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

The State of Football Governance - Advocate General Szpunar Paves the Way for a Critical Assessment of the Status Quo - By Robby Houben (University of Antwerp) & Siniša Petrović (University of Zagreb)

Editor's noteRobby Houben is a professor at the University of Antwerp, specializing in sports enterprise law and corporate law. He founded the University of Antwerp’s Football College, championing good governance in professional football. He is editor of the Research Handbook on the Law of Professional Football Clubs (Edward Elgar Publishing 2023). Siniša Petrović is a professor at the University of Zagreb, specializing in sports law and corporate law.


Mid-March, the YouTube channel The Overlap released an interview with Aleksander Čeferin, the current president of UEFA. Asked about the Super League’s court case against UEFA, Čeferin referred to it as ‘mainly symbolical’. This statement reveals a deep trust in the status quo. In this short note we assess if such trust is justified. On the basis of advocate general (AG) Szpunar’s recent opinion in a case on home grown player rules, we argue it is not. 

What is it about? On 9 March, AG Szpunar of the Court of Justice of the EU (‘CJEU’) delivered his opinion in the case of Royal Antwerp FC against the Royal Belgian Football Association (‘RBFA’) and the European Football Association UEFA. The case relates to the so-called ‘home grown players’ rule (‘HGP rule’). This rule requires clubs to include at least 8 locally trained players in the list of 25 players that make the A team. According to Szpunar, this likely amounts to an indirect nationality discrimination and, at least, to a restriction of the free movement rights of football players under Article 45 of the Treaty on the Functioning of the EU (‘TFEU’). Nevertheless, the AG considers the HGP rule valid as such, as, according to him, it serves the legitimate aims of stimulating the training of youth players and increasing the competitive balance between clubs. Only insofar as it allows that home grown players includes players trained by another club in the same league (under the UEFA HGP rule, 4 out of 8 home grown players), instead of by the club itself, the HGP rule is not suitable to achieve these aims. His recommendation to the court is, hence, to partially invalidate the HGP rule. He would likely find a (future) HGP rule requiring home grown players to be trained only at the club compatible with EU law. 

Is sport so special that it deserves special treatment? On the basis of Wouters and Meca-Medina it is widely accepted that restrictions of competition in sports can be justified if they proportionately pursue legitimate aims. Interestingly, in his assessment of the proportionality of the HGP rule, AG Szpunar seems to do Wouters away as a peculiar case. He finds ‘it difficult to deduce a general principle … according to which private entities bound by Article 45 TFEU would have a greater discretion than that of Member States in comparable situations’. Moreover, he argues, such greater discretion may be warranted in matters transcending classical economic policy, but the HGP rule has a strong economic component and is not such a matter (paras 76-78). As a result, Szpunar sees no reason ‘to afford UEFA and the RBFA a wider discretion than would be the norm for a Member State to justify a restriction of Article 45 TFEU’ (para 78). So, no specific exceptions for football that do not apply to other economic sectors! Wrong, because, at the same time, the AG allows to justify the HGP rule in view of legitimate aims, in this case youth development and competitive balance. Hence, while closing the back door for exceptional treatment of football in his assessment of proportionality, he opens the front door for such exceptional treatment as a matter of principle quite widely - without really underpinning why, nor providing evidence of why football is so special compared to let’s say universities or hospitals, who educate youngsters too, undoubtedly for the public good, and don’t enjoy such special treatment. 

But let’s assume sport is somehow special and deserves a special treatment. Does the HGP rule serve both the aim of youth development and increasing competitive balance? Probably not. It seems the aims are conflated here. Yes, the HGP rule serves the aim of encouraging the training of players (at professional football clubs that is), and arguably it makes sense to incentivize clubs to train players. But it is unlikely that this will contribute to more competitive balance between clubs. This has to do with the territorial model of football: ‘domestic’ competitions are organized along national borders. Clubs from larger countries logically have a larger talent pool to recruit young players from than clubs from smaller countries, and therefore they likely have a competitive advantage. Moreover, assuming the pool of talented young players is larger in bigger countries, it is likely that these youngsters will add sporting value to the A-team. That’s a win-win. In smaller countries, clubs will typically have a tougher job recruiting domestic top talent, simply because the pool is smaller. Adding to that is that the real top youngsters of smaller countries will probably sign their first professional player contract with a club of a top tier foreign competition, leaving only the ‘best of the rest’ for the local clubs. At the age of 16, the next Kevin De Bruyne will of course become a ‘club-trained’ local player somewhere, but not in a Belgian club. Cutting a long story short, from the perspective of fair competition, the HGP rule is not neutral and favors clubs that happen to reside in larger countries. 

Overboard with domestic borders then? That is what small Luxemburg club Swift Hespérange claims. Swift argues its free movement rights and free competition is infringed because it has to play football within the Luxembourg borders. As a result, it cannot grow and become competitive with clubs from surrounding leagues. Szpunar’s opinion provides food for thought for this case too, as he recognizes that the territorial model of football favors clubs in larger countries more than clubs in smaller countries (paras 68 and 70). His opinion therefore seems to accord with Swift’s intuition. 

