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...
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
#Save(d)Hakeem
The plight of
Hakeem al-Araibi – the 25-year-old refugee footballer who was arrested last
November in Bangkok upon his arrival from Australia on the basis of a red
notice issued by Interpol in contravention of its own policies which afford
protection to refugees and asylum-seekers – continued throughout the month of
January. Bahrain – the country Hakeem al-Araibi fled in 2014 due to a
(well-founded) fear of persecution stemming from his previous experience when
he was imprisoned and tortured as part of the crackdown on pro-democracy
athletes who had protested against the royal family during the Arab spring –
maintained a firm stance, demanding that Hakeem be extradited to serve a prison
sentence over a conviction for vandalism charges, which was allegedly based on
coerced confessions and ignored evidence.
While international
sports governing bodies were critised from the very beginning for not using
enough leverage with the governments of Bahrain and Thailand to ensure that
Hakeem’s human rights are protected, they have gradually added their voice to
the intense campaign for Hakeem’s release led by civil society groups. FIFA,
for example, has sent a letter directly to the Prime Minister of Thailand, urging
the Thai authorities ‘to take the
necessary steps to ensure that Mr al-Araibi is allowed to return safely to
Australia at the earliest possible moment, in accordance with the relevant
international standards’. Yet many activists have found this action
insufficient and called for sporting sanctions to be imposed on the national
football associations of Bahrain and Thailand.
When it looked like
Hakeem will continue to be detained in Thailand at least until April this year,
the news broke that the Thai authorities agreed to release
Hakeem due to the fact that for now the Bahraini government had given up on the
idea of bringing Hakeem ‘home’ – a moment that
was praised as historic for the sport and human rights movement.
Russia avoids further sanctions from WADA despite
missing the deadline for handing over doping data from the Moscow laboratory
WADA has been back
in turmoil ever since the new year began as the Russian authorities failed to
provide it with access to crucial doping data from the former Moscow laboratory
within the required deadline
which expired on 31 December 2018, insisting that the equipment WADA intended to use
for the data extraction was not certified under Russian law. The Russian
Anti-Doping Agency thus failed to meet one of the two conditions under which
its three-year suspension was controversially
lifted in September 2018.
The missed deadline sparked outrage among many athletes and national
anti-doping organisations, who blamed WADA for not applying enough muscle
against the Russian authorities.
Following the
expiry of the respective deadline, it appeared that further sanctions could be
imposed on the Russian Anti-Doping Agency, but such an option was on the table
only until WADA finally managed to access the Moscow laboratory and retrieve the
doping data on 17
January 2019. Shortly thereafter, WADA President Sir Craig Reedie hailed the
progress as a major breakthrough for clean sport and members of the WADA
Executive Committee agreed that no further
sanctions were needed
despite the missed deadline. However, doubts remain as to whether the data have
not been manipulated. Before WADA delivers on its promise and builds strong
cases against the athletes who doped – to be handled by international sports
federations – it first needs to do its homework and verify whether the
retrieved data are indeed genuine.
British track cyclist Jessica Varnish not an employee
according to UK employment tribunal
On 16 January 2019,
an employment tribunal in Manchester rendered a judgment with wider implications for athletes and sports
governing bodies in the United Kingdom, ruling that the female track cyclist
Jessica Varnish was neither an employee nor a worker of the national governing
body British Cycling and the funding agency UK Sport. The 28-year-old multiple
medal winner from the world and European championships takes part in
professional sport as an independent contractor but sought to establish before
the tribunal that she was in fact an employee of the two organisations. This
would enable her to sue either organisation for unfair dismissal as she was
dropped from the British cycling squad for the 2016 Olympic Games in Rio de
Janeiro and her funding agreement was not renewed, allegedly in response to her
critical remarks about some of the previous coaching decisions.
The tribunal
eventually dismissed her challenge, concluding that ‘she was not personally performing work provided by the respondent –
rather she was personally performing a commitment to train in accordance with
the individual rider agreement in the hope of achieving success at
international competitions’. Despite the outcome of the dispute, Jessica
Varnish has insisted that her legal challenge contributed to a positive change
in the structure, policies and personnel of British Cycling and UK Sport, while
both organisations have communicated they had already taken action to
strengthen the duty of care and welfare provided to athletes.
Sports Law Related Decisions
Official Documents and Press Releases
In the news
Doping
Football