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

Revisiting FIFA’s Training Compensation and Solidarity Mechanism - Part. 3: The Curious Non-Application of Training Compensation to Women’s Football – By Rhys Lenarduzzi

Editor’s note: Rhys Lenarduzzi is a final semester Bachelor of Law (LL.B) and Bachelor of Philosophy (B.Phil.) student, at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.

 

As recently as September 2020, questions were raised in the European Parliament on the non-application of training compensation to women’s football. Whilst this blog will predominantly consider potential inconsistencies in reasoning for and against training compensation in men’s and women’s football, the questions before the Commission were largely on the theme of disrespect and discrimination. Somewhat unfortunately, the questions raised were side-stepped, with Ms Gabriel (Commissioner for Innovation, Research, Culture, Education and Youth) simply stating that: “The TFEU does not give the Commission the competence to interfere in the internal organisation of an independent international organisation such as FIFA.” This might be true in theory, though one might feel some degree of uneasiness if privy to the Commission’s role in the 2001 FIFA regulatory overhaul.

It is currently explicit in the regulations and the commentary, that in women’s football, signing clubs are not required to compensate training clubs for developing players, through the training compensation mechanism that exists in men’s football. Though it is a contentious comment and as will be expanded below, this may not have always been the case.

At Article 20 of the FIFA Regulations on the Status and Transfer of Players (RSTP), one will find that the principles of training compensation shall not apply to women’s football. Further, in FIFA’s recently released Women’s Football Administrator Handbook (the handbook), it states that disputes relating to training compensation are limited for the moment to male players only.[1]

Regulations on solidarity contributions on the other hand do apply to women’s football, but given transfer fees are not so common, the use of the mechanism is not either. As an indication of how uncommon the activation of the solidarity contribution mechanism in women’s football might be, FIFA reported in the handbook just four claims with the Players’ Status Department in 2016 (three claims involving the same player), and zero since.[2] That is in comparison to hundreds of claims made per season in men’s football, where signing and owing clubs had not fulfilled their obligation to pay the solidarity contribution.

Given the aforementioned, this blog will largely focus on training compensation and how it came to be the case that this mechanism, often presented as critical in the context of men’s football, does not apply in women’s football. To do so, I will first discuss the reasoning advanced in an unpublished CAS award, which one may reasonably suspect played a fundamental role in shaping the current exemption. I will then turn to FIFA’s timely response to the award and the adoption of its Circular No. 1603. Finally, I will point out the disconnect in FIFA’s decision to adopt two radically different approaches to the issue of training compensation in male and female professional football. More...


New Event! Zoom In on Transnational Sports Law - Blake Leeper v. IAAF - 4 December at 4pm (CET)

The Asser International Sports Law Centre in collaboration with Dr Marjolaine Viret is launching a new series of zoom webinars on transnational sports law: Zoom In. The first discussion (4 December at 16.00) will zoom in on the recent arbitral award delivered by the Court of Arbitration for Sport (CAS) in the Blake Leeper v. International Association of Athletics Federations (IAAF) case.

In this decision, reminiscent of the famous Pistorius award rendered a decade ago, the CAS panel ruled on the validity of an IAAF rule that places the burden on a disabled athlete to prove that a mechanical aid used to compete in IAAF-sanctioned competitions does not give them an overall competitive advantage. While siding with the athlete, Blake Leeper, on the burden of proof, the CAS panel did conclude that Leeper’s prosthesis provided him an undue advantage over other athletes and hence that the IAAF could bar him from competing in its events.

To reflect on the key aspects of the decision and its implications, we have invited scholars with different disciplinary backgrounds to join the zoom discussion. 

Confirmed guests

 Moderators


The webinar is freely available, but registration here is necessary.

Last call to register to the 2021 edition of the Sports Law Arbitration Moot - Deadline 1 December

Dear all,

Our Slovenian friends (and former colleague) Tine Misic and Blaž Bolcar are organising the second edition of the Sports Law Arbitration Moot (SLAM).

The best four teams of the SLAM competition will compete in the finals, which will be held in Ljubljana, Slovenia, on 30th and 31st March, 2021.

This is a great opportunity for students to familiarise themselves with the world of sports arbitration, to meet top lawyers and arbitrators in the field, and to visit beautiful Ljubljana.

Go for it!

