Editor’s note: Stephen Weatherill is the Jacques Delors
Professor of European Law at Oxford University. He also serves as Deputy
Director for European Law in the Institute of European and Comparative
Law, and is a Fellow of Somerville College. This blog appeared first on
eulawanalysis.blogspot.com and is reproduced here with the agreement of
the author.
The crumbling of the ‘SuperLeague’ is a source of joy to many football
fans, but the very fact that such an idea could be advanced reveals
something troublingly weak about the internal governance of football in
Europe – UEFA’s most of all – and about the inadequacies of legal
regulation practised by the EU and/ or by states. This note explains why
a SuperLeague is difficult to stop under the current pattern of legal
regulation and why accordingly reform is required in order to defend the
European model of sport with more muscularity. More...
The mercato, or transfer window, is for some the most
exciting time in the life of a football fan. During this narrow period
each summer and winter (for the Europeans), fantastic football teams are
made or taken apart. What is less often known, or grasped is that
behind the breaking news of the latest move to or from your favourite
club lies a complex web of transnational rules, institutions and
practices.
Our new intensive two-day Masterclass aims to provide a comprehensive
understanding of the FIFA Regulations on the Status and Transfer of
Players (RSTP) to a small group of dedicated legal
professionals who have the ambition to advise football clubs, represent
players or join football governing bodies. The course combines theoretical
insights on FIFA’s regulation of the transfer market with practical
know-how of the actual operation of the RSTP distilled by hands-on practitioners.
Download the full Programme and register HERE.
The Team:
- Dr Antoine Duval is a senior researcher at the Asser Institute and the head of the Asser International Sports Law Centre. He has widely published and lectured on transnational sports law, sports arbitration and the interaction between EU law and sport. He is an avid football fan and football player and looks forward to walking you through the intricacies of the FIFA transfer system.
- Carol Couse is a Partner in the sports team at Mills & Reeve LLP , with extensive in-house and in private practice experience of dealing with sports regulatory matters, whether contentious or non-contentious. She has advised on many multi million pound international football transfer agreements, playing contracts and image rights agreements on behalf clubs, players and agents.
- Jacques Blondin is an Italian lawyer, who joined FIFA inundefined 2015, working for the Disciplinary Department. In 2019, he was appointed Head of FIFA TMS (now called FIFA Regulatory Enforcement) where he is responsible, among other things, for ensuring compliance in international transfers within the FIFA Transfer Matching System.
- Oskar van Maren joined FIFA as a Legal Counsel in December 2017, forming part of the Knowledge Management Hub, a department created in September 2020. Previously, he worked for FIFA’s Players' Status Department. Between April 2014 and March 2017, he worked as a Junior Researcher at the T.M.C. Asser Instituut. He holds an LL.M in European law from Leiden University (The Netherlands).
- Rhys Lenarduzzi is currently a research intern at the Asser International Sports Law Centre, where he focuses in particular on the transnational regulation of football. Prior to this, he acquired over 5 years of experience as a sports agent and consultant, at times representing over 50 professional athletes around the world from various sports, though predominantly football.
Editor’s
note: Thomas Terraz is a L.LM. candidate in
the European Law programme at Utrecht University and a former intern of the Asser International Sports Law Centre
1. Sport Nationalism is Politics
Despite all efforts, the
Olympic Games has been and will be immersed in politics. Attempts to shield the
Games from social and political realities are almost sure to miss their mark
and potentially risk being disproportionate. Moreover, history has laid bare
the shortcomings of the attempts to create a sanitized and impenetrable bubble
around the Games. The first
blog of this series examined the idea of the Games as a sanitized space and
dived into the history of political neutrality within the Olympic Movement to
unravel the irony that while the IOC aims to keep the Olympic Games ‘clean’ of
any politics within its ‘sacred enclosure’, the IOC and the Games itself are largely
enveloped in politics. Politics seep into the cracks of this ‘sanitized’ space through:
(1) public protests (and their suppression by authoritarian regimes hosting the
Games), (2) athletes who use their public image to take a political stand, (3) the
IOC who takes decisions on recognizing national Olympic Committees (NOCs) and awarding
the Games to countries,[1]
and (4) states that use the Games for geo-political posturing.[2] With
this background in mind, the aim now is to illustrate the disparity between the
IOC’s stance on political neutrality when it concerns athlete protest versus
sport nationalism, which also is a form of politics.
