Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very happy to continue this series of interviews with LawInSport, a knowledge hub and educational platform for the community of people working in or with an interest in sport and the law  (many thanks to LawInSport's CEO Sean Cottrell for kindly responding to our questions).

1. Can you explain to our readers what LawInSport is about?

LawInSport is a knowledge hub, educational platform and global community of people working in or with an interest in sport and the law.

Our objective is to help people ‘understand the rules of the game™’. What does this mean? It means people in sport having access to information that enables them to have a better understanding the rules and regulations that govern the relationships, behaviours and processes within sports. This in turn creates a foundation based on the principles of the rule of law, protecting the rights of everyone working and participating in sport.  

2. What are the challenges and perks of being an international sports law 'reporter’ ?

I do not consider myself a reporter, but as the head of an organisation that has a responsibility to provide the highest quality information on legal issues in sport,  focusing on what is important and not just what is popular, whilst trying to stay free from conflicts of interests. These two issues, popularism and conflict of interest, are the two of the biggest challenges.

Popularism and the drive to win attention is, in my opinion, causing a lack of discipline when it comes to factual and legal accuracy in coverage of sports law issues, which on their own may seem harmless, but can cause harm to organisations and individuals (athletes, employees, etc).

Conflict of interest will obviously arise in such a small sector, however, there is not a commonly agreed standard in internationally, let alone in sports law. Therefore, one needs to be diligent when consuming information to understand why someone may or may not hold a point of view, if they have paid to get it published or has someone paid them to write it. For this reason it can be hard to get a full picture of what is happening in the sector.

In terms of perks, I get to do something that is both challenging and rewarding on a daily basis, and as  a business owner I have the additional benefit of work with colleagues I enjoy working with. I have the privilege of meeting world leaders in their respective fields (law, sport, business, science, education, etc) and gain insights from them about their work and life experiences which is incredibly enriching.  Getting access to speak to the people who are on the front line, either athletes, coaches, lawyers, scientists, rather than from a third party is great as it gives you an unfiltered insight into what is going on.

On the other side of things, we get the opportunity to help people through either having a better understand of the legal and regulatory issues in sports or to understand how to progress themselves towards their goals academically and professionally is probably the most rewarding part of my work. 

3. What are the burning issues in international sports law that you would like to see discussed at the conference?

• The long-term implications of human rights law in sport;
• The importance of meaningful of stakeholder consultation in the creation and drafting of regulations in sport;
• Effective international safeguarding in sport.

4. Why did you decide to support the ISLJ Annual International Sports Law Conference?

We support ISLJ Annual International Sports Law Conference as it is a non-profit conference that’s purpose is to create a space to explore a wide range of legal issues in sport. The conference is an academic conference that does a great job in bringing a diverse range of speakers and delegates. The discussions and debates that take place will benefit the wider sports law community.  Therefore, as LawInSport’s objective is focused on education it was a straight forward decision to support the conferences as it is aligned with our objectives. 

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very proud to start this series of interviews with Women in Sports Law, an association launched in 2016 and which has already done so much to promote and advance the role of women in international sports law (many thanks to Despina Mavromati for kindly responding to our questions on behalf of WISLaw).

1. Can you explain to our readers what WISLaw is about?

Women In Sports Law (WISLaw, www.wislaw.co) is an international association based in Lausanne that unites more than 300 women from 50 countries specializing in sports law. It is a professional network that aims at increasing the visibility of women working in the sector, through a detailed members’ directory and various small-scale talks and events held in different countries around the world. These small-scale events give the opportunity to include everyone in the discussion and enhance the members’ network. Men from the sector and numerous arbitral institutions, conference organizers and universities have come to actively support our initiative.

2. What are the challenges and opportunities for women getting involved in international sports law?

Women used to be invisible in this sector. All-male panels were typical at conferences and nobody seemed to notice this flagrant lack of diversity. WISLaw created this much-needed platform to increase visibility through the members’ directory and through a series of small-scale events where all members, independent of their status or seniority, can attend and be speakers.

Another difficulty is that European football (soccer) is traditionally considered to be a “male-dominated” sport, despite the fact that there are so many great female football teams around the world. The same misperception applies to sports lawyers!

Last, there is a huge number of women lawyers working as in-house counsel and as sports administrators. There is a glass ceiling for many of those women, and the WISLaw annual evaluation of the participation of women in those positions attempts to target their issues and shed more light into this specific problem.

3. What are the burning issues in international sports law that you would like to see discussed at the conference?

The ISLJ Annual Conference has already set up a great lineup of topics combining academic and more practical discussions in the most recent issues in international sports law. 