You'll find more information and can register at https://sportlex.si/slam/en

Pistorius revisited: A comment on the CAS award in Blake Leeper v. IAAF - By Marjolaine Viret

On 23 October 2020, a panel of the Court of Arbitration for Sport (‘CAS’) rendered an award in the matter opposing Mr Blake Leeper (‘Mr Leeper’ or ‘the Athlete’) to the International Association of Athletics Federation (‘IAAF’).[1] The CAS panel was asked to make a ruling on the validity of the IAAF rule that places on a disabled athlete the burden to prove that a mechanical aid used to compete in IAAF-sanctioned competitions does not give such athlete an overall competitive advantage.

The award is remarkable in that it declared the shift of the burden of proof on the athlete invalid, and reworded the rule so that the burden is shifted back on the IAAF to show the existence of a competitive advantage. Thus, while the IAAF won its case against Blake Leeper as the panel found that the sport governing body had discharged its burden in casu, the outcome can be viewed as a victory for disabled athletes looking to participate in IAAF-sanctioned events. It remains to be seen how this victory will play out in practice. Beyond the immediate issue at stake, the case further presents an illustration of how – all things equal – assigning the burden of proof can be decisive for the real-life impact of a policy involving complex scientific matters, as much as the actual legal prerequisites of the underlying rules.

This article focuses on some key aspects of the award that relate to proof issues in the context of assessing competitive advantage. Specifically, the article seeks to provide some food for thought regarding burden and degree of proof of an overall advantage, the contours of the test of ‘overall advantage’ designed by the CAS panel and its possible bearing in practice, and potential impact of the ruling on other areas of sports regulations such as anti-doping.

The award also analyses broader questions regarding the prohibition of discrimination in the regulation of sports, as well as the interplay with international human rights instruments such as the European Convention on Human Rights (‘ECHR’), which are not explored in depth here. More...

Revisiting FIFA’s Training Compensation and Solidarity Mechanism - Part. 2: The African Reality – By Rhys Lenarduzzi

Editor’s note: Rhys Lenarduzzi is a final semester Bachelor of Law (LL.B) and Bachelor of Philosophy (B.Phil.) student, at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.


Having considered the history and justifications for the FIFA training compensation and solidarity mechanisms in my previous blog, I will now consider these systems in the African context. This appears to be a worthwhile undertaking given these global mechanisms were largely a result of European influence, so understanding their (extraterritorial) impact beyond the EU seems particularly important. Moreover, much has been written about the “muscle drain” affecting African football and the need for such drain to either be brought to a halt, or, more likely and perhaps more practical, to put in place an adequate system of redistribution to ensure the flourishing of African football that has essentially acted as a nursery for European football for at least a century. In the present blog, I intend to draw on my experiences as a football agent to expand on how FIFA’s redistributive mechanisms function in practice when an African player signs in Europe via one of the many kinds of entities that develop or purport to develop talent in Africa. I will throughout address the question of whether these mechanisms are effective in a general sense and more specifically in relation to their operation in Africa.More...



International and European Sports Law – Monthly Report – October 2020 - By Rhys Lenarduzzi

Editor’s note: Rhys Lenarduzzi is a final semester Bachelor of Law (LL.B) and Bachelor of Philosophy (B.Phil.) student, at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.


The Headlines

Aguero and Massey-Ellis incident: An Opportunity for Change and Education?

In mid-October a clip went viral of Argentinian star Sergio Aguero putting his hands on sideline referee, Sian Massey-Ellis. A heated debate ensued in many circles, some claiming that Aguero’s conduct was commonplace, others taking aim at the appropriateness of the action, around players touching official and a male touching a female with an unsolicited arm around the back, the squeeze and pull in. Putting the normative arguments aside for a moment, the irony of the debate was that all sides had a point. Football, almost exclusively, has grown a culture of acceptance for touching officials despite the regulations. Male officials who have let such conduct slide, have arguably let their female colleague down in this instance.

Whilst a partial defence of Aguero might be that this kind of conduct takes place regularly, the incident could serve as a learning experience. If Massey-Ellis’ reaction was not enough, the backlash from some of the public might provide Aguero and other players the lesson, that touching a woman in this way is not acceptable.

