Asser International Sports Law Blog

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

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

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


 

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

More...


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

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...

Gambling advertising regulations: pitfalls for sports sponsorship - By Ben van Rompuy

In April 2014, the Swedish Gambling Authority (Lotteriinspektionen) warned the organisers of the Stockholm Marathon that it would impose a fine of SEK 2 million (ca. € 221.000) for its sponsorship agreement with online betting operator Unibet. The Authority found that the sponsorship agreement violates §38 of the Swedish Lotteries Act, which prohibits the promotion of gambling services that are not authorized in Sweden.[1] The organisers, however, refused to withdraw Unibet as its sponsor and prominently displayed the Unibet logo at the event, which took place on 31 May 2014. As a result, the organisers of the Stockholm Marathon now face legal action before the Swedish administrative courts. More...

The FIFA Business – Part 1 – Where Does The Money Come From? - By Antoine Duval and Giandonato Marino

On next Thursday the 2014 World Cup will kick off in Sao Paulo. But next week will also see the FIFA members meeting on Tuesday and Wednesday at a much awaited FIFA congress. For this special occasion we decided to review FIFA’s financial reports over the last ten years. This post is the first of two, analysing the reports and highlighting the main economic trends at play at FIFA. First, we will study the revenue streams and their evolution along the 2003-2013 time span. In order to ensure an accurate comparison, we have adjusted the revenues to inflation, in order to provide a level playing field easing the comparative analysis over the years and types of revenues. Our first two graphs gather the main revenue streams into two comparative overviews. Graph 1 brings together the different types of revenues in absolute numbers, while Graph 2 lays down the share of each type of revenues for any given year (the others category covers a bundle of minor revenue streams not directly relevant to our analysis).

 

 


Graph 1: FIFA revenues in Millions of Dollars, 2003-2013 (adjusted for inflation). More...


Losing the UEFA Europa League on the Legal Turf: Parma FC’s bitter defeat by Giandonato Marino

This year the race for UEFA Europa League places in Serie A was thrilling. In the final minutes of the last game of the season, Alessio Cerci, Torino FC striker, had the opportunity to score a penalty that would have qualified his team to the 2014-2015 edition of the UEFA Europa League. However, he missed and Parma FC qualified instead. More...

Olympic Agenda 2020: Window Dressing or New Beginning?

Shortly after his election as IOC President, Thomas Bach announced his intention to initiate an introspective reflection and reform cycle dubbed (probably a reference to former German Chancellor Gerhard Schröder’s publicly praised Agenda 2010) the Olympic Agenda 2020. The showdown of a year of intense brainstorming is to take place in the beginning of December 2014 during an IOC extraordinary session, in which fundamental reforms are expected. More...

The French collective agreement for professional Rugby tackled by Kelsen’s Pyramid - Guest Post by Patrick Millot

Pursuant to Kelsen’s famous pyramid, the authority of norms may be ranked according to their sources: Constitution is above the Law, which is in turn superior to the Regulations, which themselves stand higher to the Collective Agreement etc…Under French labour law, this ranking can however be challenged by a “principle of favourable treatment” which allows a norm from a lower rank to validly derogate from a superior norm, if (and only if) this derogation benefits to the workers.

On 2 April 2014, the Cour de Cassation (the French Highest Civil Court) considered that these principles apply in all fields of labour law, regardless of the specificity of sport[1].  In this case, Mr. Orene Ai’i, a professional rugby player, had signed on 13 July  2007 an employment contract with the Rugby Club Toulonnais (RCT) for two sport seasons with effect on 1 July 2007. More...


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

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...


