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.

The Human Rights Climate in Potential Co-hosts

The list of human rights issues commonly linked to the potential co-hosts is long.[i] All of them uphold severe restrictions on the freedom of expression and regularly silence activists. Women face discrimination under the law of a number of these countries, and the rights of migrant workers are not adequately protected, leading to abusive situations and forced labour.[ii] Arbitrary arrests and unfair trials and sentencing are widespread in Oman.[iii]Bahrain has a habit of detaining, torturing and deporting human rights defenders and Kuwait refuses to recognize the 100,000 Bidun living in the country as Kuwaiti citizens, leaving them stateless. The latest add-on to Saudi Arabia’s appalling human rights track record is the mass execution of 37 individuals, which proceeded against vociferous criticism from other states and human rights organizations about the lack of due process and allegations of torture having been used to obtain confessions of those convicted and executed. Furthermore, even the highest football official cannot have missed the allegations on Saudi officials being involved in the murder of the journalist Jamal Khashoggi in the Saudi consulate in Turkey in October 2018. Finally, the active involvement of and alleged attacks on civilians launched by Saudi Arabia and the UAE in the Yemen war can also not be ignored.

In addition to these structural human rights issues spread in the region, a number of these countries have been involved in very recent football-related human rights cases. In January 2019, a British football fan, Ali Ahmad, has been detained for three weeks and suffered torture by UAE security officials for wearing a Qatari football jersey to an Asian Cup match between Qatar and Iraq. In February 2019, Hakeem al-Araibi, a football player from Bahrain, now living as refugee in Australia, has been released from Thai prison after his arrest in November 2018. The Thai authorities acted upon an arrest warrant issued by Bahrain, where Hakeem had been convicted in absentia to 10 years in prison for an incident dating back to November 2012. The official allegations were vandalism of a police station, but there is clear evidence that discharges Hakeem of these allegations. Most likely, he became a target of Bahraini government and football officials that identified and persecuted Bahraini football players that were involved in anti-government protests during the Arab Spring in 2012.

The Mismatch with FIFA’s Standing Human Rights Commitments

This brief overview presents just a fraction of the extremely negative human rights track record of the countries that FIFA is considering as potential co-hosts for the 2022 World Cup. In case one of these countries will indeed host a World Cup match, FIFA risks to throw away all efforts that it carefully put into building up its human rights profile in the past three years. After the inclusion of human rights into its Statutes, FIFA created a Human Rights Advisory Board in March 2017, adopted a human rights policy in May 2017, and launched a complaint mechanism for human rights defenders and media representatives in the run-up to the 2018 World Cup in Russia.

Most importantly, in October 2017 FIFA integrated human rights requirements in its bidding requirements for the World Cup following John Ruggie’s recommendation to “set explicit human rights requirements of Local Organising Committees in bidding documents for tournaments and provide guidance on them”.[iv] The revised bidding requirements expect bidders to conduct all bidding and hosting activities in line with internationally recognized human rights.[v] Furthermore, bidders are required to submit a public commitment to respect human rights and a human rights strategy, together with a report on stakeholder engagement in developing the policy.[vi] The new requirements applied for the first time to the bidding process for the 2026 World Cup and while the 2022 World Cup had been awarded before, the new standard forms an integral part of FIFA’s human rights system by now and therefore should be considered in the recent expansion plans.

Interestingly, the feasibility study on the expansion of the 2022 World Cup mentions human rights at several points: in the context of requirements regarding stadiums (p. 32 & 46), as part of requirements for additional infrastructure and sites (p. 46), and as one of the necessary government guarantees to be submitted to FIFA (p.68). Receiving such guarantees from the respective government might not pose a problem. Instead, the real issue at stake is whether FIFA truly cares about its human rights commitments when considering if these guarantees turn out to be nothing but empty words on a piece of paper? FIFA risks failing its commitments by letting any of the proposed countries co-host the World Cup without having done a proper human rights risk assessment.

Despite this risk, the expansion seems to be more likely to happen than not. FIFA President Gianni Infantino appears to be convinced that the expansion can contribute to solving the diplomatic crisis that is ongoing in the region and stated on record that a preliminary survey showed that 90% of the member associations are in favour of the expansion. Indeed, the decision lies in their hands. They make up the members of the FIFA Congress, FIFA’s supreme body for decision-making, and each member association has one vote. While a number of associations and confederations already publicly announced their support of the expansion, there is still hope that other member associations or confederations remind FIFA of its human rights responsibilities and commitments by voting against it.

[i] For an overview of human rights issues linked to these countries, see Human Rights Watch (2019), “World Report 2018”. 

[ii] See for example Human Rights Committee CCPR/C/BHR/CO/1 (2018), “Concluding observations on the initial report of Bahrain”.

[iii] Human Rights Council A/HRC/29/25/Add.1 (2015), “Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai – Mission to Oman”, para 20 ff.

[iv] John G. Ruggie (2017), “’For the Game. For the World’ FIFA & Human Rights”, p. 32.

[v] FIFA (2017), “FIFA REGULATIONS for the selection of the venue for the final competition of the 2026 FIFA World Cup™”, Regulation 8.1 (ii).

[vi] Ibid., Regulation 8.2.

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.

2.    What is League of Legends and the LEC?

At the time of writing, LoL released nearly a decade ago by Riot Games (a game developer based in the USA) and rapidly became one of the most played video games in the world due in part to its free to play business model. This means that anyone can download and play LoL on their computer without ever having to pay anything. In-game microtransactions exist but do not provide any competitive advantage. The game itself involves two teams of five players who each control a ‘champion’, which are characters in the game that each possess unique abilities. A team only wins when it has destroyed the enemy base (‘nexus’). The game is not only a popular video game, but it is a popular e-sport. The most recent world championships finals attracted 99.6 million unique viewers. While these numbers are greatly due to its popularity in China and South Korea, there is also a sizeable European viewership of LoL. For example, the LEC regular season matches have reached a record-breaking 355,000 concurrent viewers in its 2019 spring competition.

The LEC is LoL’s highest level of European competition and is owned and organised by Riot Games who establishes and enforces the rules which apply to the teams participating in the LEC. Consequently, Riot Games is truly at the apex of professional LoL in Europe by setting both the in-game parameters (the rules of the game) and the regulations that govern its competitive play. As explained earlier, Riot Games restructured and rebranded its previous European competition, EU LCS, into the LEC. While previously the EU LCS was characterised by a pyramid structure with a promotion and relegation system familiar to the European sports world, the LEC introduced a franchise model to follow its sibling competition in North America, the League Championship Series (LCS). The LEC itself is a limited liability company registered in the Republic of Ireland as League of Legends European Championship Limited.[2] The LEC buy-in fee for teams already in the EU LCS was reportedly set at 8 million euros and 10.5 million euros for those outside the EU LCS. Additionally, big brands such as KIA, Shell, Foot Locker and Red Bull sponsor the LEC and are featured during the broadcast. Besides being produced and diffused weekly by the official Riot Games English broadcast team in a professional studio in Berlin on Twitch (an online video game livestreaming service) and YouTube, the LEC partners with other official broadcasters who provide coverage of the matches in other languages (French, Spanish, Polish, German, Italian). Nevertheless, before examining the LEC’s position under EU law, a review of the broader arguments on the fundamental traits of sport will contextualise the Court of Justice of the European Union’s (CJEU) interpretation of the concept of sport.

3.     Is LoL played in the LEC a sport competition?

The academic discourse on the definition of sport has provided a plethora of elements and conditions for an aspiring sport to meet in order to be considered a ‘real’ sport. Needless to say, this blog will not be able to address all of them. However, the characteristics identified by Suits and elaborated by Jenny et al. and Abanazir are a good starting point for this brief review.[3] Suits explains that sports are in essence games that require skill, where the skill requires physicality, that the game have a wide following, and that this following have a certain level of stability. Abanazir delved into the concept of stability in the e-sports context by explaining institutionalisation’s central role in achieving permanence.

On the first requirement, there is very little room to argue that professional LoL does not require a great amount of skill. Suits explains that games of skill provide ‘unnecessary obstacles’ (in relation to daily life) “to realize capacities not otherwise realizable” that do not rely on pure chance.[4] Playing LoL is not in any way a necessary part of human life, yet many players practicing LoL play to refine and improve their mechanical skill (the physical element of the game, e.g. muscle memory and reflexes). Chance sometimes plays a role in LoL, but it is rarely a decisive factor in determining the outcome of a competitive match. Generally, Riot Games has taken steps over the years to limit the elements of pure luck in its game.

The role of physical motor skills in e-sports has been explained in detail by van Hilvoorde and Pot, and this blog will not dive into the arguments on whether actions taken in a video game can be considered taking place in the ‘real’ world.[5] Assuming that it does, the skill required in LoL is intrinsically connected to its physicality. LoL is played on a computer with a mouse and a keyboard. High level play requires precise movement of the arm, wrist and/or hand to most effectively control one’s character with the mouse. Additionally, the clicks and inputs registered by one’s fingers on the mouse and keyboard must be timed precisely and with enough practice these movements become muscle memory. The classic example of a game that does not require this sort of physicality is chess because the manner in which one moves a chess piece from a to b does not affect the result of the game. On the other hand, LoL demands precise and timed movements of the player’s arms, wrists, and/or fingers to be played optimally. One can be a LoL strategic genius but without a sufficient level of mechanical skill, it is impossible to become a professional LoL player.

Next, a large following is probably the easiest criteria for LoL and the LEC to fulfil. Between the large viewership that watch the LoL events online and the thousands of spectators that come to watch the championships live, there is very little doubt that LoL and the LEC have a wide following at the moment. However, this point leads into the next element which arguably may be the hardest criteria for it to satisfy in the long term: stability.

Video games and consequently, e-sports, generally reach a point where they have achieved their max popularity and eventually begin to lose players and viewers. Often times, this is the result of newly released video games pushing older and ‘outdated’ games out of the spotlight. LoL has remained at the forefront of e-sports for nearly a decade and there is little suggestion that this will change in the near future. Part of this is Riot Games’ continued support of LoL by regularly updating the game. Updates are released nearly every other week and can range from graphical improvements, balancing the game to ensure the viability of new strategies, the introduction of new champions (currently 143 champions) and tweaks that improve the way the game runs on the computer. Abanazir describes that changes such as these “present a double-edged sword” because while they keep the game fresh for players, they can result in drastic changes to the best strategies (meta) to win the game.[6] Thus, professional teams and players must continually adapt their play to conform to the meta. Nevertheless, updates have never fundamentally changed the goal and overall ‘rules’ of the game. Professional LoL is always two teams of five players, each controlling one champion, aiming to destroy the enemy nexus.

From an outsider’s point of view, it may seem that the constant flux of the meta would truly damage any of LoL’s claim to stability. However, in this context, it is imperative to highlight the institutionalisation of the LEC. Institutionalisation describes the appearance of “standardisation of rules, the formalisation of learning of the games, the development of expertise and finally the emergence of coaches, trainers, officials and governing bodies.”[7] The very fact that the meta often changes have pushed professional teams to hire analysts that review the team’s play and are constantly searching for new and creative ways to play LoL. Additionally, all professional teams have at least one coach who not only define the team’s strategy before each game, but also ensure that players observe strict practice schedules. During LEC matches, referees (Riot Games employees) are always present in order to ensure that the LEC rules are observed, which greatly lends to the idea of a ‘standardisation’ of the rules.[8] In fact, Riot Games directly state that the creation of the LEC Rulebook is to help “unify and standardize the rules used in competitive play.”[9] From this outline, there are many indications that the LEC and LoL have many of the characteristics of a sport and currently have achieved a certain amount of stability and institutionalisation. The true test will be whether these structures continue to last as they have been developed and implemented over the past eight years.

4.     A Sport under EU Law?

Recently, the Court of Justice of the European Union (CJEU) ruled on whether the English Bridge Union could benefit from a sports exemption under the VAT Directive and in doing so examined the concept of sport under that Directive.[10] Furthermore, in this case, Advocate General (AG) Szpunar provided an enlightening opinion to the Court examining the concept of sport in the context of the VAT exemption.[11] Both provide a good opportunity to infer how the Court would perhaps go about determining whether the LEC is a sport competition under EU law. This being said, the sport exception in the current VAT Directive would not apply to the LEC since Article 132 (1) (m) applies only to services provided by non-profit organisations. Nonetheless, should League of Legends European Championship Limited eventually restructure into a non-profit, it would not be far-fetched to imagine a situation in which it would seek to have VAT reimbursed from authorities under a sports exception in the future. After all, Riot Games has repeatedly stated that it does not make a profit on its e-sport activities.[12]

The AG’s opinion began by explaining that the concept of sport in the exemption should be “interpreted in a narrow manner, while bearing in mind the purpose and objective of the exemption.”[13] From this it is clear that the analysis of the concept of sport differs depending on the applicable provision, which could mean that the LEC could be considered a sport competition under one provision and a purely economic activity in another context. The AG goes on to identifying elements which preclude an activity from being considered a sport and states that “where a physical element is not necessary, sport is defined by competition and the fact that equipment is provided by not just one supplier -  which excludes activities without a broad basis in civil society, such as commercial products in the market place, designed by firms for pure consumption (for instance video games).”[14] If this interpretation of the concept of sport had been endorsed by the CJEU, it would have constituted a tremendous obstacle for the LEC. Indeed, if the ‘equipment’ also encompasses the game itself, it is impossible to argue that Riot Games does not hold a monopoly over the supply of LoL. Moreover, Riot Games has made and continues to support LoL in order to make money. In analysing this opinion, Abanazir explains the core issue well: “e-sport competitions based on video games created for purely consumption purposes and organised by persons aimed to profit from these activities may find themselves out of the scope as they are perceived to be devoid of social function.”[15] Indeed, it can seem difficult for the LEC and LoL to argue that it has a deeper ‘social function’ but perhaps this requirement might not be completely insurmountable. An argument could be made that the e-sports aspect of LoL is not only a commercial product made for pure consumption especially because LoL is a free to play game, and Riot Games does not seem to be making any profit in its e-sport related activities. Riot Games and the LEC have also taken steps to enhance the social function of LoL by investing in regional leagues to develop local talent.

In its ruling on the Bridge case, the CJEU sidelined the AG’s approach and decided to focus on a physicality requirement. The Court, in examining the specific VAT provision, found that sport must be “characterised by a not negligible physical element,” and the fact that an activity has elements of competition, professionality and organisation were not deemed sufficient to argue that the activity is a sport for the VAT exemption.[16] Physicality was the central criteria in the CJEU’s interpretation of the concept of sport, but in doing so, it did not give any further clarity as to the threshold of physicality required for an activity to benefit from the VAT sport exemption. It has already been contended above that LoL does have a clear physical element which is intrinsically connected to the game’s skill, yet the question remains whether the physicality would be considered more than negligible by the CJEU.

In summary, if LoL and the LEC were to be examined under the VAT Directive sport exemption, it would be confronted with several challenges. The approach endorsed in the AG’s opinion would have been the most problematic since LoL is mainly a commercial product designed to attract consumers and ultimately profit a private company. However, the CJEU chose to focus its interpretation of the concept of sport on a physicality criterion. This decision may give the LEC a wide enough window to argue that the fine motor skills involved in LoL are enough to fulfil this condition.

5.     Conclusion

In its current form, the LEC would not be able to benefit from the sport exemption in the VAT Directive, but this is just one provision of EU law, and there could be other opportunities where it could attempt to claim to be a sport. In the meantime, this gives an opportunity to Riot Games to continue to develop and emphasise the social function of its e-sports competitions, which might entail building a not-for-profit entity to run the competition and to strengthen the redistribution of economic gains to the grassroots. In any case, LoL and the LEC share many characteristics with established sports, but it remains to be seen if this will be enough to boost its recognition as a ‘real’ sport in law and society.

[1] Cem Abanazir, ‘E-sport and the EU: the view from the English Bridge Union’ (2019) International Sports Law Journal 102.

[2]‘LEC Rules’ (LoLEsports).

[3] William Morgan, Ethics in Sport (3rd edn, Human Kinetics 2018) ch 1: Elements of Sport by Bernard Suits; Seth Jenny et al., ‘Virtual(ly) Athletes: Where eSports fit within the definition of “Sport”’(2016) Quest 1; Cem Abanazir, ‘Institutionalisation in E-Sports’ (2019) Sport, Ethics and Philosophy 117.

[4] Morgan (n 3) ch 1.

[5] Ivo van Hilvoorde and Niek Pot, ‘Embodiment and fundamental motor skills in eSports’ (2016) Sports, Ethics and Philosophy 14.

[6] Abanazir (n 3).

[7] Jenny et al. (n 3); Abanazir (n 3).

[8] See LEC Rulebook Art. 8.15.

[9] LEC Rules (n 2).

[10] Case C-90/16 The English Bridge Union Limited v Commissioners for Her Majesty’s Revenue & Customs ECLI:EU:C:2017:814.

[11] Case C-90/16 The English Bridge Union Limited v Commissioners for Her Majesty’s Revenue & Customs ECLI:EU:C:2017:814, Opinion of AG Szpunar.

[12] Steven Asarch, ‘“League of Legends” cuts esports budget, can Riot Games bounce back?’ (Newsweek, 28 August 2018); Derrick Asiedu head of Global Events at Riot Games confirmed this in a Reddit post: “We’re a long way from breaking even (revenue minus cost equalling 0)”.

[13]English Bridge Union Opinion (n 11) para 21.

[14]English Bridge Union Opinion (n 11) para 38.

[15] Abanazir (n 1).

[16]English Bridge Union (n 10) para 19, 25.

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

• Court of Justice of the European Union (General Court) – Judgment in the case Real Madrid Club de Futbol v European Commission

Official Documents and Press Releases

CAS

• CAS – Caster Semenya, Athletics South Africa (ASA) and International Association of Athletics Federation (IAAF): Decision
• CAS –Caster Semenya, Athletics South Africa (ASA) and International Association of Athletics Federation (IAAF): Executive summary
• CAS – Decision in the arbitration procedure between Worawi Makudi and FIFA: Sanction reduced
• CAS –Elections of the Board Members of the International Council of Arbitration for Sport (ICAS)
• CAS –Weighlifters Mikalai Novikau and Ruslan Nurudinov found to have committed anti-doping rule violations at the London 2012 Olympic Games

FIFA

• FIFA – Adjudicatory Chamber of the independent Ethics Committee sanctions Jose Maria Marin
• FIFA –FIFA Appeal Committee confirms ban imposed on Marco Polo Del Nero
• FIFA – FIFA Appeal Committee passes decision on appeal lodged by Chelsea FC
• FIFA –FIFA World Cup Qatar 2022 to be played with 32 teams
• FIFA –Nine individuals sanctioned for match manipulation
• FIFA –RSC Anderlecht and Belgian Football Association sanctioned for international transfers of minors
• FIFA – Worldwide extension of suspension imposed on intermediaries Carmine and Vincenzo Raiola

IOC

• IOC – From food and uniforms to sponsorship deals: IOC guides to help the Olympic Games and the sports sector adopt sustainable sourcing practices
• IOC –Future Olympic Games elections to be more flexible
• IOC – Independent research conducted on behalf of the IOC demonstrates global strength of the Olympic values
• IOC –IOC Evaluation Commission 2026 begins working visit to Milan-Cortina
• IOC –IOC Evaluation Commission confirms passion and expertise of Milan-Cortina project shaped by Olympic Agenda 2020
• IOC –IOC Executive Board proposes 10 new members for election to the IOC Session
• IOC –IOC releases Evaluation Commission 2026 report
• IOC –IOC sanctions one athlete for failing anti-doping tests at London 2012
• IOC –IOC sanctions two athletes for failing anti-doping tests at London 2012
• IOC –Uncovered: The work and value of the IOC Athletes’ Commission

UEFA

• UEFA – AC Milan referred to CFCB Adjudicatory Chamber
• UEFA –CFCB update on 2018/19 monitoring of clubs under FFP settlements
• UEFA –FK Vardar and PFC Levski Sofia avoid potential exclusion from UEFA club competitions
• UEFA –Law changes to apply from 25 June in UEFA competitions
• UEFA –Manchester City referred to CFCB Adjudicatory Chamber
• UEFA –Three clubs exit FFP settlement agreement
• UEFA –Time for Action: First ever UEFA women’s football strategy launched

WADA

• WADA – Timor-Leste becomes 188^th country to ratify UNESCO Anti-Doping Convention
• WADA – WADA announces self-suspension of the Helsinki laboratory
• WADA –WADA congratulates Presidential nominee Witold Banka
• WADA –WADA Foundation Board moves forward with implementation of governance reforms
• WADA –WADA hails 30^th Anniversary of Council of Europe Anti-Doping Convention
• WADA –WADA publishes four new Technical Documents
• WADA –WADA publishes independent report into allegations of improper conduct
• WADA –WADA publishes revised International Standard for Laboratories
• WADA –WADA publishes Stakeholder Notice regarding meat contamination
• WADA –WADA reinstates Bucharest Laboratory
• WADA –WADA statement on refusal of Beckie Scott and Edwin Moses to cooperate with independent investigation
• WADA –WADA successfully retrieves samples from Moscow Laboratory
• WADA –WADA welcomes significant decision by Court of Arbitration for Sport

Other

• AIU (Athletics Integrity Unit) – After Ukraine sprinters’ ban, AIU to extend its blood profiling strategy ahead of the IAAF World Championships Doha 2019
• AIU (Athletics Integrity Unit) – Athletics Integrity Unit and Abbott World Marathon Majors announce new intelligence and testing programme in groundbreaking anti-doping initiative
• Centre for Sport and Human Rights – Mapping accountability and remedy mechanisms for sport
• CIES Football Observatory World football expatriates: Global study 2019
• CIES Sports Intelligence – Governance and financial landscape of top European football clubs
• Council of Europe Ground-breaking international treaty on match-fixing to enter into force in September
• Human Rights Watch – Belarus: Use European games to spur media freedom
• IAAF – IAAF letter to the World Medical Association
• IAAF – IAAF publishes briefing notes and Q&A on female eligibility regulations
• TIU (Tennis Integrity Unit) –Benjamin D’Hoe suspended and fined for betting on tennis
• TIU (Tennis Integrity Unit) –Brazilian tennis player Joao Souza provisionally suspended by independent Anti-corruption Hearing Officer
• TIU (Tennis Integirty Unit) –Independent Anti-corruption Hearing Officer suspends Osman Torski for breach of the Tennis Anti-corruption programme
• TIU (Tennis Integrity Unit) –Independent members appointed to the Supervisory Board for Tennis Integrity
• TIU (Tennis Integrity Unit) –Issam Taweel found guilty of match-fixing offences by independent Anti-corruption Hearing Officer
• TIU (Tennis Integrity Unit) – Lifetime ban and $20,000 fine for Helen Ploskina after being found guilty of match-fixing offences
• TIU (Tennis Integrity Unit) –Nigerian tennis player Henry Atseye provisionally suspended by independent Anti-corruption Hearing Officer
• TIU (Tennis Integrity Unit) –Suspended sentence and fine for Mohamed Safwat after failing to report corrupt approaches to the Tennis Integrity Unit
• TIU (Tennis Integrity Unit) –Tennis coach Miguel Tobon suspended and fined for selling wild cards
• TIU (Tennis Integrity Unit) –Tennis umpire Svetlana Teryaeva facing sanction after failing to report a corrupt approach to the Tennis Integrity Unit
• TIU (Tennis Integrity Unit) –The Tennis Integrity Unit and Marco Trungelliti
• UCI (Union Cycliste Internationale) – UCI declaration concerning E-mountain bike
• UCI (Union Cycliste Internationale) –UCI statement on Operation Aderlass
• UOKiK (Office of Competition and Consumer Protection in Poland) –UOKiK will inspect sports associations
• World Medical Association Physician leaders reaffirm opposition to IAAF rules

In the news

Doping

• ESPN Kenya’s Olympic track coach banned 10 years
• Sean Ingle World’s top marathon runners to face innovative anti-doping programme
• Duncan Mackay Critics of WADA decision to reinstate Russia care more about politics than clean sport, claims President Sir Craig Reedie
• Michael Pavitt Arrests made in France over alleged drug trafficking operation
• Michael Pavitt Biathlon Integrity Unit to be set up by IBU in response to doping, fraud and corruption allegations
• Eddie Pells Polish minister to lead WADA; outspoken candidate sidelined
• Dan Roan US proposes making WADA funding conditional on governance reforms and greater transparency
• Gabrielle Tetrault-Farber Russian anti-doping chief calls for dismissal of athletics federation head

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

• Eyewitness News Kenya drops two female sprinters over testosterone levels
• Nancy Gillen FIVB to refer human rights abuse allegations surrounding Cambodian Volleyball Federation President to ethics panel
• Mark Gleeson South African government instructs athletics body to appeal Semenya decision
• Gerald Imray Defiant Caster Semenya appeals testosterone ruling
• Sean Ingle AIBA threatens to sue IOC if stripped of right to run amateur boxing
• Sean Ingle AIBA stripped of right to run boxing tournament at Tokyo Olympics
• Sean Ingle BeIN Sports chief in World Athletics Championships corruption inquiry
• Sean Ingle Caster Semenya Q&A: The runner’s discrimination case explained
• Sean Ingle Semenya loses landmark legal case against IAAF over testosterone levels
• Sean Ingle Caster Semenya vs. IAAF: The inside story of sporting trial of the century
• Sean Ingle Caster Semenya to run in Doha as Sebastian Coe welcomes CAS ruling
• Duncan Mackay Italian government to sign IOC guarantees for Milan Cortina 2026, including EUR 415 million security budget
• Liam Morgan German athletes group steps up call for increased representation and bigger share of Olympic revenue
• Tariq Panja After Semenya ruling, sports federations ponder what’s next
• Tariq Panja Qatari executive is charged with corruption in IAAF scandal
• Michael Pavitt Bach tells athletes to begin negotiations with NOCs over Rule 40 restrictions
• Michael Pavitt GAISF considers establishing office to lobby European Union and create framework over third-party organisers
• Michael Pavitt UCI President fears ‘serious issue’ after arbitrators asked to choose between working exclusively for CAS or international federations
• Mike Rowbottom Message to the Olympic Movement in the face of new commercial threats – keep the athletes’ eyes on the golden prize
• Mike Rowbottom IOC maintains German athletes’ court decision over Rule 40 is ‘not generally applicable’
• Stephen Wade and Mari Yamaguchi IOC inspectors face report on tough Olympic work conditions
• Martyn Ziegler Sport won’t be overrun by intersex athletes, says Caster Semenya’s expert witness

Academic Materials

Books

•  Johan Lindholm The Court of Arbitration for Sport and its Jurisprudence: An Empirical Inquiry into Lex Sportiva

International Sports Law Journal

• H. Burak Gemalmaz Applicability of Human Rights Standards in Turkish Football Arbitration: The Contribution of the European Court of Human Rights
• Lloyd Freeburn The Fiction of Democracy in FIFA’s Governance of Football and the Case of Football Federation Australia
• Marlaina Lemmon Evening the Playing Field: Women’s Sport as a Vehicle for Human Rights
• Kendra Magraw Separation of Sport and State: Military Salutations at US Major League Soccer Events
• Daniel WestRevitalising a Phantom Regime: The Adjudication of Human Rights Complaints in Sport

Other

• April Henning and Paul Dimeo Perceptions of Legitimacy, Attitudes and Buy-in Among Athlete Groups: A Cross-national Qualitative Investigation Providing Practical Solutions
• Seema Patel and Ian Varley Exploring the Regulation of Genetic Testing in Sport

Blog

Asser International Sports Law Blog

• Antoine Duval What Happens in Switzerland Stays in Switzerland: The Striani Judgment of the Brussels Court of Appeals
• Daniela Heerdt Will the World Cup 2022 Expansion Mark the Beginning of the End of FIFA’s Human Rights Journey?
• Thomas Terraz Can European Citizens Participate in National Championships? An Analysis of AG Tanchev’s Opinion in TopFit e.V. Daniele Biffi v Deutscher Leichtathletikverband e.V.
• Thomas Terraz League of Legends European Championships: Challenging the Boundaries of Sport in EU Law
• Marjolaine Viret How Data Protection Crystallises Key Legal Challenges in Anti-Doping

Law in Sport

• Jiri Janak Judicial oversight of sports associations in the Czech Republic – does the new Civil Code strike the right balance between autonomy and intervention?
• Lucio Mazzei The global development of women’s football – a review of the strategies being implemented by FIFA, UEFA and in Italy
• Adam Powell Stadium naming deals: Why clubs and sponsors should always consider their termination rights
• Andrew Reid Football kit supplier deals – lessons for clubs on ‘matching rights’ from the Sports Direct v Rangers FC case
• Celia Rooney Sex on a spectrum in the binary world of sport: The CAS’s decision in the case of Caster Semenya & Ors v the IAAF

Other

• Andy Brown Red herrings, dead cats, apples and oranges: The gender debate
• Steve Cornelius Caster Semenya: The legal and ethical issues that should concern us all
• Sam Knight How Football Leaks is exposing corruption in European soccer
• Steve Magness All of your questions answered on the Caster Semenya controversy
• Despina Mavromati FIM v. KMSC – Arbitration clause in the statutes of a sports federation and Article 75 Swiss Civil Code
• Michael McCann U.S. soccer, Relevent Sports and the legal battle over staging matches on USA soil
• Roger Pielke Jr Caster Semenya ruling: Sports federation is flouting ethics rules
• Roger Pielke Jr. Pielke comments on Semenya/ASA vs. IAAF

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 – 8^th 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 organizational structure of sports in Europe is distinguishedby its pyramid structure which is marked by an open promotion and relegation system. A truly closed system, without promotion and relegation, is unknown to Europe, while it is the main structure found in North American professional sports leagues such as the NFL, NBA and the NHL. Recently, top European football clubs along with certain members of UEFA have been debating different possibilities of introducing a more closed league system to European football. Some football clubs have even wielded the threat of forming an elite closed breakaway league. Piercing through these intimidations and rumors, the question of whether a closed league system could even survive the scrutiny of EU competition law remains. It could be argued that an agreement between clubs to create a completely closed league stifles competition and would most likely trigger the application of Article 101 and 102 TFEU.[1] Interestingly, a completely closed league franchise system has already permeated the European continent. As outlined in my previous blog, the League of Legends European Championship (LEC) is a European e-sports competition that has recently rebranded and restructured this year from an open promotion and relegation system to a completely closed franchise league to model its sister competition from North America, the League Championship Series. This case is an enticing opportunity to test how EU competition law could apply to such a competition structure.

