Editor's Note: Marjolaine is an attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences. She currently participates as a scientific collaborator at the University of Neuchâtel on a research project to produce the first article-by-article legal commentary of the 2015 World Anti-Doping Code.
Over the past days, we have been flooded by
media reports discussing the “Caster Semenya-case”, reports rapidly relayed in
social networks. Since the debate has a distinct legal component and since
almost every report appears to draw significantly from the legal background, I granted
myself permission – as compensation so to speak - to publish a somewhat more personal,
less legal, post than I usually would.
Let me make one thing clear from the outset
– I am still ‘agnostic’ about the question of how to solve the issues
surrounding the male versus female divide in sports. Each time I have been
asked to write or speak on the subject, I have tried to stick to describing the
legal situation and its implications. I do not have the miracle solution as to
how to handle this infinitely complex issue. And I am not sure anyone can claim
to hold that solution at this point. Like everyone, I am doing my research and
trying to be humble enough to stay within the realm of my competences. More...
Editor’s note: Yann Hafner is a Phd researcher at the University of Neuchâtel specialized
in sports and nationality issues. He is also Legal Affairs Manager at the Fédération
Internationale de Volleyball. Yann is
an editor of the ASSER International Sports Law Blog and has previously
published on the blog on nationality conundrums at the FIFA World Cup 2014 in
Brazil (see here).
This contribution aims to decipher
the relationship between sporting nationality and the Olympic Games. To this
end, the author will first define sporting nationality and discuss athletes’
eligibility in national team in the context of the Olympic Games. Then,
selected issues in relation with sporting nationality and the Olympic Games
(with an emphasis on issues related to the Rio 2016 Olympic Games) will be investigated.
More...
Editor's note: Marjolaine Viret and Emily Wisnosky are both editors of the ASSER International Sports Law Blog specialized in anti-doping matters, they are also involved in the World Anti-Doping Commentary project funded by the Swiss National Science Fund.
Introduction
A remarkable aspect of the run-up to the 2016
Rio Olympic Games was the stream of negative media reports portraying
broad-scale public mistrust in sport, with the most prominent topic being the doping
scandals in athletics and questions surrounding the participation of Russia.
A different controversy, but one also
directed at the credibility of sports, has exposed a few female Olympians to
repeated, and at times rather intrusive, media scrutiny. In June 2016, it was reported
that Indian track-and-field athlete Dutee Chand had qualified for the Rio
Olympic Games by breaking the national record, thus to become the first Indian
athlete to run the 100m at the Olympics since 1980. The attention that Dutee
Chand’s qualification attracted within international media, however, was not
related only to her outstanding results. It came as part of a medical, ethical
and legal controversy that has existed for many years relating to ‘policing’
the male versus female divide in sports. Another athlete who has found herself
in the midst of this controversy is South African runner Semenya Caster, whose
participation in the Olympics has been the object of much
conjecture.
The divide between male and female athletes
forms the core of most sports’ competition rules, including athletics. The
justification for this basic divide has rarely been questioned as such, but has
been a matter for debate when it comes to handling atypical situations on both
sides of the ‘dividing line’ such as ‘transgender’ or ‘intersex’ athletes. A category of
athletes that has, especially, been viewed as a challenge to the divide is composed
of female athletes affected by ‘hyperandrogenism’, a health condition that
results in naturally elevated androgen levels, including testosterone levels.
On 24 July 2015, a CAS panel rendered a decision
involving Dutee Chand (“Dutee Chand” or “the Athlete”) that has fuelled the
ongoing debate about the policies regulating hyperandrogenism in sport. Much
has been reported in the media about the case: controversial issues include
whether the CAS was the appropriate forum to assess these questions; whether
the decision was appropriate, both on the merits and on the procedure; and what
the consequences of the CAS award would be, for the parties, for athletics and
for the sporting community at large.