Asser International Sports Law Blog | The Russian Ballet at the CAS Ad Hoc Division in Rio - Act V: Saving the last (Russian) woman standing: The Klishina miracle

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 V: Saving the last (Russian) woman standing: The Klishina miracle

Editor's note: This is the (belated) fifth part/act of our blog series on the Russian eligibility cases at the CAS ad hoc Division in Rio. The other acts are available at:


Act V: Saving the last (Russian) woman standing: The Klishina miracle 

Darya Klishina is now an Olympic celebrity. She will enter the history books not because she won a gold medal or beat a world record. Instead, her idiosyncrasy lies in her nationality: she was the sole Russian athlete authorized to stand in the athletics competitions at the Rio Olympics. And yet, a few days before the start of the long jumping contest in which she was due to take part, the IAAF surprisingly decided to revoke her eligibility (‘And Then There Were None’). But Klishina appealed the decision to the CAS ad hoc Division and, as all of you well-informed sports lawyers will know, she was allowed to compete at the Olympics and finished at a decent ninth place of the long jump finals.

Two important questions are raised by this case:

  • Why did the IAAF changed its mind and decide to retract Klishina’s authorization to participate?
  • Why did the CAS overturn this decision?


A.    The IAAF’s second thoughts over the implication of Klishina

What happened between 9 July, when Klishina was first green lighted by the IAAF Doping Review Board (DRB) and 10 August when the DRB revoked its previous decision to let her compete? Basically, the publication of the McLaren Report, and especially evidence showing “that the Applicant had been directly affected and tainted by the State-organised doping scheme described in the IP Report”.[1] More concretely, according to the Report, Klishina was affected in the following three ways:

      i.   “a sample collected on 26 February 2014, yielding a T/E ratio of 8.5, had been subject to a "SAVE" order by the Ministry of Sport on 3 March 2014;

      ii.   a sample collected on 17 October 2014 and subsequently seized by WADA December 2014 was found to bear marks and scratches consistent with the removal of the cap and contained urine from the Applicant but also from another female athlete; and

      iii.  a sample collected on the occasion of the 2013 IAAF World Championships in Moscow was also found to bear marks and scratches consistent with the removal of the cap.”[2]

In its original decision, the DRB had reserved its right “to reconsider the Applicant’s case should information ever be brought to its attention (including but not limited to as a result of the current investigation being conducted by Professor McLaren on behalf of WADA) that the Doping Review Board considers is such as to undermine the basis upon which the application was accepted”.[3] Thus, unsurprisingly, the CAS acknowledged that the DRB had the competence to reconsider the eligibility granted to the athlete. Nonetheless, surprisingly, it found that such reconsideration was not legitimate in light of the new information gathered.


B.    The surprising decision of CAS to let Klishina jump

Klishina won in front of the CAS. From the outset this is a surprising decision, since she was at least as implicated in the IP Report as numerous other Russian athletes who were barred from entering the Games.[4] Indeed, she had clearly profited from being “saved” by the Russian Ministry of Sport. So why on earth would the CAS decide to let her jump?

This decision is intimately linked with the legal basis of the original decision of the DRB. Despite the repeated view of the IOC that the IAAF policy was stricter than its own,[5] the Klishina case demonstrates that this is not universally true in practice. The main point was that the IAAF’s DRB had recognized that since 1 January 2014, Klishina “had been subject to fully compliant drug testing in- and out-of-competition”[6] and therefore fulfilled the criteria enshrined in the IAAF Competition rule 22.1A(b). This was based on the following factual findings:

  • “The fact that she had spent 632 days out of Russia, being 86.6% of her time, in the Relevant Period;
  • She had relocated permanently to the United States in March 2014 and had been trained under a US coach since October 2013;
  • She regularly competes in competitions on the international circuit;
  • A total of 11 samples had been collected from the Applicant outside of Russia in the Relevant Period;
  • 1 sample had been collected by the IAAF since June 2016 and sent for analysis by a laboratory outside of Russia.”[7]