As a preliminary note, this blog does not aim to argue whether the LEC is a ‘real’ sport competition and makes the assumption that the LEC could be considered as a sports competition.[2]

2.    LEC’s Position in the League of Legends Competitive Structure

The LEC is the pinnacle of League of Legends (LoL) competition in Europe that is organized by its developer, Riot Games. Currently, the LEC is the only path to the League of Legends World Championship. Its previous name was the EU League Championship Series (EU LCS), and it featured a promotion and relegation system with the EU Challenger Series. The EU Challenger Series has been replaced with the European Masters, which is a tournament that places the top seed from European regional leagues against each other. It is important to highlight that the teams in the LEC do not compete on behalf of their region (although some of the organizations from the LEC have their second team competing in a regional leagues).

The franchise agreement between the LEC and the participant e-sport organizations required organizations to buy-in at 10.5 million euros into the LEC. The ensuing partnership lasts three years and ensures that the organization is guaranteed a spot in the LEC during this period, unless there are “consistent poor performance or disciplinary issues”. The agreement effectively prevents any other European organization/team from the regional leagues and the European Masters from accessing the highest LoL championship in Europe (the LEC) and completely cuts off any opportunity to reach the League of Legends World Championships for at least three years.

The previous system of relegation and promotion has helped foster talent and create new successful European e-sports organizations. Currently, the winners of Mid-Season Invitational 2019 (a mid-year world championship) is G2 Esports, which was able to rise to the EU LCS through the EU Challenger Series in late 2015. As a result, concerns have been expressed that by adopting the closed league model, the LEC will not be able to nurture new talent and competitive organizations. This worry goes to the heart of Article 165 TFEU’s aim to develop the ‘openness’ of sporting competitions and gives merit to analyzing the LEC under EU competition law rules.[3]

3.    EU Competition Law and its Application to Sports

Generally speaking, EU competition law seeks to ensure ‘effective’ competition between undertakings in Europe. Concerning the field of sports, the CJEU asserted that rules of sport governing bodies fall under the inspection of EU competition law even if they are purely sporting in nature.[4] However, the CJEU left room for sport governing bodies to defend their measures which fall within the scope of competition rules. Sporting rules can escape the prohibitions of EU competition law if it can be shown that the concerned measures are inherent to the objectives it seeks to achieve and that they are “proportionate to the legitimate genuine sporting interest pursued”.  In other words, the specificity of sport must be taken into account.[5] Additionally, the CJEU has recognized that the participation in sport competitions can constitute economic activity because of the exposure that participation may provide.[6] Thus, preventing other organizations and their athletes from taking part in a league competition and as a consequence, the world championships, can have detrimental economic impacts on that organization and its athletes.

For this reason, the organizational structure of sport competitions may have colossal economic ramifications and easily fall within the scope of the Treaties. Articles 101 and 102 TFEU are the two cornerstones of EU competition law that prima facie would be applicable to this case. Essentially, Article 101 TFEU prohibits agreements between undertakings that restrict competition, and Article 102 TFEU forbids an undertaking or group of undertakings (collective dominance) from abusing its dominant position on the relevant market. So when a group of undertakings hold a dominant position in the relevant market and make an agreement which abuses their dominant position, the CJEU has recognized that both Article 101 and 102 TFEU may be applied. Nevertheless, the following analysis will concentrate on Article 102 TFEU.

4.    Does LEC (and its participant organizations) have a Dominant Position?

4.1.Are the LEC (and its participant organizations) undertakings?

As a preliminary point, the European Commission and the CJEU has repeatedly qualified sport governing bodies as undertakings under EU competition law.[7] The key criteria to determine whether an entity is an undertaking under EU law is whether the entity is engaged in ‘economic activity’. In MOTOE, the CJEU ruled that ELPA, a body that was organizing motorcycling events, was engaged in economic activity because it entered into “sponsorship, advertising and insurance contracts designed to exploit those events commercially”.[8] In the present case, there is little doubt that the League European Championship Limited, which is a private company limited by shares incorporated in the Republic of Ireland controlled by Riot Games, could be considered an undertaking since it concludes sponsorships and advertises its events.

The organizations that have signed the franchise agreement with Riot Games are mainly private limited companies.[9] These organizations enter into sponsorship agreements, and as stated earlier, the CJEU found that the participation in a sport competition could constitute economic activity. It follows that these e-sport organizations would easily be considered as undertakings.

4.2.What is the relevant market?

The next issue is determining the relevant market, including the relevant product and geographic market, the LEC and its participant organizations occupy. To identify the relevant product market, EU competition law examines the substitutability of the product or service. For example, in defining the relevant product or service market, the CJEU in MOTOE quite readily found that ELPA was “engaged ... in the organisation of motorcycling events and … their exploitation by means of sponsorship, advertising and insurance contracts”.[10]

From the outset, it should be underlined that games considered as e-sports greatly differ from one another.[11] E-sports usually fall within different genres of games, such as Real-Time Strategy (RTS), First-Person Shooter (FPS), Fighting, and Sports games. LoL falls within the Multiplayer Online Battle Arena (MOBA) genre. Thus, one may argue the relevant market in this case is e-sports competitions in the MOBA market. One way to test this market definition would be examining the ability of e-sports players to move from one e-sport to another.

Unfortunately, there has not been a complete study on the maneuverability of e-sport professionals between games of the same genre or of a different genre. As a result, it is difficult to have a complete view on the issue. Nevertheless, while there have been cases where certain players from e-sports of a different genre were able to move to LoL successfully (Ggoong [e-sports players are known by their own made up player names]) and others who have moved from LoL to another e-sport (Gesture, Bischu), there have been others who have attempted such moves without success (Destiny). On the other hand, when examining ‘traditional’ sports there are also many examples of athletes who have moved from one sport to another. For example, Primož Roglič was a high-level ski jumper, and even won the Junior Ski World Championship in this discipline, who then moved into professional road cycling and most recently came third in the Giro d’Italia. Ski jumping and road cycling arguably have very little in common, and it would be highly doubtful that the Commission or the CJEU would include both in the same market. Such an extreme example demonstrates that focusing on the maneuverability of e-sports athletes between e-sports may not always be the best way to define an e-sport market, and perhaps a more suitable approach would be to examine the specific features of the e-sport.

In this sense, it should be borne in mind that e-sports in the same genre, while sharing many basic characteristics and many of the fine motor skills, still diverge in terms of gameplay and strategy. If this were not the case, a professional LoL player could become a professional DOTA 2 (another MOBA e-sport) player without any extra effort. In reality, to make a transition, the professional LoL player would have to learn the intricacies and nuances of DOTA 2 compared to LoL, e.g. the champions and their builds, the pace of play, meta (the best strategies to win the game) etc. All of these differences support the argument that perhaps defining the product or service market in this case to MOBA e-sport competitions may be too broad, and it could be more appropriate to narrow the definition to LoL e-sport competitions.

Lastly, the geographic market is much more straightforward to define since the LEC Regulations define the EU Competitive Region in its 2019 Season Official Rules.[12] Therefore, the relevant geographic market would most likely be the EU Competitive Region.

4.3.Does LEC (and its participating organizations) have a dominant position in this market?

The Commission provides the most relevant criteria to ascertain whether an undertaking or undertakings hold a dominant position on the relevant market in its Guidance on enforcement of Article 82 of the EC Treaty (now Article 102 TFEU). Pertinent benchmarks include the “position of the dominant undertaking and its competitors”, “expansion and entry” of actual or future competitors, and the “bargaining strength of the undertaking’s customers” (countervailing buyer power). Usually, market shares are used to give a preliminary indication whether an undertaking occupies a dominant position in the market. The minimum threshold market share for which an undertaking or undertakings may be found to hold a dominant position is around 40-50%.[13]

If the relevant market was defined as the e-sport competitions in the MOBA market in the EU Competitive Region, one would have to examine competitive LoL in comparison to other e-sport competitions in the MOBA genre in Europe. For the purposes of this blog, there is rather limited information on the market share of LoL competitions in comparison to other MOBA e-sports in Europe. However, to at least give an idea of the size and dominance of LoL in the general MOBA market, LoL was projected to have an estimated 66% market share in 2016. When one compares this share to the second place, DOTA 2 with 14 %, it is evident that LoL generally holds a powerful position in the MOBA market and this most likely extends to its e-sports competitions.

In contrast, if the relevant market is narrowed to LoL e-sport competitions in the EU Competitive Region only, there would be an even higher chance of the LEC and its participant organizations being found to hold a dominant position. It could be argued that the European Masters (although Riot Games is a co-organizer) and the LoL regional leagues could be seen as ‘competitors’. Once more, direct information on market shares is scant. However, if one observes the viewership numbers of the LEC versus the European Masters, the LEC completely dwarfs the European Masters. The LEC in its 2019 Spring Split had a peak viewership of over 475,000 viewers and an average concurrent viewership of over 200,000 viewers. By comparison, the European Masters Spring 2019 competition had a peak viewership of just over 60,000 viewers and an average concurrent viewership of 32,000 viewers. From these numbers, it is evident that the LEC is overwhelmingly more popular and as a corollary, it may indicate that the LEC’s market share is likely to also reflect this.

5.    Does LEC abuse its Dominant Position?

5.1.Is the dominant position being abused and can it be justified (sporting exceptions)?

The finding of a dominant position is not enough to constitute a breach of EU competition law. Article 102 TFEU also requires that the dominant undertaking or undertakings abuse its dominant position, and it allows the dominant undertaking(s) to demonstrate how the relevant measures may be justified and proportionate. Within the sport context, the sport governing body must explain how the conduct which restricts competition pursues a legitimate objective and the anti-competitive effects must be “inherent in the pursuit of those objectives … and are proportionate to them”.[14] There are a variety of ways an undertaking may abuse its dominant position, but in the present case, the LEC and its participant organizations agreement to seal the LEC and the LoL World Championship from any other European competitors would most likely fall under a non-price based exclusionary abuse. More specifically, exclusionary conduct must constitute ‘anti-competitive foreclosure’ which according to the Commission’s Guidance Paper is “a situation where effective access of actualor potential competitors to supplies or markets is hampered or eliminated as a result of the conduct of the dominant undertaking whereby the dominant undertaking is likely to be in a position to profitably increase prices to the detriment of consumers” (emphasis added).[15] 

The foreclosure requirement in this case is quite evidently satisfied since the LEC and its participant organizations have effectively excluded other organizations in Europe from the highest European competition of LoL and as a result, the LoL World Championship. Actually assessing whether there has been an increase in price to the detriment of consumers is not necessary, and the CJEU has ruled that “Article 102 TFEU must be interpreted as referring not only to practices which may cause damage to consumers directly, but also to those which are detrimental to them through their impact on competition”.[16] Moreover, a dominant undertaking “has a special responsibility not to allow its conduct to impair genuine undistorted competition in the internal market” and “[Article 102 TFEU] is aimed not only at the practices which may cause prejudice to consumers directly, but also at those which are detrimental to them through their impact on the competition structure”.[17] Therefore, it is not necessary to show direct harm to consumers, but that the foreclosure effects damage competition to a sufficient degree to their disadvantage.

As discussed earlier, the former promotion and relegation system helped promote new talent and organizations that were able to develop new fanbases, giving the opportunity for the European LoL viewers to get behind up and coming organizations. By stifling the prospects of new organizations from emerging in the LEC or the Worlds stage, market development may be hindered in contravention with Article 102 (b) TFEU at the European LoL e-sport’s expense.

Nonetheless, the LEC hopes that the closed structure“provides teams with more security to make longer investments that will strengthen and support pros, and provide better experiences for fan (sic)”, to “unlock revenue sharing” and “to focus on shaping the long-term future”. Basically, the LEC and its members seek greater financial security for themselves in order to invest more in its players and fans. The question is then whether the restrictions of competition resulting from the closed league described above are inherent to the pursuit of the aforementioned objectives.[18] While “the ensuring of financial stability of sport clubs/teams” could be a legitimate objective,[19] it is possible to envisage less restrictive means to achieve financial stability without completely excluding other European organizations from competing for the final LEC title and the LoL World Championship. For example, perhaps the LEC play-offs could give the opportunity for teams number 5 and 6 from the regular season to first face off against the top two teams of the European Masters Tournament.[20] A similar play-in format could easily be introduced for the LoL World Championships. Despite these changes, new organizations would still be precluded from joining the LEC. Perhaps this would require the LEC to come up with new creative structures that allow new organizations to join the LEC after having proven their worth. An example of such a system can be found in the top European basketball competition, EuroLeague, which issues different license/partner tiers for its participating clubs in order to provide better financial security for itself and its participants but still provides the possibility for a better performing national team to participate in the EuroLeague.[21] Based on my analysis, it is probable that the anti-competitive effects of a completely closed league will not be found to be entirely ‘inherent’ in the pursuit of financial stability.

6.    Conclusion

Taken altogether, the issue with EU competition law does not solely materialize because the LEC aims to provide greater financial stability for itself and its partners. Instead, the problems arise when there are no or very limited avenues for new competitors, in this case European e-sport organizations and their cyberathletes, to progress to the highest levels of competitive LoL in Europe. The closed league structure of the LEC precludes any outside organizations from playing in the LEC Playoffs and Finals, and as a result, they also may never participate in the LoL World Championship. On the other hand, it is understandable that the LEC seeks to create further financial stability for itself, the organizations and ultimately the cyberathletes. However, this should not come at the detriment of new competitors who could help elevate the level of competition in the LEC.

By extending this analysis to the wider sports world, it would be advisable for sports governing bodies who wish to create a more closed competitive league to pay close attention to the anti-competitive effects such restructuring could produce. Moreover, these effects would have to be proportionate and in the sporting context, “inherent in the pursuit of those objectives”.[22] All things considered, it does seem rather difficult to reconcile a completely closed league, as the one found in the LEC, with EU competition law.

[1] Stephen Weatherill, Principles and Practice in EU Sports Law(1st edn, Oxford University Press 2017) 282-283.

[2] See my previous blog for an analysis of whether LoL and the LEC could be a sport.

[3] Weatherill (n 1) 283.

[4] Case C-519/04 David Meca-Medina and Igor Majcen v Commission of the European Communities [2006] ECR I-06991 para. 27; White Paper on Sport, COM (2007) 391, 11 July 2007, 13.

[5]White Paper on Sport ibid.

[6] Joined Cases C-51/96 and C-191/97 Christelle Deliège v Ligue francophone de judo et disciplines associées ASBL, Ligue belge de judo ASBL, Union européenne de judo [2000] ECR I-02549 para 57.

[7] Cases IV/33.384 and IV/33.378 FIFA-distribution of package tours during the 1990 World Cup [1992] European Commission, OJ L326/31; Meca-Medina (n 4); Case C-49/07 Motosykletistiki Omospondia Ellados NPID (MOTOE) v Elliniko Dimosio [2008] ECR I-04863.

[8]MOTOE (n 7) para 23.

[9] See for example: Fnatic (Private limited company), G2 Esports (GmbH) and Origen Esports (ApS).

[10]MOTOE (n 7) para 33.

[11] Cem Abanazir, ‘E-sport and the EU: the view from the English Bridge Union’ (2019) International Sports Law Journal 102.

[12] The LEC 2019 Season Official Rules Glossary defines the EU Competitive Region as: “Albania, Andorra, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Kosovo, Latvia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Monaco, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, United Kingdom (UK), Vatican City (Holy See)”.

[13] Alison Jones and Brenda Sufrin, EU Competition Law: Text, Cases, and Materials (6^th edn, Oxford University Press 2016) 325.

[14]Meca-Medina(n 4) para 42; also see Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings [2009] OJ C45/02 para 28.

[15] Guidance on the Commission’s enforcement priorities in applying Article 82 (n 14) para 19.

[16] Case C-52/09Konkurrensverket v TeliaSonera Sverige AB [2011] ECR I-00527 para 24.

[17] ibid; Case C-95/04 British Airways plc v Commission of the European Communities [2007] ECR I-02331 para 106.

[18]Meca-Medina(n 4) para 42; Commission Staff Working Document - The EU and Sport: Background and Context - Accompanying document to the White Paper on Sport (2007) COM 391 at 2.1.5.

[19]White Paper on Sport (n 4) 68.

[20] See here for the current format of the 2019 LEC Playoffs.

[21] See Chapter II and III of the EuroLeague Bylaws.

[22]Meca-Medina (n 4) para 42.

 Editor's Note:Dr. Despina Mavromati, LL.M., M.B.A., FCIArb is an Attorney-at-law specialized in international sports law and arbitration (SportLegis) and a Member of the UEFA Appeals Body. She teaches sports arbitration and sports contracts at the University of Lausanne (Switzerland) and is a former Managing Counsel at the Court of Arbitration for Sport.

This comprehensive book of more than 500 pages with contributions by 53 authors and edited by Nick De Marco QC “aims to embody the main legal principles and procedures that arise in football law”. It is comprised of 29 chapters and includes an index, a table of football regulations and a helpful table of cases including CAS awards, UEFA & FIFA Disciplinary Committee decisions and Football Association, Premier League and Football League decisions. 

The 29 chapters cover a wide range of regulatory and legal issues in football, predominantly from the angle of English law. This is logical since both the editor and the vast majority of contributing authors are practitioners from England.

Apart from being of evident use to anyone involved in English football, the book offers additional basic principles that are likely to be of use also to those involved in football worldwide, including several chapters entirely dedicated to the European and International regulatory framework on football: chapter 3 (on International Federations) gives an overview of the pyramidal structure of football internationally and delineates the scope of jurisdiction among FIFA and the confederations; chapter 4 explains European law and its application on football deals mostly with competition issues and the free movement of workers; and chapter 29 deals with international football-related disputes and the Court of Arbitration for Sport (CAS).

In addition to the chapters exclusively dealing with international football matters, international perspectives and the international regulatory landscape is systematically discussed – in more or less depth, as the need might be – in several other chapters of the book, including: chapter 2 on the “Institutions” (from governing bodies to stakeholders groups in football); chapter 6 on the FIFA Regulations on the Status and Transfer of Players (RSTP); chapter 8 dealing with (national and international) player transfers; chapter 11 (on Third Party Investment) and chapter 16 on Financial Fair Play (mostly discussing the UEFA FFP Regulations); chapter 23  on disciplinary matters (very briefly discussing the disciplinary procedures under FIFA and UEFA Disciplinary rules); chapter 24 on domestic and international doping-related cases in football, with an overview of the CAS jurisprudence in this respect; and finally chapter 23 on corruption and match-fixing (with a very short description of the FIFA and UEFA regulations).

Furthermore, the book offers extensive chapters in less discussed – yet of high importance – football topics, including: chapter 13 on image rights and key clauses in image rights agreements; chapter 14 on taxation (referring also to taxation issues in image rights and intermediary fees); chapter 15 on sponsoring and commercial rights, with a guide on the principal provisions in a football sponsoring contract and various types of disputes arising out of sponsorship rights; chapter 17 on personal injury, discussing the duty of care in football cases (from the U.K.); and chapter 18 on copyright law and broadcasting (with short references to the European law and the freedom to supply football broadcasting services).

Some chapters seem to have a more general approach to the subject matter at issue without necessarily focusing on football. These include chapters 27 (on mediation) and 22 (on privacy and defamation), and even though they were drafted by reputable experts in their fields, I would still like to see chapter 27 discuss in more detail the specific aspects, constraints and potential of mediation in football-related disputes as opposed to a general overview of mediation as a dispute-resolution mechanism. The same goes for chapter 22, but this could be explained by the fact that there are not necessarily numerous football-specific cases that are publicly available. 

As is internationally known, “football law” is male-dominated. This is also demonstrated in the fact that of the 53 contributing authors, all of them good colleagues and most of them renowned in their field, only eight are female (15%). Their opinions, however, are of great importance to the book due to the subject matter on which these women have contributed, such as player contracts (Jane Mulcahy QC), player transfers (Liz Coley), immigration issues in football (Emma Mason), broadcasting (Anita Davies) or disciplinary issues (Alice Bricogne).

The book is a success not only due to the great good work done by its editor, Nick De Marco QC but first and foremost due to its content, masterfully prepared by all 53 authors. On the one hand, the editor carefully delimited and structured the scope of each topic in a logical order and in order to avoid overlaps (a daunting task in case of edited volumes with numerous contributors like this one!), while on the other hand, all 53 authors followed a logical and consistent structure in their chapters and ensured an expert analysis that would have not been possible had this book been authored by one single person.  

Overall, I found this book to be a great initiative and a very useful and comprehensive guide written by some of the most reputable experts. The chapters are drafted in a clear and understandable way and the editor did a great job putting together some of the most relevant and topical legal and regulatory issues from the football field, thus filling a much-needed gap in the “football law” literature.

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.

Why the Changes? 

To hear IOC President Thomas Bach put it, these changes were necessary to prevent “too many losers”. Bach voiced this concern in December 2016, and again in May 2019. The essence of Bach’s concern seems to be that a city will put time and effort into a bid, only for it to not be selected by the IOC.

However, the harm caused by losing a bid is unclear. Is the fear that a losing city’s bid will be a one-and-done affair? To be fair, most are. The cities that bid multiple times before winning, such as PyeongChang (2010, 2014, 2018), and Paris (2012, 2024), are rare. But it is difficult to see how the changes will affect this.

Losing an Olympic bid certainly does not make a city a “loser”. While feelings may be hurt in the short run, cities keep on running. Toronto has lost five bids to host the Olympics, with the most recent loss in 2001 for the 2008 Games. But no one seriously thinks of Toronto as a “loser” city – particularly after the Raptors’ NBA championship victory. Legacies can still be created from losing bids. Developing a bid allows the city to re-imagine itself, and market itself to the world. It might even be in a city’s best interest to bid for the Olympics, but not win, to get the benefits without having to invest the billions of dollars to host the Games.

The IOC may be changing the process to eliminate this “winner’s curse”. Currently, bidding cities try to out-promise each other, driving up complexity and costs. Under the new system, the IOC could work more closely with a potential city or region from the outset, organizing and delivering an Olympics that truly fits. The IOC has stated that it would work less like franchisors, and more like partners with future Games hosts, and has formalised this approach in their “New Norm” modifications to Olympic Games delivery.

Finally, the IOC may be hoping that this new approach will encourage cities that might see themselves as “long-shots” to come forward and host the Games. But the last “long-shot” selected as host of the Olympic Games, Rio de Janeiro, was plagued with allegations of corruption, displacement of vulnerable people from the favelas, and poor legacy outcomes.

Back to Salt Lake City? 

This new process, with the IOC possibly presenting only one possible city to the IOC Session for an up-and-down vote has the possibility to undermine transparency in the host selection process. If the IOC is unwilling to announce possible candidates until a deal is already done, the promises made by a city or region may not even be known by its own public until the IOC Session votes on it.

Robert Livingstone, who runs the website GamesBids.com, worries that these changes will lead to “a devolution back to the 1980s and 1990s when a translucent bid process eventually led to the Salt Lake City bribery scandal.” I share that same fear. With Salt Lake City looking to host the 2030 Games, history is rhyming a little to closely.

Even if the return to lavish visits, gift-giving, influence-buying, and outright corruption don’t come to pass, this is a reversal of the general direction since the IOC published Agenda 2020 in 2014. Agenda 2020 called for more transparency, such as publishing Host City Contracts. To their credit, the IOC has followed through on many of the Agenda 2020 reforms.

A reduction in transparency will likely lead to less public participation. And that may be the IOC’s goal. The IOC is sensitive to referendums. The general public is more critical of the Games than it was in the past. In recent years, hosting the Games has been subject to more referendums than ever, with almost all of those referendums saying ‘no’ to the Games.

IOC Member Dick Pound stated that he has “no hesitation in allowing a [future host] commission to have discussions that are out of the public eye that perhaps occur with sports authorities or interested groups even before the governments had been engaged in this, and can be done on a very confidential basis.” This type of process, without even government knowledge, effectively undercuts public consultation and participation in any bid process.

This new bid process has not happened, yet. It is possible that IOC’s approach will continue to be ever-more transparent, and to allow for public input into the bid process. Naturally, until the IOC shares more of its thoughts about the process, and until we see a host selection process in action, which may be years away (under the old process, the selection process for the 2030 Games would take place between 2021–2023), any commentary about the process is admittedly speculative.

Is the IOC Afraid of Losing?

The IOC is facing a crisis of legitimacy. This crisis is no more apparent than when no city seems to want to host the Olympic Games. Of course, there are many reasons that cities are wary of the Games. High costs, poor legacies, perceptions of corruption, and other problems regularly plague the Games.

The IOC’s Agenda 2020 reforms were positive steps forward in addressing some of these issues. Instead, the IOC has seemingly decided that it would rather take the process out of the public eye under the guide of the cities being afraid of being “losers”. But it seems that the IOC is the one afraid of “losing”. Afraid of hearing that “Nobody Wants to Host the Olympics Anymore”. Afraid of the Games coming out on the losing end of referendums. Afraid of having to choose between a bad and worse option to host the Games. The only loser here might be the Olympic Games.

The International Association of Athletics Federations (IAAF), the monitoring body of track and field athletics, regularly submitted South African middle distance runner and Olympic gold medalist Mokgadi Caster Semenya to sex verification tests when it began questioning her sexual characteristics and speculating whether her body belonged on the Disorder of Sex Development (DSD) spectrum. DSD Syndrome is often defined as an “intersex condition” which affects the clear development of either/or genitalia, gonads and chromosomes into one distinctive sex or another. The spectrum of the intersex condition is particularly wide, and the disorder can sometimes be minimal - some cases of female infertility can actually be explained by an intersex condition.

The IAAF deemed the controversial sex verification tests necessary on the grounds that it was required to prove Semenya did not have a “medical condition” which could give her an “unfair advantage”. It was eventually found that, because of an intersex trait, Semenya did have abnormally high levels of testosterone for a woman, which, in the IAAF’s opinion, justified a need for regulatory hormonal adjustments in order for her to keep competing in the women’s category. The IAAF also funded research to determine how ‘hyperandrogenism’ affects athletic performance. In 2018, it issued Eligibility Regulations on Female Classification (“Athlete with Differences of Sexual Development”) for events from 400m to the mile, including 400m, hurdles races, 800m and 1’500m. The IAAF rules indicated that in case of an existing high level of testosterone, suppression or regulation by chemotherapy, hormonal castration, and/or iatrogenic irradiation was mandatory in order to take part in these events.

Semenya and her lawyers challenged the IAAF Regulations in front of the CAS, who, in a very controversial decision, deemed the Regulations a necessary, reasonable and proportionate mean “of achieving the aim of what is described as the integrity of female athletics and for the upholding of the ‘protected class’ of female athletes in certain events” (§626).

The CAS Ruling

Semenya and her attorneys claimed that forcing her to get unwanted medication represented a violation of human rights. On the 1^st May 2019, the Swiss-based Court of Arbitration of Sport (CAS) ruled in favor of the restrictions placed on female athletes with high levels of testosterone by the IAAF. The direct consequence of this decision for Semenya was the obligation for her to take testosterone suppressants in order to continue competing in her category of IAAF events.

In March 2019, the United Nations Human Rights Council issued a resolution indicating the IAAF Regulations were “not compatible with international human rights norms and standards, including the rights of women with differences of sex development” and that there was “no clear relationship of proportionality between the aim of the regulations and the proposed measures and their impact.”

Because the Regulations established conditions and restrictions which were targeted at the female (or intersex) athlete population exclusively and did not impose any equivalent conditions or restrictions on male athletes, the CAS Panel considered that the Regulations were, prima facie discriminatory on grounds of legal sex. After reminding that “it is common ground that a rule that imposes differential treatment on the basis of a particular protected characteristic is valid and lawful if it is a necessary, reasonable and a proportionate means of attaining a legitimate objective” (§548), the Panel considered that its sole responsibility was to determine whether the DSD Regulations were necessary, reasonable and proportionate. As such, the Panel said it was “not required to (…) appraise the adequacy of the IAAF’s policy-making process”.