How could a HGP rule become more neutral in a territorial model of football, with club football organized along domestic borders? Arguably, the rule could concentrate on the under 21 teams, and/or under 23 teams, where training actually takes place, allowing clubs to compose their A-teams with the best players, regardless of where they were trained. Talented club-trained young players will make their way to A-teams on the basis of merit. Clubs could be incentivized to field club-trained players in their A-team through increased solidarity payments from centralized earnings. Such an approach could serve both the aims of stimulating the training of players and increasing (or better: not deteriorating) the competitiveness of local clubs. 

Is this THE solution? We don’t know, and we don’t pretend to know. We raise it to illustrate a point: the importance of alternative systems to the HGP rule in the Antwerp case. AG Szpunar rightly asserts that the burden of proof to evidence that a rule is proportionate in view of legitimate aims, so that it can be upheld instead of invalidated, lies with the claimant of such exception, in the Antwerp case UEFA and the RBFA (para 61). Remarkably, the proportionality of the HGP rule is subsequently simply assumed. Moreover, alternatives brought forward by Antwerp, whereas the burden of proof lay with UEFA and the RBFA, were put aside as more restrictive, and considered not to be equally effective without much consideration (paras 79-81). Is it not more in line with logic that when the burden of proof falls upon a party, if it fails to discharge it then its claim is simply denied? More fundamentally, if rules are simply assumed to pursue legitimate objectives instead of evidenced to do so, is this not an open invitation for ‘sports washing’, the equivalent of green washing in sports? Of course, judges are not industry experts. As a result, we may not reasonably expect too much. Regulators must have leeway to make choices. But judges can and should perform oversight, assuring: i) rules are at least aiming for the target, ii) the regulator effectively considered alternatives, iii) there are good reasons for the regulator to prefer the chosen solution over another. If the questioned rule fails this test, it should be declared invalid – and the regulator should be sent back to the drawing board.[1]

So, AG Szpunar’s opinion is not perfect. Yet, it certainly puts the finger on the sore spot of football governance: double hatting and the inherent conflicts of interest that brings. In this respect, AG Szpunar’s opinion seems to provide counterweight to AG Rantos’ opinion in the European Super League (‘ESL’) case (see the subtill ‘in this respect’ in fn 39 of Szpunar’s opinion). In essence, AG Rantos argues that UEFA’s potential design errors are irrelevant, as the ESL, because of its (at the time) semi-closed set-up, should have been rejected anyway. He even asserts that open sport competitions are a constitutional principle of EU law, enshrined in Article 165 TFEU. This is a (too) far stretch, notably not repeated by AG Szpunar. Moreover, Szpunar makes UEFA’s governance deficit so much more explicit than Rantos. Because UEFA is both the regulator and monopolist of European club football, Szpunar considers that conflicts of interest are ‘bound to arise’ (in the French official version: ‘inévitable’; in Dutch: ‘onvermijdelijk’ – so: inevitable). Moreover, confronted with such conflict, he believes UEFA and domestic football regulators will have a natural reflex to let their own commercial interests prevail over the public interest (para 58). 

AG’s Szpunar’s opinion is authoritative, and probably even more than usual. Szpunar is first advocate general, and primus inter pares. His opinion will weigh in on the other football cases pending before the CJEU too, especially the ESL case and the aforementioned Swift case. As such, it could serve as a ‘canary in the coalmine’ for what is still to come later this year. Anyway, if the CJEU judges in the ESL case follow Szpunar’s assessment of UEFA’s double hatting, those who were celebrating the status quo after the Rantos opinion might be in for a scare soon.  

2023 is a year of truth for the organization of professional football. Dissatisfaction with the status quo has led to a record number of football related cases before the CJEU. These cases are heard separately, but at the same time inevitably interconnected, because they run in parallel on similar subject matters. Szpunar’s opinion makes at least clear that all cards are still on the table and the status quo might not prevail. 

Courts can only do what they are allowed to: apply the law in a given case. They can’t solve football’s governance deficit. Only politicians can ‘save football from itself’ by regulating it and by tackling policy failures exposed by professional football’s commercial explosion fueled primarily by clubs and players. Stakeholders such as clubs and players deserve a seat at the decision-making table in a governance model for pro football 2.0. For example, it is not acceptable any more for football regulators with no skin in the game to continue to congest match calendars (40 or so more matches in the 2026 World Cup !) without consulting clubs and players. Furthermore, the cleanest way to resolve conflicts of interest once and for all would be to separate UEFA’s functions - at least to ensure that adequate procedures are in place to avoid, mitigate and make transparent conflict of interests (in that order), and allowing access to public courts for judicial scrutiny. To be meaningful, such action should be taken at EU level, so as to create a level playing field for clubs across Europe and – because of the ‘Brussels’ effect – beyond.  

We are not naïve. There is no political appetite for reforming football yet. That was made clear during the ESL hearing early July 2022, where more than 20 Member States intervened in support of UEFA and the status quo. But, one, two or three critical decisions of the CJEU might inspire politicians to take action. That way, this wave of court cases may trigger a much more profound reform of the governance of the beautiful game.    

[1] In that sense AG Szpunar seems to go too far when in his answer to the court he suggests to invalidate the current HGP rule and already advises how the new rule should look – the latter is more a matter for the regulator.

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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