Editor's Note: Ryan Gauthier
is Assistant Professor at Thompson Rivers University in Canada. Ryan’s
research addresses the governance of sports organisations, with a
particular focus on international sports organisations. His PhD research
examined the accountability of the International Olympic Committee for
human rights violations caused by the organisation of the Olympic Games.
Big June 2019 for Olympic Hosting
On June 24, 2019, the International
Olympic Committee (IOC) selected Milano-Cortina to host the 2026 Winter Olympic
Games. Milano-Cortina’s victory came despite a declaration that the bid was “dead”
just months prior when the Italian government refused
to support the bid. Things looked even more dire for the Italians when 2006 Winter Games
host Turin balked at a three-city host proposal. But, when the bid was presented to
the members of the IOC Session, it was selected over Stockholm-Åre by 47 votes to 34.
Just two days later, the IOC killed
the host selection process as we know it. The IOC did this by amending two
sections of the Olympic Charter in two key ways. First, the IOC amended Rule 33.2, eliminating the
requirement that the Games be selected by an election seven years prior to the
Games. While an election by the IOC Session is still required, the
seven-years-out requirement is gone.
Second, the IOC amended Rule 32.2 to
allow for a broader scope of hosts to be selected for the Olympic Games. Prior
to the amendment, only cities could host the Games, with the odd event being
held in another location. Now, while cities are the hosts “in principle”, the
IOC had made it so: “where deemed appropriate, the IOC may elect several
cities, or other entities, such as regions, states or countries, as host of the
Olympic Games.”
The change to rule 33.2 risks
undoing the public host selection process. The prior process included bids
(generally publicly available), evaluation committee reports, and other
mechanisms to make the bidding process transparent. Now, it is entirely
possible that the IOC may pre-select a host, and present just that host to the
IOC for an up-or-down vote. This vote may be seven years out from the Games,
ten years out, or two years out. More...
Editor’s
note: Thomas Terraz is a third year LL.B.
candidate at the International and European Law programme at The Hague
University of Applied Sciences with a specialisation in European Law. Currently
he is pursuing an internship at the T.M.C. Asser Institute with a focus on
International and European Sports Law.
1.
Introduction
Christmas has come very early
this year for the EU sports law world in the form of the Court of Justice of
the European Union’s (CJEU) judgment in
TopFit eV, Daniele Biffi v Deutscher Leichtathletikverband eV by exclusively analyzing the case on the
basis of European citizenship rights and its application to rules of sports
governing bodies that limit their exercise. The case concerned an Italian
national, Daniele Biffi, who has been residing in Germany for over 15 years and
participates in athletic competitions in the senior category, including the
German national championships. In 2016, the Deutscher Leichtathletikverband
(DLV), the German Athletics Federation, decided to omit a paragraph in its
rules that allowed the participation of EU nationals in national championships
on the same footing as German citizens. As a result, participation in the
national championship was subject to prior authorization of the organizers of
the event, and even if participation was granted, the athlete may only compete
outside of classification and may not participate in the final heat of the
competition. After having been required to compete out of classification for
one national championship and even dismissed from participating in another, Mr.
Biffi and TopFit, his athletics club based in Berlin, brought proceedings to a German
national court. The national court submitted a request for a preliminary ruling
to the CJEU in which it asked essentially whether the rules of the DLV, which
may preclude or at least require a non-national to compete outside
classification and the final heat, are contrary to Articles 18, 21 and 165
TFEU. Articles 18 and 21 TFEU, read together, preclude discrimination on the
basis of nationality against European citizens exercising their free movement.
The underlying (massive) question here is whether these provisions can be
relied on by an amateur athlete against a private body, the DLV.
Covered in a previous blog, the Advocate General’s (AG) opinion addressed the case from an
entirely different angle. Instead of tackling the potentially sensitive
questions attached with interpreting the scope of European citizenship rights,
the opinion focused on the application of the freedom of establishment because
the AG found that participation in the national championships was sufficiently
connected to the fact Mr. Biffi was a professional trainer who advertised his
achievements in those competitions on his website. Thus, according to the AG,
there was a sufficient economic factor to review the case under a market freedom.