The Swiss Federal Tribunal and ordre public

A decision from the CAS can only be challenged at the Swiss Federal Tribunal (SFT) on a limited number of grounds, enclosed in art. 190 al. 2 of the Federal Act on Private International Law (PILA), which include claiming that the principle of equal treatment of the parties or their right to be heard in an adversarial procedure has not been observed (lit. d) and that the award is incompatible with public policy (lit. e). At the beginning of June 2019, after an ex parte request, the SFT, Switzerland’s highest court, granted Semenya a temporary suspension of the IAAF rules on testosterone limits. She was able to compete over distances of 400 to 1’500m without medication, until the SFT issued a ruling.

Because it was considered that the discrimination was necessary, reasonable and proportionate in comparison with the vast majority of non-DSD women, the only outcome for Semenya’s lawyers was to argue on the violation of the principle of public order. The 30^th July 2019, the SFT reversed the ruling that temporarily lifted the application of the IAAF’s regulations, thus impeding her to defend her 800m title at the World Championships in Doha in September 2019. The SFT concluded that “neither the allegation of an infringement of the principle of non-discrimination, nor the alleged violation of ordre public due to an infringement of their personality and human dignity appeared with high probability to be well founded”. Welcoming the decision, the IAAF stated that, in certain particular cases, “biology trumps identity”.

The elements of comparison

Body Policing

Admitting that “the imperfect alignment between nature, law and identity is what gives rise to the conundrum at the heart of this case” (§559), the CAS stated that:

“On true analysis, (…) the purpose of the male-female divide in competitive athletics is not to protect athletes with a female legal sex from having to compete against athletes with a male legal sex. Nor is it to protect athletes with a female gender identity from having to compete against athletes with a male gender identity. Rather, it is to protect individuals whose bodies have developed in a certain way following puberty from having to compete against individuals who, by virtue of their bodies having developed in a different way following puberty, possess certain physical traits that create such a significant performance advantage that fair competition between the two groups is not possible.”

The public opinion could not help but point the finger at the underlying hypocrisy of the decision, in comparison with similar cases, both inside and outside of the sports world. Firstly, the same type of policy and legal arguments are often held for controlling certain types of bodies exclusively, whilst leaving others out of the line of sight. In the sports world, it is certainly the case: think of the impressive decoration of Olympian swimmer Michael Phelps aligned with the god-like praises he received for his physical strength and capacity; for instance. On the contrary, leaving “abnormally” tall basket-ball players on the bench so as to give naturally shorter players a chance to win, or testing male athletes with poor athletic results in suspicion they might have low levels of testosterone seems absurd. In fact, the latter are only tested as to make sure they do not take anything effectively modifying their capacities in competing. Semenya and her lawyers did point to the fact that “it is illogical and unnecessary to regulate one genetic trait while celebrating all the others” (CAS decision, §53).

Out of the sports world, indications of “naturalness” in pro-life arguments or governments’ refusal to medically cover the suppression of hormones in transgender reassignment cases are also examples of body policing. The case therefore raises the central question of how stereotypes, especially gender ones, give a social meaning to a fact and how legal regulation can confirm it, thus perpetuating it.

The social  meaning of women and gender

Taking a step away from Semenya’s cause célèbre, it must be stressed that, for long, women were not accepted to compete in the Olympics and that their progressive integration was only made possible when a redefinition of the norms of femininity and masculinity, as they relate to sports and competition, occurred. This means that medical tests were carried out and, as a backlash to noticing the instability and fluidity of sex categories, those very categories were reinforced and redefined according to stereotypes. In other words, the sports world went very far to ensure there was a biological difference so that the natural and social order as it was could not be disrupted.

If we try to move away from the (in my opinion, sterile) debate on biological differences (remembering that the latter has also been explained by anthropologists as being a consequence of our gendered social order[1]), we should ask ourselves who has the power to define the norms of femininity and masculinity. “Woman” and “man” have very particular social meanings. Furthermore, commentators often qualify the sex verification tests as being racially flawed. In this sense, the discussion is also of epistemological importance: the bonus corpus is never the female body, and is always the white male one, with “naturally” good athletic abilities. True, scientific results are usually dependent on a certain political order[2], as are any other empirical social-situated findings. The CAS Panel said that an assessment of the likely impact of the DSD Regulations on wider society would require “an analysis of multifaceted sociological issues which are not amenable to judicial resolution by an arbitral tribunal (…)” (§518). And, as such, it is certainly not for an arbitration court to have the power to (re)define gender categories, which are intrinsically political and historical, and are not limited to the sports world.

Appealing to the ECtHR

If she does not prevail before the SFT, Semenya could still appeal to the European Court of Human Rights, alleging a breach of Article 14 and/or Article 8[3]. It may give the Strasbourg Court an interesting opportunity to comment on gender opposition and binarity, as well as on the social limitations put on gendered bodies. The gender stereotypes discussion is not a new one; regional and international courts have had the opportunity, on many occasions, to comment on the need to combat harmful gender stereotypes[4]. However, they usually do so in relation to human rights law and to the principles of equality and non-discrimination. Even if, of course, not every unjustified discrimination is rooted in stereotypes[5], they seldom point at the wrong of gender stereotypes per se. Hopefully this may lead the ECtHR to further reflect on the harmfulness of gender stereotypes, beyond the well-established categories in need of protection against unjustified discrimination.

The CAS practically said that it was bound by biology. If anything, the results of the sex verification tests should have proven that Semenya’s body has incredible athletic abilities, with no requirements of medically modifying it whatsoever.

Conclusion

In a letter to the IAAF about their regulations, United Nations experts on health, torture, and women’s rights wrote:

“The assessment for ‘exclusion or treatment’ based on the IAAF regulations relies on suspicion and speculation, based on stereotypes about femininity. This effectively legitimizes widespread surveillance of all women athletes by requesting national federations as well as doctors, doping officials, and other official personnel to scrutinize women athletes’ perceived femininity, which can include appearance, gender expression, and sexuality. Women who are understood to be “suspicious” about their natural physical traits are tied to subjective and cultural expectations regarding which bodies and modes of gender expression are “appropriate,” or even valorised by adherence to traditional or normative aesthetics of femininity. Gender and sex-based stereotyping and stigma have a long history, not only of causing psychological harm to women and gender minorities, but also of increasing the possibility of violence against them.”

The social norms of gender act as a blur on reality, based on the stereotype that “a real woman” should not be that good of an athlete. It provides us with an overview of how public policy decisions are justified by scientific findings, operating in a gender-normative environment. The discrimination was considered “necessary, reasonable and proportionate” in comparison with the vast majority of non-DSD women, but it somehow appears to be a debate on the equality between women and men and on reaffirming the importance of the “fixed duality of sexual difference”[6]. The CAS Panel said that it was “faced with conflicting rights concerning the rights of female athletes who do, and do not, have DSD” (§554).

Interestingly enough, the more women are compared to each other, on the grounds of fairness, the stronger the female gender category is reinforced.

[1] Priscilla Touraille, Hommes grands, femmes petites : une évolution coûteuse. Les régimes de genre comme force sélective de l’évolution biologique, Éditions de la Maison des Sciences de l’Homme: Paris 2008.

[2] Thomas Laqueur, La Fabrique du Sexe: Essai sur le corps et le genre en Occident, Gallimard: Paris 1992.

[3] The ECtHR had considered an application brought following an unsuccessful appeal to the Swiss Federal Tribunal in the October 2018 decision ECtHR, Mutu and Pechstein v Switzerland, applications no. 40575/10 and no. 67474/10, ECLI:CE:ECHR:2018:1002JUD004057510, alleging breaches of Article 6 of the European Convention on Human Rights.

[4] The Office of the High Commissioner for Human Rights has broadly defined the notion of “harmful gender stereotypes”, as sexist beliefs, which include representing women in roles considered traditional; as mothers and household heads, as subordinates of men or as sexual objects. In 2013, the OHCHR prepared a report on sex and gender stereotypes, which outlines the practice of treaty bodies and their reference to gender stereotypes. The obligations of States with regard to stereotypes are those set out in Article 5 lit. a CEDAW, reinforced by Article 2 lit. f. which provides that States must “take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women”. At European level, judgments of the ECtHR have concerned stereotypes related in particular to sexuality (Kalucza v. Hungary), reproduction (A. B. C. v. Ireland;R. R. v. Poland) or domestic violence (Valiuliené v. Lithuania; Opuz v. Turkey). See also Konstantin Markin v. Russia;Carvalho Pinto de Sousa Morais v. Portugal; Khamtokhu and Aksenchick v. Russia.

[5] Sophia Moreau, ‘Equality Rights and Stereotypes’ in Dyzenhaus, D./ Thorburn, M. (eds.), Philosophical Foundations of Constitutional Law, Oxford University Press : Oxford 2019.

[6] Hilary Charlesworth, ‘Foreword’, in Harris Rimmer S./Ogg K., Feminist Engagement with International Law, Edward Elgar: Cheltenham 2019.

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

Another Russian Doping Crisis? Inconsistencies Uncovered in the Data from the Moscow Lab

Storm clouds are brewing once more in the Russian Doping Saga, after several inconsistencies were uncovered by WADA from data retrieved from the Moscow Laboratory. More specifically, a certain number of positive tests had been removed from the data WADA retrieved from the Moscow Laboratory compared to the one received from the original whistleblower. WADA launched a formal compliance procedure on 23 September, giving three weeks for Russian authorities to respond and provide their explanations. WADA’s Compliance Review Committee is set to meet on 23 October in order to determine whether to recommend declaring Russia non-compliant.

Russian authorities are not the only ones now facing questions in light of these new revelations. Criticism of WADA’s decision to declare Russia compliant back in September 2018 have been reignited by stakeholders. That original decision had been vehemently criticized (see also Edwin Moses’ response), particularly by athlete representative groups.

The fallout of these data discrepancies may be far reaching if Russian authorities are unable to provide a satisfying response. There are already whispers of another impending Olympic Games ban and the possibility of a ban extending to other sports signed to the WADA Code. In the meantime, the IAAF has already confirmed that the Russian Athletes would compete as ‘authorised neutral athletes’ at the World Athletics Championship in Doha, Qatar.

Legal Challenges Ahead to Changes to the FIFA Football Transfer Market

FIFA is set to make amendments to its player transfer market that take aim at setting new boundaries for football agents. These changes will prohibit individuals from representing both the buying and selling club in the same transaction and set new limits on agent commissions (3 percent for the buying club and player representative and 10 percent for the selling team). FIFA is already in the process of creating a central clearinghouse through which all transfer payments would have to pass through, including agent commissions. FIFA will be making a final decision on these proposed changes at the FIFA Council meeting on 24 October.

If these proposed changes are confirmed, they will almost certainly be challenged in court. The British trade organization representing football agents, Association of Football Agents, has already begun its preparations for a costly legal battle by sending a plea to its members for donations. It claims that it had not been properly consulted by FIFA before this decision had been made. On the other hand, FIFA claims that ‘there has been a consultation process with a representative group of agents’ and that FIFA kept ‘an open dialogue with agents’. Regardless, if these proposed changes go through, FIFA will be on course to a looming legal showdown.

CAS Public Hearing in the Sun Yang Case: One Step Forward for Transparency?

On 20 August, 2019, the Court of Arbitration for Sport (CAS) announced that the hearing in the appeal procedure of the Sun Yang case will be held publicly. It will be only the second time in its history that a public hearing has been held (the last one being in 1999, Michelle Smith De Bruin v. FINA). WADA has appealed the original decision of the FINA Doping Panel which had cleared Sun Yang from an alleged anti-doping rule violation. The decision to make the hearing public was at the request of both parties. The hearing is set to take place November 15^th and is likely to be an important milestone in improving the CAS’ transparency.

Sun Yang, who has already served a doping ban for a previous violation in 2014, has also been at the center of another controversy, where Mack Horton, an Australian swimmer, refused to shake hands and stand on the podium with Sun Yang at the world championships in Gwangju.

Sports Law Related Decisions

• Court of Arbitration for Sport (CAS) - Dylan Scott v. International Tennis Federation
• American Arbitration Association (AAA) - USADA V. Salazar
• International Tennis Federation (ITF) Independent Tribunal - Decision in the case of Alexey Aleshchev
• International Tennis Federation (ITF) Independent Tribunal - Decision in the case of Franco Agamenone

Official Documents and Press Releases

CAS

• CAS – The Court of Arbitration for Sport (CAS) ratifies the Settlement Agreement reached between Junya Koga and the International Swimming Federation (FINA)
• CAS – The hearing in the CAS arbitration procedure between WADA, Sun Yang and FINA to be held in public
• CAS – The Court of Arbitration for Sport (CAS) partially upholds the appeal filed by Paris St-Germain and Neymar Da Silva Santos Jr.

FIFA

• FIFA - Normalisation committee appointed for Egyptian FA
• FIFA - Composition of normalisation committee for Pakistan Football Federation confirmed
• FIFA - Qatar's commitment to workers' welfare discussed at BWI 2019 Sports Conference
• FIFA - Statement on the visit of a FIFA delegation to Iran
• FIFA - FIFA and football stakeholders recommend cap on agents’ commissions and limit on loan
• FIFA - FIFA Players’ Status Committee renders decision on transfer of late Emiliano Sala

IAAF

• IAAF - IAAF Approves the Application of 11 Russians to Compete Internationally as Neutral Athletes
• IAAF - IAAF Approves the Application of Russia's Yekaterina Ivonina to Compete Internationally as a Neutral Athlete
• IAAF - No Change in RUSAF Status - IAAF Council Meeting
• IAAF - Athletics Integrity Unit Announces Robust Programme and Policy Updates for IAAF World Athletics Championships Doha 2019

IOC

• IOC - Sports Organisations Join Forces Against Climate Change
• IOC - IOC EB and IAAF Council Hold Joint Meeting in Doha/Qatar

UEFA

• UEFA - UEFA reinforces anti-match-fixing campaign

WADA

• WADA - WADA lifts partial suspension of Stockholm laboratory’s accreditation for a specific analytical method
• WADA - WADA Compliance Review Committee update
• WADA - WADA suspends accreditation of New Delhi Laboratory
• WADA - WADA Athlete Committee publishes meeting outcomes
• WADA - WADA publishes 2018 Annual Report themed ‘The Right Way Together’
• WADA - WADA Executive Committee discusses RUSADA Code Compliance
• WADA - WADA publishes 2020 List of Prohibited Substances and Methods

Other

• Asian Football Confederation (AFC) - AFC Disciplinary and Ethics Committee bans four players for life
• Athletics Integrity Unit - Athletics Integrity Unit Will Not Appeal USADA Decision on American Sprinter Coleman
• Athletics Integrity Unit - Athletics Integrity Unit Announces Robust Programme and Policy Updates for 2019 IAAF World Athletics Championships
• Athletics Integrity Unit - Athletics Integrity Unit to Have Wide-ranging Bet Monitoring During the IAAF World Athletics Championships
• CIES Football Observatory - Financial analysis of the transfer market in the big-5 European leagues (2010-2019)
• Human Rights Watch - Afghanistan: FIFA Sexual Abuse Investigations Stall
• Human Rights Watch - Iran: Women Detained, Accused of Flouting Stadium Ban
• Human Rights Watch - Iran’s ‘Blue Girl’ Suicide Sparks Renewed Calls on FIFA Over Stadium Ban
• IBU (International Biathlon Union) - IBU Anti-Doping Hearing Panel dismisses charges against nine Kazakh biathletes
•  International Working Group (IWG) on Women and Sport - Asian Paralympic Committee and 8 NPCs sign Brighton Declaration
• TIU (Tennis Integrity Unit) - Issam Taweel Suspended and Fined for Tennis Match-fixing Offences
• TIU (Tennis Integrity Unit) - Tennis Official Svetlana Teryaeva Suspended After Failing to Report a Corrupt Approach to the Tennis Integrity Unit
• TIU (Tennis Integrity Unit) - CAS Upholds Lifetime Bans on the Alekseenko Brothers
• TIU (Tennis Integrity Unit) - Juan Carlos Saez Suspended for Eight Years and Fined $12,500 for Breaches of the Tennis Anti-corruption Program
• TIU (Tennis Integrity Unit) - Lifetime Ban for Diego Matos After Conviction on Multiple Match-fixing and Non-co-operation Offences
• TIU (Tennis Integrity Unit) - Russia’s Irina Khromacheva Suspended for ‘technical’ Breach of the Tennis Anti-corruption Program
• TIU (Tennis Integrity Unit) - Tennis Integrity Supervisory Board Confirms Agreement to Expanded Integrity Organisation Bringing Together Anti-corruption and Anti-doping Regimes From 2021
• TIU (Tennis Integrity Unit) - Edvin Gustafsson Suspended and Fined for Betting on Tennis Offences
• UCI (Union Cycliste Internationale) - Study reveals the economic impact of major UCI cycling events
• UCI (Union Cycliste Internationale) - UCI statement on Alessandro Petacchi

In the news

Doping

• Sean Ingle - Christian Coleman free to race for world gold after missed tests charge dropped
• Sean Ingle - Russia at risk of Tokyo Olympics ban over ‘inconsistent’ Moscow lab data
• Tariq Panja - Questions About Russian Doping Data Raise Fears About Manipulation
• Tariq Panja - WADA Gives Russia Three Weeks to Explain Missing Doping Data
• Liam Morgan - RUSADA director general warns Russian sport heading into "abyss" after data tampering claims
• BBC - Operation Puerto: Spanish legal system 'thwarted' anti-doping investigation
• Reuters - Cas to hear Chinese swimmer Sun Yang's doping case in public
• Ross Wenzel and Anton Sotir - Anti-doping: CAS accepts a new method to detect prohibited substances
• Law in Sport - AFC Disciplinary and Ethic Committee bans player for Anti-doping violations
• Law in Sport - Powerlifting Athlete, Michael Bond, Accepts Sanction for Anti-Doping Rule Violation
• Law in Sport - Dmitrii Smoliakov Accepts Sanction for Violation of UFC Anti-Doping Policy
• Lars Jørgensen - ‘WADA and CAS should be independent of both sport and politics’
• Lars Jørgensen - WADA president “welcomes feedback” from iNADO after call for a separation of powers

Football

• David Conn - Cardiff to appeal to Cas after order to pay Emiliano Sala transfer fee
• Tariq Panja - FIFA and Premier League Document Saudi Link in BeIN Piracy Fight
• Tariq Panja - Hacker Who Revealed Soccer Secrets Is Charged With 147 Crimes
• Tariq Panja - FIFA Set to Take On Agents With Proposed Changes to Transfer Market
• Tariq Panja - Agent Group Solicits Donations to Sue FIFA Over Transfer Limits
• Farnaz Fassihi - Iran’s ‘Blue Girl’ Wanted to Watch a Soccer Match. She Died Pursuing Her Dream.
• Martyn Ziegler - Premier League damaging smaller European leagues, Uefa report says
• BBC - Belgium football transfer: Two arrested in fraud inquiry

Other

• Sean Ingle - Government steps in to try to avoid India Commonwealth Games boycott
• Sean Ingle - ECB’s transgender review could result in more medical-driven policy
• Sean Ingle - Amnesty says Anthony Joshua is being duped over Saudi Arabia fight
• Sean Ingle - Amnesty says migrant workers still being exploited in Qatar
• Sean Ingle - Migrant workers and children to pad out crowd for World Championships
• Sean Ingle - IOC delays new transgender guidelines after scientists fail to agree
• Tariq Panja - Russian Athletes Set to Remain ‘Neutral’ at Track Championships
• Jeré Longman - Pan Am Games Protesters Get Probation. Olympians Get a Warning.
• Raphaël Faiss - Quels critères pour les catégories féminines dans le sport d’élite?
• Kareem Abdul- Jabbar - Should athletes at the 2020 Olympics take political stances?
• Stanis Elsborg - In the wake of the USA Gymnastics scandal, new bill proposal sparks debate on sport's autonomy
• Declan Hill - ’Sometimes we fixed more games than we could bet’
• Rasmus K. Storm and Christian Gjersing Nielsen - Formula 1 does not seem to have a positive impact on host regions

Blog

Asser International Sports Law Blog

• Ryan Gauthier - I’m A Loser Baby, So Let’s Kill Transparency – Recent Changes to the Olympic Games Host City Selection Process
• Thomas Terraz - Can a closed league in e-Sports survive EU competition law scrutiny? The case of LEC
• Despina Mavromati - Book Review - Football and the Law, Edited by Nick De Marco
• Sofia Balzaretti - Caster Semenya’s Legal Battle Against Gender Stereotypes: On Nature, Law and Identity

Law in Sport

• Josep F. Vandellos Alamilla - Why FIFA needs to provide a specific regulatory framework for football coaches (the difficulties in resolving club-coach disputes and the application of Swiss law)
• Benoît Keane - My take on why the European Commission lost the recent State aid cases against FC Barcelona and Real Madrid
• Toni Roca- FIFA’s clearing house: the future of solidarity mechanism & training compensation
• Oliver Fairhurst - Cheating in video games – lessons from Blizzard’s successful case against cheat and bot developer
• Joseph M. Hanna - U.S. sports law news update: $75 million NCAA concussion settlement approved
• Mark Hersey - Can sports clubs share their marketing database with sponsors?

Other

• Amélia S. Fouques - Is FIFA Serious About Fighting Match-Fixing?
• Jack Anderson - The Court of Arbitration for Sport under intellectual and efficacious scrutiny
• Andy Brown - A skilful poker player never shows their hand…
• Søren Bang, Christina Friis-Johansen and Jens Alm - Victims or winners: Why children’s rights should be the next big issue for sport

Upcoming Events

• 14-15 November – 3^rd WISLaw Annual Conference & General Assembly, Zurich, Switzerland
• 28 November - CIArb Kenya Annual Lecture - Promoting Sports Arbitration in Africa, Nairobi, Kenya
• 26-27 March 2020 – 14^th Conference of the PSA Sport & Politics Group, Etihad Stadium, Manchester, UK

On October 24^th and 25^th 2019, the T.M.C. Asser Institute and the International Sports Law Centre hosted the International Sports Law Journal (ISLJ) Conference for a third year in a row, bringing together a group of academics and practitioners from around the world. This year’s conference celebrated the 20^th year of the International Sports Law Journal, which was originally started by Robert Siekmann. Over the past 20 years, the ISLJ has aimed to be a truly international journal that addresses global topics in sports law while keeping the highest academic standards.

With this background, the conference facilitated discussions and exchanges over six differently themed panels on international sports law’s most pertinent issues and gave participants wide opportunities to engage with one another. Additionally, this year’s edition also had the great honor of hosting two distinguished keynote speakers, Moya Dodd and Ulrich Haas, who were able to share their wealth of experience and knowledge with the conference participants.

The following report aims to give an overview of the ISLJ Conference 2019 to extract and underline the fundamental ideas raised by the different speakers.

Day 1:

Opening Speech: Moya Dodd

The conference was kickstarted by Moya Dodd, a former FIFA Council member and current ICAS member, who gave an engaging presentation on her experiences as an athlete in boardrooms of FIFA. After retiring from the Australian National Team, she began to become involved in sport governance, starting as a member of the AFC Executive Committee. She eventually made her way to the FIFA Executive Committee where she made it a priority to represent groups who did not have a voice in FIFA’s governance. In this vain, she launched a task force for women, which helped spearhead reforms that brought gender issues into light. Ms. Dodd also explained how she worked hard to keep connections with persons outside of the sports governing structures in order to represent them from the inside. In the end, she explained how the experience playing sports helped develop skills that became invaluable in the boardroom. This includes, teamwork skills, constantly striving to improve oneself, valuing persons for their capabilities, and the ability to deal with setbacks. This discussion led particularly well into the first panel of the conference, which took a magnifying glass to the role of athletes in sports governance.

Panel 1: Where is the athletes’ voice? The (il)legitimacy of international sports governing bodies

Antoine Duval and Marjolaine Viret began the first panel of the conference by exploring the athletes’ voice in the fight against doping and particularly within WADA. They explained that in order for the World Anti-Doping Code (WADC) and WADA to be considered legitimate, the actors most affected by its policies, athletes, would need to be participating meaningfully and have a real input in the decision-making process. This input requires an actual reflection in the regulatory output of WADA, and it entails not only consulting with athlete stakeholders but that representatives have voting powers on both the code revision process and the administrative bodies of WADA. Their study examines to what extent the current operation of WADA is in line with these ideals by examining the role of athletes in WADA’s bodies and its actual regulatory output.

Mark Conrad studied the issue from a wider lens by explaining how the current representation of athletes in sports governing bodies is inadequate and why there needs to be a fundamental rethinking of the current athlete committee model. This model, he explains, is ineffective in truly representing athletes’ interests, since their mandates are not clearly defined and greatly rely on the good favor of the federations’ management. As an alternative model, he presented a collective bargaining approach, which already is widespread in North America, in which athlete unions would represent athletes’ interests in a bargaining process with the sports governing bodies. Such a model would give the athletes ‘real’ representation by relying on their strength in numbers and by negotiating agreements that would entitle them to specific rights. These agreements could cover salary standards, salary controls, free agency, drug testing and many other aspects of the employment relationship. He concluded by discussing the general pros and cons of such a model but that overall, since athletes would actually have an effective representation, it would overcome any of the negative effects of such a model.

Panel 2: Criminal law and sports – criminal law of sports

The day’s conversation then shifted from sports governance structures to the application of criminal law in sports. Björn Hessert kicked off the panel with a presentation on the cooperation and reporting obligations in sport investigations. He began by illustrating the catch-22 situation in which athletes may find themselves during an investigation. On the one hand, they are required to ‘cooperate fully’ with the investigation authorities, including providing self-incriminating evidence, or face sanctions. If they choose not to cooperate, then they also receive sanctions. This state of affairs may have had a direct impact on the skyrocketing number of sanctions over the past few years involving reporting and cooperation violations. Hessert argued that this situation could be significantly improved by introducing fundamental procedural rights found in criminal law systems to these investigations, such as the right to remain silent and the privilege against self-incrimination. These rights are found in article 6 (1) and (2) of the European Convention on Human Rights (ECHR). Such a regime would force sports governing bodies to be creative in finding new strategies to investigate and prosecute alleged sports rule violations.

After Hessert’s presentation on procedural rights in sports investigations, Jan Exner took the podium to discuss the proportionality of the sanctions in the anti-doping code. He began by giving an overview of the characteristics of the sanctions in the WADC, which include a fixed sanction framework and limited flexibility for panels hearing alleged doping rule violations. He explained that due to the rigid sanction framework of the WADC, panels hearing a doping dispute are unable to go below limits set therein and that in certain exceptional cases, these sanctions may be disproportionate. Exner then illustrated some of the negative effects of the current system in which CAS panels hearing similar factual circumstances end up with delivering different sanctions. Such a predicament, Exner argues, goes against any equality of outcome of the proceedings. In the end, he contended that there should be a revised sanction framework that would allow hearing panels to go below the limits set in the WADC as long as certain criteria are met in order to ensure that the sanction is proportionate to the rule violation.

Ruby Panchal closed the panel by shining a light on match-fixing. She argued that sports governing bodies have been so concerned with doping that match fixing has not been sufficiently addressed. Much like how anti-doping rules have been significantly developed over time, anti-match-fixing laws also need to be made far more robust. Panchal explained that certain factors essential for the development of lex sportiva will be essential in the growth of this field. These factors include the validity of unilateral action clauses, a growing relationship between sports governing bodies and state courts, the creation of evidentiary processes in disciplinary proceedings, and co-operation between sports governing bodies and investigative authorities. Panchal closed her talk by examining the approach of the Convention on the Manipulation of Sports Competitions (Macolin Convention) in addressing this regulatory void. While the Convention takes a ‘hopeful approach’, the question remains open as to how effective it will be in combatting match-fixing.

Panel 3: Transfer systems in international sports

The last panel of day one of the conference took a deep dive into transfer systems in international sports. Jan Łukomski opened the panel by studying the finalization of international football transfers and professional football players’ contracts. There are many kinds of agreements that could be potentially involved in the transfer of a football player, including offers, pre-contracts, definite contracts, that have significantly different legal effects. For example, the CAS explained in CAS 2008/A/1589 MKE Ankaragücü Spor Külübü v. J. that the difference between a pre-contract and a contract ‘is that the parties to the ‘precontract’ have not agreed on the essential elements of the contract or at least the “precontract” does not reflect the final agreement’. This is just one example of a growing CAS case law on issues of contractual validity of football contracts. In the end, Łukomski explains that often times disputes on contractual validity stems from ‘mistakes’ that were made by clubs and players during the negotiation process.

Following the examination of the transfer system in football, Xavier Mansat gave the participants a small peek into the archaic transfer model currently in place in volleyball. He took the audience on a journey of the transfer of one volleyball player by emphasizing all the different steps and actors participating in the process. Mansat also elucidated the various administrative and transfer fees that are taken out at every step by the involved actors. He closed the panel by explaining that the current system is in the process of being challenged by a new stakeholder group, Association des Clubs Professionels de Volleyball (ACPV) and that it is likely that some of the components in the current transfer framework are incompliant with EU law.

Day one ended with an opportunity for the conference participants to unwind over a dinner in the charming harbor of Scheveningen.

