[t]he ICF indicated that marijuana is not, in its view, a performance enhancing drug and the Panel notes that there is no suggestion of any other substance involved”.[19] 

The Panel further rejected Korovashkov argument that the ICF’s decision to declare him ineligible for the Rio Olympics amounted to a wrongful anti-doping sanction.[20] The applicant argued that the use of the word “suspended” in the original letter to the ICF was the terminology used under the WADA Code. The Panel finds that even though “suspended” “is a word used, and a sanction provided for, in the WADA Code, this does not mean that its inclusion means that the decision is made under that Code”.[21] Moreover, the CAS arbitrators consider it “clear that the letter was in direct response to the IOC Executive Board’s decision and concerned the eligibility of Russian athletes to compete in the Games of the XXXI Olympiad in Rio de Janeiro Games and to be accredited to those Games”. [22] Thus, it “was not a decision under the WADA Code and was not bound by the provisions of that Code”. [23] In other words, the Decision should not and could not be misconstrued as a doping ban based on the WADA Code, but found its legal basis in the IOC Decision and in Article 12.3 of the ICF Anti-doping Rules.

This case demonstrates the willingness of CAS arbitrators to adopt an objective reading of the notion of implication. If an athlete benefitted from the Russian doping scheme, even in case of a relatively harmless substance like cannabis, it was considered legitimate for an IF to remove him or her from Russia’s Olympic team.

C.    CAS OG 16/12 Ivan Balandin v. FISA & IOC

Ivan Balandin is a rower from Russia who was declared ineligible to compete at the Rio Olympics by the World Rowing Federation (FISA) on 27 July 2016, due to his implication in the IP Report. More precisely, he appears in the Report as having been “saved” by the Russian Deputy Minister of Sport and his test was later reported as negative in the ADAMS system.[24] 

The athlete first argued, as did Korovashkov, that this was an anti-doping sanction, which did not follow the appropriate procedure. WADA clarified “that the Athlete may yet face proceedings relating to an ADRV, however, the nature of these could yet to be determined [sic]”[25] and added that the “matter at hand concerns eligibility for the Rio Games”.[26] The Panel concurred and concluded that the “dispute at hand concerns the Athlete’s eligibility for the Rio Games alone”.[27]

The next question was whether Balandin was implicated in the IP Report. The Panel notes, as pointed out in the IOC letter from 2 August 2016, that a simple implication in the Report does not necessarily indicate that an athlete benefited from the State-doping scheme. In his defence, the athlete singled out that a date of collection was missing for the sample, in order to attack the validity of the information provided by McLaren. FISA responded that it had taken “the necessary steps to establish this date by calling UKAD”.[28] Moreover, Richard McLaren revealed in his amicus curiae “the exact date and times of the message from the Moscow Laboratory that the screen of the Athlete’s A sample revealed positive for the prohibited substance GW 1516 and the response from the Deputy Minister to change the positive into a negative, following the DPM” .[29] In any event, “the Panel is satisfied that the information provided to FISA and the additional checks it took with UKAD, were sufficient to show the Athlete was “implicated” in this scheme”.[30] The athlete was deemed implicated, but did he actually benefit from the scheme? The Panel “notes that the substance GW 1516 is a metabolic modulator and a non-specified substance and is prohibited at all times (without a threshold)”.[31] Additionally, “the instruction from the Deputy Minister was “save””[32]. Thus, the CAS arbitrators were “comfortably satisfied” that Balandin had benefitted from the scheme.

In all three cases, the athletes mentioned in the Report as ‘saved’ were recognized as implicated by the CAS. The court clearly distinguished the notion of implication from the fact that the athletes committed an anti-doping violation as defined by the WADA Code. However, it is unclear whether the arbitrators would have deemed an athlete implicated, if he or she was not named in the evidence provided by McLaren. As the disappearing positive methodology implemented by the Moscow laboratory was an ultima ratio, this still entails that many Russian athletes competing in Rio might have profited from Russia’s State doping scheme by escaping a positive test altogether. Hence, the IOC’s choice to narrow down on implicated athletes seems rather inadequate to tackle the generalized doping system unveiled by the IC and IP reports. 

[1] CAS OG 16/19 Natalia Podolskaya & Alexander Dyachenko v. ICF; CAS OG 16/21 Elena Anyushina & Alexey Korovashkov v. ICF & RCF; CAS OG 16/12 Ivan Balandin v. FISA & IOC. A fourth case, CAS OG 16/18 Kiril Sveshnikov et al. v. UCI & IOC, was declared inadmissible.