4. Why did you decide to support the ISLJ Annual International Sports Law Conference?

The Asser International Sports Law Centre has promoted and supported WISLaw since the very beginning. The ISLJ Annual International Sports Law Conference was the first big conference to officially include a WISLaw lunch talk in its program, allowing thus the conference attendees to be part of a wider informal discussion on a specific topical issue and raise their questions with respect to WISLaw. Another important reason why WISLaw supports this conference is because the conference organizers are making sincere efforts to have increased diversity in the panels : this year’s ISLJ Annual International Sports Law Conference is probably the first sports law conference to come close to a full gender balance in its panels, with 40% of the speakers being women !

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. He is also member of the IV^th Division of the High Court of Sport Justice (Collegio di Garanzia dello sport) at the National Olympic Committee.

1. On the 20^th July 2018, the Court of Arbitration for Sport (hereinafter referred to as “CAS”) issued its decision in the arbitration procedure between AC Milan and UEFA. The subject matter of this arbitration procedure was the appeal filed by AC Milan against the decision of the Adjudicatory Chamber of the UEFA Financial Control Body dated 19^th June 2018 (hereinafter referred to as “the contested decision”). As many likely know, the CAS has acknowledged that, although AC Milan was in breach of the break-even requirement, the related exclusion of the club from the UEFA Europe League was not proportionate. To date, it is the first time the CAS clearly ruled that the sanction of exclusion from UEFA club competitions for a breach of the break-even requirement was not proportionate. For this reason the CAS award represents a good opportunity to reflect on the proportionality test under Art. 101 TFEU and the relationship between the landmark ruling of the European Court of Justice (hereinafter referred to as “ECJ”) in the Meca Medina and Majcen affair and the very recent case-law of the CAS. More...

My favourite speed skater (Full disclosure: I have a thing for speed skaters bothering the ISU), Claudia Pechstein, is back in the news! And not from the place I expected. While all my attention was absorbed by the Bundesverfassungsgericht in Karlsruhe (BVerfG or German Constitutional Court), I should have looked to the European Court of Human Rights in Strasbourg (ECtHR). The Pechstein and Mutu joint cases were pending for a long time (since 2010) and I did not anticipate that the ECtHR would render its decision before the BVerfG. The decision released last week (only available in French at this stage) looked at first like a renewed vindication of the CAS (similar to the Bundesgerichtshof (BGH) ruling in the Pechstein case), and is being presented like that by the CAS, but after careful reading of the judgment I believe this is rather a pyrrhic victory for the status quo at the CAS. As I will show, this ruling puts to rest an important debate surrounding CAS arbitration since 20 years: CAS arbitration is (at least in its much-used appeal format in disciplinary cases) forced arbitration. Furthermore, stemming from this important acknowledgment is the recognition that CAS proceedings must comply with Article 6 § 1 of the European Convention of Human Rights (ECHR), in particular hearings must in principle be held in public and decisions freely available to all. Finally, I will criticise the Court’s finding that CAS complies with the requirements of independence and impartiality imposed by Article 6 § 1 ECHR. I will not rehash the  well-known facts of both cases, in order to focus on the core findings of the decision. More...

Dear all,

Last year we decided to launch the 'ISLJ Annual International Sports Law Conference' in order to give a public platform to the academic discussions on international sports law featured in the ISLJ. The first edition of the conference was a great success (don't take my word for it, just check out #ISLJConf17 on twitter), featuring outstanding speakers and lively discussions with the room. We were very happy to see people from some many different parts of the world congregating at the Institute to discuss the burning issues of their field of practice and research.

This year, on 25 and 26 October, we are hosting the second edition and we are again welcoming well-known academics and practitioners in the field. The discussions will turn around the notion of lex sportiva, the role of Swiss law in international sports law, the latest ISU decision of the European Commission, the Mutu/Pechstein ruling of the European Court of Human Rights, or the reform proposal of the FIFA Regulations on the Transfer and Status of Players. It should be, it will be, an exciting two days!

You will find below the final programme of the conference, please feel free to circulate it within your networks. We have still some seats left, so don't hesitate to register (here) and to join us.

Looking forward to seeing you and meeting you there!

Antoine

Editor's note: Panagiotis Roumeliotis holds an LL.B. degree from National and Kapodistrian University of Athens, Greece and an LL.M. degree in European and International Tax Law from University of Luxembourg. He is qualified lawyer in Greece and is presently working as tax advisor with KPMG Luxembourg while pursuing, concomitantly, an LL.M. in International Sports Law at Sheffield Hallam University, England. His interest lies in the realm of tax and sports law. He may be contacted by e-mail at ‘p.roumeliotis@hotmail.com’.