Day 2:

Keynote lecture: Ulrich Haas

Day two of the ISLJ Conference was launched by a lecture from Ulrich Haas, who gave an in-depth lecture on the nature and function of association tribunals in international sport. Haas underlined that while association tribunals are the most important dispute resolution mechanism in practice, legal literature on them is scarce. The sheer volume of the decisions made by association tribunals is staggering. In the case of FIFA, the decisions are around 10000-11000 per year. After having demonstrated the incredible importance of association tribunals to the functioning of sports governance, he outlined their legal basis, which is based in the freedom of association (in Switzerland and Germany). Austria, on the other hand, makes association tribunals mandatory. Haas then began to unpack the differences between authoritarian decision-making, used by association tribunals, compared to other forms of alternative dispute resolution, such as mediation, conciliation, and arbitration. Interestingly, he concluded that while all these differences can serve as indications of whether a body is an association tribunal or an arbitration panel, there is no set international standard to make this determination. Hence, there is a need to refer to national law in order to fill this void. In conclusion, Haas endorsed a procedural law approach over a substantive law approach to determine the appeals status of an association body’s decision.

Panel 4: Rethinking sports arbitration

The first panel of day two of the ISLJ Conference took to rethinking the current framework of sports arbitration. Veronica Lavista was first to go and presented her findings on the influence of international dispute settlement on sports. She took an empirical approach to her study by going through CAS’ case law and placing the arbitrators in those cases into different categories based on their background, such as a sports law, corporate law, or international law specialist. Based on this determination, Lavista was then able to identify that the makeup of the panel had an appreciable influence on the extent certain legal issues were discussed in the award. Lavista also underlined some of the overlaps between international dispute resolution and the CAS, including the voluntary nature of their jurisdiction, the use of ad hoc panels, and the explosion of case law over the past few decades.

Next up, Daniela Mirante and Artur Flaminio da Silva offered a case study in the Portuguese context of sports arbitration to argue that perhaps switching to a mandatory arbitration scheme would alleviate many of the issues currently present in the ‘voluntary’ arbitration model. Portugal created a permanent sport arbitration center in the Portuguese Court of Arbitration for Sport (TAD), which has a mandatory jurisdiction for ‘all sports disputes related to administrative law’. After underlining many of the issues plaguing the TAD, such as institutional independence and arbitrators’ impartiality, the confidentiality of the awards, and the high costs of arbitration, they explained the advantages of mandatory sports arbitration. First, it would get rid of the concept of consent, which they argue is a fiction since athletes must consent to arbitration or else not be able to participate in the sport. It would also reduce the time needed to render a decision since there would be less room for parties to challenge the jurisdiction of arbitration panels. They concluded that mandatory arbitration definitely could be a future path for sports arbitration but that it would have to follow a different path than the current Portuguese model.

To close the panel, Massimiliano Trovato brought forth his three ‘radical’ proposals to ensure the legitimacy of the CAS. Before unveiling the three proposals, Trovato gave a brief historical overview of the CAS and its relationship with the Olympic Movement to contextualize his arguments. He highlighted the interactions between the two and how certain individuals have held top positions in the CAS bodies and other sports governing bodies, like the IOC, leading to potential conflicts of interest. At this point, Trovato revealed his first proposal that article S4 and S6 of the CAS Statutes be amended to make the ICAS into a body ran by the arbitrators themselves, since they have both the ability and expertise to run the CAS for the interests of all the parties involved. Second, Trovato argued that the closed-list system of arbitrators be abolished under article S14 and move towards an open system. The quality of the arbitrators, Trovato explained, could still be assured by introducing certain minimum eligibility requirements for the arbitrators. The third proposal Trovato presented was that Article R65 be altered to make sports governing bodies responsible for the costs of arbitration, not the parties.  Shifting the burden would make sports governing bodies more disciplined and would help compensate for the fact that athletes are essentially forced into arbitration.

Book L(a)unch: The Court of Arbitration for Sport and its Jurisprudence: An Empirical Inquiry Into Lex Sportiva by Johan Lindholm

During lunchtime, the conference participants were treated to a very special book launch from the ISLJ’s chief editor, Johan Lindholm. His book, The Court of Arbitration for Sport and its Jurisprudence: An Empirical Inquiry Into Lex Sportiva, is an exhaustive and thorough empirical study into the CAS’ jurisprudence, its arbitrators, and its parties. Covering a period of 30 years (1984-2014), the book tries to unpack some of the most often raised arguments against the CAS and puts these claims to the ultimate test. For example, whether particular arbitrators are more likely to be chosen by certain parties. Furthermore, the book, through impressive data visualization graphics, illustrates a variety of intriguing data samples, including what kind of cases the CAS has deliberated and to what extent the CAS can call itself a global international sports tribunal.

Panel 5: Revisiting the (in)dependence and transparency of the CAS

Following the book l(a)unch, the next panel treated conference participants to a fascinating debate on the (in)dependence and transparency of the CAS. Velislava Hristova launched the panel by exploring the intersection between human rights and sports arbitration and in particular, the right to a public hearing in sport cases. She used the ECtHR case of Mutu and Pechstein v. Switzerland to illustrate the topic. Before jumping into the legal issues, Hristova gave an overview of the nearly 10-year legal history of the Pechstein Saga. She explained that the case boiled down to four main issues: whether Article 6 (1) ECHR (right to a fair and public hearing) could be applicable to sports arbitration, whether Pechstein waived this right, whether the CAS is sufficiently independent and impartial, and whether the lack of a public hearing in this case actually violated Article 6 (1). Next, Hristova analyzed the findings of the ECtHR on these four issues and explained how the ECtHR concluded that while the right to a public hearing is not absolute, the lack of a public hearing in Pechstein’s case was a violation because of the compulsory nature of sports arbitration, the fact that a public hearing was requested, the ‘nature and complexity’ of the case, and since the factual background had been contested. In the end, athletes, arbitrators and the CAS will have to take this landmark ruling into account moving forward.

Antonio Rigozzi further delved into the issue of the (in)dependence of the CAS by not only looking at the Pechstein case but also the Swiss Federal Tribunal’s (SFT) decision in the Seraing case and how these rulings could potentially impact the CAS. Concerning the Seraing case, he explained how the SFT had to determine whether the CAS is structurally independent, which differs from the Lazutina case because the SFT had to determine whether it was independent from FIFA, not the IOC. In the end, the SFT did not find it necessary to depart from its analysis in the Lazutina case and deemed the CAS to be independent so long there were no overriding reasons indicating that FIFA is given special treatment. Furthermore, the SFT noted that the CAS had made significant efforts to strengthen its independence by improving its structure and functioning. Rigozzi finished by drawing some conclusions from the Pechstein and Seraing cases. First, the Pechstein case has made public hearings at the CAS an inevitability now that Article 6 (1) ECHR is fully applicable to its proceedings, and the CAS will have to improve the optics concerning its rules on the appointment of the president of the panel. Secondly, the SFT in the Seraing made clear that while CAS could be further ‘perfected’, it was not the proper institution to take on such a project. Instead, it placed the responsibility in the hands of the Swiss legislator, and it is yet to be seen whether they will actually take the initiative to introduce change.

The panel was brought to a close by Tom Seamer, who plunged into the issue of the independence and impartiality of CAS arbitrators. He argued that there could be two main areas of improvement in this regard, the ICAS and the appointment of arbitrators. Concerning the ICAS, only minor changes would be necessary to drastically improve the status quo, such as ensuring that its president be neutral and has no connections with any sports governing body, athlete or clubs. Secondly, Seamer supported the contention that certain arbitrators are repeatedly nominated by the same parties and often make decisions in favor of that particular party. He explained that in order to test this theory, one must only look at the period in which the particular arbitrator was on the approved CAS list and then determine the proportion of cases they were called upon by a particular party during that same period. Seamer closed by asserting more needed to be done in order to tackle these issues, while acknowledging some of the challenges ahead.

Panel 6: The future of sports: sports law of the future

The last panel of the conference took the opportunity to look forward into the future of sports law and discussed the growing fields of e-sports and extreme sports. On e-sports, Cedric Aghey tackled the issue of e-sports governance and how it could be potentially integrated into the current sports governing structures, since currently there is an unharmonized e-sport structure. At the moment, e-sports relies on a variety of stakeholders operating at different levels, such as games publishers, e-sports governing bodies, and investors. In order to address this situation, Aghey argued that the e-sports definition should be narrowed only to video games that seek to emulate ‘traditional’ sports. This would allow for a rather seamless integration of these e-sports into the already existing sports federations. For example, FIFA would absorb its FIFA e-sport counterpart.

Nick Poggenklaas also presented on e-sports but instead took a wider definition of e-sports by not only limiting e-sports to games based on ‘traditional’ sports. He contended that the current regulatory framework present in e-sports is inadequate to sufficiently protect minors from the negative aspects of sport. This issue is particularly pertinent, since minors make an exceptionally large share of the e-sport athletes, which is especially worrying since there have been cases of doping and sexual and financial abuse. Such cases question whether enough is being done to really combat these problems. Thus, Poggenklaas put forth several proposals that could substantially improve the situation of minor’s rights in e-sports. He submitted that by creating an overarching e-sport governing body that would manage an abuse hotline, minors would be subject to a more rigid regulatory regime that would at least provide them with the opportunity and means to raise their concerns. Furthermore, Poggenklaas believes that the creation of players unions and further parent involvement would also help to ensure that minors’ interests are sufficiently protected.

Lastly, Angela Busacca examined extreme sports and the kind of civil liability applicable to these activities. She first described the elements and different classifications of extreme sports under Italian law. For instance, extreme sports have a component of risk and require a certain interaction with nature. They can also be placed on a scale ranging from sports that have a set of pre-defined rules to those where there are no pre-defined rules and consequently giving a free range for the athlete’s actions. In addition, extreme sports are categorized by those that have a clear governance organizational structure to those who do not have a defined structure. All these aforementioned components can have an impact on the establishment of civil liability and whom is responsible in case of an accident.

Conclusion

After two intense days of discussion and debate of international sports law’s most pressing topics through six differently themed panels, two keynote lectures, eighteen invited speakers, and many other highlights, the ISLJ Conference 2019 came to a close. The Asser International Sports Law Centre was honored to have been able to host another successful edition. On behalf of the organizers, we would like to thank all the speakers and participants who made this conference such a success and look forward to seeing you all back at the Institute soon!

Editor's note: This report compiles the most relevant legal news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. 

The Headlines

International Sports Law Journal (ISLJ) Conference 2019

The T.M.C. Asser Institute and the Asser International Sports Law Centre held the third International Sports Law Journal (ISLJ) Conference on October 24-25. The Conference created a forum for academics and practitioners to discuss, debate and share knowledge on the latest developments of sports law. It featured six uniquely themed panels, which included topics such as ‘Transfer systems in international sports’ and ‘Revisiting the (in)dependence and transparency of the CAS’ to ‘The future of sports: sports law of the future’. The ISLJ Conference was also honored to have two exceptional keynote speakers: Moya Dodd and Ulrich Haas. To kick off the conference, Moya Dodd shared her experiences from an athlete’s perspective in the various boardrooms of FIFA. The second day was then launched by Ulrich Haas, who gave an incredibly thorough and insightful lecture on the importance, function and legal basis of association tribunals in international sport. For a detailed overview of this year’s ISLJ Conference, click here for the official conference report.

The Asser International Sports Law Centre was delighted to have been able to host another great edition of the ISLJ Conference and is thankful to all the participants and speakers who made this edition such a success.

Moving towards greater transparency: Launch of FIFA’s Legal Portal

On October 31, FIFA announced that it was introducing anew legal portal on its website that will give greater access to numerous documents that previously were kept private. FIFA explains that this is in order to help increase its transparency, which was one of the key ‘Guiding Principles’ highlighted in FIFA 2.0: The Vision for the Future released in 2016. This development comes as many sport governing bodies face increasing criticism for the opacity of its judicial bodies’ decisions, which can have tremendous economic and societal impacts. The newly available documents will include: ‘decisions rendered on the merits by the FIFA Disciplinary Committee and the FIFA Appeal Committee (notified as of 1 January 2019); decisions rendered on the merits by the FIFA Ethics Committee (notified since 1 January 2019); decisions rendered on the merits by the FIFA Players’ Status Committee and the FIFA Dispute Resolution Chamber; non-confidential CAS awards in proceedings to which FIFA is a party (notified since 1 January 2019); list of CAS arbitrators proposed by FIFA for appointment by ICAS, and the number of times they have been nominated in CAS proceedings’. The list of decisions from all the aforementioned bodies are updated every four months, according to their respective webpages. However, time will ultimately tell how consistently decisions are published. Nevertheless, this move is a major milestone in FIFA’s journey towards increasing its transparency.

Hong Kong Protests, Human Rights and (e)Sports Law: The Blizzard and NBA controversies

Both Blizzard, a major video game developer, and the NBA received a flurry of criticism for their responses to persons expressing support for the Hong Kong protests over the past month. On October 8, Blizzard sanctioned Blitzchung, a professional Hearthstone player who expressed support of the Hong Kong protest during a post-match interview, by eliminating the prize money he had won and suspending him for one year from any Hearthstone tournament. Additionally, Blizzard will cease to work with the casters who conducted the interview. With mounting disapproval over the sanctions,  J. Allen Brack, the president of Blizzard, restored the prize money and reduced the period of ineligibility to 6 months.

The NBA controversy started when Daryl Morey, the general manager of the Houston Rockets, tweeted his support for the protests in Hong Kong. The tweet garnered much attention, especially in China where it received a lot of backlash, including an announcement from CCTV, the official state broadcaster in China, that it was suspending all broadcasts of the NBA preseason games. In attempts to appease its Chinese audience, which is a highly profitable market for the NBA, Morey deleted the tweet and posted an apology, and the NBA responded by saying that the initial tweet was ‘regrettable’. Many scolded these actions and accused the NBA of censorship to which the NBA Commissioner, Adam Silver, responded that the NBA remains committed to freedom of expression.

Both cases highlighted how (e)sport organizations may be faced with competing interests to either guarantee greater protection of human rights or to pursue interests that perhaps have certain financial motivations.

Major International Sports Law Decisions

• Bundeskartellamt - Decision pursuant to Section 32b GWB (English version)

Official Documents and Press Releases

CAS

• CAS – The CAS expands
• CAS - The hearing in the CAS arbitration procedure between WADA, Sun Yang and FINA to be held in public on 15 November 2019
• CAS - IBU joins CAS Anti-Doping Division

FIFA

• FIFA - FIFA announces latest disciplinary sanctions for incidents during FIFA World Cup™ qualifying
• FIFA - FIFA Council meeting agenda now available
• FIFA - FIFA Council unanimously appoints China PR as hosts of new Club World Cup in 2021
• FIFA - FIFA launches new legal portal

IAAF

• IAAF – New IAAF Athletes' Commission members announced

IOC

• IOC - IOC to Propose Long-term Storage of Samples to Supplement the Pre-games Anti-doping Testing Programme for Tokyo 2020
• IOC - IOC Adapts to a Changing Landscape and Streamlines Its Operations
• IOC – Solidarity and Political Neutrality Vital to the Universality of the Olympic Games, President Bach Tells ANOC General Assembly
• IOC – United Against Manipulation of Competitions: IOC Welcomes a String of New Measures at the International Forum for Sports Integrity

UEFA

• UEFA - UEFA Emergency Panel decision on Kosovo/Russia

WADA

• WADA - WADA suspends accreditation of Athens Laboratory
• WADA - WADA publishes three new Technical Letters
• WADA - WADA update regarding RUSADA Code Compliance
• WADA - WADA declares the International Taekwon-Do Federation non-compliant with World Anti-Doping Code
•  WADA - WADA shares outcomes from National Anti-Doping Organization Advisory Group Meeting
• WADA - WADA publishes proposed drafts of the 2021 World Anti-Doping Code and International Standards
• WADA - WADA publishes Independent Observer Team Report from 2019 European Games
• WADA - WADA publishes amended Technical Document for Sport Specific Analysis
• WADA – WADA removes Mauritius National Anti-Doping Organization from non-compliance list
• WADA - WADA Compliance Review Committee update
• WADA - WADA update regarding RUSADA Code Compliance
• WADA - WADA and Fonds de Recherche du Québec to fund three projects researching the use of artificial intelligence for anti-doping

Other

• AthletesCAN - Open Letter to IOC President Thomas Bach
• Human Rights Watch - Marathoners Wilt in Qatar’s Oppressive Heat
• Human Rights Watch - Iran: Stadium Seating Cap Endangers Women
• Human Rights Watch – For NBA's Quandary over China, Stand with Human Rights
• International Judo Federation - Final Suspension for Iran Judo Federation
• International Shooting Sport Federation - CAS confirm seven International Federations have signed up to Anti-Doping Division
•  International Shooting Sport Federation - Decisions of the ISSF Executive Committee
•  International Table Tennis Federation - World Table Tennis, Governance and Sustainability key topics at recent ITTF Executive Committee meeting.
• Team GB - BOA and Athletes' Commission publishes Tokyo 2020 Rule 40 Guidelines
• TIU (Tennis Integrity Unit) - CAS Upholds Sanction in the Case of Patricio Heras
• UCI (Union Cycliste Internationale) - UCI Statement on Kristijan Koren and Borut Bozic
• UCI (Union Cycliste Internationale) – The UCI explores new avenues in bid to step up fight against doping in cycling
• US Olympic Committee - U.S. Olympic & Paralympic Committee Updates Domestic Athlete Marketing Guidance For Olympic And Paralympic Games Tokyo 2020
• World Archery Federation -Communication of Sanctions: Jonathan Giocondi of France

In the News

Football

• Tariq Panja - Iranian Women Allowed to Attend Soccer Game for First Time Since 1981
• Maryam Shojaei - FIFA Must Pressure Iran to Let Women Attend Soccer Matches
• Keith Bradsher and Tariq Panja - In China, FIFA’s Focus Is Soccer, Not Human Rights

Doping

• Tariq Panja - Russian Doping Chief Says Thousands of Drug Tests Were Manipulated
• Nicole Perlroth and Tariq Panja - Microsoft Says Russians Hacked Antidoping Agency Computers
• Sara Germano and Joshua Robinson - Nike CEO Mark Parker Was Briefed by Banned Coach on Doping Efforts
• Barney Ronay - Sebastian Coe’s stance on Salazar displays a very British hypocrisy

Other

• Stephen Farrand - Velon starts legal battle with UCI via European Commission anti-trust complaint
• Annie Kelly, Niamh McIntyre and Pete Pattisson - Revealed: hundreds of migrant workers dying of heat stress in Qatar each year
• Steve Menary - Mega-events and human rights: Where do we draw the line?
• John Branch  - N.B.A.-China Spat Shows Sports Isn’t (and Shouldn’t Be) Just About Games
• Daniel Victor - Blizzard Sets Off Backlash for Penalizing Hearthstone Gamer in Hong Kong

Academic Materials

International Sports Law Journal

• Marjolaine Viret - Using interdisciplinary tools to improve anti-doping: Utopia or necessity?

SSRN

• Johan Lindholm - The Court of Arbitration for Sport and the Nordics
• Gina Warren - Mega Sports Events Have Mega Environmental and Social Consequences

Blog

Law in Sport

• Ashley Cukier - How did Liverpool FC escape league cup expulsion for fielding an ineligible player?
• Tiran Gunawardena and Rustam Sethna - An overview of FIFA’s ‘Phase 2’ reforms – agents, loans and clearing house
• Guo Cai - Why understanding diplomacy is the No.1 rule for navigating the Chinese sports market (a Chinese perspective on the Rockets/NBA fallout)
• Philip Hutchinson - Meat contamination and what it means for athletes: A review of Badminton World Federation v Ratchanok Intanon
• Julian Moore - Protecting exclusivity in sports data rights: are courtsiding spotters a step too far for UK football fans?

Upcoming Events

• 22 November - Centre for Sports Law Research and Policing Research Unit - Policing Football Event, Ormskirk, UK
• 26 November - Seminar on EU Sport Diplomacy: Perspectives of Cooperation with International Organisations, Strasbourg, France
•  28 November - CIArb Kenya Annual Lecture - Promoting Sports Arbitration in Africa, Nairobi, Kenya
• 26-27 March 2020 – 14^th Conference of the PSA Sport & Politics Group, Etihad Stadium, Manchester, UK
• 18-19 June 2020 – Sport& EU 2020 Annual Conference

Editor’s note: Thomas Terraz is a fourth 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 UCI may soon have to navigate treacherous legal waters after being the subject of two competition law based complaints (see here and here) to the European Commission in less than a month over rule changes and decisions made over the past year. One of these complaints stems from Velon, a private limited company owned by 11 out of the 18 World Tour Teams,[1] and the other comes from the Lega del Ciclismo Professionistico, an entity based in Italy representing an amalgamation of stakeholders in Italian professional cycling. While each of the complaints differ on the actual substance, the essence is the same: both are challenging the way the UCI exercises its regulatory power over cycling because of a growing sense that the UCI is impeding the development of cycling as a sport. Albeit in different ways: Velon sees the UCI infringing on its ability to introduce new race structures and technologies; the Lega del Ciclismo Professionistico believes the UCI is cutting opportunities for semi-professional cycling teams, the middle ground between the World Tour Teams and the amateur teams.

While some of the details remain vague, this blog will aim to unpack part of the claims made by Velon in light of previous case law from both the European Commission and the Court of Justice of the European Union (CJEU) to give a preliminary overview of the main legal issues at stake and some of the potential outcomes of the complaint. First, it will be crucial to understand just who/what Velon is before analyzing the substance of Velon’s complaint.

2.     Who / What is Velon?

From an outsider’s point of view, the answer to this question is not so obvious as it may seem. Velon itself is owned by 11 World Tour Teams, which is the pinnacle of the UCI’s men’s team classification. In other words, Velon represents more than half of the largest team stakeholders in road cycling.[2] However, Velon does not just simply advocate for these teams’ interests, but it engages in its own economic activities, which can be categorized into two types. First, it has been the organizer of a new series of races called the Hammer Series (or as the UCI would prefer, simply Hammer) where instead of having individual cyclists (competing on behalf of a team) placing individually in a stage of a race, the entire team is classified through a points-based system. The point of this format is ‘crowning the best team in professional cycling’.

Velon also created a ‘digital content and live data platform’ through VelonLive via a partnership with EY, which was first made public in May of this year. VelonLive essentially collects data from road cycling races in order to give spectators more insight into the race. For example, it collects ‘real-time biometric rider data’, including heart rate, power and cadence data from specific riders in a race to on bike cameras and cameras in team cars. The aim is to try to bring the race closer to the spectator by offering more data and new ways to see and understand the race. Major race organizers, like the Giro D’Italia and the Tour of Flanders have jumped on these new race visualization technologies and used VelonLive this year in their respective races.

So not only does Velon act as a representative of a large group of first-rate road cycling teams, but it also organizes races and is working to develop innovative ways for cycling fans to experience road cycling races.

3.     The Complaint

Velon, through a press release on their website, announced that it had launched a formal complaint against the UCI to the European Commission on 20 September, 2019 to which it added an ‘Addendum to the Complaint’ on 8 November, 2019. While these press releases and accompanied ‘context notes’ are rather bare in explaining the factual background to the complaint, it is still enough to extract the essence of what is being alleged. At its core, Velon is making a three-pronged complaint against the UCI: first, that the UCI acted in a way that has ‘hampered the development of the Series’ (Hammer Series); secondly, that the UCI is discriminating against women’s cycling by denying the approval of a women’s race that would accompany the already existing men’s race in Hammer Stavanger; lastly, that the amendments to the UCI’s Technical Regulations effectively take away Velon and other race organizers’ control over live race data technologies and were adopted without sufficiently consulting stakeholders.  Concerning the last complaint, Velon seems to be referring to certain amendments from 15 February, 2019 made to the equipment regulations Article 1.3.024ter. The changes essentially introduced a pre-authorization scheme for ‘onboard technology equipment’ in which the UCI or an event organizer with the UCI’s consent must give prior authorization for ‘any intended use by a team or rider’ of such equipment. However, given both the scarce details and length restraints, this blog concentrates on the on the first two elements of the complaint, which are further dissected here.

Velon alleges that the UCI acted to prevent the organization of Hammer races into a series and threatened to not register the men’s Hammer races in the 2020 calendar if Velon proceeded to do so. As of 11 November, 2019, the three men’s Hammer races are still listed in the 2020 calendar, while the women’s Hammer Stavanger race is not listed, since it was rejected by the UCI. Velon also claims that the UCI did not give any reasons for its opposition to the series and that it ‘hampered’ the overall development of the series. Further details are rather murky; however, it is essential to point out that the UCI, like many other SGBs, employs a pre-authorization scheme[3] for cycling events, and it prohibits both teams and individual cyclists (of all levels) in participating in non-authorized third-party events under the threat of sanctions. Individuals may face a one-month suspension and a fine of 50 to 100 CHF.[4] Such an event pre-authorization scheme has been the focal point of two major EU sports competition law cases: the CJEU’s decision in MOTOE and the Commission’s decision concerning the ISU’s eligibility rules. It is likely that if the Commission takes on this case, it will closely scrutinize the UCI’s pre-authorization scheme and its actual application, including the accompanied sanctions. From the outset, it is critical to bear in mind that the CJEU has held that rules of sport governing bodies may escape the prohibitions under Article 101 TFEU  if ‘the consequential effects restrictive of competition are inherent in the pursuit of those objectives (Wouters and Others, paragraph 97) and are proportionate to them’.[5] On the other hand, a dominant undertaking may justify its actions under Article 102 TFEU if it can demonstrate ‘that its conduct is objectively necessary or by demonstrating that its conduct produces substantial efficiencies which outweigh any anti-competitive effects on consumers’.[6]

As a preliminary note, it should be stated that if the Commission decides to pursue the case under Article 102 TFEU, it will not be hard pressed to find the UCI and its respective national federations collectively dominant[7] in the relevant market.^[8] The relevant market regarding the Hammer races will most likely be confined to the organization and commercial exploitation of international road cycling races on the worldwide market.^[9] Even though the Professional Cycling Council (PCC) adopts the UCI WorldTour calendar, Velon could still contend that the UCI exerts control over its adoption given the composition of the PCC.^[10]

4.     Analysis of the ‘hampered’ Series and alleged discrimination against women’s cycling

4.1.MOTOE

InMOTOE, ELPA, a Greek motorsport organization, was given the regulatory power through a national law to approve or deny motorsport events in Greece, while also organizing and commercially exploiting such events itself.[11] MOTOE challenged the national law giving ELPA this power after one of its events was not approved. The CJEU ruled that the dual role of ELPA as both a regulator and commercial exploiter was contrary to competition law because it had not given an ‘equality of opportunity’ ‘between the various economic operators’.[12] AG Kokott’s Opinion goes further and describes a ‘conflict of interest’ in which sport governing bodies are placed if they are both the gatekeeper and promoter of sport events.[13] A similar situation in the Commission’s FIA case even resulted in the complete separation of FIA’s ‘commercial and regulatory functions’ in order to cease its breach of EU competition law.[14]

Unlike ELPA, the UCI is not given the power to regulate the events included in its calendar by an act of a state or public body. Nonetheless, it still wields an immense power over the regulation and approval of events in road cycling deriving from its position as the world’s cycling governing body. The UCI also benefits considerably from the registration of events in its calendar, a fact that is quickly verified by having a glance at its yearly financial report,[15] which demonstrates the extent to which it is dependent on revenues connected to its sanctioned events. The UCI can only justify charging fees for events if there is the existence of an official closed calendar of events. Additionally, the UCI itself is an event organizer since it arranges the annual UCI Road World Championships. Therefore, it is very likely that the UCI may be faced with a ‘conflict of interest’ because it holds the keys to its events calendar while having an apparent financial stake in the approval of events.

 At this point, it is also helpful to examine the Commission’s decision in the ISU case which delves in depth on the compatibility of event pre-authorization schemes with EU law.

4.2.The Commission’s ISU Decision

The ISU case concerned two Dutch speed skaters who challenged the ISU eligibility rules precluding them from participating in non-ISU authorized events, subject to a potential lifetime ban (the ban was amended during the proceedings to allow greater flexibility on the sanction but was still found to be contrary to EU law). The concerned skaters wished to participate in IceDerby’s events. IceDerby is an ice-skating events organizer who aimed to create a new race format that would introduce ‘a new type of skating events on a different size track than the ISU recognized track’.[16] This very much echoes some of the fact pattern of the present case in which Hammer seeks to introduce a new road cycling race format. The Commission found that the severity of the sanctions in case of a breach of the ISU’s eligibility rules inherently aimed ‘at preventing athletes from participating in events not authorised by the ISU, resulting in the foreclosure of competing event organizers’.[17] In the end, the case largely turned on whether the ISU’s eligibility rules pursued legitimate objectives and whether they were inherent and proportionate to its aims. The Commission identified that ‘the integrity of the sport, the protection of the athletes’ health and safety and the organisation and proper conduct of sport’ could be considered legitimate objectives but that the ISU’s eligibility rules did not actually pursue any of these objectives.[18] Moreover, the Commission found that the financial and economic interests of the ISU could not be considered legitimate objectives.[19]

In Velon’s complaint, as in the ISU case, there are two connected, yet separate elements that the Commission will most likely have to analyze: (a) the prohibition of participating in non-approved events and the relevant sanctioning framework and (b) the UCI’s events approval process (the pre-authorization scheme). Concerning the former, Pat McQuaid, the former UCI president explained the aim of the rules banning participation in non-approved events in a letter to USA Cycling back in 2013. He explained that it ‘allows for a federative structure’, ‘which is inherent in organised sport and which is essential to being a part of the Olympic movement’. The Commission dismissed this notion in the ISU case when it pointed out that there are several sport federations that do not have an ‘ex-ante control system’ that effectively precludes athletes from participating in third party events.[20] Nevertheless, this stated objective may still fall under the organization and proper function of sport, which was deemed a legitimate objective by the Commission.