Returning to football, the respect and protection of officials in sport, the key here appears to be cracking down on touching officials entirely. This is not a foreign concept and football need only look at the rugby codes. Under no circumstances does the regulations or the culture permit that a player from the rugby codes touch a referee. It is likely the case that the obvious extra level of respect for officials in these sports derives from a firm culture of no touching, no crowding officials, communicating with officials through the team captain only, with harsh sanctions if one does not comply.

The Football Association of England has decided no action was necessary, raising questions of how seriously they take the safety of officials, and gender issues. This is ultimately a global football issue though, so the confederations or international bodies may need step in to ensure the protections that appear at best fragile.  


Rugby Trans issue

The World Rugby Transgender guideline has been released and contains a comprehensive unpacking of the science behind much of the regulatory framework. Despite many experts applauding World Rugby on the guidelines and the extensive project to reach them, the England Rugby Football Union is the first to defy the World Rugby ruling and transgender women will still be allowed to play women’s rugby at all non-international levels of the game in England for the foreseeable future. This clash between national bodies and the international body on an important issue is concerning and will undoubtedly be one to keep an eye on.

 

CAS rejects the appeal of Munir El Haddadi and the Fédération Royale Marocaine de Football (FRMF)

The refusal to authorise a footballer to change national federation is in the headlines with the CAS dismissing the appeal of the player and Moroccan federation, confirming the original determination of the FIFA Players’ Status Committee.

This has been given considerable recent attention and seemingly worth following, perhaps best summed up by FIFA Director of Football Regulatory, James Kitching, where in a tweet he notes: “The new eligibility rules adopted by the FIFA Congress on 18 September 2020 have passed their first test. We will be publishing our commentary on the rules in the next fortnight. Watch this space.” More...



Revisiting FIFA’s Training Compensation and Solidarity Mechanism - Part.1: The historical, legal and political foundations - By Rhys Lenarduzzi

Editor’s note: Rhys Lenarduzzi is a final semester Bachelor of Law (LL.B) and Bachelor of Philosophy (B.Phil.) student, at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.


In 2019, training compensation and solidarity contributions based on FIFA’s Regulations on the Status and Transfer of Players (RSTP) amounted to US$ 75,5 million. This transfer of wealth from the clubs in the core of the football hierarchy to the clubs where the professional players originated is a peculiar arrangement unknown in other global industries. Beyond briefly pointing out or reminding the reader of how these systems work and the history behind them, this blog series aims to revisit the justifications for FIFA-imposed training compensation and the solidarity mechanism, assess their efficacy and effects through a case study of their operation in the African context, and finally analyse the potential impact of upcoming reforms of the FIFA RSTP in this context.

First, it is important to go back to the roots of this, arguably, strange practice. The current transfer system and the legal mechanisms constituting it were largely the result of a complex negotiation between European football’s main stakeholders and the European Commission dating back to 2001. The conclusion of these negotiations led to a new regulatory system enshrined in Article 20 and Annex 4 of the RSTP in the case of training compensation, and at Article 21 and Annex 5 in the case of the solidarity mechanism. Before paying some attention to the historical influences and how we arrived at these changes, as well as the justifications from the relevant bodies for their existence, let us briefly recall what training compensation and the solidarity mechanisms actually are. More...



Invalidity of forced arbitration clauses in organised sport…Germany strikes back! - By Björn Hessert

Editor's note: Björn Hessert is a research assistant at the University of Zurich and a lawyer admitted to the German bar.

 

The discussion revolving around the invalidity of arbitration clauses in organised sport in favour of national and international sports arbitral tribunals has been at the centre of the discussion in German courtrooms.[1] After the decisions of the German Federal Tribunal[2] (“BGH”) and the European Court of Human Rights[3] (“ECtHR”) in the infamous Pechstein case, this discussion seemed to have finally come to an end. Well…not according to the District Court (LG) of Frankfurt.[4] On 7 October 2020, the District Court rendered a press release in which the court confirmed its jurisdiction due to the invalidity of the arbitration clause contained in the contracts between two beach volleyball players and the German Volleyball Federation[5] (“DVV”) – but one step at a time. More...

International and European Sports Law – Monthly Report – September - October 2020 - By Rhys Lenarduzzi


The Headlines


Human rights and sport  

Caster Semenya

Human rights issues are taking the headlines in the sporting world at present. A short time ago, Caster Semenya’s appeal at the Swiss Federal Tribunal against the CAS decision was dismissed, perhaps raising more questions than answering them. Within the last few days however, the message from the Semenya camp has been that this is not over (see here).  See the contributions from a range of authors at Asser International Sports Law Blog for a comprehensive analysis of the Semenya case(s) to date.