The question is then whether the new information, indicating that Klishina was implicated and benefitted from the Russian doping scheme, recognized as valid by the Panel[8], could justify revisiting the first decision. In other words, could this new information lead to reconsidering the eligibility of Klishina under the regime of IAAF Competition rule 22.1A(b) on which the original decision was based? To assess this, the Panel starts by pointing out that the rule “is not the same as the decision of the IOC Executive Board made after the publication of the IP Report. (…) As the parties agreed, the IOC Executive Board decision is not in evidence in this case and decisions of the Ad hoc Panel of the CAS for the Games of the XXXI Olympiad in Rio de Janeiro as to the application of, or the terms of, the IOC Executive Board decision are not applicable”.[9]

The CAS Panel insists that the IAAF’s DRB “was comfortably satisfied that during the Relevant Period the Applicant satisfied each of the criteria set out in the Rule for exceptional eligibility, notwithstanding the suspension of the National Federation”.[10] Furthermore, “in making its findings, the DRB was aware of, and took no account of, tests conducted in Russia and that it was cognisant of inadequacies in the system of testing in Russia, for which RusAF had been suspended”.[11] Those are decisive conclusions that will lead to the second decision being set aside. The CAS Panel was of the view “that the conclusion reached in the Second Decision, and the basis for that decision, are not in accordance with the Rule which was purportedly invoked”.[12] It is so, because “the further evidence considered by the DRB for the purposes of the Second Decision did not undermine its finding in the First Decision that the Applicant was eligible to compete by reason of her compliance with the Rule”.[13] This analysis leads to an unfair solution as the undisputed evidence points at Klishina profiting not once but on three occasions from the Russian doping scheme and still this evidence is not considered as relevant to reconsider the IAAF’s original decision to let her jump.

This decision is grounded on the following legal reasoning: the Panel considers that the “implication [of Klishina in the State-doping system] is not relevant to the application of criteria which, if fulfilled, mean that for the purposes of the Rule [22 IAAF], the Applicant is not affected or tainted by the failures of the National Federation”.[14] The CAS Panel is of the view that the IAAF Rule “provides for a mechanism or a basis by which an athlete is granted exceptional eligibility”.[15] And this “mechanism is fulfilment of the two criteria which, for this athlete, was established by the DRB in the First Decision”.[16] Thus, the “fact that the athlete was subjected to or the subject of drug testing that was not fully compliant during the Relevant Period does not derogate from the fact that she was, during the Relevant Period (that is, ‘a sufficiently long period’), subject to fully compliant drug testing in- and out-of- competition by reason of the fact that she was during that time training in and resident in the United States and not in Russia”.[17] Additionally, “there is no evidence to suggest that the testing that she was subject to was other than equivalent in quality to the testing to which her competitors were subject”.[18] In other words, “an athlete may have undergone non-compliant testing while concurrently being subject to fully compliant testing and still fulfil the second criterion”.[19] This is comforted by the fact “that the Rule is addressed to the suspension of any International Federation for failure to put in place an adequate system and the impact on the eligibility of the athlete” and the “criteria are directed to the establishment by an athlete that he or she is outside the country of his or her National Federation during the Relevant Period”.[20] Hence, it “is not addressed to the implication of an athlete in a defective system”.[21] Instead, “it states that an athlete is taken not to be affected or tainted by the action of the National Federation if he or she was subject to other, compliant systems outside of the country”.[22] In a nutshell, for the CAS Panel, the “relevant question is not whether the athlete was affected by the Russian System, or how, or whether she had knowledge of the way in which the system worked”.[23] No, the only question is “whether she fulfilled the criteria of the Rule”.[24] And the answer to that question is: she did early July; and she still does in August!