However, the issue remains as to whether the UCI’s pre-authorization scheme, the latter element identified above, pursues legitimate objectives while meeting the proportionality requirements.  In other words, why does the UCI oppose the organization of Hammer races in a series and approving a corresponding women’s event? From Velon’s claims, it is questionable whether the UCI has a ‘pre-established objective, nondiscriminatory and proportionate criteria’ in approving events since it claims that it never received an explanation as to why its series was rejected.[21] In addition, the UCI must elaborate its reasoning in denying a women’s Hammer Stavanger event beyond that it ‘was not in the best interest of women’s cycling’. The UCI will have to explain why it not only allegedly threatened to remove Hammer races from the calendar and denied the inclusion of a women’s race but also why it did not provide Velon a full response that gave objective justifications, not tied to any economic or financial interests, as to why it is opposed the organization of a Hammer Series and a women’s Hammer Stavanger race.

In the end, in order for the ISU to keep its event pre-authorization scheme it was required to: (a) ‘provide for sanctions and authorization criteria that are inherent in the pursuit of legitimate objectives’, (b) ‘provide for objective, transparent and non-discriminatory sanctions and authorization criteria’ that are proportionate to its objectives, and (c) ‘provide for an objective, transparent and non-discriminatory procedure for the adoption and effective review of decisions’ concerning the ‘authorisation of speed skating events’.[22] The Commission will likely evaluate the UCI’s pre-authorization scheme in light of these criteria.

4.2.1.    The UCI’s pre-authorisation scheme in light of the ISU criteria

This examination will begin by investigating the second and third criteria before returning to the first criteria. On the second criteria, the UCI lays out the sanctions for participating in ‘forbidden races’ in Part 1 of its Regulations under Article 1.2.021 that plainly states that breaches ‘shall render the licence holder liable to one month’s suspension and a fine of CHF 50 to 100’. Since the sanction is not nearly as draconian as the ISU’s sanctions, the UCI may have a greater chance of arguing that it is proportionate to its objective, although it could still be argued that the sanction does not give much flexibility depending on the circumstances of the case.[23] Concerning the event authorization criteria, the UCI explains the requirements to register a race in the international calendar in the ‘Registration Procedure for UCI Calendars 2020/2020-2021’, which sets out the financial obligations of event organizers, the relevant deadlines, and the documentation[24] that event organizers will have to provide. In addition, the UCI does not have the same intrusive financial disclosure requirements, which was strongly rebuked by the Commission.[25] However, nowhere does it explicitly mention ‘an interest of cycling’ criteria, which makes it a real wonder as to why this was the reason given, according to Velon, concerning the rejection of the women’s Hammer Stavanger race. Consequently, the Commission will have to examine whether the criteria are in practice applied in a uniform and non-discriminatory manner and whether the UCI uses other criteria to assess the inclusion of an event on the international calendar. The Commission did not condone the ISU’s non-exhaustive list of criteria and the broad margin of discretion it had in approving or rejecting event applications.[26]

On the third criteria, the UCI does have a rather transparent process (see flow chart below[27]) concerning the adoption of its calendar, and it also has a process for the review of a rejection of an event application.[28] If the UCI management committee rejects an application, the event organizers may have the opportunity to defend the application. If it does not have this opportunity, the organizer may appeal to the UCI’s arbitral board, however, the decision is final and cannot be appealed further. It is at this point that the UCI’s event pre-authorization scheme may run into further difficulties meeting the ISU criteria because it does not even allow the possibility for the organizer to appeal to the CAS. Even the ISU in its Communication No. 1974 allowed for an appeal to the CAS, which still did not preclude the Commission from questioning the extent an appeals arbitration would ensure the effectiveness of EU competition law, to which it concluded that an appeal to the CAS reinforced the restriction of competition.[29] Against this background, the Commission would likely find the UCI’s grip over the review process restrictive of competition.

Returning to the first of the ISU criteria, the question is whether the UCI’s sanctions and pre-authorization criteria are inherent in the pursuit of a legitimate objective. Considering the above, it is doubtful whether the potentially open list of criteria and the limited effective review of decisions could be considered inherent in the pursuit of a legitimate objective such as ‘the organisation and proper conduct of sport’. Furthermore, Velon’s case may turn on how well it can demonstrate that it has been unjustly put under pressure from the UCI.

4.3. Final thoughts on the ‘hampered’ series

It appears that the UCI has allegedly wielded its regulatory power through its event pre-authorization scheme to force Velon to remove a critical aspect of its races: the series. The UCI’s alleged move is further puzzling by the fact that none of the Hammer races interfere with the men’s or women’s World Tour race calendar (with the exception of Il Lombardia and Hammer Hong Kong), meaning that teams and riders would anyway be available. Even if there was an interference, it is important to keep in mind that professional cycling teams are usually sufficiently large and organized to compete in more than one race in the world simultaneously.

Finally, while the UCI did not actually remove the men’s Hammer races from the calendar, just an imminent threat of doing so may be sufficient to restrict competition. Cyclists are severely discouraged to participate in non-authorized events considering the sanctions they may face. Hence, event organizers, such as Velon, are completely reliant on the UCI to approve their events in order to have any chance at a successful and economically viable event,[30] and consequently, Velon cannot risk losing the UCI’s

approval for the Hammer races. Furthermore, the UCI has in practice already denied a women’s race at Hammer Stavanger, which greatly strengthens Velon’s claims against the UCI. Lastly, given the vagueness of the claim that the UCI overall hampered the development of the Hammer Series, it is possible that there are additional details that have not been publicized that could further support a potential violation of EU competition law by the UCI.

5.     Conclusion

Velon has also requested interim measures that would force the UCI’s approval of a women’s race during Hammer Stavanger 2020. However, since interim measures are rarely granted,[31] it is unlikely  Velon will succeed on this front. Nevertheless, based on the discussion above, there are quite a few signs that the UCI has perhaps overstepped its regulatory powers. The UCI’s alleged actions, especially its opposition to the organization of a women’s Hammer Stavanger race, beg the question as to how it will defend its decision as pursuing legitimate objectives and respecting the proportionality requirements. Moreover, it should be recalled that Velon’s complaints also concern the UCI’s equipment regulations and that there is a completely separate complaint from the Lega del Ciclismo Professionistico. Thus, due to the large territorial scope and the potentially wide range of actors affected by the UCI’s actions in these cases, it would be a missed opportunity if the Commission declines to further elucidate how sport governing bodies must exercise their regulatory powers in order to comply with EU competition law, especially when their own financial interests may be in play.

[1] Teams include: Bora-Hansgrohe, CCC Team, Deceuninck–QuickStep, EF Education First, Lotto Soudal, Mitchelton-Scott, Team Ineos, Team Jumbo-Visma, Team Sunweb, Trek-Segafredo and UAE Team Emirates.

[2] Both Team Sunweb and Trek-Segafredo also operate professional women’s cycling teams.

[3] See Registration Procedure for UCI Calendars: 2020/ 2020-2021, 11 on how the UCI approves events.

[4] See UCI Regulations, Part I: General organization of cycling as a sport, arts 1.2.019, 1.2.020, and 1.2.021 and Part 2 Road Races, art 5.006.

[5] Case C-519/04 David Meca-Medina and Igor Majcen v Commission of the European Communities [2006] ECR I-06991, para 42; See also Commission, ‘White Paper on Sport’ COM/2007/0391 final.

[6]Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings [2009] OJ C45/02, para 28.

[7] See the role of the national federations in handling the event registrations in the flow chart under section 4.2.1.

[8] See Commission, ‘Commission Staff Working Document - The EU and Sport: Background and Context - Accompanying document to the White Paper on Sport’ COM(2007) 391 final, section 2.1.4: ‘sports associations usually have practical monopolies in a given sport and may thus normally be considered dominant in the market of the organization of sport events under Article 82 EC’.

[9] Articles 1.2.002 and 1.2.004 of the UCI Regulations govern the cycling calendars, and it separates road cycling events into different calendars: the international calendar, which includes the UCI WorldTour and continental calendars, and the national calendars to which national federations are responsible. The UCI management committee holds the final say concerning the approval of continental calendars, see flow chart in Registration Procedure for UCI Calendars 2020/ 2020-2021, 11.

[10] The PCC is composed of 12 members (six appointed by UCI management, two representing athletes, two representing the WorldTour Teams and two representing the UCI WorldTour Organizers) and a president nominated by the UCI management (after consultation with the other members). However, given the PCC’s aforementioned composition and the fact that decisions are taken by a simple majority vote, in theory, the UCI only needs to rally its members and the UCI appointed president to ensure a motion is passed. Furthermore, ‘the UCI Executive Committee may suspend the application of regulations adopted by the PCC if it considers that interests of the UCI WorldTour are threatened’, see point 15 of the hyperlinked document.

[11] Case C-49/07 Motosykletistiki Omospondia Ellados NPID (MOTOE) v Elliniko Dimosio [2008] ECLI:EU:C:2008:376.

[12] ibid para 51.

[13] Case C-49/07 Motosykletistiki Omospondia Ellados NPID (MOTOE) v Elliniko Dimosio [2008] ECLI:EU:C:2008:376, Opinion of AG Kokott, para 98.

[14] Commission, ‘Notice published pursuant to Article 19(3) of Council Regulation No 17 concerning Cases COMP/35.163 — Notification of FIA Regulations, COMP/36.638 — Notification by FIA/FOA of agreements relating to the FIA Formula One World Championship, COMP/36.776 — GTR/FIA ' others’ (2001/C 169/03) OJ C 169.

[15] See UCI, Financial/Annual Report 2018, 110.

[16]International Skating Union’s Eligibility rules (CASE AT. 40208) [2017] C(2017) 8240, para 64.

[17] ibid para 168.

[18] ibid para 219.

[19] ibid para 220.

[20] ibid para 252.

[21] ibid para 244.

[22] ibid paras 340-342.

[23] The sanctions under the ISU’s 2014 Eligibility Rules also did not examine the specific circumstances of the infringement. See how the Commission examined this issue in ibid paras 260-262.

[24] UCI Regulations, Part I: General organization of cycling as a sport, art 1.2.009 provides that the organizer must submit the following documentation for the first time a race is organized: ‘- type of race (discipline, speciality, format); - description of the course including total length (in km) and, where applicable, that of stages and circuits; - the type and number of participating teams and/or riders' categories wanted; - financial aspects (prizes, travel and subsistence expenses); - references concerning organization’.

[25]International Skating Union’s Eligibility rules, paras 255-256.

[26] ibid para 257.

[27] Taken from the Registration Procedure for UCI Calendars 2020/ 2020-2021, 11.

[28] UCI Regulations, Part I: General organization of cycling as a sport, art 1.2.013.

[29] See International Skating Union’s Eligibility rules, paras 268-286.

[30] See how this issue is mirrored in ibid paras 68 and 133.

[31] Interim measures were only recently granted after not having been issued for nearly 20 years.

Editor's note: This report compiles the most relevant legal news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. 

The Headlines

WADA Conference and the Adoption of 2021 WADA Code Amid Calls for Reform

On November 5-7, WADA held its Fifth World Conference on Doping in Sport where it faced a busy schedule, including the adoption of the revised 2021 World Anti-Doping Code and the election of a new WADA President and Vice-President by the Foundation Board. Concerning the latter, Witold Bańka, Poland’s Minister of Sport and Tourism, was elected as WADA President and Yang Yang, a former Chinese speed skater, elected as Vice-President, replacing Sir Craig Reedie and Linda Helleland respectively.  As Helleland leaves her position, she has expressed some strong views on the state of sport governance, particularly that ‘there is an absence of good governance, openness and independence in the highest levels of international sports’. Helleland was not the only one to recently voice governance concerns, as Rob Koehler, Director General of Global Athlete, also called for a ‘wholesale structural change at WADA’, which includes giving ‘independent’ athletes a vote in WADA’s Foundation Board, ensuring a greater ‘separation of powers’ and ensuring greater protection of athletes’ rights.

In the midst of the calls for reform, the amended 2021 WADA Code and the amended International Standards were also adopted after a two year, three stage code review process. Furthermore, a major milestone in athletes’ rights was achievedwith the adoption of the Athletes’ Anti-Doping Rights Acts (separate from the WADA Code), which enumerates certain basic rights to help ‘ensure that Athlete rights within anti-doping are clearly set out, accessible, and universally applicable’. On the other hand, the Act ‘is not a legal document’, which clearly circumscribes some of the potential effects the Act may have. Nonetheless, athlete representative groups have ‘cautiously welcomed’ some of the changes brought by the 2021 WADA Code, such as the ‘modified sanctions for substances of abuse violations’.

Sung Yang’s Historical Public Hearing at the CAS

After much anticipation, the second public hearing in CAS history occurred on November 15 in Montreux, Switzerland in the Sun Yang case (details of this case were discussed in August and September’s monthly report), which was livestreamed and can be seen in its totality in four different parts (Part 1, Part 2, Part 3, Part 4). This was an extremely unique opportunity, which hopefully will become a more common occurrence, to see just how CAS hearings are conducted and perhaps get a taste of some of the logistical issues that can emerge during live oral hearings. One of these problems, accurate translations, rapidly became apparent as soon as Sun Yang sat in the witness chair to give his opening statements. The translators in the box seemed to struggle to provide an intelligible English interpretation of Sun Yang and other witnesses’ statements, while Sun Yang also seemingly had trouble understanding the translated questions being posed to him. The situation degenerated to such an extent that ultimately one of WADA’s officials was called to replace the translators. However, the translation drama did not end there, since during Sun Yang’s closing statements an almost seemingly random person from the public appeared next to Sun Yang who claimed to have been requested from Sun Yang’s team to ‘facilitate’ the translation. Franco Frattini, president of the panel, questioned the identity of the ‘facilitator’ and explained that one could not just simply appear before the court without notice. Interestingly, Sun Yang’s legal team also rapidly intervened claiming that it had not been made of aware of the inclusion of the supporting translator, further complicating the matter. In the end, Sun Yang concluded his statements with the translation from the WADA official.

While it was Sun Yang’s legal team that had provided the original translators in the box, it still raises the question as to how translation at CAS could be improved to ensure a certain standard of translators. After all, quality translation is critical to the parties’ right to be heard under Article 6 (e) ECHR. Regardless, in the end, neither parties made an objection that their right to be heard was violated.

Russian Doping Saga Continues: WADA Compliance Review Committee Recommends Strong Sanctions

As was already discussed in August and September’s monthly report, WADA uncovered numerous inconsistencies concerning data taken from the Moscow Laboratory. After further investigation, WADA’s Compliance Review Committee has recommended that the Russian Anti-Doping Agency (RUSADA) be found non-compliant with the WADA Code. Accompanying the recommendation, the Compliance Review Committee also suggested several sanctions, which include prohibiting Russian athletes from participating in major events like the Olympic Games and ‘any World Championships organized or sanctioned by any Signatory’ for the next four years unless they may ‘dmonstrate that they are not implicated in any way by the non-compliance’. It would also see an embargo on events hosted in Russia during the same period. However, these sanctions did not go far enough for some, like Travis Tygart, chief executive of USADA, who wishes to prevent a repeat of Rio 2016 and PyeongChang 2018 ‘in which a secretly-managed process permitting Russians to compete – did not work’. On the other hand, the IOC has advocated for a softer, individual based approach that pursues ‘the rules of natural justice and respect human rights’. In the midst of these developments, the Athletics Integrity Unit also decided to charge several members of the Russian Athletics Federation (RusAF), including its President Dmitry Shlyakhtin, after a 15 month investigation for ‘tampering and complicity’ concerning a Russian athlete’s whereabouts violations.

Following many calls for strong consequences, the WADA Executive Committee met on December 9^th and adopted the recommendations of the Compliance Review Committee. Athlete representatives have expressed their disappointment with the sanctions, calling the decision ‘spineless’ since it did not pursue a complete ban on Russian participation at events such as Euro 2020 and the 2020 Olympics. At this point, RUSADA has sent notice to WADA that it will be disputing the decision of WADA’s Executive Committee’s decision at the CAS.

Major International Sports Law Decisions

Court of Arbitration for Sport – Sun Yang Public Hearing Part 1, Part 2, Part 3, Part 4

Court of Arbitration for Sport – CAS 2019/A/6110 Liam Cameron v. UK Anti-Doping Limited (UKAD)

Court of Arbitration for Sport – CAS 2018/A/5989 IAAF v. Qatar Athletics Federation & Musaeb Abdulrahman Balla

Official Documents and Press Releases

CAS

• CAS – Manchester City FC v. UEFA: CAS rules that Manchester City’s appeal is inadmissible
• CAS - CAS Public Hearing – WADA v. Sun Yang & FINA - Further Information
• CAS - CAS registers the appeals filed by Dr. Jeffrey Brown and Mr Alberto Salazar
• CAS - CAS confirms the suspension imposed on the Egyptian Weightlifting Federation
• CAS - FC Nantes / Cardiff City FC / Emiliano Sala - Cardiff City Football Club files an appeal at the CAS
• CAS - Chelsea FC v. FIFA: Sanctions reduced by half
• CAS – Procedure WADA v. Sun Yang & FINA: Post-Hearing Update
•  CAS – Bulletin 2019/2

FIFA

• FIFA - FIFA and ASEAN countries sign landmark collaboration agreement
• FIFA - FIFA announces latest disciplinary sanctions for incidents during FIFA World Cup™ qualifying
• FIFA - FIFA to hold second Football Law Annual Review in Buenos Aires
• FIFA - Global spend on intermediary commissions rises to new record high of USD 653 million
• FIFA - FIFA explores commercial options for new club world cup tournament
• FIFA - FIFA welcomes Brussels Court of Appeal ruling on FIFA’s TPO and TPI rules
•  FIFA - FIFA files claims against Joseph Blatter and Michel Platini
• FIFA - Adjudicatory chamber of the independent Ethics Committee sanctions Ariel Alvarado
• FIFA Ethics Committee – Decision concerning Jamal Malinzi
• FIFA - Players’ Status Committee – Decision concerning Emiliano Raul Sala

IOC

• IOC – Statement from the IOC on WADA Recommendations
• IOC - IOC President Announces USD 10 Million “Action Plan” and Calls for Tougher Sanctions Against “Entourage” Members to Strengthen Protection of Clean Athletes
• IOC – IOC EB Announces a USD 5 Million Budget for Long-term Storage of Pre-games Testing Samples
• IOC – IOC Sanctions One Athlete for Failing Anti-doping Tests at London 2012
• IOC - IOC President Stresses Importance of Unity and Solidarity as UN General Assembly Adopts Olympic Truce for Tokyo 2020 by Consensus
• IOC - Statement From the IOC on WADA Recommendations
• IOC - Declaration of the 8th Olympic Summit

WADA

• WADA - WADA Executive Committee takes a number of decisions ahead of fifth World Conference on Doping in Sport
• WADA - WADA update regarding RUSADA Code Compliance
• WADA - WADA suspends accreditation of Bangkok Laboratory
• WADA - WADA’s Compliance Review Committee recommends non-compliance for RUSADA
• WADA - WADA Compliance Review Committee recommends series of strong consequences for RUSADA non-compliance
• WADA - WADA publishes approved 2021 World Anti-Doping Code and International Standards
• WADA - WADA publishes revised International Standard for Testing and Investigations
• WADA - WADA clarifies next steps of the RUSADA Compliance Process
• WADA - WADA launches Stakeholder consultation phase for the 2021 International Standard for Laboratories, version 11.0
• WADA - WADA Executive Committee unanimously endorses four-year period of non-compliance for the Russian Anti-Doping Agency
• WADA - WADA publishes 2021 Model Rules for Code Signatories
• WADA - WADA publishes Anti-Doping Rule Violations report for 2017
• WADA - WADA publishes conclusions of annual audit of Intelligence and Investigations Department
• WADA - WADA publishes 2018 Testing Figures Report
• WADA - WADA receives notice of RUSADA’s dispute of Agency’s Executive Committee decision

Other

• Athletics Integrity Unit - Athletics Integrity Unit Charges Russian Athletics Federation With Obstructing an Investigation and Provisionally Suspends Several Senior Federation Officials for Tampering and Complicity
• Athletics Integrity Unit - Decision of the Athletics Integrity Unit In the Case of Ms Angela Ndungwa Munguti
• Athletics Integrity Unit – Cyrus Rutto Decision
• Athletics Integrity Unit – Abraham Kiptum Decision
• Athletics Integrity Unit – Decision of the Athletics Integrity Unit in the Case of Mr Philip Sanga Kimutai
• Athletics Integrity Unit - Decision of the Athletics Integrity Unit in the Case of Mr Hassan Laqouahi
• Athletics Integrity Unit - Decision of the Athletics Integrity Unit in the Case of Mr Sammy Kitwara
• Athletics Integrity Unit -Decision of the Athletics Integrity Unit in the Case of Mr Belal Ahmed
• Conseil d’État - Le principe d’un plafonnement de la rémunération des sportifs ne pose pas de difficulté au regard de la Constitution
• Fédération Equestre Internationale (FEI) – FEI Tribunal issues Final Decisions
• Fédération Equestre Internationale (FEI) - Prohibited substance cases under FEI anti-doping rules
• Fédération Internationale de Gymnastique (FIG) - Chinese Taipei coach sanctioned by the Disciplinary Commission
• Fédération Internationale de Ski (FIS) - Mainau Environment Forum 2019 outcomes
• Fédération Internationale de Ski (FIS) - IOC and FIS join forces in sports group to protect mountains
• Fédération Internationale de Ski (FIS) – FIS Statement on WADA Executive Committee decision on RUSADA
• FIBA – Basketball Arbitral Tribunal (BAT) : Arbitration Rules (1 December 2019 Version)
• FIFPRO - FIFA and FIFPRO Develop Standards on Management of Personal Player Performance Data
•  Global Athlete - Global Athlete Calls for Wholesale Structural Change at World Anti-Doping Agency
•  Global Athlete - WADA’s Failure to Recommend a Full Russian Ban for Tokyo 2020 Falls Short of What Athletes and the Public Expect
• Human Rights Watch - China: FIFA Broke Own Rules for Club World Cup
• Human Rights Watch - Correspondence with FIFA on China Club World Cup
• Human Rights Watch - Saudi Arabia’s Strategy to ‘Sportswash’ Abuses
• International Biathlon Union - IBU progresses on implementation of Target 26 and governance reforms
• International Canoe Federation - Lipkin banned after positive test 1
• International Skating Union - Decision of ISU Disciplinary Commission - Mr. Salnikov
• International Skating Union - Full Decision of the Disciplinary Commission - Mr. Salnikov
• International Skating Union - Statement - 4 year period of non-compliance for the Russian Anti-Doping Agency
• International Tennis Federation – ITF and Tennis Integrity Supervisory Board Agree Integrity Investment
• International Weightlifting Federation - Open Letter to Weightlifters
• International Weightlifting Federation - CAS decision upholds IMFSP sanction against Egypt
• Tennis Integrity Unit - Albina Khabibulina Provisionally Suspended by Independent Anti-Corruption Hearing Officer
• Tennis Integrity Unit - Ksenia Palkina Provisionally Suspended by Independent Anti-Corruption Hearing Officer
• Tennis Integrity Unit - Tennis Integrity Supervisory Board and International Tennis Federation Agree Plans for Removal of Live Data and Major Integrity Investment in World Tennis Tour
• UEFA – Financial fair play and licensing review
• UEFA – Three clubs sanctioned for breach of FFP regulations
• UEFA - UEFA welcomes Brussels Court of Appeal ruling on third-party player ownership
• UKAD – UKAD v Ryan Martin
• UKAD - UK Anti-Doping work supports case which sees pharma boss who ran “world’s biggest” anabolic steroid distribution network jailed for five years and four months
• UKAD – UKAD Athlete Commission statement calls for strongest sanctions on Russia ahead of WADA ExCo meeting
• UNI Global Union - Time for WADA to study the true human cost of the global anti-doping system
• United World Wrestling - Purevdorj Suspended After Anti-Doping Violation at Asian Games
• USADA - Statement from USADA CEO Travis Tygart on the WADA CRC’s Latest Russia Recommendations
• USADA - AAA Arbitrator Imposes Four-Year Sanction on U.S. Weightlifting Athlete Kiara Akuna for Doping Violation
• USADA - Statement from USADA CEO Travis T. Tygart on the WADA Executive Committee’s Decision on Russia
• World Athletics - International federations discuss consensus on establishing rules for transgender athletes
• World Athletics - IAAF v Sarah Chepchirchir
• World Rugby - RWCL v SRU Disputes Committe Decision - full written decision

In the News

Football

• Andrew Das - U.S. Women’s Soccer Team Granted Class Status in Equal Pay Lawsuit
• Duncan Mackay - Former FIFA secretary general appeals to European Court of Human Rights to have 10-year ban overturned
• James Ellingworth - Ceferin meets Putin as Russia confirmed to host Euro games
• Tariq Panja - Tucked in WADA Rules, a Ticking Bomb for European Soccer
• Tariq Panja - Manchester City Appeal Rejected at CAS
• Tariq Panja - Did FIFA Accidentally Confirm a World Cup Bribery Scandal?
• Tariq Panja - Real Madrid’s President Plots a Way for Richest Clubs to Get Richer
• Tariq Panja - In Offer to Investors, FIFA Angles for Bigger Role in Club Soccer
• Graham Dunbar - Swiss prosecutors quiz PSG president in FIFA bribery case
• Andrew Dampf - Napoli fines contested by world players’ union FIFPro
• Murad Ahmed - CVC in talks to fund new global football tournaments
• David Conn - Liverpool back calls for investigations into migrant worker deaths in Qatar
• Rory Smith - Soccer Is Politics, Whether It Likes It or Not
• Rory Smith - In Premier League, V.A.R. Exposes the Limits of the Laws

Doping

• Richard W. Pound - Here’s to 20 years of fighting doping in sports – and to as many more as we need
• Tariq Panja - WADA Committee Recommends Russia Face New Olympic Ban
• Tariq Panja - Inside Russia’s Failed Doping Cover-Up
• Tariq Panja - Russian Doping Blurs Innocence and Guilt, With Olympics Caught in Middle
• Akaash Maharaj - Will WADA live up to the ideals of sport and ban Russia from the Olympics?
• Graham Dunbar - Russia faces next wave of punishment in endless doping saga
• Steve Scott - 'World Anti-Doping Agency is a Russian lapdog,' says one of its former investigators
• Sean Ingle - Athletes condemn ‘spineless’ Wada as Putin considers appeal

Other

• Tariq Panja - A Star Swimmer’s Doping Hearing Gets Lost in Translation
• Dan Roan - Some of Britain's top athletes threaten legal action over sponsorship regulations
• Tom Wigmore - Major sports bodies guilty of 'shocking' lack of women's representation at board level
• Phil Lutton - John Coates says Sun Yang has little to complain about in CAS hearing
• Stephen Wade - IOC’s Bach asked to intervene in Tokyo Olympic labor dispute
• Graham Dunbar - Human rights experts debate risks and gains for FIFA, IOC
• Sean Ingle - Too many heads remain in the sand when it comes to hosting of sport
• Craig Lord - European Commission competition authority Says Olympic Charter Must Change To Grant All European Athletes Their Rights
• David Wharton - 2020 Tokyo Olympics could cost Japan more than $26 billion

Academic Materials

International Sports Law Journal

• Margareta Baddeley - The extraordinary autonomy of sports bodies under Swiss law: lessons to be drawn

• Johan Lindholm - Who tweets about sports law?
• Florian Kirschner - Breakthrough or much ado about nothing? FIFA’s new bidding process in the light of best practice examples of human rights assessments under UNGP Framework
• Gregory Ioannidis - Football intermediaries and self-regulation: the need for greater transparency through disciplinary law, sanctioning and qualifying criteria
• Antonio Di Marco - The internal governance of sporting organisations: international convergences on an idea of democracy
• Lloyd Freeburn - The fiction of democracy in FIFA’s governance of football and the case of Football Federation Australia
• Alexander Brown and Roger Baines - The potential exploitation of non-English-speaking players in UK professional football contracts
• Aynur Nuriev - Non-intentional anti-doping rule violations: Does a new trend in evidence provision suffice?
• Marlaina Lemmon - Evening the playing field: women’s sport as a vehicle for human rights
• James Brown - Genetic doping: WADA we do about the future of ‘cheating’ in sport?  