Navid Afkari

As the sporting world heard of the execution of Iranian Wrestler Navid Afkari, a multitude of legal and ethical questions bubbled to the surface. Not least of all and not a new question: what is the responsibility of sport and the governing bodies therein, in the space of human rights?  And, if an athlete is to acquire a high profile through sporting excellence, does that render athletes vulnerable to be made an example of and therefore in need of greater protection than is currently afforded to them? There are differing views on how to proceed. Consider the following from the World Players Association (Navid Afkari: How sport must respond) and that from the IOC (IOC Statement on the execution of wrestler Navid Afkari) which shows no indication through this press releases and other commentary, of undertaking the measures demanded by World Players Association and other socially active organisations. (See also, Benjamin Weinthal - Olympics refuses to discuss Iranian regime’s murder of wrestler).

Yelena Leuchanka

As this is written and relevant to the above, Yelena Leuchanka is behind bars for her participation in protests, resulting in several sporting bodies calling for her immediate release and for reform in the sporting world around how it ought to deal with these issues. As a member of the “Belarus women's national basketball team, a former player at several WNBA clubs in the United States and a two-time Olympian”, Leuchanka has quite the profile and it is alleged that she is being made an example of. (see here)

Uighur Muslims and Beijing Winter Olympics

British Foreign Secretary, Dominic Raab does not rule out Winter Olympics boycott over Uighur Muslims. ‘The foreign secretary said it was his "instinct to separate sport from diplomacy and politics" but that there "comes a point where that might not be possible".’ Though Raab’s comments are fresh, this issue is shaping as a “watch this space” scenario, as other governments might echo a similar sentiment as a result of mounting pressure from human rights activist groups and similar, in lead up to the Winter Games. More...



The Specificity of Sport - Comparing the Case-Law of the European Court of Justice and of the Court of Arbitration for Sport - Part 2 - By Stefano Bastianon

Editor’s note: Stefano Bastianon is Associate Professor in EU Law and EU sports law at the University of Bergamo and lawyer admitted to the Busto Arsizio bar.


1. EU law and the CAS case-law

Bearing in mind these questions, it is possible to affirm that under EU law, the specificity of sport

i) refers to the inherent characteristics of sport that set it apart from other economic and social activities and which have to be taken into account in assessing the compatibility of sporting rules with EU law; and

ii) under EU law these inherent characteristics of sport must be  considered on a case by case  basis, per the Wouters test as developed by the ECJ in the Meca Medina ruling.

Both aspects can be found in the CAS case-law too, although the CAS case-law shows some remarkable differences and peculiarities. From a general point of view, the application of the principle of specificity of sport in the CAS case-law represents an aspect of the more general issue related to the application of EU law by the CAS. However, the purpose of this paper is not to fully examine if and to what extent the CAS arbitrators apply EU law rules on free movement and competition; rather, the aim is to analyse the way the CAS deals with the concept of the specificity of sport, highlighting similarities and differences compared to the ECJ.

Taking for granted that ‘a CAS panel is not only allowed, but also obliged to deal with the issues involving the application of [EU] law’,[1] as far as the compatibility of sporting rules with EU law is concerned the CAS case-law shows different degrees of engagement. For instance, in the ENIC award concerning the so-called UEFA integrity rule, the CAS panel went through a complete competition-law analysis in perfect harmony with the Wouters et al. ruling by the ECJ.[2] On the contrary, in the above-quoted Mutu case, the issue of compatibility of the FIFA’s transfer regulations with EU competition law was analysed in a rather simple way, merely stating that the FIFA rules at stake were not anti-competitive under EU competition law without giving any reason to support this conclusion. More recently, in the Galatasaray and Milan A.C. awards, concerning the UEFA’s financial fair-play regulations, the CAS  applied a detailed analysis of EU competition law. However, in both cases, according to the CAS the proportionate character of sanctions listed in the UEFA’s financial fair-play regulations cannot affect the evaluation of the legitimacy of these regulations under Art. 101 TFEU. This conclusion represents a clear breaking point with respect to the ECJ case-law, according to which the evaluation of the restrictive effects of a rule necessarily presupposes the analysis of the proportionate character of the sanction imposed in the event of a violation of that rule as well.[3]   In regard to EU free movement, the CAS case-law tends to be less analytical in terms of the principle of proportionality. For instance, in the RFC Seraing award  which concerned both EU free movement and competition law, the CAS panel mainly focused on the legitimate objectives of the contested rule (FIFA’s ban on Third-Party Ownership – TPO), merely affirming that the restrictive measures under EU free movement were justified and inherent in the pursuit of those objectives.More...