Much like the current crisis surrounding
doping in sports, the public attention on women with (proven or suspected) hyperandrogenism
is driven by a concern that an athlete’s physiology – natural or artificially
induced could distort competition, destroying the ‘level playing field’
that supports the Olympic ideal. Both topics are also often brought back to the
goal of protecting an athlete’s health. Parallels are further found in the
strong reactions both topics evoke, and the steps taken by the regulating
authorities to convince the public that everything in their power is being done
to preserve a level playing field.
A less obvious but equally important point
of comparison can be found in the issues both topics raise concerning the legal
validity of decisions made by sports organizations, especially in a
science-related context. This blog focuses on those more ‘legal’ aspects,
through the prism of the decision of the CAS in the Dutee Chand matter and its
legal implications. After touching briefly on the
background of the case, we will comment on two aspects of the Chand award with
respect to challenges in regulating hyperandrogenism in sport within the
confines of the law: First from the viewpoint of a CAS panel called upon to
evaluate the validity of a set of regulations, and second from the viewpoint of
the sports organizations seeking to both adequately protect fairness in sport
and to provide a legally valid (and effective) regulatory solution.[1]
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 have overlooked.
The Headlines
The McLaren Report on Russia’s State Doping System
It is difficult not to start this monthly
report without referring to the never-ending Russian doping investigation that
is shaking the sporting world. On 18 July, the independent investigation on
Sochi 2014 winter Olympics led by Prof. McLaren, a Canadian law professor, and requested
by the World Anti-Doping Agency (“WADA”), released its report. It confirmed
evidence of widespread, State-sponsored doping in Russian sports and called for
a full ban on the country from the next Rio Olympics. In response to the report,
the International Olympic Committee (“IOC”) vowed to take the “toughest sanctions available”. However, and despite the race against time in the
run-up to Rio 2016, the IOC delayed its decision for several days amid a WADA statement and several press articles
calling for a ban of Russia from Rio Olympics. Meanwhile, it did open an investigation
against Russia’s sports minister, Vitaly Mutko, the head official who allegedly supervised the overall doping cover up and explored all possible
legal actions against Russia. On 21 July, the Court of Arbitration for Sport (“CAS”) rejected the
appeal of the Russian Olympic Committee and 68
Russian athletes against the International Association of Athletics Federations
(“IAAF”) decisions to suspend All Russia Athletics Federation (ARAF) from IAAF
membership given the evidence of a state-sponsored doping system. As a
consequence, Russian track and field athletes were also banned from Rio 2016
Olympics. With the IAAF
welcoming this decision, one could think that nothing was standing in the way
of a full Olympic ban for all Russian athletes. While some Russian athletes announced
that they would appeal the CAS award to the Swiss Federal Court. Yelena
Isinbayeva, the banned pole vault champion, even took it a step further by
claiming that she would challenge the IAAF decision as far as the European Court of
Human Rights. Yet, it is very improbable that any of
these challenges be decided in time for the Rio Games.More...
Editor's note: Marine Montejo is a graduate from the College of
Europe in Bruges and is currently an intern at the ASSER International Sports
Law Centre.
Part 2. EU competition law and sports funding
The first analysed impact of Brexit on
sport was the one regarding EU internal market rules and free movement.
However, all sport areas that are of interest to the European Union will be
impacted by the result of the future Brexit negotiations. This second part of
the blog will focus on EU competition law and the media sector as well as
direct funding opportunities keeping in mind that if the UK reaches for an EEA
type agreement competition law and state aid rules will remain applicable as
much as the funding programs. More...
On Monday 18 July 2016, Canadian lawyer Richard McLaren presented the Independent Person Report to the World Anti-Doping Agency (WADA), regarding the alleged Russian
doping program surrounding the 2014 Sochi Winter Olympics. The report was expected
to seriously threaten the participation of Russian Athletes to the rapidly
approaching Rio Games, starting on 5
August. In the weekend prior to the report’s publishing, Reuters obtained a leaked
letter drafted by the CEO’s of the US and Canadian anti-doping agencies,
which according to the New York Times was backed by “antidoping officials from at least 10 nations— including
those in the United States, Germany, Spain, Japan, Switzerland and Canada — and
20 athlete groups”, urging the International Olympic Committee (IOC) to
ban all Russian athletes from the upcoming Olympics.