Other

• Marcelo Moriconi and César de Cima - To report, or not to report? From code of silence suppositions within sport to public secrecy realities
• Kirstin Hallmann and others - Match-fixing and legal systems: An analysis of selected legal systems in Europe and worldwide with special emphasis on disciplinary and criminal consequences for corruption in sport and match-fixing
• Carolynne Mason - Rights, Risks and Responsibilities in the Recruitment of Children within the Global Football Industry
• Jonas Visschers, Letizia Paoli & Abhishek Deshpande - Match-fixing: Football referees’ attitudes and experiences
• John T. Holden, Thomas Baker and Marc Edelman - The #E-Too Movement: Fighting Back Against Sexual Harassment in Electronic Sports
• Sahiba Gill, Edouard Adelus and Francisco de Abreu Duarte - Whose Game? FIFA, Corruption and the Challenge of Global Governance
• David Shilbury and Lesley Ferkins - Routledge Handbook of Sport Governance

Blog

Asser International Sports Law Blog

• Thomas Terraz - Is UCI the new ISU? Analysing Velon’s Competition Law Complaint to the European Commission

Law in Sport

• Jack Anderson  - A detailed analysis of the legal arguments in WADA v Sun Yang & FINA - a very public hearing
• Tomás Nolan - What it takes to sponsor Liverpool Football Club (why New Balance failed to match Nike’s offer)
• Toni Roca and Xai Fernández - Why FIFA should reform football's training compensation regulations
• Tom Bruce and Jack Verdan - Bury Beware: lessons on the importance of good governance from Bury F.C.’s football league expulsion
• Ariel Reck - Argentine Football Association and Player´s Union reach agreement on pregnancy rights for players
• Tom Rudkin - WADA v Sun Yang & FINA - The benefits (or otherwise) of a public hearing
• Braham Dabscheck - A second bite of the cherry: reviewing the 2019-2022 wage deal for the Australian Football League Women
• Victoria Brown - The importance of giving clear reasons in sports disciplinary decisions: lessons from the Gerwyn Price decision
• Joseph M. Hanna - NCAA offers a lifeline: college athletes allowed to benefit from name, image and likeness
• Daniel Lust - (Anti)-trust the process: is the NCAA legally permitted to ban schools?
• Carlo Rombola - A short review of the Italian Association of Sport Attorneys' 'Sport and Women' conference in Rome
• Justin Humphries - Brexit means Brexit, but what does it mean for the Premier League and its players?
• Philipp Wehler and Matthias Greulich - Would FIFA’s newly proposed agents’ regulations comply with German & EU law?
• Peter Crowther, Lisa Hatfield and Jake White - Are the British Olympic Association’s new Rule 40 Guidelines still too restrictive?

Play the Game

• Matthias Fett - More – not less – democracy is often better for organising a World Cup

Sports Integrity Initiative

• Steven V. Selthoffer - Sun Yang vs. WADA: What’s really at stake?
• Andy Brown - Tentative RusAF reforms as WADA recommends severe action
• Andy Brown - Sport intervened to make changes to Athletes Anti-Doping Rights Act

SportLegis

• Despina Mavromati - FC A. v. B& Algerian Football Federation – Football contract & jurisdiction of the CAS
• Despina Mavromati - A v. International Athletics Federation (doping) – Interpretation of Art. 38.3 IAAF Rules
• Despina Mavromati - FIFA v. WADA – Lack of a “personal” legal interest to appeal against a CAS Award

Other

• Alex Kelham - Rule 40 – Team GB under fire from Olympians wanting faster pace of change

Podcasts

• The Ticket Podcast  - WADA v Sun Yang
• The Lead - Dope. Cheat. Repeat.
• Law in Sport - Jonathan Taylor QC explains WADA's decision to sanction Russia

Upcoming Events

• 17-18 March 2020 – WADA Annual Symposium, SwissTech Convention Center, Lausanne, Switzerland
• 26-27 March 2020– 14^th Conference of the PSA Sport & Politics Group, Etihad Stadium, Manchester, UK
• 18-19 June 2020 – Sport & EU 2020 Annual Conference, Rijeka and Opatija, Croatia

Editor’s note: Thomas Terraz is a fourth 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 International Olympic Committee (IOC), after many years of ineffective pushback (see here,here and here) over bye law 3 of rule 40[1] of the Olympic Charter (OC), which restricts the ability of athletes and their entourage to advertise themselves during the ‘blackout’ period’[2] (also known as the ‘frozen period’) of the Olympic Games, may have been gifted a silver bullet to address a major criticism of its rules. This (potentially) magic formula was handed down in a relatively recent decision of the Bundeskartellamt, the German competition law authority, which elucidated how restrictions to athletes’ advertisements during the frozen period may be scrutinized under EU competition law. The following blog begins by explaining the historical and economic context of rule 40 followed by the facts that led to the decision of the Bundeskartellamt. With this background, the decision of the Bundeskartellamt is analyzed to show to what extent it may serve as a model for EU competition law authorities.

2        Rule 40 in Context

Before dissecting the decision, the considerable impact of the IOC’s rule 40 and its implementation by national Olympic committees (NOCs) must be emphasized. Many athletes look to the Olympic Games as a unique opportunity to gain exposure and benefit financially from their accomplishments, especially considering that many athletes who qualify for the Olympic Games struggle to make a living from their sport. Athletes are greatly reliant on external funding, particularly from sponsors, to fund their career.[3] To further complicate matters, many sports only enjoy a meaningful spotlight during the Olympic Games. Hence, athletes in those sports view the Games as an unparalleled occasion to become known to a wider public and gain new sponsors. So, why does the IOC restrict these opportunities?

Rule 40’s existence is principally due to The Olympic Partner Programme (TOP), a closed group of thirteen sponsors, which was created in 1985 with the aim of diversifying and securing greater means of funding for the Olympic Games.  It was the brainchild of Michael Payne who has defended the importance of preserving the ‘value of the Olympic sponsorship program’ to prevent a return to the days where the funding of the Games was highly dependent on ticket sales.[4] For the IOC, preserving the value of TOP has meant taking aggressive actions against ambush marketing, which according to Payne is ‘any communication or activity that implies, or from which one could reasonably infer, that an organisation is associated with an event, when in fact it is not’. Payne describes the ways in which the IOC has attempted to tackle ambush marketing, which includes educating the public about ambush marketing, preventing ambush marketing through prohibiting non-sponsor association and controlling Olympic imagery among other methods, and finally legal action, which according to Payne, ‘the mere threat of this is often enough to bring the offending party into line’. In this view, rule 40 can mainly be categorized as a preventative measure.

Rule 40 has also experienced an evolution ever since it was first introduced in 1991 into the OC, which has also meant that ‘defining the scope of rule 40 and understanding its nuances is a process that evolves with each iteration of the games’.[5] Although rule 40 has recently moved from a general ban on advertising with limited exceptions into allowing it under severe restrictions, it remains to be seen whether the IOC will fundamentally rethink the conditions applied to athlete advertising. Meanwhile, athletes, who were partly the initiators of the complaint to the Bundeskartellamt, have perhaps realized that public awareness campaigns have not brought about the drastic change they had hoped for. In the present case, the Bundeskartellamt’s attention was drawn to rule 40 OC after a complaint from Athleten Deutschland (German Athlete Commission) and Bundesverband der Deutschen Sportartikelindustrie (Federal Association of the German Sports Goods Industry).

3        Background to the Decision

Before examining the substance of the Bundeskartellamt’s decision, it is important to understand that rule 40, as it was analyzed in the decision, was the one that was in place in the lead up to the Rio 2016 Games.[6] It states:

 “Except as permitted by the IOC Executive Board, no competitor, team official or other team personnel who participates in the Olympic Games may allow his person, name, picture, or sports performances to be used for advertising purposes during the Olympic Games.”

In other words, a general ban on advertisement with limited exceptions. The applicable conditions meant that only athletes with TOP sponsors could launch an advertising campaign during the Rio 2016 Olympic Games and ongoing campaigns from non-TOP sponsors were subject to authorization. Further complicating the matter, NOCs could introduce additional restrictions or opt-out completely from allowing their athletes to advertise during the frozen period.[7] The German Olympic Sports Federation (DOSB), in its 2016 guidelines[AD1]  (page 78), distinguished between DOSB sponsors, Olympic sponsors and non-Olympic sponsors.[8] In the case of non-Olympic sponsors, ‘only advertising activities which had started at least three months prior to the Olympic Games had a chance of being approved’, which means potential sponsors needed to have early concepts ready before that date (early April). It should also be noted that at that time, the DOSB had not yet nominated any athletes for the Olympic Games. In addition to the deadlines, references to the Olympic Movement were strictly forbidden, which included an incredibly broad list of words and phrases.[9] If they wanted to participate in the Games, athletes were forced to subscribe to these rules via the athlete agreement (page 83) [AD2] and any breach could imply sanctions, which included removal from the Olympic Team.[10]

The conditions that these rules impose is succinctly summarized by Grady who explains that though the IOC claimed it had relaxed its rules, it ‘did not create the kinds of opportunities that the IOC may have envisioned’, which in effect ‘precluded almost all but the most powerful global brands from taking full advantage of the ability to feature Olympic athletes during the Games’, a view that was acknowledged by the Bundeskartellamt.[11]

4        The Bundeskartellamt’s Decision

Although the present case was resolved through the commitments made by the IOC, the Bundeskartellamt still provided a preliminary assessment concerning the relevant market, the abuse of a dominant position, possible justifications, and proportionality, which are analyzed below.

4.1       Relevant Market

Having decided to resolve the case on the basis of Article 102 TFEU,[12] the Bundeskartellamt identified the relevant market on the basis of a ‘modified concept of demand-side substitutability’ and defined the market as the ‘market for the organisation and marketing of the Olympic Games’.[13] It considered that the Olympic Games was an event that differed from other major sport events from the consumers’ point of view because of the wide variety of sports that are covered and because certain sports which perhaps are not normally broadcasted in a particular country receive extensive media coverage during the Games.[14] The Bundeskartellamt supported its analysis of the relevant market by referring to MOTOE in which the CJEU also defined the ‘relevant product market for the organisation (and marketing) of sports events according to the type of sport’.[15] Lastly, it found that the athletes participating in the Games to be ‘customers of the organisation and marketing of sport events’.[16]‘Other well-known competitions’ could be considered as an alternative for certain athletes, however, many athletes practice sports that receive very little media attention outside the Games, meaning that overall the substitutability between the Olympic Games and other major sports events is limited.[17]

4.2       An Abuse of a Dominant Position

Next, the Bundeskartellamt considered the members of the Olympic Movement to be in a collectively dominant position in the aforementioned market and deemed them to be undertakings regardless of the fact that they do not make a profit.[18] It also asserted that the members of the Olympic Movement were abusing their dominant position, hindering effective competition, for several reasons. First, the registration deadlines to request authorization were set too early since athletes did not know whether they were even going to the Olympics in the first place. Moreover, the Bundeskartellamt ruled that the very use of registration and authorization criteria could have a prohibitive effect for certain kinds of advertisements. Even though ‘ongoing’ advertisement could be approved, it was still subject to restrictions since it could not use any ‘designations and symbols as well as images and videos’ connected to the Olympic Games.[19] As stated earlier, these are very extensive and make it ‘difficult to market an athlete’s participation in the Olympic Games’.[20] In the end, the sanctions that athletes could face exacerbated the restriction on competition, especially since the sanctions had no proportionality requirements and an appeal could only be made to the CAS.[21]

4.3       Justifications

At this point the Bundeskartellamt moved to make a preliminary assessment as to whether the abuse of the dominant position inherently pursued legitimate objectives and whether the restriction is proportionate to its claimed objective (the Wouters test[22]). It is interesting to note that the Bundeskartellamt decided to apply the Wouters test to an Article 102 TFEU case and expressly stated that ‘it is to be assumed that the criteria are also meant to apply with regard to the applicability of Art. 82 EC’ (now Article 102 TFEU) in referring to the CJEU’s Meca-Medina case.[23]  Only one of the pursued objectives of the IOC was considered legitimate, while all the others, including ‘preserving the financial stability and sustainability of the Olympic Movement and the Olympic Games’, ‘preserving the value of the Olympic brand to finance the Olympic solidarity model’, and ‘preventing the excessive commercialisation of the Olympic Games’, were not found to be legitimate.[24] The three rejected objectives reflects the decisional practice of the Commission and the CJEU that ‘economic aims cannot justify restrictions’, which the Bundeskartellamt directly acknowledges.[25] This is why it is interesting that the Bundeskartellamt then found that the ‘prevention of ambush marketing during the frozen period in order to safeguard the funding of the Olympic Games, facilitated in part by Olympic sponsorship programmes, and thus to ensure that the Games can be held on a regular basis’ as the only legitimate objective.[26]

A literal reading of this aim seemingly exposes an economic dimension since the IOC wishes to protect TOP and as a consequence, its own budget. However, the Bundeskartellamt was convinced by the IOC’s contention that this was no economic objective,[27] since the ultimate aim of the objective is to ensure the Olympic Games’ consistent occurrence. It could be argued that there are in fact two objectives mangled into one: (1) the prevention of ambush marketing to protect TOP (an economically motivated objective) and (2) ensuring the regular occurrence of the Games (a non-economically motivated objective). The Bundeskartellamt decided to not disentangle the two and accepted that they were in fact one inseparable objective, whereby the latter sub-objective ultimately sidelines the economic dimension of the first. On the other hand, the CJEU’s case law on economic justifications has not been entirely consistent and there has been occasions where it has accepted economic justifications.[28] Furthermore, an efficiency defense could also allow for economic justifications in which the IOC could argue that preventing ambush marketing in order to protect TOP benefits consumers, outweighing any negative effects to competition.[29]In the end, it might be desirable that any future analysis of this dual objective at least acknowledge that there is an underlying economic interest. [TT3] 

4.4       Proportionality

Before analyzing the proportionality of the measure in terms of the prevention of ambush marketing, the Bundeskartellamt defined ambush marketing as ‘the planned endeavour of a company, which is not an official sponsor of a major (sports) event, to attract public attention to its own business by means of marketing activities related to the event, and thus to profit from the communication performance of the event (e.g. high profile, image) without making a financial contribution’.[30] In the corresponding footnote, the Bundeskartellamt makes reference to the definitions of ambush marketing on Wikipedia, which upon closer inspection is taken from Manuela Sachse’s book Negative Kommunikationseffekte von Sponsoring und Ambush-Marketing bei Sportgroßveranstaltungen.It is rather unfortunate that the Bundeskartellamt did not elaborate on why it chose this particular definition of ambush marketing.

Nonetheless, on the formal aspects, the Bundeskartellamt held that the DOSB’s pre-authorization scheme for individual advertisements was disproportionate, especially due to the deadlines. Moving to substantive aspects, it maintained that individual advertisement could only be prohibited if it violated specific legal provisions such as intellectual property rights or specific contractual obligations.[31] Violations of property rights ‘only exist in cases where the public perception is that there are economic and organisation relations between the owner of the property rights and the company which uses Olympic designations’, referring to the jurisprudence of the German Federal Court of Justice.[32] The Bundeskartellamt makes reference to the reasonably well-informed consumer standard, which is also recognized in EU law,[33] to explain that consumers are able to differentiate between ‘a sponsor’s advertising and a reference to the Olympic Games in a promotional context’ and that simply a positive association or temporal connection with the Olympic Games and Olympic Movement is not a violation of intellectual property rights.[34] In this regard, the Bundeskartellamt only found prohibiting the use of ‘Team Deutschland’ during the Olympic Games and the use of ‘a combination of the respective location and the year’, e.g. Rio 2016, during the frozen period to be proportionate, while finding the other restrictions to be disproportionate.[35] In terms of the restrictions on photos and social media posts, the Bundeskartellamt held that the general prohibition of taking photos at Olympic venues for individual advertising measures and posts on social media accounts that do not have any protected ‘designations or symbols’ to be disproportionate.[36]

Ultimately, the sanctions, in particular sporting sanctions, were judged to be disproportionate because of their potential impact on athletes’ careers, since they could affect the athletes existing and future sponsorship opportunities and a competition ban could also, depending on the athlete’s age and the ban’s length, end an athlete’s career. The very existence of sporting sanctions could have a ‘deterrent effect’.[37] Additionally, the CAS’ exclusive jurisdiction over disputes could jeopardize the effectiveness of competition law since ‘there is no guarantee that the parties’ action against an athlete will also be subject to judicial review under European antitrust law’, especially when considering that neither the Swiss or German courts would conduct such a review in an action against the enforcement of the award.[38] Sports sanctions are also typically carried out by the sport bodies themselves, without intervention of public bodies. Interestingly, the Bundeskartellamt acknowledged the German athletes’ position that the CAS proceedings were longer and more costly than proceedings in front of German courts, which directly contradicts the IOC’s claimed benefits of sports arbitration.[39]

5        The Commitments and Potential for Further Intervention Under EU law

After two rounds of negotiations, the DOSB was able to put an end to its infringements by making several commitments that brought its policy on athlete advertisement into line with the Bundeskartellamt’s findings. The commitments submitted after the first round did not go far enough to quell the competition concerns and most sponsors and athletes found ‘little or no improvement in the modified guidelines’. The original commitments were deemed to be too restrictive on the protected Olympic related terms, not provide sufficient opportunities for advertising on social media, not sufficiently delineate the responsibilities of the different parties, and the exclusive jurisdiction of the CAS coupled with sporting sanctions continued to have ‘a strong deterrent effect’.[40] After the second round of negotiations, the most important  commitments included: (1) no more authorization required for advertisements during the frozen period and instead athletes can request that the DOSB review planned advertisements beforehand to confirm if it meets the admissibility criteria; (2) advertisement campaigns may now be launched during the frozen period; (3) pictures of athletes during Olympic competitions may be used for advertisement so long as it does not include protected Olympic logos, symbols or designations; (4) videos[41] are restricted only to the German House, the Olympic village or the back of house areas and (5) sports related sanctions are no longer available (only economic sanctions are possible) and athletes may have recourse to German courts. All in all, the new Guidelines will allow athletes to advertise during the Games provided that they observe certain restrictions that mainly relate to intellectual property rights.[42] This compromise fosters a far better balance between the IOC’s interests to protect the value of the Games and TOP and the athletes’ wish to expand their financial opportunities during perhaps the most important time of their careers.

The analysis undertaken by the Bundeskartelamt is likely to influence any future intervention of the European Commission on this issue. After all, it is quite possible that the Commission may have to take action since the Bundeskartellamt’s decision ‘is enforceable only as regards individual advertising and marketing activities of German Olympic athletes on the German market’. In doing so, the Commission may have to elaborate whether a pre-authorization scheme for advertisements with reasonable deadlines could be compatible with EU law and perhaps further scrutinize the definition of ambush marketing and potential objective justifications that are completely void of an economic motive. The Commission would likely evaluate any advertisement pre-authorization regime in light of the ISU criteria.[43] From a pure competition law perspective, it could also be an opportunity for the Commission and ultimately the CJEU to expressly confirm whether the Wouters test extends to Article 102 TFEU.

Regardless, Commissioner Verstager explained that this is ‘an example of the way the network operates, with the Commission and the German competition authority working closely together’. She also underlined that the Bundeskartellamt’s decision could ‘create incentives for a change of the relevant rules at national and international level, with the Commission following closely any developments in this direction’. Thus, the possibility that the Commission will at some point intervene seems dependent on how seriously the IOC takes this decision. In the meantime, British athletes have also threatened legal action on the basis of EU competition law against the British Olympic Association over its implementation of rule 40, which demonstrates the ongoing nature of this saga.

6        Conclusion

The Bundeskartellamt’s narrow interpretation of ambush marketing and emphasis on the protection of intellectual property rights will most likely influence the IOC’s strategy to protect the value of TOP. For example, it could prompt the IOC to place greater efforts into expanding its protected properties. Nevertheless, the IOC’s war against ambush marketing has widened from its original concept and even Michael Payne has been one to express his concern about the extent to which the IOC has gone in order to protect TOP and has expressed the need to apply the rules with ‘balance and common sense’. Albeit these comments were made concerning the rules for ‘clean’ venues at the London 2012 Summer Olympics, there is a certain resonance to the present situation and begs the question whether drastically restricting athletes in their often one-time chance to earn decent money through sponsoring is absolutely necessary to protect the economic viability of the Olympics as a whole.

[1] When the blog refers to rule 40, it refers specifically to bye law 3 of rule 40 OC.

[2] The ‘blackout’ period starts 9 days before the Olympic Game’s opening ceremony to 3 days after the closing ceremony.

[3] Nicholas Gary Schlereth and Evan Frederick, ‘Going for Gold: Social Media and the USOC’ [2017] 27 Journal of Legal Aspects of Sport 19.

[4] Michael Payne, ‘Ambush Marketing: The Undeserved Advantage’ [1998] 15 Psychology and Marketing 323.

[5] John Grady, ‘Analyzing Rule 40’s Restrictions on Using Atheletes in Olympic Sponsorship at Rio 2016’ [2017] 15 Entertainment and Sports Law Journal 1.

[6] Bundeskartellamt, Decision pursuant to Section 32b GWB Public version, B-226/17 (February 25, 2019) para 3.

[7] ibid para 5.

[8] ibid para 7.

[9] See ibid para 8 for examples.

[10] ibid para 11 and 65.

[11] Grady (n 7) and ibid para 69.

[12]Decision pursuant to Section 32b GWB Public version, B-226/17 (n 3) para 41.

[13] ibid para 44 and 56.

[14] ibid para 46-47.

[15] ibid para 46.

[16] ibid para 53.

[17] ibid para 54.

[18] ibid para 58-63.

[19] ibid para 71.

[20] ibid.

[21] ibid para 75-76.

[22] Case C-309/99 Wouters and Others [2002] ECLI:EU:C:2002:98, para 97.

[23] See Decision pursuant to Section 32b GWB Public version, B-226/17 (n 3) footnote 52.

[24] ibid para 102-105.

[25] See International Skating Union’s Eligibility rules (CASE AT. 40208) [2017] C(2017) 8240, footnote 350 and ibid para 95.

[26]Decision pursuant to Section 32b GWB Public version, B-226/17 (n 3) para 96.

[27] ibid para 27.

[28] For an exploration of accepted economic objectives see Sue Arrowsmith, ‘Rethinking the Approach to Economic Justifications under the EU's Free Movement Rules’ [2015] 69 Current Legal Problems 307.

[29] See for example, Case C-209/10 Post Danmark A/S v Konkurrencerådet[2012] ECLI:EU:C:2012:172, para 41-42.

[30] ibid para 97.

[31] ibid para 108-109.

[32] ibid para 110, referring to Federal Court of Justice, judgment of 15 May 2014 – I ZR 131/13, Olympia-Rabatt.

[33] Case C-210/96 Gut Springenheide and Tusky v Oberkreisdirektor des Kreises Steinfurt [1998] ECLI:EU:C:1998:369, para 31.

[34]Decision pursuant to Section 32b GWB Public version, B-226/17 (n 3) para 110-111.

[35] ibid para 115-118.

[36] ibid 119-120.

[37] ibid para 122.

[38] ibid para 124.

[39]ibid para 124.

[40] ibid para 128.

[41] Protected Olympic logos, symbols or designations are also not allowed in videos.

[42]Decision pursuant to Section 32b GWB Public version, B-226/17 (n 3) para 136-148.

[43] A pre-authorization scheme must (a) ‘provide for sanctions and authorization criteria that are inherent in the pursuit of legitimate objectives’, (b) ‘provide for objective, transparent and non-discriminatory sanctions and authorization criteria’ that are proportionate to its objectives, and (c) ‘provide for an objective, transparent and non-discriminatory procedure for the adoption and effective review of decisions’.

Editor’s note: Thomas Terraz is a fourth 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

As we begin plunging into a new decade, it can be helpful to look back and reflect on some of the most influential developments and trends from 2019 that may continue to shape international sports law in 2020 and beyond. Hence, this piece will not attempt to recount every single sports law news item but rather identify a few key sports law stories of 2019 that may have a continued impact in the 2020s. The following sections are not in a particular order.

2.     Court of Justice of the European Union’s TopFit Decision

The Court of Justice of the European Union’s decision in TopFit in June sent shockwaves in the EU sports law world by finally providing some answers to a long untouched issue of purely amateur sport. The case concerned an Italian amateur athlete, living in Germany for several years who had been precluded from participating in a German national championship in the senior category due to no longer fulfilling the nationality requirements because of a change of the Deutscher Leichtathletikverband’s (DLV) regulations governing this issue. Daniele Biffi, the athlete in the case, argued that this violated his European citizenship rights under Articles 18 and 21 TFEU. Leading up to the final decision, the Advocate General’s opinion in the case, analyzed in an earlier blog, had sidelined this argument in favor of embracing a more familiar economic argument based on the freedom of establishment. AG Tanchev contended that an analysis based on Article 18 and 21 TFEU may open a pandora’s box by giving horizontal direct effect to Article 21 TFEU. In the end, the CJEU took the issue of European citizenship rights head on. The CJEU’s decision, also analyzed in our blog, focused on three themes: the general applicability of EU law to amateur sport, the horizontal applicability of European citizenship rights, and the justifications and accompanied proportionality requirements to nationality restrictions in national championships. It found that Mr. Biffi could rely on Articles 18 and 21 TFEU and ruled that the DLV’s justifications for the rule change were disproportionate.

All things considered, there are a variety of ways TopFit may have a lasting impact. For example, the ‘golden rule’ of EU sports law had once been that an economic dimension was always needed to trigger the applicability of EU law. This is clearly no longer the case as the CJEU in TopFit expressly confirmed that European citizenship rights, which do not require an economic dimension to be invoked, could be relied upon in a sports related case, meaning that all sport activity is subject to EU law. Additionally, TopFit may have unlocked the true potential behind European citizenship rights by giving them horizontal direct effect, which may have ramifications far beyond sports law.[1] In the years ahead, it will be interesting to see whether this will trigger a flood of new cases based on European citizenship rights.

3.     Decision of the Bundeskartellamt (German Competition Authority) Concerning Rule 40 of the Olympic Charter

As has become tradition in the lead up to an Olympic year, athletes have once more been pushing back against bye-law 3 of rule 40 of the Olympic Charter (OC), which restricts advertisements from athletes participating in the Olympic Games. While rule 40’s intent is to combat ambush marketing at the Games to protect the value of the Olympic Partner Programme (TOP), athletes have argued that it severely restricts their ability to financially exploit their sport achievements during the Olympic Games, which for many is a once in a lifetime opportunity for greater exposure.[2] This is compounded by the fact that many athletes struggle to make a living from their sport. This situation most recently culminated in a decision of the Bundeskartellamt (the German competition law authority) that focused on this issue. In its preliminary assessment of the case, the Bundeskartellamt took a restrictive view of when limitations on athlete advertisements could be justified by narrowly interpreting ambush marketing and finding that restrictions on advertisement must aim to protect specific intellectual property rights. In the end, the Deutscher Olympischer Sportbund (Germany’s national Olympic committee) made several commitments to resolve the case.[3]

The decision is likely to (and has already to a certain extent[4]) help spark a shift in the IOC’s position on this issue. Furthermore, the British Olympic Association has just recently faced a new complaint on behalf of some of its athletes. Regardless, it is clear the European Commission is closely following the situation and given the Bundeskartellamt’s decision is only enforceable within Germany, there is a continued possibility that the Commission and ultimately the CJEU may eventually have a final say on this issue. Rule 40 undoubtedly is an issue that deserves attention, especially with Tokyo 2020 around the corner.

4.     Sun Yang’s Public Hearing at the CAS

2019 also proved to be quite the historic year for sport arbitration since for the second time in its 35-year history, the Court of Arbitration for Sport (CAS) conducted a public hearing. It signals that the European Court of Human Rights’ (ECtHR) Pechstein decision is starting to have a transformative effect at the CAS. To quickly recap, the ECtHR had found in Pechstein that clauses that impose CAS arbitration as a condition to participate in sport activity amount to forced arbitration, meaning that in cases resulting from such circumstances (especially disciplinary cases) the CAS must observe Article 6§1 of the European Convention of Human Rights (ECHR), which sets out the right to a fair trial.[5] This includes that ‘in principle, litigants have a right to a public hearing’.[6] Consequently, parties have greater room to request a public hearing at the CAS, especially when the dispute is of a disciplinary nature.[7] Hence, Sun Yang’s public hearing may be heralding a new era where public hearings at the CAS become a common display.

Sun Yang’s hearing also highlighted some of the practical challenges of conducting live hearings when the proceedings are in a different language as some of the parties and/or witnesses. As covered in our monthly report, the interpreters failed to properly translate multiple testimonies during the Sun Yang hearing. Many wondered whether there would be a need for greater safeguards in terms of the quality of translation given how it can affect one’s right to be heard. However, the CAS maintained that it could not directly hire its own ‘official’ translators because it would potentially threaten its ‘independence and neutrality’. Yet, one could envision that the CAS would set certain minimum standards for parties’ interpreters and or manages a list of accredited interpreters from which the parties could pick. In any event, this case signals the beginning of a new public era in sports arbitration that will profoundly shift the way the game is played at the CAS in the 2020s.