Asser International Sports Law Blog | The Semenya Decision of the Swiss Federal Tribunal: Human Rights on the Bench - By Faraz Shahlaei

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 Semenya Decision of the Swiss Federal Tribunal: Human Rights on the Bench - By Faraz Shahlaei

Editor's note: Faraz Shahlaei is a JSD Candidate at Loyola Law School, Los Angeles. His research and teaching interests are public international law, international sports law, international human rights and dispute resolution.

 

The issue of international human rights was a central contention in Caster Semenya case ever since the start of her legal battle against the regulations of the IAAF. However, the human rights arguments were poorly considered in the two proceedings related to this case. To put it in perspective, it is like having a key player nailed to the bench throughout the whole game; no coach ever tried to give it a chance while it had the potential to be the game changer for all parties.

In 2019, the Human Rights Council, the inter-governmental human rights body of the UN, expressed concern over issues of discrimination in sports in particular regarding IAAF female classification regulations. In June 2020, the United Nations High Commissioner for Human Rights submitted a report to the United Nations Human Rights Council on the “Intersection of Race and Gender Discrimination in Sport”. The report draws a detailed picture of how human rights in the Semenya case have been violated and also elaborates on the inherent problem of addressing human rights issues in alternative dispute resolution mechanisms favored by the sport governing bodies. However, despite an in-depth discussion of Caster Semenya’s case at both the CAS and then the SFT, the question of human rights, a key concern and a fundamental pillar of the case, hasn’t been adequately answered yet!

The following arguments are intended to discuss how international human rights law, has not been properly examined in Caster Semenya’s case:

1.     CAS arbitral panels are not primarily concerned with the application of international human rights law since sport arbitrations are conducted based on regulations of sport governing bodies, predominantly in the absence of a human rights clause within that framework (OHCHR, para 44). Even if they were, a proper consideration of human rights aspects in any dispute, including whether there is a necessary, proportional and legitimate exception to the human rights rule or whether there are more important rights worthy of protection, needs individuals that are knowledgeable about the international human rights system to carefully scrutinize the issues based on human rights norms. Even if the CAS includes human rights experts in its pool of arbitrators, there are still questions regarding the dependability and the weight of their interpretation of the human rights treaties considering their appointment process by private actors in compare with for example judges in the ICJ, ECtHR or members of the UN treaty bodies.

2.     The Semenya case is a suitable example of this gap. In fact, when it comes to the issue of discrimination and international human rights law, the panel finds the UN amicus curiae and other expert submissions useless (CAS, para 554). The panel argues that the submissions failed to address the three-prong spear of necessity, proportionality and legitimacy and therefore are not helpful for the task in front of the panel. Despite acknowledging the relevancy of some human rights arguments (CAS, para 554), the panel finds a more important value to protect, namely: fairness in sports; and builds up its analysis of necessity, proportionality and legitimacy based on this concept. Whether this assessment is in line with international human rights, remains a question since the issue has not been considered by a panel with adequate human rights expertise. The player is on the bench!

3.     Furthermore, the issue of female athletes’ eligibility is not related only to gender-based discrimination. As the report of the OHCHR makes clear it is also about the right to work and just and favorable working conditions; the right to highest attainable standards of physical and mental health; the right to sexual and reproductive health; prohibition of arbitrary interference with privacy; the right to bodily integrity and the right to human dignity (OHCHR, para 34). None of these rights have been considered in the CAS award and subsequently by the SFT within the international human rights law context.