[2] CAS OG 16/19 Natalia Podolskaya & Alexander Dyachenko v. ICF, para. 2.11.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Ibid., para. 7.13.

[7] Ibid., para. 7.14.

[8] Ibid., para. 7.24.

[9] Ibid., para. 7.24.

[10] Ibid., para. 7.26.

[11] Ibid., paras 7.15-7.26.

[12] Ibid., para. 7.18.

[13] CAS OG 16/21 Elena Anyushina & Alexey Korovashkov v. ICF & RCF, para. 3.13.

[14] Ibid., para. 2.6.

[15] Ibid., para. 7.10.

[16] Ibid., para. 7.12.

[17] Ibid., paras 7.15-17.

[18] Ibid., para. 7.20.

[19] Ibid., para. 7.21.

[20] Ibid., paras 7.23-7.27.

[21] Ibid., para. 7.24.

[22] Ibid., para. 7.25.

[23] Ibid.

[24] CAS OG 16/12 Ivan Balandin v. FISA & IOC, para.2.9.

[25] Ibid., para. 7.13.

[26] Ibid.

[27] Ibid., para. 7.15.

[28] Ibid., para 7.28.

[29] Ibid., para 7.29.

[30] Ibid.

[31] Ibid., para 7.30.

[32] Ibid.

Day 1: FIFA must regulate TPO, not ban it.
Day 2: Third-party entitlement to shares of transfer fees: problems and solutions
Day 3: The Impact of the TPO Ban on South American Football.
Day 4: Third Party Investment from a UK Perspective.
Day 5: Why FIFA's TPO ban is justified.

On 22 December 2014, FIFA officially introduced an amendment to its Regulations on the Status and Transfers of Players banning third-party ownership of players’ economic rights (TPO) in football. This decision to put a definitive end to the use of TPO in football is controversial, especially in countries where TPO is a mainstream financing mechanism for clubs, and has led the Portuguese and Spanish football leagues to launch a complaint in front of the European Commission, asking it to find the FIFA ban contrary to EU competition law.

Next week, we will feature a Blog Symposium discussing the FIFA TPO ban and its compatibility with EU competition law. We are proud and honoured to welcome contributions from both the complainant (the Spanish football league, La Liga) and the defendant (FIFA) and three renowned experts on TPO matters: Daniel Geey ( Competition lawyer at Fieldfisher, aka @FootballLaw), Ariel Reck (lawyer at Reck Sports law in Argentina, aka @arielreck) and Raffaele Poli (Social scientist and head of the CIES Football Observatory). The contributions will focus on different aspects of the functioning of TPO and on the impact and consequences of the ban.

Before the five blogs (starting with the complainant, La Liga, on Tuesday) will be published next week on a daily basis, we have the pleasure to kick off today with a light introduction to TPO. At the end of next week we will synthesise the debate and provide our preliminary take on the ban’s compatibility with EU law.

With this exciting Blog Symposium on one of the hottest sports law topics, we celebrate the first anniversary of the ASSER International Sports Law Blog (last year’s opening blog is here). We hope you will enjoy the read and feel free to comment! 

What is TPO? 

The use of the notion of TPO is often criticized because it misrepresents the situation it purposes to qualify. Indeed, no third-party owns a player, but only a share of the “economic right” linked to the transfer of the player’s “federative right”[1]. This is why, as you will see later next week, some of our authors refuse to use the term and have opted for alternative concepts, such as TPE (third-party entitlements) or TPI (third-party investment). Due to our legal obsession with the written word, we will personally hold onto TPO as it is the notion enshrined in FIFA’s regulations.

Beyond this semantic debate, a plurality of contractual constellations is captured under the umbrella term TPO. What is common to all cases is that a company or an individual provides a football club or a player with money in return for being entitled to a share of a player’s future transfer value. Thus, TPO is enshrined in a separate private law contract between a third-party and a club or a player. The plurality of TPO situations derives from this contractual basis. The parties are free under national private law to creatively draft those contracts as they see fit, each one of them being a specific type of TPO in itself. 

The main aim of the practice is to finance clubs. Often TPO is used to externalise the costs of recruiting a player, sometimes it is used to finance the general functioning of a club. However, the use of TPO is always intimately connected to the drive of professional clubs to diversify their funding sources in order to leverage their competitiveness in national and international competitions. Nowadays, a club like Atletico Madrid would probably not have been able to reach the final of the Champions League or win La Liga without having widespread recourse to it.

What are the problems with TPO?