As was mentioned in part
one of this series, the very first explicit mention of politics in the Olympic
Charter was in its 1946 version and aimed to combat ‘the nationalization of
sports for political aims’ by preventing ‘a national exultation of success
achieved rather than the realization of the common and harmonious objective
which is the essential Olympic law’ (emphasis added). This sentiment was
further echoed some years later by Avery Brundage (IOC President (1952-1972))
when he declared: ‘The Games are not, and must not become, a contest between
nations, which would be entirely contrary to the spirit of the Olympic Movement
and would surely lead to disaster’.[3] Regardless
of this vision to prevent sport nationalism engulfing the Games and its
codification in the Olympic Charter, the current reality paints quite a
different picture. One simply has to look at the mass obsession with medal
tables during the Olympic Games and its amplification not only by the media but
even by members of the Olympic Movement.[4]
This is further exacerbated when the achievements of athletes are used for domestic
political gain[5] or when they are used to
glorify a nation’s prowess on the global stage or to stir nationalism within a
populace[6]. Sport
nationalism is politics. Arguably, even the worship of national imagery during
the Games from the opening ceremony to the medal ceremonies cannot be
depoliticized.[7] In many ways, the IOC has turned
a blind eye to the politics rooted in these expressions of sport nationalism
and instead has focused its energy to sterilize its Olympic spaces and stifle political
expression from athletes. One of the ways the IOC has ignored sport nationalism
is through its tacit acceptance of medal tables although they are expressly
banned by the Olympic Charter.
At this point, the rules restricting
athletes’ political protest and those concerning sport nationalism,
particularly in terms of medal tables, will be scrutinized in order to highlight
the enforcement gap between the two. More...
Editor's note: Michele Krech is a JSD Candidate and SSHRC Doctoral Fellow at NYU School of Law. She was retained as a consultant by counsel for Caster Semenya in the proceedings before the Court of Arbitration for Sport discussed above. She also contributed to two reports mentioned in this blog post: the Report of UN High Commissioner for Human Rights, Intersection of race and gender discrimination in sport (June 2020); and the Human Rights Watch Report, “They’re Chasing Us Away from Sport”: Human Rights Violations in Sex Testing of Elite Women Athletes (December 2020).
This blog was first published by the Völkerrechtsblog and is republished here with authorization. Michele Krech will be joining our next Zoom In webinar on 31 March to discuss the next steps in the Caster Semenya case.
Sport is the field par excellence in which discrimination
against intersex people has been made most visible.
Commissioner for Human Rights, Council of Europe
Issue Paper: Human rights and intersex people (2015)
Olympic and world champion athlete Caster Semenya
is asking the European Court of Human Rights (ECtHR) to make sure all
women athletes are “allowed to run free, for once and for all”. Semenya
brings her application against Switzerland, which has allowed a private
sport association and a private sport court to decide – with only the
most minimal appellate review by a national judicial authority – what it
takes for women, legally and socially identified as such all their
lives, to count as women in the context of athletics. I consider how
Semenya’s application might bring human rights, sex, and sport into
conversation in ways not yet seen in a judicial forum. More...
On Wednesday 31 March 2021 from 16.00-17.30 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret (University of Lausanne), is organising its fourth Zoom In webinar
on the recent developments arising from the decision of the Swiss
Federal Tribunal (SFT) in the case Caster Semenya v. International
Association of Athletics Federations (now World Athletics), delivered on
25 August 2020.
Background
The participation of athletes with
biological sex differences to international competitions is one of the
most controversial issues in transnational sports law. In particular,
since 2019, Caster Semenya, an Olympic champion from South-Africa has
been challenging the World Athletics eligibility rules for Athletes with Differences of Sex Development
(DSD Regulation), which would currently bar her from accessing international competitions (such as the Tokyo Olympics) unless she accepts to undergo medical treatment aimed at
reducing her testosterone levels. In April 2019, the Court of
Arbitration for Sport rejected her challenge against the DSD Regulation
in a lengthy award.