Source: http://ww4.hdnux.com/photos/50/23/01/10563667/3/920x920.jpg
More...
Editor's note: Marine Montejo is a graduate from the College of
Europe in Bruges and is currently an intern at the ASSER International Sports
Law Centre.
The result of the Brexit referendum on 23
June 2016 took the European Union (almost) by surprise. A lot has been said and
written about the impact of the United Kingdom leaving the EU. As in all other
areas, the British sport sector will also face the effects of the modification
of the relationship between the EU and its (probable) former Member State, the
UK. It is nearly impossible to foresee all consequences as the UK has not even
triggered article 50 TFEU yet to officially start the exit negotiations.
However, as the UK position toward the EU will change in any case, this two-part
blog aims to examine the main practical implications of such an exit for the
UK, but also for the EU, in relation to the actual application of EU law in
sport and the EU sport policy.
Unless stated otherwise, the use of the
terms Brexit in this blog should be understood as a complete exit of the UK
from the European Union. This blog focus in particular on this worst case
scenario and its consequences for UK sport. However, it is highly improbable
that the future Brexit negotiations with the EU will end up without some kind
of special agreement between the two parties the first of which being an EEA
type of agreement with full access to the internal market and applicability of
EU law.
The first part of this blog will examined
the consequences for UK sport in terms of access to the EU internal market and
the applicability of free movement principles. The second part is focused on specific
impacts with regard of others domain of EU law for professional and grassroots
UK 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
What a month June
turned out to be. Waking up the morning after the 23rd, the results
of the UK referendum on EU membership were final. The words of Mark Twain: “Apparently
there is nothing that cannot happen today”, might provide the most apt
description of the mood felt at the time.[1]
The Leave campaign’s narrow victory has brought along tremendous economic,
political and legal uncertainties for both the UK and the (other) Member
States. To give but one example, with regard to the implications of Brexit on Europe’s
most profiting football league, we recommend an older blog
by Daniel Geey and Jonny Madill. More...
It’s been a long wait, but they’re finally here!
On Monday, the European Commission released its decisions regarding State aid to seven Spanish professional football clubs (Real Madrid on two occasions) and five Dutch professional football clubs. The decisions mark the end of the formal
investigations, which were opened in 2013. The Commission decided as follows:
no State aid to PSV Eindhoven (1); compatible aid to the Dutch clubs FC Den
Bosch, MVV Maastricht, NEC Nijmegen and Willem II (2); and incompatible aid granted
to the Spanish football clubs Real Madrid, FC Barcelona, Valencia CF, Athletic
Bilbao, Atlético Osasuna, Elche and Hércules (3).
The recovery decisions in particular are truly historic.
The rules on State aid have existed since the foundation of the European
Economic Community in 1958, but it is the very first time
that professional football clubs have been ordered to repay aid received from
(local) public authorities.[1]
In a way, these decisions complete a development set in motion with the Walrave
and Koch ruling of 1974, where
the CJEU held that professional sporting activity, and therefore also football,
is subject to EU law. The landmark Bosman case of 1995 proved to be of great significance as
regards free movement of (professional) athletes and the Meca-Medina case of 2006 settled that EU competition rules were
equally applicable to the regulatory activity of sport. The fact that the first
ever State aid recovery decision concerns major clubs like Real Madrid, FC
Barcelona and Valencia, give the decisions extra bite. Therefore, this blog
post will focus primarily on the negative/recovery decisions[2],
their consequences and the legal remedies available to the parties involved.[3]
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
Challenged
membership put a lot of emphasis on football federations in May. The Court of Arbitration for Sport (“CAS”) has
rendered an award, on 27 April 2016, ordering the FIFA Council to
submit the application of the Gibraltar Football Association (GFA) for FIFA
membership to the FIFA Congress (the body authorised to admit new members to FIFA). The GFA has sought since 1999 to become a member of
UEFA and FIFA. In May 2013, it became a
member of the UEFA and went on to seek membership of FIFA. More...