The CJEU, in its decision, sidelined this approach and took the application of
European citizenship rights head on.
The following will dissect the
Court’s decision by examining the three central legal moves of the ruling: the
general applicability of EU law to amateur sport, the horizontal applicability
of European citizenship rights, and justifications and proportionality
requirements of access restrictions to national competitions. More...
Editor's note: This report compiles all relevant news, events and
materials on International and European Sports Law based on the daily coverage
provided on our twitter feed @Sportslaw_asser. You
are invited to complete this survey via the comments section below, feel free
to add links to important cases, documents and articles we might have
overlooked.
The Headlines
Caster Semenya learns that it is not always easy for
victims of discrimination to prevail in court
The world of sport
held its breath as the Secretary General of the Court of Arbitration for Sport
(CAS) Matthieu Reeb stood before
the microphones on 1
May 2019 to announce the verdict reached by three arbitrators (one of them dissenting)
in the landmark case involving the South African Olympic and world champion
Caster Semenya. Somewhat surprisingly, the panel of arbitrators came to the
conclusion that the IAAF’s regulations requiring female athletes with
differences of sexual development to reduce their natural testosterone level
below the limit of 5 nmol/L and maintain that reduced level for a continuous
period of at least six months in order to be eligible to compete
internationally at events between 400 metres and a mile, were necessary,
reasonable and proportionate to attain the legitimate aim of ensuring fair competition
in female athletics, even though the panel recognised that the regulations were
clearly discriminatory. Ms Semenya’s legal team decided to file an appeal against the ruling at the Swiss Federal Tribunal. For
the time being, this appears to be a good move since the tribunal ordered the
IAAF at the beginning of June to suspend the application
of the challenged regulations to Ms Semenya with immediate effect, which means that Ms Semenya for now continues to run
medication-free.
Champions League ban looms on Manchester City
On 18 May 2019,
Manchester City completed a historic domestic treble after defeating Watford
6-0 in the FA Cup Final. And yet there is a good reason to believe that the
club’s executives did not celebrate as much as they would under normal
circumstances. This is because only two days before the FA Cup Final the news broke that the chief investigator of the UEFA Club
Financial Control Body (CFCB) had decided to refer
Manchester City’s case
concerning allegations of financial fair play irregularities to the CFCB
adjudicatory chamber for a final decision. Thus, the chief investigator most
likely found that Manchester City had indeed misled UEFA over the real value of
its sponsorship income from the state-owned airline Etihad and other companies
based in Abu Dhabi, as the leaked internal emails and other documents published
by the German magazine Der Spiegel suggested. The chief investigator is also
thought to have recommended that a ban on participation in the Champions League
for at least one season be imposed on the English club. The club’s
representatives responded to the news with fury and disbelief, insisting that
the CFCB investigatory chamber had failed to take into account a comprehensive
body of irrefutable evidence it had been provided with. They eventually decided
not to wait for the decision of the CFCB adjudicatory chamber, which is yet to
be adopted, and meanwhile took the case to the CAS, filing an appeal against the chief investigator’s referral.
The Brussels Court of Appeal dismisses Striani’s
appeal on jurisdictional grounds
The player agent
Daniele Striani failed to convince the Brussels Court of Appeal that it had jurisdiction
to entertain his case targeting UEFA’s financial fair play regulations. On 11
April 2019, the respective court dismissed his appeal against the judgment of
the first-instance court without pronouncing itself on the question of
compatibility of UEFA’s financial fair play regulations with EU law. The court
held that it was not competent to hear the case because the link between the
regulations and their effect on Mr Striani as a player agent, as well as the
link between the regulations and the role of the Royal Belgian Football
Association in their adoption and enforcement, was too remote (for a more
detailed analysis of the decision, see Antoine’s blog here). The Brussels Court of Appeal thus joined the
European Court of Justice and the European Commission as both these
institutions had likewise rejected to assess the case on its merits in the
past.