This case is disconcerting as it contradicts the line of cases regarding the implication of athletes in the IP Report discussed a few days ago. The CAS relied on the ambiguous wording of the IAAF provision to offer an escape route to Klishina. In doing so, it disregarded the spirit and objective of the provision, which was to provide a mechanism for athletes who were not personally tainted by the Russian doping scandal to participate in IAAF competitions. Yet, another aspect of the case is even more bizarre. Why did the IOC not block the eligibility of Klishina on the basis of paragraph 2 of the IOC Decision? She was undoubtedly implicated and benefited from the scheme. In fact, only one of the three sources of implication provided by McLaren should (and would) have been enough for the IOC Review Panel and the CAS arbitrator reviewing her eligibility to discard her from the Olympics. It did not happen, Zeus only knows why…

 

Epilogue

These five blogs have discussed the awards rendered by the CAS ad hoc Division in Rio involving Russian athletes wishing to compete at the Olympics. In general, the CAS has been willing, with few exceptions (Efimova and Klishina), to approve the ineligibility of Russian athletes. Rightfully, in my view, the CAS has supported the IFs that have opted for a strict approach in dealing with the eligibility of Russian athletes for the Rio Olympics. The CAS has also unsurprisingly rebutted the blunt rule of the IOC excluding Russian athletes who were previously sanctioned for doping. But, it has surprisingly let Klishina jump, in spite of all the factual elements pointing at her being implicated in, and having profited from, the Russian State-doping scheme. Overall, the CAS ad hoc Division has served its purpose as a review instance well, forcing the IFs and the IOC to properly justify their decisions and providing an avenue for the Russian athletes to be heard.

These cases also highlight the variety/plurality of responses to the Russian doping scandal and its impact on the eligibility of Russian athletes for the Rio Olympics. It seems that some IFs have taken WADA’s call for a strong response of the SGBs seriously. Unfortunately, and this is one of the negative consequences of the IOC’s decision to not decide, due to a lack of information, it is impossible to assess the different policies of the IFs which have not faced (due to their reluctance to act or else) a challenge of their eligibility decisions in front of the CAS ad hoc Division. In light of recent revelations concerning the International Swimming Federation (FINA) it is likely that a number of IFs decided to interpret narrowly the IOC criteria and waved through the overwhelming majority of Russian athletes without a proper check.

Finally, the awards show that CAS arbitrators would have been ready to condone a general exclusion of Russian athletes, with a narrow exception for those not tainted by the scandal or who could not benefit from the scheme because they were residing outside of the Russian Federation (this is very much the position adopted in the recent decision of the CAS in the dispute between the Russian Paralympic Committee and the International Paralympic Committee). The CAS recognized the seriousness of the situation and the collective responsibility of Russian sports organizations. It seemed also ready to follow up on this collective responsibility by endorsing collective sanctions that would most likely have been found compatible with the Russian athletes ‘natural rights’. Hence, ultimately, the IOC’s decision to let the Russian athletes compete at the Rio Olympics may have been politically unavoidable, but was certainly not legally mandated. I leave you to appreciate whether this decision is compatible with the IOC’s proclaimed fundamental values and its commitment to enforcing the World Anti-Doping Code. What is certain, however, is that the World Anti-Doping System needs an overhaul (for some reform proposals/directions see here) sooner rather than later.


[1] CAS OG 16/24 Darya Klishina v. IAAF, para. 2.12.

[2] Ibid.

[3] Ibid., para. 2.8.

[4] See Act II of this blog series.

[5] See CAS OG 16/13 Anastasia Karabelshikova and
Ivan Podshivalov v. 
World Rowing Federation (FISA)
and
International Olympic Committee (IOC), para. 7.14 and CAS OG 16/12 Ivan Balandin v. FISA & IOC, para. 7.22.

[6] CAS OG 16/24 Darya Klishina v. IAAF, para. 7.3.

[7] Ibid., para. 7.14.

[8] Ibid., paras 7.40-45.

[9] Ibid., para. 7.24.

[10] Ibid., para. 7.34.

[11] Ibid., para. 7.35.

[12] Ibid., para. 7.46.

[13] Ibid.

[14] Ibid., para. 7.56.

[15] Ibid.

[16] Ibid.

[17] Ibid., para. 7.57.

[18] Ibid.

[19] Ibid., para. 7.58.

[20] Ibid., para. 7.60.

[21] Ibid.

[22] Ibid.

[23] Ibid.

[24] Ibid.

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