In response, Caster Semenya and the South African Athletics Federation filed
an application to set aside the award before the Swiss Federal Tribunal.
In August 2020, the SFT released its decision rejecting Semenya’s challenge of the award (for an extensive commentary of the ruling see Marjolaine Viret’s article on the Asser International Sports Law Blog).
Recently, on 25 February 2021, Caster Semenya announced her decision to lodge an application
at the European Court of Human Rights (ECtHR) against Switzerland on
the basis of this judgment. In this context, we thought it important to
organise a Zoom In webinar around the decision of the SFT and
the pending case before the ECtHR. Indeed, should the ECtHR accept the
case, it will be in a position to provide a definitive assessment of the
human rights compatibility of the DSD Regulation. Moreover, this
decision could have important consequences on the role played by human
rights in the review of the private regulations and decisions of
international sports governing bodies.
Speakers
Participation is free, register HERE.
Dear readers,
If you missed it (or wish to re-watch it), the video of our third Zoom In webinar from 25 February on the CAS award in the World Anti-Doping Agency v. Russian Anti-Doping Agency case is available on the YouTube channel of the Asser Institute:
Stay tuned and watch this space, the announcement for the next Zoom In webinar, which will take place on 31 March, is coming soon!
Editor's Note: Daniela
Heerdt is a PhD researcher 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 published a number of articles on mega-sporting
events and human rights, in the
International Sports Law Journal, Tilburg Law
Review, and the Netherlands
Quarterly of Human Rights.
In the past couple of years, the Fédération
Internationale de Football Association (FIFA) made remarkable steps towards embedding
human rights into their practices and policies. These developments have been
discussed at length and in detail in this
blog and elsewhere, but
a short overview at this point is necessary to set the scene. Arguably, most
changes were sparked by John
Ruggie’s report from 2016, in which he articulated a set of concrete
recommendations for FIFA “on what it means for FIFA to embed respect for human
rights across its global operations”, using the UN Guiding Principles on Business
and Human Rights (UNGPs) as authoritative standard.[i]
As a result, in May 2017, FIFA
published a human rights policy, in which it commits to respecting
human rights in accordance with the UNGPs, identifies its salient human rights
risks, and acknowledges the potential adverse impacts it can have on human
rights in general and human rights of people belonging to specific groups. In
October 2017, it adopted new bidding regulations requiring
bidders to develop a human rights strategy and conduct an independent human
rights risk assessment as part of their bid. In March 2017, FIFA also created
a Human Rights Advisory Board,
which regularly evaluated FIFA’s human rights progress and made recommendations
on how FIFA should address human rights issues linked to its
activities. The mandate of the Advisory Board expired at the end of last
year and the future of this body is unknown at this point.
While some of these steps can be directly
connected to the recommendations in the Ruggie report, other recommendations
have largely been ignored. One example of the latter and focus of this blog
post is the issue of embedding human rights at the level of national football
associations. It outlines recent steps taken by the German football association
“Deutscher Fussball-Bund” (DFB) and the Dutch football association “Koninklijke
Nederlandse Voetbalbond” (KNVB) in relation to human rights, and explores to
what extent these steps can be regarded as proactive moves by those
associations or rather spillover effects from FIFA’s human rights efforts. More...
On Thursday 25 February 2021 from 16.00-17.30 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret (University of Lausanne), organizes a Zoom In webinar
on the recent award of the Court of Arbitration for Sport (CAS) in the
case World Anti-Doping Agency (WADA) v. Russian Anti-Doping Agency
(RUSADA), delivered on 17 December 2020.