Sports Law Related Decisions
Official Documents and Press Releases
CAS
FIFA
IOC
UEFA
WADA
Other
In the news
Doping
Football
- Associated
Press FIFA bans
South Sudanese official for taking soccer money
- BBC Sport Mino Raiola:
Paul Pogba’s agent banned for three months by FIFA
- Andy
Brown Bulgaria
relegates FC Vereya on receipt of UEFA match-fixing information
- David
Conn 2022 World
Cup in Qatar to remain as a 32-team tournament, FIFA announces
- David
Conn Manchester
City accuse UEFA of leaks amid Champions League ban threat
- David
Conn Manchester
City furious after UEFA investigation is sent for final judgment
- David
Conn Premier
League clubs’ record £4.8 billion revenues widens gap to rest of Europe
- David
Conn Premier
League finances: The full club-by-club breakdown and verdict
- David
Conn Promotion and
relegation part of explosive Champions League plans
- Marina
Hyde UEFA’s
‘parking ticket’ fines will not rein in football’s maverick clubs
- Sean
Ingle Manchester
City and PSG should be thrown out of Europe, says La Liga president
- Amy
Lawrence and Sean Ingle Arsenal’s
Henrikh Mkhitaryan to miss Europa League final over safety fears
- Liam
Morgan Sierra Leone
could be welcomed back by FIFA after president and secretary general cleared of
corruption
- Tariq
Panja A trove of
FIFA secrets, locked inside a New Jersey storage locker
- Tariq
Panja Bundesliga’s
chief executive isn’t keen to join Premier League
- Tariq
Panja China’s
soccer push takes a new tack: Naturalizing foreign players
- Tariq
Panja FIFA drops
plan for 48-team World Cup in 2022
- Tariq
Panja For Europe’s
soccer chief, the outrage arrives in waves
- Tariq
Panja In Europe, a
bitter battle between clubs and leagues is taking shape
- Tariq
Panja In soccer’s
biggest elections, accusations are common but challengers are not
- Tariq
Panja Powerful
Sheikh linked to bribe scheme is still a soccer power
- Tariq
Panja Proposal to
restructure Champions League leaves out most of Europe
- Tariq
Panja Sepp Blatter,
who departed FIFA in scandal, wants the watches he left at the office
- Tariq
Panja She has
friends at FIFA. At home, it’s mostly critics.
- Tariq
Panja UEFA
investigators set to seek Manchester City’s ban from Champions League
- Martyn
Ziegler Europa League
final: Azerbaijan, the host country where journalist Rasim Aliyev was killed
for criticising Azerbaijan midfielder Javid Huseynov
Other
Academic Materials
Books
International Sports Law Journal
Other
Blog
Asser International Sports Law Blog
Law in Sport
Other
Upcoming Events
- 30 June
-14 July – CLS Summer
School 2019: Global Law of Sport, Patejdlova Bouda, Giant Mountains, Czech Republic
- 30-31
August – Third EU
Sports Law and Policy Summer School, Edge Hill University, UK
- 12-13
September – Understand
the Rules of the Game 2019: LawInSport Annual Conference, London, UK
- 27-28
September – 8th
International Congress on Football Law, Madrid, Spain
- 13-16
October – Play the Game
2019: Athlete Power on the Rise, Colorado Springs, USA
- 24-25
October – Third Annual
International Sports Law Conference of the International Sports Law Journal, T.M.C. Asser Institute, The Hague, Netherlands
Editor’s
note: Thomas Terraz is a third year LL.B.
candidate at the International and European Law programme at The Hague
University of Applied Sciences with a specialisation in European Law. Currently
he is pursuing an internship at the T.M.C. Asser Institute with a focus on
International and European Sports Law.
1. Introduction
The
surge of e-sports has stimulated a lively discussion on the essential
characteristics of sport and whether e-sports, in general, can be considered a
sport. However, one should not overlook the fact that e-sports encompass a
broad range of video games that fundamentally differ from one another. Thus, as
one commentator recently underlined, “the position of video games and the
e-sport competitions based on them should be analysed on a case-by-case basis.”[1]
In this spirit, this blog aims to provide a concise analysis of one of these
e-sports, League of Legends (LoL), and one of its main competitions, the League
of Legends European Championship (LEC), to assess whether it could be
considered a sport in the sense of EU law. The LEC offers a fascinating
opportunity to examine this issue especially since the previous European League
of Legends Championship Series (EU LCS) was rebranded and restructured this
year into the LEC. More...