5.     New FIFA Legal Portal

FIFA has taken a step towards increasing its transparency through the launch of a new legal portal in which it has undertaken to publish all the decisions of the Disciplinary Committee, Appeal Committee, the Adjudicatory Chamber of the FIFA Ethics Committee, the Dispute Resolution Chamber, the Player Status Committee, the CAS where FIFA is a party, and a multitude of other documents with a legal dimension. According to FIFA, these decisions will be updated every 4 months, meaning that a new batch of decisions should be expected to be posted soon. The initiative for the FIFA Legal portal was resulting from a push for greater transparency in its governance as a cornerstone of its 2016 FIFA 2.0: The Vision for the Future.

Increasing transparency in this manner will give greater room for stakeholders and the general public to keep FIFA accountable, review the work of its disciplinary bodies and criticise the legal reasoning they use. However, only time will tell whether this portal will deliver a reliable and useful level of transparency enabling a rigorous public scrutiny on FIFA.

6.     Caster Semenya Case

Caster Semenya’s struggles with World Athletics (formerly IAAF) continued in 2019, culminating in a CAS award followed by an interim decision of the Swiss Federal Tribunal (SFT), both in favor of World Athletics. The case revolved around World Athletics’ DSD Regulations (difference of sex development) that required athletes competing in the female category in certain events (400m to one mile) at an international level to keep their testosterone levels below five nmol/L. Caster Semenya challenged these regulations arguing that they were ‘unfairly’ discriminating against females and especially those with ‘certain physiological traits’ because they were not scientifically based, they are ‘unnecessary to ensure fair competition within the female classification’ and would likely ‘cause grave, unjustified and irreparable harm’. The CAS award found that the DSD Regulations are discriminatory, however, they are also proportionate to World Athletics’ ‘aim of preserving the integrity of female athletics’. The award was subsequently appealed to the Swiss Federal Tribunal who in a second interim decision lifted its provisional suspension of the DSD Regulations. With this decision, Caster Semenya was barred from participating in the World Championships in Doha.

Looking at the case as a whole, some have underlined the manner in which World Athlete’s regulations only target women and argued that it is fundamentally rooted in gender stereotypes. It also illustrates how certain assumptions on sex[8] have shaped World Athletics policies on this issue, while others also contend that it is unethical to force athletes to have to reduce their testosterone levels if there is no underlying medical need.[9]  To be fair, the issue is not entirely black and white and nuanced arguments have also been made in support of testosterone testing.[10] In any event, this case will necessarily become an important classic of international sports law and most likely linger in the docket of the ECtHR (or of the South African constitutional court) for years to come. It will refine the scope of the autonomy of SGBs and test the reputation of the CAS.   

7.     Russian Doping Scandal Continues

The last, and perhaps the news item that received the most media attention, is the ongoing Russian doping scandal. Worries arose once again earlier this year after inconsistencies were uncovered from data retrieved from the Moscow Laboratory. In response, the WADA Executive Committee decided unanimously on December 9 in favor of a four-year period of non-compliance, following the recommendation of WADA’s Compliance Review Committee. RUSADA swiftly appealed the WADA’s decision to the CAS.

The reemergence of the Russian doping scandal has reignited discussions on whether the original decision to declare Russia compliant in September 2018 was perhaps premature. At the time, that decision had been especially criticized by athlete representative groups. This round of the Russian doping scandal may prove to be a greater test on WADA’s ability to keep credibility with the world’s athletes and the general public. Some, like Richard Pound have contended that the new sanctions are tough,[11] but others have argued that more could be done and that leaving the door open to certain ‘approved’ Russian athletes puts clean sport at risk. So far, Russia‘s leadership have mainly characterized the investigation and following sanctions as a witch-hunt stemming from anti-Russian sentiment. The scandal will loom large over the Tokyo Olympics and will probably lead to a fresh wave of Russian cases before the CAS and the SFT.

8.     Conclusion

2019 was a rich year for international and European sports law with many landmark decisions taken, which will have a long-lasting effect on the field. Changes linked to the transparency of sports justice and governance are more likely to have unpredictable transformative consequences as they will enhance the ability of the media to subject sports arbitrators and administrators to rigorous scrutiny. Furthermore, the Rule 40 case and the TopFit decision are also strong reminders of the power of EU law (be it competition law or citizenship rights) as a vehicle to check the decisions of the SGBs. Finally, the Semenya case is certainly the CAS award of the year. It pushed to the forefront a fundamental ethical and philosophical question: Should SGBs be entitled to define the sporting sex of an athlete? What is their legitimacy in taking such a decision?

[1] It is possible that these situations may still be limited since the CJEU’s decision indicates that a power disparity is needed between the parties. See Case C-22/18 TopFit e.V. Daniele Biffi v Deutscher Leichtathletikverband e.V. [2019] ECLI:EU:C:2019:497, para 39.

[2] See our previous blog on rule 40 (and the Bundeskartellamt’s decision), which goes in depth on rule 40’s inception and purpose.

[3] Commitments included: ‘(1) no more authorization required for advertisements during the frozen period and instead athletes can request that the DOSB review planned advertisements beforehand to confirm if it meets the admissibility criteria; (2) advertisement campaigns may now be launched during the frozen period; (3) pictures of athletes during Olympic competitions may be used for advertisement so long as it does not include protected Olympic logos, symbols or designations; (4) videos are restricted only to the German House, the Olympic village or the back of house areas and (5) sports related sanctions are no longer available (only economic sanctions are possible) and athletes may have recourse to German courts.’

[4] Rule 40 OC has been reformulated from a ban on athlete advertisement with certain exceptions to where athlete advertisements are allowed subject to restrictions.

[5] See Antoine Duval, ‘The “Victory” of the Court of Arbitration for Sport at the European Court of Human Rights: The End of the Beginning for the CAS’ (Asser International Sports Law Blog, 10 October 2018).

[6]‘Guide on Article 6 of the European Convention on Huma Rights’ (ECtHR 2019).

[7] The R57 of the Code was amended in January of last year. See the current version of R57 CAS Code.

[8] While this piece was written in relation to the previous IAAF regulations ‘Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women's Competition’, it is still relevant to the current regulations: Cheryl Cooky and Shari L Dworkin, ‘Policing the Boundaries of Sex: A Critical Examination of Gender Verification and the Caster Semenya Controversy’ [2013] 50 Journal of Sex Research 103.

[9] This piece also was written concerning the previous IAAF regulations, it also is still relevant to the current discussion: Malcolm Ferguson-Smith and Dawn Bavington, ‘Natural Selection for Genetic Variants in Sport: The Role of Y Chromosome Genes in Elite Female Athletes with 46,XY DSD’ [2014] 44 Sports Medicine 1629.

[10] This piece also was written concerning the previous IAAF regulations, it also is still relevant to the current discussion: Francisco J. Sánchez , María José Martínez-Patiño and Eric Vilain, ‘The New Policy on Hyperandrogenism in Elite Female Athletes is Not About “Sex Testing”’ [2013] 50 Journal of Sex Research 112.

[11] See also LawInSport’s interview with Jonathan Taylor QC, chair of WADA’s Compliance Review Committee, explaining the reasoning behind the recommendations.

Editor's note: This report compiles the most relevant legal news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. 

The Headlines

IOC Athlete Commission releases its Rule 50 Guidelines for Tokyo 2020

The IOC Athlete Commission presented its Rule 50 Guidelines for Tokyo 2020 at its annual joint meeting with the IOC Executive Board. It comes as Thomas Bach had recently underlined the importance of political neutrality for the IOC and the Olympic Games in his New Year’s message. Generally, rule 50 of the Olympic Charter prohibits any political and religious expression by athletes and their team during the Games, subject to certain exceptions. The Guidelines clarify that this includes the ‘field of play’, anywhere inside the Olympic Village, ‘during Olympic medal ceremonies’ and ‘during the Opening, Closing and other official ceremonies’. On the other hand, athletes may express their views ‘during press conferences and interview’, ‘at team meetings’ and ‘on digital or traditional media, or on other platforms. While rule 50 is nothing new, the Guidelines have reignited a debate on whether it could be considered as a justified restriction on one’s freedom of expression.

The IOC has made the case that it is defending the neutrality of sport and that the Olympics is an international forum that should help bring people together instead of focusing on divisions. Specifically, Richard Pound has recently made the argument that the Guidelines have been formulated by the athletes themselves and are a justified restriction on free expression with its basis in ‘mutual respect’. However, many commentators have expressed their skepticism to this view (see here, here and here) citing that politics and the Olympics are inherently mixed, that the IOC is heavily involved in politics, and that the Olympics has often served as the grounds for some of history’s most iconic political protests. All in all, the Guidelines have certainly been a catalyst for a discussion on the extent to which the Olympics can be considered neutral. It also further highlights a divide between athlete committees from within the Olympic Movement structures and other independent athlete representation groups (see Global Athlete and FIFPro’s statements on rule 50).

Doping and Corruption Allegations in Weightlifting 

The International Weightlifting Federation (IWF) has found itself embroiled in a doping and corruption scandal after an ARD documentary was aired early in January which raised a wide array of allegations, including against the President of the IWF, Tamás Aján. The documentary also included hidden camera interviews from a Thai Olympic medalist who admits having taken anabolic steroids before having won a bronze medal at the 2012 London Olympic Games and from a team doctor from the Moldovan national team who describes paying for clean doping tests. The IWF’s initial reaction to the documentary was hostile, describing the allegations as ‘insinuations, unfounded accusations and distorted information’ and ‘categorically denies the unsubstantiated’ accusations. It further claims that it has ‘immediately acted’ concerning the situation with the Thai athletes, and WADA has stated that it will follow up with the concerned actors. However, as the matter gained further attention in the main stream media and faced increasing criticism, the IWF moved to try to ‘restore’ its reputation. In practice, this means that Tamás Aján has ‘delegated a range of operation responsibilities’ to Ursual Papandrea, IWF Vice President, while ‘independent experts’ will conduct a review of the allegations made in the ARD documentary. Richard McLaren has been announced to lead the investigation and ‘is empowered to take whatever measures he sees fit to ensure each and every allegation is fully investigated and reported’. The IWF has also stated that it will open a whistleblower line to help aid the investigation.

Major International Sports Law Decisions

European Court of Human Rights - Judgment Ali Riza and Others v. Turkey - system for settling football disputes must be reformed

Official Documents and Press Releases

FIFA

• FIFA - Infantino elected to International Olympic Committee
• FIFA - FIFA develops new and enhanced integrity resources for member associations and confederations
• FIFA - FIFA and hosts Qatar present joint FIFA World Cup™ Sustainability Strategy
• FIFA - FIFA reports show further upward trend in both men’s and women’s transfer markets
•   FIFA - Reform proposals concerning football agents’ regulations

IOC

• IOC – IOC Session Receives Updates on Anti-Doping Activities
• IOC – IOC Statement on Notice of Intervention in the CAS Case of WADA and RUSADA
• IOC – The IOC and the Olympic Games – Addressing Climate Change
• IOC – President Bach Re-Emphasises Importance of Solidarity Model and Political Neutrality at IOC Session
• IOC – IOC Executive Board and IOC Athletes’ Commission Discuss Major Topics at Annual Joint Meeting
• IOC – Statement by the IOC Regarding the Situation of the IWF

WADA

• WADA - WADA files official request with Court of Arbitration for Sport to resolve RUSADA dispute
• WADA - WADA launches its new ‘Testing Center’ – a ‘Next Gen’ ADAMS module that will help strengthen testing programs worldwide
• WADA - WADA provisionally suspends approved status of Moscow Laboratory
• WADA - WADA Executive Committee appoints new Standing Committee Chairs, receives update regarding RUSADA compliance case
• WADA - WADA statement on German documentary concerning the International Weightlifting Federation

Other

• Athletics Integrity Unit -Athletics Integrity Unit Board refers RusAF charges to the World Athletics Council and recommends considering expulsion of the federation.
• Athletics Integrity Unit - World Athletics v Michelle-Lee Ahye
• Athletics Integrity Unit – Decision of the Athletics Integrity Unite in the case of Ms Kateryna Tabashnyk
• EU Athletes - Statement on Bye-law 3 to Rule 40 of the Olympic Charter
• Fédération Equestre Internationale (FEI) – Prohibited substance cases under FEI human anti-doping rules
• Fédération Internationale de Volleyball (FIVB) – FIVB Commits to Further Investments in its Athletes
• FIFPRO – FIFPro Underlines Commitment to Player Activism
• Global Athlete – Global Athlete Statement in Response to IOC President Thomas Bach’s New Year’s Message
• Global Athlete – Statement based on the new ARD Documentary “Secret Doping – the Lord of the Lifters”
• Global Athlete – Global Athlete Calls on UK Anti-Doping to Provide More Transparency in its Refusal to Allow WADA to Retest Anti-Doping Samples
• Global Athlete – Athletes Call for IWF President to Stand Down and Submit to Full Investigation
• International Canoe Federation - ICF decision on Laurence Vincent Lapointe
• International Tennis Federation – Provisional suspension imposed on Nicolas Jarry
• International Tennis Federation – ITF President David Haggerty Elected IOC Member
• International Weightlifting Federation – IWF rejects ARD allegations
• International Weightlifting Federation – IWF Acts Decisively to Restore Reputation
• International Weightlifting Federation – IWF Executive Board Appoints Richard H. McLaren to Lead Investigation into ARD Allegations
• Tennis Integrity Unit – Lifetime Ban and $200,000 Fine for Joao Olavo Soares de Souza After Conviction on Match-Fixing Charges
• Tennis Integrity Unit – Tennis Integrity Unit Publishes Annual Review for 2019
• Tennis Integrity Unit – Jonathan Kanar Suspended and Fined After Admitting to Corruption Offence
• UCI - The UCI commits to developing cyclo-cross and reinforcing the fight against doping
• UKAD – UKAD Statement regarding the reanalysis of athlete samples and WADA
• UNI Global Union - ILO affirms: athletes must be protected by fundamental principles and rights at work
• UNI Global Union - ILO finds professional athletes face widespread workplace challenges
• World Archery – Beginners’ Guide to Rule 50 for Archery at the Tokyo 2020 Olympic Games
• World Athletics - World Athletics modifies rules governing competition shoes for elite athletes
• World Athletics - World Athletics to postpone World Athletics Indoor Championships Nanjing 2020
• World Athletics - Charges brought by the AIU against RusAF for breach of the anti-doping rules

In the News

Football

• Rob Harris - One deal agents can’t reach in transfer window is with FIFA
• David Conn - Revealed: the scale of Manchester City’s FFP breaches before 2014 Uefa deal
• Tim Wigmore - Exclusive: Doubts raised over whether Premier League clubs can sign young Europeans after January Brexit deadline
• Tariq Panja - La Liga Chief Claims Saudi Arabia Is Using Sports to ‘Whitewash’ Reputation

Doping

• Sean Ingle - Claims of Russian doping deal as trial begins of former IAAF president Diack
• Sean Ingle - IOC concerned by ‘very serious’ doping allegations in weightlifting

Other

• Sean Ingle - World Athletics gives seal of approval for controversial Nike Vaporfly shoes
• Graham Dunbar - IOC details rules on political protests at Olympics
• Tariq Panja - Olympic Protest Rules: Tweets Are Fine, Kneeling Is Not
• Richard Hinds - The Olympics is a politically potent event, and it is an absurd pretence that 'politics and sport don't mix'
• Dave Zirin - John Carlos Responds to the New Olympics Ban on Political Protest
• Jules Boykoff - The Olympics are political. The IOC ban denies reality — and athletes their voice.

Academic Materials

ASSER International Sports Law Series

• Bart van der Sloot, Mara Paun and Ronald Leenes - Athletes’ Human Rights and the Fight against Doping: A Study of the European Legal Framework    

Other

• Mariusz Motyka-Mojkowski and Dennis Cukurov - Restrictions of Sport Sponsorship from a Competition Law Perspective—Recent Example from Germany

Blog

Asser International Sports Law Blog

• Thomas Terraz - Balancing Athletes’ Interests and The Olympic Partner Programme: the Bundeskartellamt’s Rule 40 Decision

Law in Sport

• Ben Koh and Tracey Holmes - Are you being heard? How the Sun Yang public hearing exposes a gap in athletes’ rights
• Toni Roca and Xavi Fernández - Tackling bridge transfers in football: An important ruling from the Royal Spanish Football Federation
• Jonathan Bellamy - An overview of FIFA’s new data protection regulations
• Jonathan Collins - Switching nations: why FIFA’s definition of ‘nationality’ is causing confusion

Sports Integrity Initiative

• Andy Brown - Strict liability in anti-doping is punishing the innocent*
• Andy Brown - Pressure builds on IWF as corruption claims are corroborated

SportLegis

• Despina Mavromati - Ali Riza et al. v. Turkey – European Court of Human Rights Judgment of 28 January 2020

Podcasts

• France Culture - Dakar saoudien, Mondial qatari : un cap pour la péninsule

Upcoming Events

• 05 March 2020 - Mega-sporting events and human rights: What role can EU sports diplomacy play?, Asser Institute, The Hague, The Netherlands
• 17-18 March 2020 – WADA Annual Symposium, SwissTech Convention Center, Lausanne, Switzerland
• 26-27 March 2020– 14^th Conference of the PSA Sport & Politics Group, Etihad Stadium, Manchester, UK
• 18-19 June 2020 – Sport & EU 2020 Annual Conference, Rijeka and Opatija, Croatia

Editor’s note: Thomas Terraz is a fourth 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.

Since its inception, the Olympic Movement, and in particular the IOC, has tirelessly endeavored to create a clean bubble around sport events, protecting its hallowed grounds from any perceived impurities. Some of these perceived ‘contaminants’ have eventually been accepted as a necessary part of sport over time (e.g. professionalism in sport),[1] while others are still strictly shunned (e.g. political protest and manifestations) and new ones have gained importance over the years (e.g. protection of intellectual property rights). The IOC has adopted a variety of legal mechanisms and measures to defend this sanitized space.  For instance, the IOC has led massive efforts to protect its and its partners’ intellectual property rights through campaigns against ambush marketing (e.g. ‘clean venues’ and minimizing the athletes’ ability to represent their personal sponsors[2]). Nowadays, the idea of the clean bubble is further reinforced through the colossal security operations created to protect the Olympic sites.

Nevertheless, politics, and in particular political protest, has long been regarded as one of the greatest threats to this sanitized space. More recently, politics has resurfaced in the context of the IOC Athletes’ Commission Rule 50 Guidelines. Although Rule 50 is nothing new, the Guidelines stirred considerable criticism, to which Richard Pound personally responded, arguing that Rule 50 is a rule encouraging ‘mutual respect’ through ‘restraint’ with the aim of using sport ‘to bring people together’.[3] In this regard, the Olympic Charter aims to avoid ‘vengeance, especially misguided vengeance’. These statements seem to endorse a view that one’s expression of their political beliefs at the Games is something that will inherently divide people and damage ‘mutual respect’. Thus, the question naturally arises: can the world only get along if ‘politics, religion, race and sexual orientation are set aside’?[4] Should one’s politics, personal belief and identity be considered so unholy that they must be left at the doorstep of the Games in the name of depoliticization and of the protection of the Games’ sanitized bubble? Moreover, is it even possible to separate politics and sport?  

Even Richard Pound would likely agree that politics and sport are at least to a certain degree bound to be intermingled.[5] However, numerous commentators have gone further and expressed their skepticism to the view that athletes should be limited in their freedom of expression during the Games (see here,here and here). Overall, the arguments made by these commentators have pointed out the hypocrisy that while the Games are bathed in politics, athletes – though without their labor there would be no Games – are severely restrained in expressing their own political beliefs. Additionally, they often bring attention to how some of the most iconic moments in the Games history are those where athletes took a stand on a political issue, often stirring significant controversy at the time. Nevertheless, what has not been fully explored is the relationship between the Olympic Games and politics in terms of the divide between the ideals of international unity enshrined in the Olympic Charter and on the other hand the de facto embrace of country versus country competition in the Olympic Games. While the Olympic Charter frames the Games as ‘competitions between athletes in individual or team events and not between countries’, the reality is far from this ideal.[6] Sport nationalism in this context can be considered as a form of politics because a country’s opportunity to host and perform well at the Games is frequently used to validate its global prowess and stature.

To explore this issue, this first blog will first take a historical approach by investigating the origins of political neutrality in sport followed by an examination of the clash between the ideal of political neutrality and the reality that politics permeate many facets of the Olympic Games. It will be argued that overall there has been a failure to separate politics and the Games but that this failure was inevitable and should not be automatically viewed negatively. The second blog will then dive into the Olympic Charter’s legal mechanisms that attempt to enforce political neutrality and minimize sport nationalism, which also is a form of politics. It will attempt to compare and contrast the IOC’s approach to political expression when exercised by the athletes with its treatment of widespread sport nationalism.

1.     Constructing the Political Neutrality of the Olympics

The roots of political neutrality in many ways can be traced back to the Olympic Truce, a tradition that started in Ancient Greece.[7] The idea of creating a temporal space where nations are at peace is in a way an attempt to separate Games from the political squabbles of the world, and this tradition has continued to the modern day.  Pierre de Coubertin envisioned a space ‘to bring the youth of all countries periodically together for amicable trials of muscular strength and agility’.[8] In accomplishing this goal, the Olympic Movement  applies a principle of political neutrality,[9] which includes that the IOC must ‘promote its political neutrality’,[10] ‘oppose any political or commercial abuse of sport and athletes’,[11] requires new members of the IOC to ‘act independently of commercial and political interests’,[12] and NOCs must ‘resist’ political pressures that ‘may prevent them from complying with the Olympic Charter’.[13] Lastly, international sport is deeply grounded in the idea of universality in which a sport, regardless of where it is played, is played by the same rules, meaning that the sport rules (the rules of the game) are not influenced by the politics or decisions of a particular state (i.e. sport autonomy).[14]

Coubertin also saw the Games as a ‘sacred enclosure’ for the athletes of the world,[15] symbolizing the conceptual genesis of the sanitized space within the modern Games. In these early days of the Games, Coubertin also believed that protecting the ‘sacred enclosure’ also meant keeping women out.[16] While women were first able to participate in the 1900 Olympic Games, albeit in a limited way and resistance to their participation continued,[17] politics remained a black sheep. Avery Brundage, IOC President (1952-1972), also persisted in advocating to keep women out of the Games but was especially a staunch defender of ‘two major Olympic ideals, i.e. amateurism and the non-politicisation of sport’.[18] For him it was not just necessary to keep politics out, but to also ‘actively combat the introduction of politics in the Olympic movement’ and was ‘adamant against the use of the Olympic Games as a tool or as a weapon by an organization’.[19] With Brundage leading the IOC, political neutrality was placed front and center and thus Olympic rules began to reflect this new priority. The 1956 Olympic Charter was the first to include the ‘Information for cities which desire to stage the Olympic Games’ which specifically required that invitations ‘must state that no political demonstrations will be held in the stadium or other sport grounds, or in the Olympic Village, during the Games, and that it is not the intention to use the Games for any other purpose than for the advancement of the Olympic Movement’. This would slowly evolve into the current Rule 50: ‘No kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas’. It is interesting to note that the only earlier explicit mention of politics in the Olympic Charter was the 1946 Olympic Charter which was concerned by ‘the nationalization of sports for political aims’ where there would be ‘a national exultation of success achieved rather than the realization of the common and harmonious objective which is the essential Olympic law’.[20] As will be further elaborated in the second blog, it seems as though the IOC has now placed greater priority on enforcing Rule 50 compared to its rules concerning sport nationalism. All things considered, the IOC perceives and projects itself as a neutral entity, which is further confirmed through its governing rules[21] and even its seat in Switzerland further reflects this self-perception.[22]

2.     Failing to Keep Politics Out of the Games

At this point, it is worth exploring some examples that elucidate how politics have continually found a way into the ‘clean’ Olympic bubble through a variety of agents: be it the general public, the athletes, the IOC or states (both the host and participants).

While perhaps often overlooked when discussing politics in the Games, public protests are important to study, especially because there have been many instances of host nations suppressing such public gatherings. For example, in the 2008 Beijing Games, after great international pressure, the Chinese government had set specific zones for Olympic protests. However, protesters were required to submit an application and could be rejected if the protest would ‘harm national, social and collective interests or public order’. In the end, all seventy-seven applications were denied and some of those who applied were arrested, detained and/or put into forced labor.[23] Similarly, at the 2014 Sochi Olympic Games, the IOC proudly welcomed the announcement of special protest areas, despite the fact the zones were placed ‘20 minutes by train from the nearest Olympic venue’ and ultimately only attracted a handful of protesters.[24]

Moreover, in the months leading to the Sochi Games, anti-LGBT laws were passed and a ‘crackdown on civil society unprecedented in the country’s post-Soviet history’ ensued. Despite these repressive measures, athletes stood defiant, and after the IOC made an exception to Rule 50 allowing political expression during press conferences, many athletes used this platform to take a stand.[25] This shows how athletes can sometimes be a critical source for political protest and dissent amidst an atmosphere of suppression, and history has repeatedly demonstrated how athletes can have a vital role in promoting human rights and raising awareness concerning sensitive issues. One simply has to point to the infamous moment when Tommie Smith and John Carlos raised their fists on the podium in protest or when Vera Caslavska turned her head away while the Soviet anthem played. There is little doubt that there has been an extensive history of athlete protest at the Games, and athletes will likely continue raising the problems close to their hearts irrespective of the restrictions they face.

Politics also permeate the Games through the IOC itself as it is continually faced with political decisions, including the recognition of national Olympic committees,[26] decisions concerning participation of athletes,[27] and the awarding of the Games to a city. The latter has often embroiled the Games in controversies, such as the Salt Lake City bid scandal in which a ‘Special US Senate commission found some 1,375 separate expenditures totaling nearly $3 million’ to try and ‘sway individual IOC members’.[28] The scandal prompted several internal investigations in which ten IOC members ‘either resigned or were expelled’. The current Tokyo Games have not been without controversy as a Japanese businessman admitted to giving gifts to IOC members while lobbying for the Games after having received $8.2 million dollars from the Tokyo bid committee. Taken together, it could be argued that this is a real source of ‘dirty’ politics and a greater threat to the concept of a clean or ‘sacred’ space for the Games. Finally, you’ll find a lot of politics inside the IOC, where some commentators have described the rise to power of IOC Presidents as resembling ‘the ascent of a conventional politician’.[29]

Lastly, countries participating and hosting the Games are also able to introduce politics to the Games through boycotts,[30] hosting the Games to promote internal and geo-political interests, and using one’s performance at the Games for political gain and geo-political posturing. Concerning the first, a decision to boycott is always tied to some political goal, as a boycott usually seeks to instigate political change or send a specific political message, such as disapproval of certain political decisions or even an entire political system. For instance, the 1980 Moscow Olympics had 60 countries, led by the US, boycotting the Games in response to the USSR’s invasion of Afghanistan.[31] Indeed, this kind of political wrangling and posturing heavily plagued the Cold War period. It was also during this time that the ‘Soviet Union and the United States attempted to proclaim the superiority of their political and socioeconomic systems by winning the most Olympic gold medals’.[32] A country’s performance at the Games became an indication of one’s geo-political power status, and the idea that ‘sport for sport’s sake is not a goal; rather it is the means to obtaining other goals’ gained more traction. [33] It could be argued that this trend started even before the Cold War. For instance, at the 1936 Berlin Olympics, the Nazis were obsessed with trying to demonstrate ‘German superiority’, which included the incredibly calculated efforts to make the Games into a propaganda spectacle.[34] In this sense, hosting the Games is a unique way to boost a nation’s image and send political messages on a world stage as a sort of ‘soft power strategy’.[35] This kind of sport nationalism is pure politics, and the IOC has long recognized it, as first enshrined in the 1946 Olympic Charter, as a threat to the fundamental goals of the Olympic Games.

3.     Conclusion

Despite the IOC’s attempts to create a ‘clean’ apolitical bubble, politics are structurally embedded within the Games due to the array of actors representing a variety of interests that are involved in its planning and execution. In this sense, the Games can never truly take place within an impenetrable bubble that is somehow separated from the societal context in which it takes place.  The ‘opposite assumptions, that sport was both “above and below” the political dimensions of social life’ is simply untenable.[36] In spite of this, the IOC maintains strict restrictions, through Rule 50, on the free speech of athletes and of the fans and continues to pedal the myth of a pure and sanitized Olympic Games. Instead, I believe political expression should not be regarded as a sly specter infiltrating itself within the Games, defiling the ‘sacred enclosure’ but rather something innate to any free society. Perhaps, in the end, a more genuine ‘mutual respect’ could be achieved if individuals were authorized to openly express their identity and convictions without fear of reprisal even in the face of deep rooted differences.[37] Regardless, politics and the Games remain naturally entangled, and the next blog in this series will unravel the double standard of the IOC when addressing sport nationalism and athletes’ political expression at the Games.

[1] For many years, amateurism was a key criterion in order to participate in the Olympics.

[2] See my recent blog on Rule 40 Olympic Charter.

[3] Richard Pound also views the idea of the Games as a sort of ‘bubble’ in which the Games create ‘ a special phenomenon during which, even if the world as a whole is not working well, there is an oasis at which the youth of the world can gather for peaceful competition, free from the tensions which their elders have created and with which they will be required to cope before and after the Games’ (emphasis added).