We do not want to spoil too much of next week’s discussion, but we need to at least mention the possible problems that have been linked with the use of TPO and that might serve as a potential justification for banning it. TPO is first and foremost seen as an intrusion of a third-party in the life of a football club and a player with the potential for an illegitimate influence on the management of the team and the player’s career. The many conflicts of interest that might arise in the shadow of multiple, sometimes contradictory, investments are particularly feared. TPO is also seen as a dubious financing technique used to circumvent the new UEFA Financial Fair Play regulations and to prop up clubs that are chronically in financial troubles. Finally, there is a moral dimension. For example, UEFA president Michel Platini likened TPO to a type of modern “slavery”. In short, should it be acceptable for someone to own a share of an economic right personally attached to a player? Can a player be forced-sold on the basis of a TPO agreement? All these issues will be discussed extensively next week; they are central to the evaluation of the ban’s compatibility with EU competition law. 

Regulating TPO or banning it? That is the question!

TPO has been banned for some time in England, France and Poland, while it was authorized in the rest of the World. The English FA, profoundly traumatized by the Carlos Tévez case, decided to ban the practice as early as 2008. In other countries, particularly Spain, Portugal and South America, TPO has been, and still is, part of the “football culture”. For example, it is estimated that in Brazil’s top division 90% of the players are subjected to a TPO agreement. In these countries TPO is seen as a necessity for national football clubs - not only to compete with clubs in richer countries, but also for professional football to be financially viable. It was no surprise that the leagues and clubs of the abovementioned countries were against a blanket ban of TPO and would rather see it being regulated. They consistently expressed this opposition during the FIFA Congress in June 2014 and the working groups created by FIFA in September 2014 with the aim of tackling the issue. Nonetheless, on 26 September the FIFA executive committee took the decision to ban third-party ownership of players’ economic rights (TPO) with a short transitional period. Following this announcement, the FIFA circular fleshing out the legal details of the ban was published on 22 December. Article 18bis of the Regulations on the Status and Transfers of Players was amended and the Regulations now include a new Article 18ter.[2] These new articles came into force on 1 January 2015 and, after a transition period, TPO will officially be banned as of 1 May 2015.

This total ban raises many practical and legal questions. What is to become of the already signed TPO agreements? Will the ban be fully enforced? Or, will creative schemes arise to circumvent it? Was there a less restricting alternative to attain its objective? And…is it compatible with EU competition law? 

The debate is open!

[1] The legal construction underlying TPO is clearly explained (unfortunately only in Italian) by Leandro Cantamessa in his article, ‘Un Tema Semi-Nuovo di Diritto Sportivo Internazionale: la Third Party Ownership (TPO)’, in L’Europa e lo sport (a cura di) S. Bastianon, G. Giappichelli Editore, 2014, pp.123-134.

[2] Article 18bis(1) will now read : “No club shall enter into a contract which enables the counter club/counter clubs, and vice versa, or any third party to acquire the ability to influence in employment and transfer-related matter its independence, its policies or the performance of its teams.”

Article 18ter:

1.      No club or player shall enter into an agreement with a third party whereby a third party is being entitled to participate, either in full or in part, in compensation payable in relation to the future transfer of a player from one club to another, or is being assigned any rights in relation to a future transfer or transfer compensation.

2.      The interdiction as per paragraph 1 comes into force on 1 May 2015.

3.      Agreements covered by paragraph 1 which predate 1 May 2015 may continue to be in place until their contractual expiration. However, their duration may not be extended.

4.      The validity of any agreement covered by paragraph 1 signed between 1 January 2015 and 30 April 2015 may not have a contractual duration of more than 1 year beyond the effective date.

5.      By the end of April 2015, all existing agreements covered by paragraph 1 need to be recorded within the Transfer Matching System (TMS). All clubs that have signed such agreements are required to upload them in their entirety, including possible annexes or amendments, in TMS, specifying the details of the third party concerned, the full name of the player as well as the duration of the agreement.

6.      The FIFA Disciplinary Committee may impose disciplinary measures on clubs or players that do not observe the obligations set out in this article.

This is a follow-up contribution to my previous blog on human rights implications of the Olympic Games published last week. Together with highlighting some of the most serious Olympic Games-related human rights abuses, the first part has outlined the key elements of the Host City Contract ('HCC') as one of the main legal instruments regulating the execution of the Olympic Games. It has also indicated that, in February 2017, the International Olympic Committee ('IOC') revised the 2024 HCC to include, inter alia, explicit human rights obligations. Without questioning the potential significance of inserting human rights obligations to the 2024 HCC, this second part will refer to a number of outstanding issues requiring clarification in order to ensure that these newly-added human rights obligations are translated from paper to actual practice.