Introduction

The landmark Bosman Ruling triggered the Europeanization of the labour market for football players by banning nationality quotas. In turn, in conjunction with the boom in TV revenues, this led to a flourishing transfer market in which players’ agents or intermediaries play a pivotal role, despite having a controversial reputation.

As a preliminary remark, it is important to touch upon the fiduciary duty of sports agents towards their clients. The principal-agent relationship implies that the former employs the agent so as to secure the best employment and/or commercial opportunities. Conversely, the latter is expected to act in the interest of the player as their relationship should be predicated on trust and confidence, as much was made clear in the English Court of Appeal case of Imageview Management Ltd v. Kelvin Jack. Notably, agents are bound to exercise the utmost degree of good faith, honesty and loyalty towards the players.[1]

At the core of this blog lies a comparative case study of the implementation of the FIFA Regulations on working with intermediaries (hereinafter “FIFA RWI”) in eight European FAs covering most of the transfers during the mercato. I will then critically analyze the issues raised by the implementation of the RWI and, as a conclusion, offer some recommendations. More...

Rumours are swirling around the decision (available in French here) of the Court of Appeal of Brussels in the case opposing RFC Seraing United to FIFA (as well as UEFA and the Belgian Football Federation, URSBFA) over the latter’s ban on third-party ownership. The headlines in various media are quite dramatic (see here and here), references are made to a new Bosman, or to a shaken sport’s legal system. Yet, after swiftly reading the decision for the first time on 29th August, I did not have, unlike with the Pechstein ruling of the Oberlandesgericht München, the immediate impression that this would be a major game-changer for the Court of Arbitration for Sport (CAS) and the role of arbitration in sports in general. After careful re-reading, I understand how certain parts of the ruling can be misunderstood or over-interpreted. I believe that much of the press coverage failed to accurately reflect the reasoning of the court and to capture the real impact of the decision. In order to explain why, I decided to write a short Q&A (including the (not water-proof) English translations of some of the key paragraphs of the decision).

 More...

My latest article has just been published online by the Journal of Law and Society. It is available open access here.

The article stems from a conference organised by Jiri Priban from Cardiff University on Gunther Teubner's idea of societal constitutionalism applied to transnational regimes. My role was to test whether his descriptive and normative framework was readily applicable to the lex sportiva, and in particular its overarching "constitutional" text: the Olympic Charter.

As you will see my conclusion is mixed. I find that the Olympic Charter (OC) displays many constitutional features and is even able to regularly defend successfully its autonomy vis-à-vis national states and their laws. However, while I document some inception of limitative constitutional rules, such as the ban on discrimination or the principle of fair play, I also conclude that those have limited impact in practice. While constitutional changes to the OC can be triggered by scandal, resistance and contestation, as illustrated by the emergence of environmental concerns after the Albertville Games and the governance reshuffle of the IOC after the Salt Lake City scandal, I am also sceptical that these were sufficient to tackle the underlying problems, as became obvious with the unmatched environmental damage caused by the Sotchi Games in 2014.

In conclusion, more than sporadic public outrage, I believe that the intervention of national law and, even more, European Union law will be capable and needed to rein the Olympic regime and impose external constitutional constraints on its (at least sometimes) destructive operations.

Here is the abstract of the article: This article examines various aspects of Teubner's theory of societal constitutionalism using the lex sportiva as an empirical terrain. The case study focuses on the operation of the Olympic Charter as a transnational constitution of the Olympic movement. It shows that recourse to a constitutional vocabulary is not out of place in qualifying the function and authority of the Charter inside and outside the Olympic movement. Yet, the findings of the case study also nuance some of Teubner's descriptive claims and question his normative strategy.

Good read! (And do not hesitate to share your feedback)

The T.M.C. Asser Instituut offers post-graduate students the opportunity to gain practical experience in the field of international and European sports law.  The T.M.C. Asser Instituut, located in The Hague, is an inter-university research institute specialized in international and European law. Since 2002, it is the home of the ASSER International Sports Law Centre, a pioneer in the field of European and international sports law. 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. She recently published an article in the International Sports Law Journal that discusses to what extent the revised bidding and hosting regulations by FIFA, the IOC and UEFA strengthen access to remedy for mega-sporting events-related human rights violations.

The 21^st FIFA World Cup is currently underway. Billions of people around the world follow the matches with much enthusiasm and support. For the time being, it almost seems forgotten that in the final weeks leading up to the events, critical reports on human rights issues related to the event piled up. This blog explains why addressing these issues has to start well in advance of the first ball being kicked and cannot end when the final match has been played. 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 3^rd 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...

 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.

Asser International Sports Law Blog

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