Editor's note: Daniela Heerdt is a PhD
candidate at Tilburg Law School in the Netherlands. Her PhD research deals with
the establishment of responsibility and accountability for adverse human rights
impacts of mega-sporting events, with a focus on FIFA World Cups and Olympic
Games.
About three years ago, the Fédération Internationale de Football
Association (FIFA) adopted a new version of its Statutes,
including a statutory commitment to respect internationally recognized human
rights. Since then, FIFA undertook a human rights journey that has been praised
by various stakeholders in the sports and human rights field. In early June, the
FIFA Congress is scheduled to take a decision that could potentially undo all
positive efforts taken thus far.
FIFA already decided in January 2017 to increase the
number of teams participating in the 2026 World Cup from 32 to 48. Shortly
after, discussions began on the possibility to also expand the number of teams for
the 2022 World Cup hosted in Qatar. Subsequently, FIFA conducted a feasibility
study, which revealed that the expansion would be feasible but require a
number of matches to be hosted in neighbouring countries, explicitly mentioning
Bahrain, Kuwait, Oman, Saudi Arabia and the United Arab Emirates (UAE). One
does not have to be a human rights expert to be highly alarmed by this list of
potential co-hosting countries. Nevertheless, the FIFA Council approved of the
possibility to expand in March 2019, paving the way for the FIFA Congress to
take a decision on the matter. Obviously, the advancement of the expansion
decision raises serious doubts over the sincerity of FIFA’s reforms and human
rights commitments. More...
Editor's Note: Marjolaine is a researcher and attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences. Her interests focus on interdisciplinary approaches as a way of designing effective solutions in the field of anti-doping and other science-based domains. Her book “Evidence in Anti-Doping at the Intersection of Science & Law” was published through T.M.C Asser Press / Springer in late 2015. She participates as a co-author on a project hosted by the University of Neuchâtel to produce the first article-by-article legal commentary of the 2021 World Anti-Doping Code. In her practice, she regularly advises international federations and other sports organisations on doping and other regulatory matters, in particular on aspects of scientific evidence, privacy or research regulation. She also has experience assisting clients in arbitration proceedings before the Court of Arbitration for Sport or other sport tribunals.
Since the spectre of the EU General Data
Protection Regulation (‘GDPR’) has loomed over the sports sector,[1]
a new wind seems to be blowing on anti-doping, with a palpable growing interest
for stakes involved in data processing. Nothing that would quite qualify as a
wind of change yet, but a gentle breeze of awareness at the very least.
Though the GDPR does mention the fight
against doping in sport as a potential matter of public health in its recitals,[2]
EU authorities have not gone so far as to create a standalone ground on which
anti-doping organisations could rely to legitimise their data processing.
Whether or not anti-doping organisations have a basis to process personal data –
and specifically sensitive data – as part of their anti-doping activities, thus
remains dependent on the peculiarities of each national law. Even anti-doping
organisations that are incorporated outside the EU are affected to the extent
they process data about athletes in the EU.[3]
This includes international sports federations, many of which are organised as private
associations under Swiss law. Moreover, the Swiss
Data Protection Act (‘DPA’) is currently
under review, and the revised legal
framework should largely mirror the GDPR, subject to a few Swiss peculiarities.
All anti-doping organisations undertake at a minimum to abide by the WADA International
Standard for Privacy and the Protection of Personal Information (‘ISPPPI’),
which has been adapted with effect to 1 June 2018 and enshrines requirements
similar to those of the GDPR. However, the ISPPPI stops short of actually
referring to the GDPR and leaves discretion for anti-doping organisations to
adapt to other legislative environments.
