Asser International Sports Law Blog

I. Literature

1. Antitrust/Competition Law and Sport

G Basnier, ‘Sports and competition law: the case of the salary cap in New Zealand rugby union’, (2014) 14 The International Sports Law Journal 3-4, p.155

R Craven, ‘Football and State aid: too important to fail?’ (2014) 14 The International Sports Law Journal 3-4, p.205

R Craven, ‘State Aid and Sports Stadiums: EU Sports Policy or Deference to Professional Football’ (2014) 35 European Competition Law Review Issue 9, 453

2. Intellectual Property Rights in Sports law / Betting rights/ Spectators’ rights/ Sponsorship Agreements

Books

W T Champion and K DWillis, Intellectual property law in the sports and entertainment industries (Santa Barbara, California; Denver, Colorado; Oxford, England: Praeger 2014)

J-M Marmayou and F Rizzo, Les contrats de sponsoring sportif (Lextenso éditions 2014)

More...

Yesterday, the European Commission stunned the European Sports Law world when it announced unexpectedly that it had signed a “partnership agreement” with UEFA named (creatively): ‘The Arrangement for Cooperation between the European Commission and the Union of European Football Associations (UEFA)’. The press release indicates that this agreement is to “commit the two institutions to working together regularly in a tangible and constructive way on matters of shared interest”. The agreement was negotiated (as far as we know) secretly with UEFA. Despite recent meetings between EU Commissioner for sport Vassiliou and UEFA President Platini, the eventuality of such an outcome was never evoked. It is very unlikely that third-interested-parties (FIFPro, ECA, Supporters Direct etc.) were consulted in the process of drafting this Arrangement. This surprising move by an outgoing Commission will be analysed in a three-ponged approach. First, we will discuss the substance of the Arrangement (I). Thereafter, we will consider its potential legal value under EU law (II). Finally, and maybe more importantly, we will confront the political relevance of the agreement (III). More...

This is the second part of a blog series on the Real Madrid State aid case. In the previous blog on this case, an outline of all the relevant facts was provided and I analysed the first criterion of Article 107(1) TFEU, namely the criterion that an advantage must be conferred upon the recipient for the measure to be considered State aid. Having determined that Real Madrid has indeed benefited from the land transactions, the alleged aid measure has to be scrutinized under the other criteria of Article 107(1): the measure must be granted by a Member State or through State resources; the aid granted must be selective; and it must distorts or threatens to distort competition. In continuation, this blog will also analyze whether the alleged aid measure could be justified and declared compatible with EU law under Article 107(3) TFEU.More...

This is the first part of a blog series involving the Real Madrid State aid case.

Apart from being favoured by many of Spain’s most important politicians, there have always been suspicions surrounding the world’s richest football club regarding possible financial aid by the Madrid City Council. Indeed, in the late 90’s a terrain qualification change by the Madrid City Council proved to be tremendously favourable to the king’s club. The change allowed Real Madrid to sell its old training grounds for a huge sum. Though the exact price for the grounds remains unknown, Real Madrid was suddenly capable of buying players like Figo and Zidane for record fees. However, the European Commission, even though agreeing that an advantage was conferred to the club, simply stated that the new qualification of the terrain in question does not appear to involve any transfer of resources by the State and could therefore not be regarded as State aid within the meaning of article 107 TFEU.

Agreements between the club and the Council have been a regularity for the last 25 years. A more recent example concerns an agreement signed on 29 July 2011 (Convenio29-07-2011.pdf (8MB). More...

After a decade of financial misery, it appears that Valencia CF’s problems are finally over. The foreign takeover by Singaporean billionaire Peter Lim will be concluded in the upcoming weeks, and the construction on the new stadium will resume after five years on hold due to a lack of money. On 3 June Bankia, the Spanish bank that “saved” Valencia CF in 2009 by providing a loan of €81 million, gave the green light for the takeover. However, appearances can be deceiving.More...

Yesterday, the press revealed that the European Commission decided to reject the complaint filed by Jean-Louis Dupont, the former lawyer of Bosman, on behalf of a player agent Striani, against the UEFA Financial Fair Play (FFP) Regulations. The rejection as such is not a surprise. The Commission had repeatedly expressed support of the principles underlying the UEFA FFP. While these statements were drafted vaguely and with enough heavy caveats to protect the Commission from prejudicing a proper legal assessment, the withdrawal of its support would have been politically embarrassing.

Contrary to what is now widely assumed, this decision does not entail that UEFA FFP regulations are compatible with EU Competition Law. UEFA is clearly the big victor, but the legal reality is more complicated as it looks. More...