4.     More importantly, the enforcement of DSD regulations raises questions regarding the prohibition of torture, cruel, inhuman and degrading treatment (OHCHR, para 34(a)). The OHCHR report explains that enforcement of DSD regulations are “medically unnecessary, and potentially harmful” (para. 32), brings the targeted individuals with “shame and ridicule” (para. 33), inflicts physical and psychological harm (para 34(c)) and is a form of forced medical intervention (para 34 (c)) which triggers issues related to article 7 of the International Covenant on Civil and Political Rights. This prohibition in most cases trumps any exception or justification. Therefore, Article 7 of the ICCPR on prohibition of torture, cruel, degrading and inhuman treatment, ratified by Monaco in 1997, can be a potentially bigger threat to DSD regulations rather than the issue of non-discrimination.

5.     Challenging an arbitral award in national jurisdictions, other than the public policy grounds, is limited to issues pertinent to procedural matters. Therefore, the scope of reviewing the issues at stake in the arbitral award is very limited and if any of the above rights have not been already scrutinized during the arbitration, they will fall outside the scope of the appeal. For example, the SFT finds that the contradiction of taking oral contraceptives with religious and moral values of the individual is an inadmissible claim since it hasn’t been raised in front of the CAS at the first place (para 10.6).

6.     A fundamental discordance between the human rights framework and the approach adopted by the SFT, emerges when the SFT argues that the non-discrimination principle based on the Swiss Constitution is restricted to the treatment of individuals by public entities not private bodies such as sport organizations (para 9.4). Nevertheless, the SFT observes that sport governing bodies possess a status similar to states (which is in itself an interesting finding and I will touch upon this later in this note) and then deals with public policy grounds. However, the legal protections in international human rights law are of a different nature. Positive obligations of the states in guaranteeing the enforcement of human rights norms within their jurisdiction is an indispensable part of the legal regime created by international human rights law. The UN Human Rights Committee is clear when it states “the positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities”. The practice of international courts and tribunals corroborates this view where in many cases public officials were held accountable for failing to do their due diligence in preventing human rights violations within their jurisdictions (See e.g. Fadeyeva v. Russia, paras 89-93; CCPR Concluding Observations on Germany, para 16).

7.     The SFT delves into the public policy issues and by relying on the findings of the CAS (para 9.8.2; 9.8.3.1) comes to the same conclusion as to the priority and legitimacy of the principle of fairness in sports (para 9.8.3.3, 9.8.3.4) and ultimately finds no breach of public policy (para 10.7). Based on paragraph 1 and 2 of this note, the analysis of the CAS, which the SFT relies upon it, is disputable from the human rights perspective.

8.     The SFT refers to the decision of the ECtHR in FNASS and others v. France and finds the analysis applicable to this case. This seems reasonable as both cases are justifying certain restrictions to protect the rights of third parties. However, the pivotal argument of the ECtHR in FNASS not only mentions the protection of public health (para 165) but also the risks of doping for physical and mental health of the doped athletes (paras 171-173); the SFT’s stance on this topic is in conflict with serious concerns asserted by the OHCHR on how DSD regulations pose a serious risk to the right to health of the individuals requiring them to undergo unnecessary and potentially harmful medical treatment (OHCHR para 32, 33, 34(a), 34(b), 34(c), 34(d)). Additionally, in FNASS the right to privacy is examined in the face of whereabout regulations plus being available for an hour each day for testing purposes; the ECtHR finds that the protection of health, which is the aim of the doping control system, is more important than revealing the whereabout information. However, in the present case reasonable concerns are over endangering the health and safety of individuals rather than disclosing the information about the place of residence. Article 3 of the Additional Protocol to the Oviedo Convention concerning biomedical research can be illuminating in this regard: “The interests and welfare of the human being participating in research shall prevail over the sole interest of society or science”.

9.     At times, the SFT finds itself relying on the notion of consent in relations between athletes and sport governing bodies and employs it as a justifying factor for example for the intrusive examination of athletes’ body that if they object, such examinations would not take place (para 10.2, 11.2). The SFT further points out that athletes’ defective consent to requirements set by the IAAF, justifies taking oral contraceptives and it is not a treatment imposed on an unwilling individual (para 10.2).