The purpose of this blog is not to offer a
detailed analysis of the requirements that anti-doping organisations must abide
by under data protection laws, but to highlight how issues around data
processing have come to crystallise key challenges that anti-doping
organisations face globally. Some of these challenges have been on the table since
the adoption of the first edition of the World Anti-Doping Code (‘WADC’) but
are now exposed in the unforgiving light of data protection requirements. More...
In the last five years, the Striani
case has been the main sword of Damocles hanging over UEFA’s Financial Fair
Play Regulations. At the very least, the only real judicial threat they have
faced (apart from the relatively harmless challenge mounted in the Galatasaray case at the CAS). Indeed, a Belgian
player agent, Daniele Striani, represented by Bosman’s former lawyer Jean-Louis
Dupont, attempted, in various fora, to challenge the compatibility of UEFA’s
CL&FFP Regulations with EU law. Striani lodged a complaint with the
European Commission (which was quickly rejected in October 2014) and initiated a private
action for damages before the Brussels Court of First Instance. The latter
deemed itself not competent to decide on the matter, but nevertheless accepted to
order a provisory stay of the enforcement of the UEFA FFP Regulations pending a
preliminary reference to the Court of Justice of the EU (see Ben van Rompuy’s
blog on the case here). The CJEU unsurprisingly rejected to enter into the matter, but UEFA and Striani
decided to appeal the first instance ruling to the Court of Appeal, which
rendered its decision on 11 April. It is unclear at this stage whether Striani
will attempt to challenge it at the Belgian Cour de Cassation (Highest Civil
Court), however this would entail considerable risks and costs and his lawyers
to date have not indicated that they would do so (see here).
While the ruling of the Court of
Appeal does not touch upon the much-discussed question of the compatibility of
UEFA’s FFP Regulations with EU law (see our many blogs on the question here, here and here), it remains an interesting decision to
discuss broader questions related to the procedural ease in challenging
regulatory decisions passed by sports governing bodies (SGBs) based in
Switzerland. Competition law constitutes the main legal tool available to
sports stakeholders looking to challenge existing regulatory arrangements from
the outside (e.g. not going through the internal political systems of the SGBs
or the CAS route). Recent cases, such as the ISU decision of the European Commission, the Pechstein case in front of the German courts or
the Rule 40 decision of the German competition
authority, have demonstrated the potency of competition law to question the
legality of the rules and decisions of the SGBs.[1]
In this regard, the decision of the Brussels Court of Appeal narrows the range
of parties allowed to challenge in European courts the SGBs’ rules and
decisions on the basis of competition law. More...
Editor’s note: Thomas Terraz is a third
year LL.B. candidate at the International and European Law programme at The
Hague University of Applied Sciences with a specialisation in European Law.
Currently he is pursuing an internship at the T.M.C. Asser Institute with a
focus on International and European Sports Law.
1. Introduction
To many it may seem obvious that athletes in a national
championship should only be able to participate if they have the nationality of
the relevant state. The Dutch Road Cycling National Championships should have
Dutch cyclists, and the German Athletics Championships should have German athletes
and so forth. However, in reality, foreign competitors are allowed to
participate in many national championships in the EU, and there is a wide
discrepancy between the rules of national sport governing bodies on this issue.
There is no unified practice when investigating this point by country or by
sport, and rules on participation range from a complete ban on foreign
competitors to absolutely no mention of foreign athletes.[1]
Thus, the question arises: should foreign athletes be able to participate in
national sport championships?
The Court of Justice of the European Union (CJEU) will soon
be required to provide an, at least partial, answer to this dilemma as a result
of an application for a preliminary
ruling. A German Court has
referred three questions to the CJEU on the case TopFit e.V. Daniele Biffi v
Deutscher Leichtathletikverband e.V. (DLV) which in essence ask whether EU
citizenship rights and in particular, the requirement of non-discrimination on
the basis of nationality, should be applied to non-nationals wishing to
participate in an athletics national championship in Germany. In the meantime,
the Advocate General (AG), who provides a non-binding opinion to the Court
before a decision is delivered, Evgeni Tanchev has delivered an interesting opinion on the case. It addresses the claims from the applicants
based on EU citizenship rights and urges the CJEU to instead review the case on
the basis of the freedom of establishment.