Implementation of Agenda 2020 into the HCC 

In December 2014, the IOC Session unanimously approved Olympic Agenda 2020 ('Agenda 2020'), a set of 40 recommendations intended to protect the uniqueness of the Games and strengthen Olympic values in society. Agenda 2020 makes five specific recommendations with respect to the HCC which should have been taken into account as of the 2022 HCC concluded between the IOC on the one hand and the City of Beijing and the Chinese Olympic Committee on the other hand.[1]

Most importantly, Agenda 2020 encourages the IOC to include in the HCC clauses reflecting the prohibition of discrimination as well as the protection of environmental and labour-related rights.[2] Fundamental Principle 6 of the Olympic Charter, now also reflected in Article 13.2. (a) of the 2024 HCC, reads as follows: ''The enjoyment of the rights and freedoms set forth in this Olympic Charter shall be secured without discrimination of any kind, such as race, colour, sex, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth or other status.'' Non-discrimination on the basis of sexual orientation had been absent from the Olympic Charter prior to Agenda 2020. As far as environmental and labour-related matters are concerned, the Host City, the Host National Olympic Committee ('Host NOC') and the Organising Committee of the Olympic Games ('OCOG') are obliged under the 2024 HCC to ''ensure that their activities in relation to the organisation of the Olympic Games comply with any international agreements, laws and regulations applicable in the Host Country, with regard to planning, construction, protection of the environment, health and safety, labour and working conditions and cultural heritage''.[3] For the first time, the 2024 HCC also makes a specific reference to the United Nations' Sustainable Development Goals.[4]

In addition to promoting non-discrimination, environmental protection and labour-related rights, Agenda 2020 also fosters transparency by demanding the IOC to: (i) make the HCC public; (ii) disclose details of the IOC's financial contribution to the OCOG; and (iii) provide the HCC at the outset of a bidding procedure.[5] Moreover, Agenda 2020 suggests that entities other than the Host City and the Host NOC may become signatories to the HCC in line with the local context.[6]

What exactly has been added to the 2024 HCC?

As indicated above, the prohibition of discrimination,[7] and to a certain extent also the protection of labour-related rights,[8] appeared for the first time in the 2022 HCC, reflecting the recommendations laid down in Agenda 2020.[9] Moving to the 2024 HCC, the core human rights provision inserted therein demands that the Host City, the Host NOC and the OCOG in their activities related to the execution of the Games ''protect and respect human rights and ensure any violation of human rights is remedied in a manner consistent with international agreements, laws and regulations applicable in the Host Country and in a manner consistent with all internationally-recognized human rights standards and principles, including the United Nations Guiding Principles on Business and Human Rights, applicable in the Host Country''.[10] Of particular importance is the explicit reference to the United Nations Guiding Principles on Business and Human Rights ('UN Guiding Principles'), a non-binding legal framework intended to minimize adverse human rights impacts triggered by business activities. The UN Guiding Principles are based on three pillars, namely (i) the State duty to protect human rights; (ii) the corporate responsibility to respect human rights; and (iii) access to remedy.

The following sections will address some of the issues that remain outstanding even after the insertion of human rights obligations to the 2024 HCC.

No direct involvement of the Host Country

First and foremost, the Host Country itself is not directly obliged to protect and respect human rights under the 2024 HCC. Instead, the provision discussed above imposes human rights obligations on the Host City, the Host NOC and the OCOG. It is critical to note that the relevant provision requires the Host City, the Host NOC and the OCOG not only to respect, but also to protect human rights, suggesting that these entities shall take positive actions to facilitate the enjoyment of human rights. This begs the question whether the Host City, the Host NOC and the OCOG have the political, legal and financial capacity to effectively take such positive actions.

For instance, the Host City and the OCOG would be expected to include human rights obligations in their contracts with suppliers of public infrastructure and sporting facilities. However, even if they do so under the threat of contract's termination and further sanctions, it may not suffice to prevent Olympic Games-related human rights abuses from occurring. Unlike the Host Country Authorities, the Host City, the Host NOC and the OCOG do not possess the necessary powers to monitor and adjudicate the human rights compliance of their sub-contractors. Furthermore, much of the infrastructure build-up might be conducted by the Host Country directly and would therefore evade the scope of application of the HCC.

Who determines when human rights obligations are violated? 

In practice, human rights obligations arising out of a contractual relationship are not easy to deal with, because it might be rather difficult to decide whether they have been observed or not. For this reason, it is essential to entrust an independent body with competence to decide whether the Host City, the Host NOC or the OCOG have complied with their human rights obligations under the HCC. Unfortunately, the 2024 HCC in its current form does not stipulate who is responsible for adopting a decision determining that the Host City, the Host NOC and the OCOG are in breach of their human rights obligations. 