Background
In its 186 pages decision
the CAS concluded that RUSADA was non-compliant with the World
Anti-Doping Code (WADC) in connection with its failure to procure the
delivery of the authentic LIMS data (Laboratory Information Management
System) and underlying analytical data of the former Moscow Laboratory
to WADA. However, the CAS panel did not endorse the entire range of
measures sought by WADA to sanction this non-compliance. It also reduced
the time frame of their application from four to two years. The award
has been subjected to a lot of public attention and criticisms, and some
have expressed the view that Russia benefited from a lenient
treatment.
This edition of our Zoom in webinars will focus on assessing the
impact of the award on the world anti-doping system. More specifically,
we will touch upon the decision’s effect on the capacity of WADA to
police institutionalized doping systems put in place by certain states,
the ruling’s regard for the rights of athletes (Russian or not), and its
effect on the credibility of the world anti-doping system in the eyes
of the general public.
To discuss the case with us, we are very happy to welcome the following speakers:
Participation is free, register HERE.
Editor’s note: Rhys Lenarduzzi recently
completed a Bachelor of Law (LL.B) and Bachelor of Philosophy (B.Phil.) at the
University of Notre Dame, Sydney, Australia. As a former professional athlete,
then international sports agent and consultant, Rhys is interested in
international sports law, policy and ethics. He is currently undertaking an
internship at the T.M.C. Asser Institute with a focus on Transnational Sports
Law.
As one may have gathered from the series
thus far, the question that comes out of this endeavour for me, is whether
redistribution in football would be better divorced from the transfer system?
In my introductory
blog I point towards historical,
cultural, and of course the legal explanations as to why redistribution was
established, and why it might be held onto despite obvious flaws. In my second
blog, I point out how the training
compensation and solidarity mechanisms work in practice through an African case
study, as well as the hindrance caused and the Eurocentricity of the
regulations. The key take-away from my third
blog on the non-application of training
compensation in women’s football might be that training compensation should
apply to both men’s and women’s football, or neither. The sweeping
generalisation that men’s and women’s football are different as justification for
the non-application to the women’s game is not palatable, given inter alia
the difference between the richest and poorest clubs in men’s football. Nor is
it palatable that the training compensation mechanism is justified in men’s
football to incentivise training, yet not in women’s football.
In the fourth
blog of this series, I raise concerns that
the establishment of the Clearing House prolongs the arrival of a preferable
alternative system. The feature of this final blog is to consider alternatives
to the current systems. This endeavour is manifestly two-fold; firstly, are
there alternatives? Secondly, are they better? More...
Editor’s note: Rhys Lenarduzzi recently completed a Bachelor of Law (LL.B) and a Bachelor of Philosophy (B.Phil.) at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.
In September 2018, the Football Stakeholders Committee endorsed the idea of a Clearing House that was subsequently approved in October of the same year by the FIFA Council. A tender process commenced in July 2019 for bidders to propose jurisdiction, operation and establishment. Whilst many questions go unanswered, it is clear that the Clearing House will be aimed at closing the significant gap between what is owed and what is actually paid, in respect to training compensation and solidarity payments. The Clearing House will have other functions, perhaps in regard to agents’ fees and other transfer related business, though those other operations are for another blog. It will hence act as an intermediary of sorts, receiving funds from a signing and therefore owing club (“new” club) and then moving that money on to training clubs. Whilst separate to FIFA, to what extent is unclear.
I have landed at the position of it being important to include a section in this blog series on the soon to commence Clearing House, given it appears to be FIFA’s (perhaps main) attempt to improve the training compensation and solidarity mechanisms. As will be expanded upon below, I fear it will create more issues than it will solve. Perhaps one should remain patient and optimistic until it is in operation, and one should be charitable in that there will undoubtedly be teething problems. However, it is of course not just the function of the Clearing House that is of interest, but also what moving forward with the project of the Clearing House represents and leaves unaddressed, namely, the issues I have identified in this blog series. More...