This blog will dissect the AG’s opinion to assess the main
arguments put forward in relation to freedom of establishment and EU
citizenship. Furthermore, it will weigh the ramifications this case may have on
the boundaries of EU law in relation to sport. To fully appreciate the AG’s
opinion, it is necessary to first discuss the intriguing factual and legal
background colouring this case. After all, this will not be the first time the CJEU
faces thorny issues concerning discrimination on the basis of nationality and sport. More...
Editor's note: This report compiles all relevant news, events and
materials on International and European Sports Law based on the daily coverage
provided on our twitter feed @Sportslaw_asser. You
are invited to complete this survey via the comments section below, feel free
to add links to important cases, documents and articles we might have
overlooked.
The Headlines
The Court of Arbitration for Sport bans 12 Russian
track and field athletes
On 1 February 2019,
the Court of Arbitration for Sport (CAS) communicated that it had rendered another 12 decisions in the
seemingly endless saga concerning the state-sponsored doping programme in
Russia. These first-instance decisions of the CAS involve 12 Russian track and
field athletes who were all found guilty of anti-doping rule violations based on
the evidence underlying the reports published by professor Richard McLaren and
suspended from participating in sports competitions for periods ranging from
two to eight years. Arguably the most prominent name that appears on the list
of banned athletes is Ivan Ukhov, the 32-year-old high jump champion from the
2012 Olympic Games in London.
The case was
brought by the International Association of Athletics Federation (IAAF) that
sought to convince the arbitrators that the athletes in question had
participated in and/or benefited from anabolic steroid doping programmes and
benefited from specific protective methods (washout schedules) in the period
between the 2012 Olympic Games in London and the 2013 IAAF World Championships
in Moscow. The CAS was acting in lieau of the Russian Athletics Federation that
remains suspended and thus unable to conduct any disciplinary procedures. The
athletes have had the opportunity to appeal the decisions to the CAS Appeals
Arbitration Division.
Federal Cartel Office in Germany finds Rule 40 of the
Olympic Charter disproportionately restrictive
At the end of
February, the German competition authority Bundeskartellamt announced that it had entered into a commitment agreement with
the German Olympic Sports Confederation (DOSB) and the International Olympic
Committee (IOC) in which these two organisations had agreed to considerably
enhance advertising opportunities for German athletes and their sponsors during
the Olympic Games. The respective agreement is a direct consequence of the
Bundeskartellamt’s finding that the IOC and the DOSB had abused their dominant
position on the market for organising and marketing the Olympic Games by
demanding that the athletes refrain from promoting their own sponsors while the
Games are ongoing, as well as shortly before and after the Games. This
restriction stems from Rule 40(3) of the Olympic Charter under which no
competitor who participates in the Games may allow his person, name, picture or
sports performances to be used for advertising purposes, unless the IOC
Executive Board allows him/her to do so.
As part of
fulfilling its obligations under the commitment agreement, the DOSB has relaxed
its guidelines on promotional activities of German athletes during the Olympic
Games. For its part, the IOC has declared that these new guidelines would take
precedence over Rule 40(3) of the Olympic Charter. However, it still remains to
be seen whether in response to the conclusions of the German competition
authority the IOC will finally change the contentious rule.
The Grand Chamber of the European Court of Human Rights
refuses to pronounce itself on Claudia Pechstein’s case
Claudia Pechstein’s
challenge against the CAS brought before the European Court of Human Rights
(ECtHR) has not yielded the desired result for the German athlete. On 5
February 2019, a Panel of the Grand Chamber of the ECtHR decided that the Grand Chamber would not entertain the case. This
means that the judgment handed down by the 3rd Chamber of the ECtHR
on 2 October 2018, in which the ECtHR confirmed that except for the lack of
publicity of oral hearings the procedures of the CAS are compatible with the
right to a fair trial under Article 6(1) of the European Convention on Human
Rights, has now become final and binding. However, the protracted legal battle
between the five-time Olympic champion in speed skating and the CAS is not over
yet since there is one more challenge against the CAS and its independence
pending before the German Constitutional Court. More...