It follows that the IOC itself (via the Coordination or Legal Affairs Commission) may take on this inquisitorial and quasi-judicial role. However, this would lead a very interested party to monitor and adjudicate the human rights compliance of the Host City, the Host NOC and the OCOG. The potential for a conflict of interests is evident, as the IOC could face negative financial and other consequences if it decides to withdraw the Games from the Host City, the Host NOC and the OCOG. In this configuration, the incentives will therefore be strongly opposed to finding for a lack of compliance.

Instead, we could imagine a separate, truly independent body consisting of NGO members, athletes' representatives, union representatives, CAS arbitrators and independent experts (such as academics or judges at the European Court of Human Rights). This body could have an investigative and an adjudicative chamber (not unlike the FIFA Independent Ethics Committee), ensuring a separation between monitoring and adjudicating. Should the Host City, the Host NOC or the OCOG consider sanctions imposed under such a mechanism arbitrary, they might still activate the CAS arbitration clause[11] and challenge the validity of these sanctions before the CAS.

Will the sanctions contemplated by the HCC be effective? 

As explained in the first part of this blog, the most severe sanction contemplated by the HCC in the event of non-compliance is the withdrawal of the Games from the Host City, the Host NOC and the OCOG with prior notice.[12] It should be emphasized, however, that a removal of the Games would result in both financial and reputational harm being incurred by the IOC.[13] Therefore, it is arguable whether the IOC would in practice be ready to withdraw the Games. In fact, the IOC has withdrawn the Games so far only due to the outbreak of the First and Second World War, when the Games were cancelled altogether.[14] Being aware of the IOC's unwillingness to withdraw the Games, the Host City, the Host NOC and the OCOG may not perceive the threat of losing the Games as credible. Consequently, these entities may not feel obliged to adhere to their human rights obligations under the HCC.

With regard to other enforcement measures, the IOC is entitled, inter alia, to retain all amounts held in the General Retention Fund[15] or withhold any payment due, or grant to be made to the OCOG pursuant to the HCC.[16] By not providing the relevant financial contribution to the OCOG, the IOC would risk delays in construction and other preparatory works – something the IOC certainly wants to avoid. Eventually, these sanctions might prove to be as inefficient as the threat of losing the Games, given that the IOC may turn a blind eye to violations of the HCC in order to safeguard its financial and other interests. Besides financial considerations, the IOC's reluctance to impose sanctions on the Host City, the Host NOC and the OCOG follows from the fact that the IOC would thereby implicitly acknowledge its mistaken decision to award the Games to a particular Host City in the first place.

Conclusion

This blog has identified three specific concerns potentially relativizing the impact of the human rights obligations recently added to the 2024 HCC. First, the Host City, the Host NOC and the OCOG as the formal addresses of these obligations may not have the capacity to ensure the human rights compliance of their sub-contractors. Second, the 2024 HCC in its current form lacks clarity as to when the Host City, the Host NOC and the OCOG are in breach of their human rights obligations and who is responsible for adopting a decision to that effect. Third, being aware of the IOC's unwillingness to withdraw the Games due to financial and other interests involved, it is likely that the Host City, the Host NOC and the OCOG might refuse to abide by their human rights obligations under the HCC. This is not to say, however, that introducing human rights requirements is not an important step forward, but as always with this type of decisions the devil will be in the implementation.

[1]    The 2022 HCC was executed in Kuala Lumpur on 31 July 2015.

[2]    Agenda 2020; Recommendation 1.5.

[3]    2024 Host City Contract – Principles; Article 15.2. (b).

[4]    Ibid., Article 15.1.

[5]    Agenda 2020; Recommendations 1.6., 1.7., 1.10.

[6]    Ibid., Recommendation 1.9.

[7]    2022 Host City Contract; Preamble (L.).

[8]    Ibid., Article 21.

[9]    Agenda 2020; Recommendation 1.5.

[10]   2024 Host City Contract – Principles; Article 13.2. (b).

[11]   Ibid., Article 51.2.

[12]   Ibid., Articles 38.2., 38.3.

[13]   R. Gauthier, The International Olympic Committee, Law and Accountability, Routledge, 2017, at 144-145.

[14]   Ibid., at 144.

[15]   According to Article 8.2. (d) of the 2024 HCC, the General Retention Fund represents a percentage (5 %) of ''any sums of money or equivalent value-in-kind payable to the OCOG in relation to the International Programme''. It is maintained and controlled by the IOC.

[16]   2024 Host City Contract – Principles; Article 36.2. (a), (b).