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

Act III: On being sufficiently tested

Paragraph 2 of the IOC Decision: “The IFs should carry out an individual analysis of each athlete’s anti-doping record, taking into account only reliable adequate international tests, and the specificities of the athlete’s sport and its rules, in order to ensure a level playing field.”

Daniil Andienko and 16 other members of the Russian rowing team challenged the decision of the World Rowing Federation (FISA) to declare them ineligible for the Rio Olympics. The FISA Executive Committee took the decision on 24 July 2016 because they had not “undergone a minimum of three anti-doping tests analysed by a WADA accredited laboratory other than the Moscow laboratory and registered in ADAMS from 1 January 2015 for an 18 month period”.[1] In their submissions, the Russian applicants did not challenge the IOC Decision, and thus the criteria enshrined in paragraph 2, but only its application by FISA.[2] The Russian athletes argued that FISA’s decision deviated from the IOC Decision in that it was imposing as an additional requirement that rowers must “have undergone a minimum of three anti-doping tests analysed by a WADA accredited laboratory other than the Moscow laboratory and registered in ADAMS from 1 January 2015 for an 18-month period”.[3] The Panel acknowledged that “the IOC Executive Board decision does not refer explicitly to the requirement of three tests or to a period of 18 months”.[4] Nonetheless, it “finds that the Challenged Decision is in line with the criteria established by the IOC Executive Board decision”.[5] Indeed, the IOC’s Decision “provides that in order to examine whether the level playing field is affected or not (when admitting a Russian athlete to the Rio Olympic Games), the federation must look at the athlete's respective anti-doping record, i.e. examine the athlete's anti-doping tests” and that “[i]n doing so, the IOC Executive Board decision specifies that only "reliable adequate international tests" may be taken into account”.[6] In this regard, the Panel, and FISA, share the view that “a reliable adequate international test can only be assumed if the sample has been analyzed in a WADA-accredited laboratory outside Russia”.[7]

Finally, with regard to the need of having three tests, the “relevant paragraph in the IOC Executive Board decision further refers to "adequate international tests" and, consequently, makes it clear that - in principle - a single test is not sufficient to rebut the presumption of “collective responsibility””.[8] This follows “from the word “tests” being used in the plural form, but also from the word "adequate", since a single negative anti-doping test can hardly be adequate to rebut the presumption of “collective responsibility””.[9] The CAS also points out a number of other reasons why three tests is a rational benchmark:

“[…]rowing is at the same time a sport requiring strength and endurance and, thus, is exposed to a significant doping threat”;
There is “a history of doping cases in the Russian Rowing Federation”;
FISA “took also into consideration WADA's "Guidelines Implementing an Effective TestingProgramme'', which refers to a minimum of three tests per year for Registered Testing Pool athletes”;
“FISA also bore in mind that it only provides for a relatively small number of events where tests can be carried out compared to other sports”.[10]

Hence, “FISA's implementation and application of the criteria listed in the IOC Executive Board decision is consistent and fully compliant with the wording and the spirit of the IOC's decision”.[11] The CAS Panel rejected the pleas brought forward by the athletes on the basis of natural justice and fundamental procedural principles, as they did not challenge the IOC Decision directly but only its implementation.

Surprisingly, FISA was the only Federation (alongside the IAAF), which systematically refused entry to Russian athletes because they were not exposed to proper independent anti-doping testing. It is likely that, had each IF imposed similar standards, few Russian athletes would have been able to participate in the Rio Games. Furthermore, the case also highlights once again that the CAS was ready to endorse a strict standards of eligibility for Russian athletes. Here again, the IOC could very well have decided to impose a similar condition across the board, instead of leaving each federation decide for itself and, thus, indirectly promoting differentiated treatments depending on the sporting discipline.

[1]CAS OG 16/11 Daniil Andrienko et al. v. FISA & IOC, para. 2.6.

[2] Ibid., para. 7.3.

[3] Ibid., para.7.4.

[4] Ibid., para.7.5.

[5] Ibid.

[6] Ibid., para. 7.6.

[7] Ibid.

[8] Ibid., para. 7.7.

[9] Ibid.

[10] Ibid.

[11] Ibid.

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the

The International Sports Law Digest – Issue II – July-December 2014

I. Literature

The new “Arrangement” between the European Commission and UEFA: A political capitulation of the EU

The EU State aid and Sport Saga – A blockade to Florentino Perez’ latest “galactic” ambitions (part 2)

The EU State aid and Sport Saga – A blockade to Florentino Perez’ latest “galactic” ambitions (part 1)

The EU State aid and Sport Saga - A legal guide to the bailout of Valencia CF

UEFA may have won a battle, but it has not won the legal war over FFP

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the

The Russian Ballet at the CAS Ad Hoc Division in Rio - Act III: On being sufficiently tested

I. Literature

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