Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Olympic Agenda 2020: To bid, or not to bid, that is the question!

This post is an extended version of an article published in August on hostcity.net.

The recent debacle among the candidate cities for the 2022 Winter Games has unveiled the depth of the bidding crisis faced by the Olympic Games. The reform process initiated in the guise of the Olympic Agenda 2020 must take this disenchantment seriously. The Olympic Agenda 2020 took off with a wide public consultation ending in April and is now at the end of the working groups phase. One of the working groups was specifically dedicated to the bidding process and was headed by IOC vice-president John Coates.  More...

The CAS jurisprudence on match-fixing in football: What can we learn from the Turkish cases? - Part 2: The procedural aspects. By Thalia Diathesopoulou

With this blog post, we continue the blog series on Turkish match-fixing cases and our attempt to map the still unchartered waters of the CAS’s match-fixing jurisprudence.

The first blog post addressed two issues related to the substance of match-fixing disputes, namely the legal characterization of the match-fixing related measure of ineligibility under Article 2.08 of the UEL Regulations as administrative or disciplinary measure and the scope of application of Article 2.08. In addition, The Turkish cases have raised procedural and evidentiary issues that need to be dealt with in the framework of match-fixing disputes.

The CAS panels have drawn a clear line between substantial and procedural matters. In this light, the Eskişehirspor panel declared the nature of Article 2.08 UEL Regulations to be administrative and rejected the application of UEFA Disciplinary Regulations to the substance. Nonetheless, it upheld that disciplinary rules and standards still apply to the procedure. This conclusion, however, can be considered puzzling in that disciplinary rules apply to the procedural matters arising by a pure administrative measure. To this extent, and despite the bifurcation of different applicable rules into substantial and procedural matters, the credibility of the qualification of Article 2.08 as administrative seems to be undermined. And here a question arises: How can the application of rules of different nature to substantial and procedural matters in an identical match-fixing dispute be explained?More...

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

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...

The CAS jurisprudence on match-fixing in football: What can we learn from the Turkish cases? - Part 1 - By Thalia Diathesopoulou

The editor’s note:

Two weeks ago we received the unpublished CAS award rendered in the Eskişehirspor case and decided to comment on it. In this post Thalia Diathesopoulou (Intern at the ASSER International Sports Law Centre) analyses the legal steps followed and interpretations adopted by CAS panels in this case and in a series of other Turkish match-fixing cases. The first part of the post will deal with the question of the legal nature of the ineligibility decision opposed by UEFA to clubs involved in one way or another into match-fixing and with the personal and material scope of UEFA’s rule on which this ineligibility is based. The second part is dedicated to the procedural rules applied in match-fixing cases.


Introduction

The unpredictability of the outcome is a sine qua non feature of sports. It is this inherent uncertainty that draws the line between sports and entertainment and triggers the interest of spectators, broadcasters and sponsors. Thus, match-fixing by jeopardising the integrity and unpredictability of sporting outcomes has been described, along with doping, as one of the major threats to modern sport.[1] More...


Sport and EU Competition Law: uncharted territories - (I) The Swedish Bodybuilding case. By Ben Van Rompuy

The European Commission’s competition decisions in the area of sport, which set out broad principles regarding the interface between sports-related activities and EU competition law, are widely publicized. As a result of the decentralization of EU competition law enforcement, however, enforcement activity has largely shifted to the national level. Since 2004, national competition authorities (NCAs) and national courts are empowered to fully apply the EU competition rules on anti-competitive agreements (Article 101 TFEU) and abuse of a dominant position (Article 102 TFEU).

Even though NCAs have addressed a series of interesting competition cases (notably dealing with the regulatory aspects of sport) during the last ten years, the academic literature has largely overlooked these developments. This is unfortunate since all stakeholders (sports organisations, clubs, practitioners, etc.) increasingly need to learn from pressing issues arising in national cases and enforcement decisions. In a series of blog posts we will explore these unknown territories of the application of EU competition law to sport.More...

The Legia Warszawa case: The ‘Draconian’ effect of the forfeiture sanction in the light of the proportionality principle. By Thalia Diathesopoulou

The CAS denial of the urgent request for provisional measures filed by the Legia Warszawa SA in the course of its appeal against the UEFA Appeals Body Decision of 13 August 2014 put a premature end to Legia’s participation in the play-offs of the UEFA Champion’s League (CL) 2014/2015. Legia’s fans- and fans of Polish football - will now have to wait at least one more year to watch a Polish team playing in the CL group stage for the first time since 1996. More...

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

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...

UEFA Financial Fair Play Regulations Put PSG and Manchester City on a Transfer Diet

The main lesson of this year’s transfer window is that UEFA’s Financial Fair Play (FFP) rules have a true bite (no pun intended). Surely, the transfer fees have reached usual highs with Suarez’s move to FC Barcelona and Rodriguez’s transfer from AS Monaco to Real Madrid and overall spending are roughly equal to 2013 (or go beyond as in the UK). But clubs sanctioned under the FFP rules (prominently PSG and Manchester City) have seemingly complied with the settlements reached with UEFA capping their transfer spending and wages. More...

Right to Privacy 1:0 Whereabouts Requirement - A Case Note on a Recent Decision by the Spanish Audiencia Nacional

On the 24th June 2014 the Spanish Audiencia Nacional issued its ruling on a hotly debated sports law topic: The whereabouts requirements imposed to athletes in the fight against doping. This blog aims to go beyond the existing commentaries (here and here) of the case, by putting it in the wider context of a discussion on the legality of the whereabouts requirements. More...

The Rules of the Electoral Game for the FIFA 2015 Presidential Elections

After the success of this year’s World Cup in Brazil, FIFA President Sepp Blatter can start concentrating on his Presidential campaign for next June’s FIFA elections. Even though the 78-year old Swiss is not officially a candidate yet, he is still very popular in large parts of the world, and therefore the favourite to win the race. Nonetheless, even for the highly experienced Mr. Blatter these elections will be different. All candidates will have to respect the newly introduced Electoral Regulations for the FIFA PresidencyMore...

Asser International Sports Law Blog | The Russian Ballet at the CAS Ad Hoc Division in Rio - Act III: On being sufficiently tested

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

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

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.

Comments are closed