  • First, the consent in this case is a flawed consent since it leaves “no real choice to the athlete, who has to choose between undergoing these intrusive medically unnecessary assessments and treatments with negative impacts on their health and wellbeing” (See here, p 5). This incomplete consent might survive when tested against imposing the arbitration clause on an athlete (Mutu & Pechestein case) but might fail when tested against more fundamental issues such as prohibition of cruel, inhuman and degrading treatment, non-discrimination, the right to health, bodily integrity and prohibition of medical intervention without free consent. Furthermore, consent should be considered in the light of the decision of the ECtHR in Chitos v. Greece in which a military staff resignation resulted in imposition of a financial penalty. In Chitos a new law was adopted after the applicant was recruited by the military, changing the conditions of the release of the personnel from the military service. The Court finds that the law pursues a legitimate aim and is proportionate, and it also takes account of the fact that “at the outset … the applicant cannot legitimately maintain that he was unaware of the rationale and scope of the obligations he had entered into” being aware of also the benefits that he would receive from this relation. The question in front of the Court was whether the applicant voluntarily offered himself since he had prior knowledge of rules and possible consequences. The Court maintains that the issue of mental constraint should be considered based on the situation at the time of the entry into force of the new law not at the time when the applicant was first recruited (para 97). Furthermore, in Van Der Mussele v. Belgium regarding the issue of prior consent and the existence of a threat the ECtHR maintains that: “This could be so in the case of a service required in order to gain access to a given profession, if the service imposed a burden which was so excessive or disproportionate to the advantages attached to the future exercise of that profession, [then] … the service could not be treated as having been voluntarily accepted beforehand” (para 37). As explained above an assessment of necessity, proportionality and legitimacy based on international human rights grounds can be different than the conclusions based on the principle of fairness in sports.
  • Second, the OHCHR report calls attention to power imbalances in sports which hinges upon the notion of consent in relations between the athletes and sport governing bodies (para 34 (c)). The Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health emphasizes the need for particular measures to protect “vulnerability of certain individuals whose rights are compromised owing to deeply rooted power imbalances and structural inequalities” in particular in clinical practice and medical research. “In sport, such power imbalances are compounded by athletes’ dependency on the sports federations requiring such medical interventions and the frequent absence of adequate and holistic support during the decision-making process” (OHCHR, para 34(c)).
  • Third, the issue of consent becomes significantly important with respect to medical intervention in human body. For any type of medical intervention, free and informed consent of the individual is required. Article 5 of the Oviedo Convention on Human Rights and Biomedicine provides that any intervention in the health of individual should be conducted with free and informed consent including the consequences and risks involved. The OHCHR report calls attention to the “risk of unethical medical practice, particularly when the informed consent of the person concerned is not required” (OHCHR, para 34(c)). It is uncontested that human dignity and its health has priority over any type of scientific test or research even for the good of society. Article 3 of the Additional Protocol to the Oviedo Convention applies to this argument as well which provides: “The interests and welfare of the human being participating in research shall prevail over the sole interest of society or science”.
  • Fourth, individuals have the right to refuse or withdraw consent at any time without being subject to any form of discrimination (Article 5, 16 of Oviedo Convention; Additional Protocol, article 13(3)).
  • Fifth, the argument that the CAS is open to future findings of the adverse effects of such treatments which is supported by the SFT (para 9.8.3.5), is in contrast with requirements of medical and biological interventions of human body in international human rights law as it is encouraging unethical and potentially harmful medical experimentation and at the same time overlooks the notion of free and voluntary consent. Any type of medical intervention and research should come with careful consideration of ethical acceptability of such practices including protection of “dignity, rights, safety and well-being of research participants” (Additional protocol to the Oviedo Convention, article 9).

Notwithstanding the above arguments, one of the findings of the SFT can be an interesting line of thought for further research; that the vertical structure of sports and the dominance of sport governing bodies in their realm, puts them in a similar position as states (para 9.4). Traditionally only states and international governmental organizations are direct subjects of public international law and therefore bearers of responsibility under its rules and principles including the responsibility to enforce the human rights standards. The finding of the SFT adds more weight to the argument that sport governing bodies have replaced states in certain functions in a way that states are no longer responsible for those operations. This is one criterion recognized by public international law scholars for recognition of international legal personality. Therefore, it will be interesting to study whether sport governing bodies are in a position to be recognized as de facto states although without a geographical territory.

Finally, what I argued above does not mean that ultimately, once the award of the CAS in Semenya case is scrutinized by a human rights body it will fail. It may or may not; but as long as this evaluation has not been conducted by a competent human rights court, there will always remain questions about the credibility of a CAS award which disregarded most of the human rights concerns touched upon in this blog.

Therefore, a key player in this game is still on the bench!

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