[4] The full quote is as follows: ‘First, this is not a new rule and, second, it is one wholly consistent with the underlying context of the Olympic Games, during which politics, religion, race and sexual orientation are set aside.’ Richard Pound, ‘Free Speech for Olympic Athletes’ (IOC, 11 February 2020) <www.olympic.org/news/free-speech-for-olympic-athletes> accessed 1 April 2020.

[5] See book written by Richard Pound, ‘Inside the Olympics: A Behind-the-Scenes Look at the Politics, the Scandals and the Glory of the Games’ (Wiley 2006).

[6] Rule 6 Olympic Charter.

[7] Although the extent of this truce is disputed. See Kristine Toohey and Anthony James Veal, The Olympic Games: A Social Science Perspective (CAB International 2007) 19-20.

[8]‘Peace Through Sport’ (IOC) <https://www.olympic.org/pierre-de-coubertin/peace-through-sport> accessed 1 April 2020.

[9] Fundamental Principles of Olympism, Olympic Charter, point 5.

[10] Rule 2 Olympic Charter.

[11] ibid.

[12] Rule 16 Olympic Charter.

[13] Rule 27 Olympic Charter.

[14] Christopher H Hill, Olympic Politics (Manchester University Press 1996).

[15] Jules Boykoff, Power Games: A Political History of the Olympic Games (Verso 2016) 13.

[16]‘The Olympic Games must be reserved for men’ – Coubertin quoted in Boykoff (n 15) 17; ‘as to the admission of women to the Games, I remain strongly against it’ – Coubertin quoted in Dikaia Chatziefstathiou and Ian P. Henry, Discourses of Olympism: From the Sorbonne 1894 to London 2012 (Springer 2012) 124.

[17] Boykoff (n 15) 59.

[18]‘Avery Brundage’ (IOC 2011) <https://stillmed.olympic.org/AssetsDocs/OSC%20Section/pdf/LRes_19E.pdf> accessed 1 April 2020.

[19] Boykoff (n 15) 83.

[20] This was also one of Brundage’s greatest concerns. Boykoff (n 15) 84.

[21] See Rule 2 (5) and (11) Olympic Charter and Rule 16 (1.3) Olympic Charter.

[22] See why Lausanne hosts so much of the Olympic Movement: Rebecca Ruiz, ‘Swiss City Is ‘the Silicon Valley of Sports’’ (The New York Times, 22 April 2016) <www.nytimes.com/2016/04/23/sports/olympics/switzerland-global-sports-capital-seeks-new-recruits.html> accessed 1 April 2020.

[23] Boykoff (n 15) 170; See also ‘China: Police Detain Would-Be Olympic Protesters’ (Human Rights Watch, 13 August 2008) <www.hrw.org/news/2008/08/13/china-police-detain-would-be-olympic-protesters> accessed 1 April 2020.

[24] It is also worth noting that of the two protests, one concerned the difficulties Russians faced who were born into World War Two, and the other was a pro-Putin demonstration. On the protest zone see also David Herszenhorn, ‘A Russian Protest Zone Where Almost No One Registers a Complaint’ (The New York Times, 13 February 2014) <www.nytimes.com/2014/02/14/world/europe/a-russian-protest-zone-where-almost-no-one-registers-a-complaint.html> accessed 1 April 2020.

[25] Boykoff (n 15) 204.

[26] Hill (n 14) 36. For example, concerning the recognition and naming of the Chinese Taipei Olympic Committee.

[27] For example, decisions that affect participation of transgender and intersex athletes definitely have a political element. Simply by taking into account the discrepancy in jurisdictions concerning gender identity, the guidelines acknowledge the international political context in which the guidelines operate. See point 1 (b).

[28] Boykoff (n 15) 151.

[29] Hill (n 14) 2 and 60.

[30] Boykoff (n 15) 128.

[31] ibid 127-128.

[32] Andrew Strenk, ‘What Price Victory? The World of International Sports and Politics’ [1979] 445 The Annals of the American Academy of Political and Social Science 128; James Nafziger, 'International Sports Law: A Replay of Characteristics and Trends’ [1992] 86 The American Journal of International Law 489; J. Weston Phippen, ‘The Olympics Have Always Been Political’ (The Atlantic, 28 July 2016)<www.theatlantic.com/news/archive/2016/07/putin-olympic-ban/492047/> accessed 1 April 2020; Boykoff (n 15) 82.

[33] Quoting Erich Honnecker (GDR’s head of state - 1971-1989), Strenk (n 31).

[34] Boykoff (n 15) 69.

[35] Jonathan Grix, ‘Sport Politics and the Olympics’ [2013] 11 Political Studies Review 15.

[36] Lincoln Allison, The Changing Politics of Sport (Manchester University Press 1993) 5.

[37]‘Rule 50 is a reminder that, at the Olympic Games, restraint is an element of that mutual respect.’ Pound (n 4).

Editor's note: Marjolaine is a researcher and attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences.

I.               Introduction

The COVID-19 pandemic has shaken the manner in which we approach human interactions that suppose close and prolonged physical contact. Across the world, authorities are having to design ways to resume essential activities without jeopardising participants’ health, all the while guaranteeing that other fundamental rights are paid due respect. The fight against doping is no exception. Anti-doping organizations – whether public or private – have to be held to the same standards, including respect for physical integrity and privacy, and considerate application of the cornerstone principle of proportionality.

Throughout this global crisis, the World Anti-Doping Agency (‘WADA’) has carefully monitored the situation, providing anti-doping organizations and athletes with updates and advice. On 6 May 2020, WADA issued the document called ‘ADO Guidance for Resuming Testing’ (‘COVID Guidance’). A COVID-19 ‘Q&A’ for athletes (‘Athlete Q&A’) is also available on WADA’s website, and has been last updated on 25 May 2020. This article focuses on these two latest documents, and analyses the solutions proposed therein, and their impact on athletes.

Like many public or private recommendations issued for other societal activities, the WADA COVID Guidance is primarily aimed at conducting doping control while limiting the risk of transmission of the virus and ensuing harm to individuals. More specifically, one can identify two situations of interest for athletes that are notified for testing:

1. The athlete has or suspects that they may have been infected with COVID-19, or has come in close contact with someone having COVID-19;
2. The athlete fears to be in touch with doping control personnel that may be infected with COVID-19.

Quite obviously, either situation has the potential to create significant challenges when it comes to balancing the interests of anti-doping, with individual rights and data protection concerns. This article summarises how the latest WADA COVID Guidance and Athlete Q&A address both situations. It explores how the solutions suggested fit in with the WADA regulatory framework and how these might be assessed from a legal perspective.

The focus will be on the hypothesis in which international sports federations – i.e. private entities usually organised as associations or similar structures – are asked to implement the COVID Guidance within their sport. National anti-doping organizations are strongly embedded in their national legal system and their status and obligations as public or semi-public organisations are likely to be much more dependent on the legislative landscape put in place to deal with the COVID-19 pandemic in each country. Nevertheless, the general principles described in this article would apply to all anti-doping organizations alike, whether at international or national level.

II.              Addressing the risk of the athlete tested having been exposed to COVID-19

Obviously, sample collection personnel must not be exposed to unnecessary risks as a result of collecting samples from athletes who could have come into contact with COVID-19. This concern is legitimate, whether anti-doping organizations conduct sample collection through their own doping control officer network, or outsource this task to external service providers.

A.     The solutions provided for in the WADA COVID Guidance

A first set of measures in the COVID Guidance is designed to keep individuals at risk from having to go on testing missions at all. The Guidance does so in two ways: on the one hand, by identifying categories of ‘Vulnerable Populations’ of sample collection personnel which anti-doping organizations should avoid sending on testing missions (section 3(e)), and on the other hand by making it clear that “the ADO should clearly communicate that any SCP who are not comfortable collecting samples during this time do not have to do so” (section 3(a)).

A second set of measures seeks to identify whether the individual athlete at stake presents any symptoms or heightened risk of having be exposed to COVID-19, or is even confirmed to be infected. To this effect, anti-doping organizations are invited to develop an additional Athlete Information Letter for the sample collection session, as well as appropriate information and education material.

The material should stress, in particular, that “additional personal information may be requested from athletes during sample collection. Identify the additional health information that the ADO will be asking athletes to provide to ensure their health and safety as well as that of SCP, and the manner in which this information will be used, stored and shared” (section 4(a)(iv)). The Athlete Information Letter should include “outline of the potential consequences to the athlete should they refuse to comply” (with the testing), as well as “request that the athlete contacts you (ADO) if their health situation changes”.

It is further recommended that a specific ‘COVID-19 Athlete Questionnaire’ be developed by each anti-doping organization (section 4(d)). Annex A of the COVID Guidance outlines the details:

• Athletes must be asked at the door, before proceeding with formal notification: “Are you or anyone present with you at this location/living at this residence/who lives with you, experiencing any COVID-19 symptoms” or “do you, or anyone present with you at this location/living at this residence/who lives with you, have COVID-19”?;
• Athlete who answer YES must then fill out the questionnaire: according to the WADA COVID Guidance, the sample collection personnel must “inform the athlete that they must complete this questionnaire truthfully and to the best of their knowledge and that if they purposefully provide any information which is inaccurate or incorrect, it could be construed as an anti-doping rule violation (e.g. tampering or attempted tampering) and they may be subject to a sanction of up to four years. Confirm that the athlete understands this”;
• Athletes must be informed that because they have declared they or someone close to them have COVID-19 or symptoms, “sample collection will not proceed due to the risk of infection with COVID-19”.

Beyond individual testing attempts, Section 4(f) provides that athletes who are tested and subsequently contract COVID-19 “should be encouraged” to inform the ADO. The Athlete Q&A also advises athletes, if they are concerned that they may have acquired the virus, that “you should advise your ADO of your situation with your whereabouts submission or when sample collection personal notify you for testing so that they can adjust their plans accordingly” (Question 5).

B.     Assessment of the situation in the light of data protection requirements

Through various tools (oral questions, COVID-19 Athlete Questionnaire, whereabouts submission), the COVID Guidance provides that information be obtained from athletes about whether they, or their close entourage, exhibit symptoms of COVID-19 or have been diagnosed with COVID-19. This type of information represents health data, which is sensitive data that typically enjoys special protection under data protection laws.

The question arises, then, how athletes can be required to provide such data, and what the consequences should be if they refuse to do so, or if they provide inaccurate data.

A first issue that deserves analysis is whether the data can be requested pursuant to the current WADA regulatory framework and what sanctions can be attached to failing to comply based on the WADA Code.

Sample collection is governed by the WADA International Standard for Testing and Investigations (‘ISTI’). The ISTI – whether incorporated by reference or directly transposed into the anti-doping organization’s rules – is the only binding document in this context. While the term ‘guidance’ is not one that has an established status under the WADA Code, it is probably closest to the Level-3 document defined as ‘Guidelines’ (section Purpose, Scope & Organization). This type of document enshrines recommendations to anti-doping organization, but is not mandatory upon them. These documents cannot, therefore, result in amending the ISTI. Any departure from the ISTI could give rise to an objection to invalidate the finding of an anti-doping rule violation, as per the regime set forth in Article 3.2.3 WADA Code.[1]

The ISTI section 7.4.5 provides a bullet-point list of the data to be collected during the sample collection session, which is introduced as follows: “In conducting the Sample Collection Session, the following information shall be recorded as a minimum” (emphasis added). Despite this wording, it is submitted that the ISTI cannot be read as authorizing anti-doping organizations to collect additional health information on their doping control forms, certainly not subject to the penalty of an anti-doping rule violation. Athletes risk a so-called ‘failure to comply’ (e.g. tampering) violation if they refuse or provide false information at sample collection.[2] They cannot be asked to provide information that is not either listed in the ISTI, or – where the anti-doping organization has adopted its own standard – reflected in the implemented rules. Otherwise, anti-doping organizations could come up during sample collection with random additional requests for data and turn a refusal to provide such data into an anti-doping rule violation at will.

The Athlete Q&A states that “you may see enhancements that seek to strike the balance between the protection of clean competition and personal health” (emphasis added). These may include “a self-declaration concerning your health status” (Question 4). In spite of the euphemistic language used, the additional information requested and the related COVID-19 Athlete Questionnaire are purported amendments to the ISTI requirements. This is all the more concerning since the questionnaire also may also require athletes to give out health data concerning identifiable third parties.

Accordingly, the blanket statement in the COVID Guidance whereby athletes should be informed that they may be charged with an anti-doping rule violation for failing to truthfully fill in the Athlete COVID Questionnaire may prove unenforceable to a large extent. Asking for such data represents a departure from the ISTI. Applying the proof regime set forth in Article 3.2.3 WADA Code, such departures invalidate the finding of an anti-doping rule violation at the very least if they ‘caused’ the anti-doping rule violation.[3]

Furthermore, one should distinguish cases in which athletes refuse the data outright, or hide COVID-related symptoms, from the situation in which an athlete falsely states having COVID-related symptoms. Obviously, if the athlete refuses to provide a sample because of the anti-doping organization making the health data compulsory to complete sample collection, in breach of the ISTI, the departure is directly causative for the refusal, which as a result cannot be prosecuted under Article 2.3 WADA Code (refusal to submit to testing). The same would, arguably, apply if the athlete answers the questions but fails to provide genuine health data which could have led to aborting testing (e.g fails to mention COVID-19 symptoms). This could impossibly result in charges for tampering with the doping control process under Article 2.5 WADA Code, in the absence of a regulatory basis for requesting the information in the first place.[4]

The only scenario in which one could imagine charging athletes with a tampering violation is where the athlete is shown a posteriori to have invented COVID-19 symptoms or a COVID diagnosis, and deliberately used it as an excuse for not being tested. The anti-doping organization would, however, have to demonstrate intent,[5] specifically show that the athlete had no symptoms whatsoever, or that the athlete did not believe in good faith that the symptoms could be evidence of COVID-19. Such proof would probably prove impracticable in all but the most exceptional situation.

Thus, what seems most concerning about the WADA COVID Guidance in the way it informs athletes on the consequences of not filling the questionnaire truthfully, is its utterly generic wording. The Guidance is misleading insofar as it implies that athletes are under an obligation to provide the health data at stake, under the threat of disciplinary sanctions of up to four years. With respect to the equivalent self-certification recommended for the sample collection personnel as to their symptoms or contacts with COVID, the Guidance clarifies that introducing such self-certification is subject to being “permitted by applicable data protection, health, and employments laws”. Though the Guidance does not include the same caveat when it comes to the COVID-19 Athlete Questionnaire, the same reservations must obviously apply for health declarations that athletes are asked to make.

This leads over to the second issue, which is whether athletes can be compelled to provide the data and sanctioned for refusing to do so based on grounds outside the ISTI and WADA regulatory framework. There may be – in the current spread of the pandemic – state law under certain jurisdictions in which there is a legal obligation to declare COVID symptoms or COVID diagnosis, under one form or another. It seems highly unlikely, however, that this type of obligation would extend to an obligation to give out non-coded health information – including data regarding third parties – to private entities. If there is, the legal basis should be specified on the COVID-19 Athlete Questionnaire.

Assuming the absence of extraordinary COVID-related laws, anti-doping organizations have to rely on ordinary data protection rules. In an European context, we can use as a reference the EU General Data Protection Regulation (‘GDPR’), which will be applicable to a significant amount of doping controls, and has otherwise acquired a status of ‘best practice’. According to the GDPR, health data represents ‘special-category’ data which can only be processed based on very restrictive grounds (Article 9 GDPR). One of these is consent explicitly given by the data subject (Article 9(2)(a) GDPR). This ground cannot be used based on the terms of the COVID Guidance, since consent given under threat of a four-year disciplinary sanction can hardly be considered free, and thus valid, under the GDPR.[6]

Much will then depend on whether the anti-doping organization at stake benefits from a basis in national law to process health data in the context of doping control based on public interest grounds (under Article 9(2)(e) or (i) GDPR), and how broadly such legal basis is framed. It is by far not manifest that COVID-related health data would qualify as collected for ‘anti-doping purposes’ within the meaning, in particular, of Article 5.1 WADA Code. No claims are made in the COVID Guidance that the information is necessary for the sake of reliable sample analysis. In addition, the WADA Code certainly provides no basis for collecting health information about the athlete’s entourage.

In sum, any COVID-19 Athlete Information Letter or Athlete Questionnaire should make it crystal clear that athletes cannot be compelled by their anti-doping organization to provide data regarding their current health status. If a questionnaire is introduced, athletes should be informed that they may – voluntarily – provide health information about themselves or their entourage, provided that they have obtained consent from their entourage if the data subject is identifiable. The questionnaire could be treated like consent to anti-doping research, which is declared unequivocally optional on the doping control form, with no consequences arising from an athlete refusing to provide the information requested. Athletes must receive transparent information to the effect that they cannot be charged for an anti-doping rule violation if they refuse to give such data, and that possible charges might, at most, apply if they use false COVID symptoms or a false COVID diagnosis as a pretext to avoid sample collection. If the mere optional character of the questionnaire were, depending on the local pandemic situation, considered to create inacceptable risks for the sample collection personnel and if there is no other basis in national law to request such information, testing should not resume.

III.            Dealing with the risk of sample collection personnel having been exposed to COVID

As mentioned, a second set of concerns addresses the hypothesis of athletes being endangered – or feeling endangered – by the presence of sample collection personnel. These concerns appear equally legitimate since the WADA COVID Guidance acknowledges that some situations may not allow for recommended social distancing requirements to be maintained at all times during testing.

A.     The solutions provided for in WADA COVID Guidance

The WADA COVID Guidance seeks to address these concerns through the following means:

• By defining categories of ‘Risk Groups’ of sample collection personnel (e.g. health care professionals currently employed) (section 3(e)), who should not be sent on testing missions;
• By encouraging a system of self-certification to be completed by the sample collection personnel before a testing mission, “if permitted by applicable data protection, health, and employment laws” (section 3(f));
• By providing that social/physical distancing is to be maintained “as much as possible” (Annex A), and informing athletes of the role that protective equipment (e.g. wearing masks) can play for their safety.

While the consequences of an athlete disagreeing about the anti-doping organization’s assessment of safety is not addressed in the COVID Guidance itself, it is discussed in the Athlete Q&A: “Can I refuse to be tested if I [..] do not feel that adequate precautions are being taken by sample collection personnel?”.

The answer given is that, where confinement measures are still in place, “such a scenario is unlikely as ADOs must exercise sound judgment in these unprecedented times”. The answer continues: “Unless there is a mandatory isolation/lockdown, however, you are advised to comply with testing while following the preventative measures put in place by your ADO, which should be commensurate with the risks at hand. If you refuse to be tested or if you do not complete sample collection process after notification, or if you are not able (or willing) to provide a sample due to a lack of protective measures, your refusal will follow the normal results management process, which may result in a period of ineligibility of up to four years” (Question 8; emphasis added).

B.     Assessment of the solutions proposed in light of protection of the athlete’s health

The WADA COVID Guidance arguably seeks to create a reasonable safety standard and encourages anti-doping organizations to have in place appropriate protective measures. However, WADA takes no responsibility for guaranteeing to athletes that they will suffer no prejudice if those safety standards are not maintained in individual testing attempts. Instead, the Athlete Q&A explicitly warns athletes that if they fail to submit to sample collection “due to a lack of protective measures”, they will be subject to ordinary results management.

Let us be very clear about the starting point, which goes beyond the context of the COVID-19 pandemic: no athlete should ever have to subject themselves to sample collection when they fear for their health and physical integrity.

In the CAS award WADA v. Sun Yang & FINA, the CAS panel held that “as a general matter, athlete should not take matters into their own hands, and if they do they will bear the risk of serious consequences. The proper path for an Athlete is to proceed with a Doping Control under objection, and making available immediately the complete grounds for such objection”.[7]

Though this may appear a rather peremptory statement, the panel also insisted, rejecting WADA’s claim that athletes must always allow a sample to be collected, that “it cannot be excluded that serious flaws in the notification process, or during any part of the Doping Control process, could mean that it might not be appropriate to require an athlete to subject himself to, or continue with, a sample collection session. Rather, they could invalidate the sample collection process as a whole, so that an athlete might not be perceived as having tampered with the Doping Control, or as having failed to comply with the sample collection process”.[8]

It is submitted that, where athletes express legitimate concerns about their physical integrity or broader health, they cannot be referred to submitting to testing nonetheless and subsequently file their objections against the procedure. In fact, the CAS panel in WADA v. Sun Yang & FINA did endorse past CAS jurisprudence to the effect that: “whenever physically, hygienically and morally possible, the sample be provided despite objections by the athlete”.[9]A contrario, where circumstances exist that relate to ‘physical, hygiene or moral’ hazards, the athlete should be entitled to refuse sample collection.

The stakes here reach far beyond the potential to obstruct collection of evidence to support disciplinary proceedings for anti-doping purposes. They concern the rights of an individual asked to provide biological materials, in a way that is either highly intrusive of their intimate sphere (urine sampling), or represents an actual medical act (blood sampling).[10] Filing objections and documenting concerns a posteriori are not measures capable of achieving the goal of protecting those rights where the threat emanates directly from the sample collection process, as opposed to its potential detrimental disciplinary consequences.

Previous guidance issued by WADA on 20 March 2020 included some more details about how cases arising from refusal to submit to testing due to (alleged) lack or preventative measures should be treated:

“If a potential refusal or failure to submit to sample collection is submitted to the ADO, the typical results management process should be followed and the athlete will have the opportunity to submit their defense, including any reasons why they believe their refusal or failure to complete the process was justified. This information will be taken into account when: 1) the ADO determines if a potential anti-doping rule violation should be asserted, and 2) the disciplinary panel hears the case”.

A typical results management process for refusing to submit to sample collection would be handled as a failure to comply under Annex A of the ISTI, according to which the sample collection personnel will submit a report to the anti-doping organization and athletes will be asked to provide explanations.

The claim that the anti-doping organization did not ensure appropriate protective measures should be analysed initially as a departure from the ISTI and treated in accordance with the regime set forth in Article 3.2.3 of the WADA Code. Annex D.1 of the ISTI indeed provides that its objective is: “To collect an Athlete’s urine Sample in a manner that ensures: a) consistency with relevant principles of internationally recognised standard precautions in healthcare settings so that the health and safety of the Athlete and Sample Collection Personnel are not compromised. The same statement is provided for blood sample collection in Annex E.1.

If it becomes apparent that, objectively, no adequate precautions were taken with respect to the risk of COVID-19 (or indeed any other health hazard) during the sample collection session, this represents a departure from the ISTI which – to use the wording of Article 3.2.3 WADA Code – could “reasonably have caused” a refusal. The burden then shifts to the anti-doping organization to establish, to the comfortable satisfaction of the hearing panel (Article 3.1 WADA Code), that this departure was not in reality what led the Athlete to refuse sample collection. If the anti-doping organization cannot discharge this burden – and discharging it should prove difficult once established that safety was objectively lacking – no finding of an anti-doping rule violation can occur.

Whether adequate precautions were taken should be analysed based on the local situation and applicable public health guidelines at the time of collection in the relevant country. The anti-doping organization may reach the conclusion that the standards were inadequate spontaneously when reviewing the failure to comply, or the conclusion may be drawn by the hearing panel. The WADA COVID Guidance can serve as a minimum benchmark, since athletes can legitimately expect that anti-doping organizations would at least comply with these. However, stricter local guidelines in place should always prevail, since doping control cannot claim exemption from the rules that would otherwise apply to medical or similar acts requiring close interpersonal contact. Athletes who are of the view that they are not offered adequate protective measures would be well-advised to document the exact circumstances, the concerns they voiced and the measures that were proposed by the sample collection personnel to alleviate these concerns.

Even if it can be demonstrated, a posteriori, that the safety measures were objectively adequate at the given site and time, and thus no departure from the ISTI occurred, this should not be the end of the assessment. Article 2.3 WADA Code reserves the presence of “compelling justification” for refusing testing.[11] If athletes can demonstrate, by a balance of probabilities (Article 3.1 WADA Code),[12] that their doubts about the protective measures proposed by the anti-doping organizations were legitimate at the time and given the circumstances, this should qualify as a compelling justification. Again, the consequence will be that the finding of an anti-doping rule violation must be rejected.

The regime proposed above seeks to avoid athletes putting their health at risk for fear of facing disciplinary sanctions. It strikes an appropriate balance with the interests of doping control and appears sufficient to prevent athletes using fake safety concerns as an excuse to escape testing. At the very least, they will have to demonstrate plausibly that they were reasonably entitled to hold such concerns.

Hearing panels will inevitable retain considerable latitude in their judgment, since the WADA COVID Guidance leaves ample room for interpretation, and so will most public authorities’ guidelines. Hence, athletes who choose to refuse testing will need to accept the risk that they may be erring about what protective measures should be in place, especially if they claim that the measures should go beyond those advocated in the COVID Guidance. Conversely, they can certainly not be invited to assume and trust a priori that the anti-doping organization is necessarily taking measures “commensurate with the risks at hand”, as the COVID Guidance suggests. Importantly, the athlete’s individual circumstances must be taken into consideration. It is worth recalling that some athletes, just like sample collection personnel identified in the COVID Guidance, may belong to a vulnerable population category, including for reasons that they feel unable to communicate to the sample collection personnel in detail (e.g. because of a chronic condition that would lead them to reveal highly sensitive health data). The assessment of what constituted ‘understandable’ concerns should therefore not be too strict, but should be made in light of the ambient anxiety and scientific uncertainty prevailing during the pandemic.

IV.            Conclusion

The WADA COVID Guidance represents a commendable attempt to strike a balance between maintaining doping control during the COVID-19 pandemic, and safeguarding the health of all participants, sample collection personnel and athletes alike.

Anti-doping organizations will, however, have to apply the Guidance with caution and discernment. As shown above, the Guidance walks a thin line when it comes to athlete privacy and physical integrity. This is all the more so since athletes have no option to ‘take a break’ from exposure to the risks going along with testing,[13] in contrast to sample collection personnel who are given a choice to refrain from participating in missions if they feel uncomfortable.

COVID-19 confronts anti-doping organizations with tough dilemmas. Continued and comprehensive testing is viewed by many, including athletes, as a prerequisite for ensuring that they can return to competition in a level playing field. This does not mean that we can forgo compliance with mandatory standards of law. Where testing proves impracticable in accordance with the law and with applicable sports regulations, and in a way that guarantees safety for all participants, such testing must not take place. As important as the quest for clean sport may be, it cannot override legitimate health concerns and basic privacy rights.

[1] Reference is made here to the currently applicable 2015 version of the WADA Code. Note that the 2021 version purports to restrict even further the athlete’s options for invalidating an anti-doping rule violation based on procedural departures.

[2] Failure to Comply is defined in the ISTI as: “A term used to describe anti-doping rule violations under Code Articles 2.3 and/or 2.5”. Article 2.3 targets refusal to submit to testing, whereas Article 2.5 targets a violation of tampering.

[3] Article 3.2.3 WADA Code reads (2015 version) : “Departures from any other International Standard [i.e., other than the ISL] or other anti-doping rule or policy set forth in the Code or Anti-Doping Organization rules which did not cause an Adverse Analytical Finding or other anti-doping rule violation shall not invalidate such evidence or results. If the Athlete or other Person establishes a departure from another International Standard or other anti-doping rule or policy which could reasonably have caused an anti-doping rule violation based on an Adverse Analytical Finding or other anti-doping rule violation, then the Anti-Doping Organization shall have the burden to establish that such departure did not cause the Adverse Analytical Finding or the factual basis for the anti-doping rule violation”.

[4] In any event, it is questionable whether refusal to give health data could ever qualify as impeding sample collection, since the athlete’s silence enabled sample collection which could otherwise not have proceeded.

[5] Tampering is no strict liability violation under Appendix 1 WADA Code and requires proof of an intentional conduct on part of the athlete.

[6] On this, see also Viret Marjolaine, How Data Protection Crystallises Key Legal Challenges in Anti-Doping, International Sports Law Blog, 19 May 2019.

[7]CAS 2019/A/6148, WADA v. Sun Yang & FINA, para. 209.

[8]CAS 2019/A/6148, WADA v. Sun Yang & FINA, para. 208.

[9]CAS 2019/A/6148, WADA v. Sun Yang & FINA, para. 206.

[10] On this, see more broadly Viret Marjolaine (2016), Evidence in Anti-Doping at the Intersection of Science & Law, Springer, e.g. pp 218 & 682.

[11] In CAS 2016/A/4631, Brothers v. FINA, para. 78, the panel cited as hypotheses of justification in relation to health: “if the athlete were to faint unconscious on the floor upon seeing the DCO’s needle, or if he were stone drunk or would experience an epileptic fit at the time of the test.”

[12] Though Article 2.3 does not explicitly so provide, CAS panels typically place the burden of proof on athlete to show the existence of compelling justification (see e.g. CAS 2016/A/4631, Brothers v. FINA, para. 76; or already CAS 2005/A/925, de Azevedo v. FINA, para. 68 & 78).

[13] The WADA Athlete Q&A explicitly warns athletes that they remain subject to testing at any time and anywhere unless public authorities have put in place physical mobility restrictions (Question 1).

The Headlines

CAS Decision on Manchester City FC Case

After the UEFA’s Adjudicatory Chamber of the Club Financial Control’s (CFCB) decision earlier this year to ban Manchester City FC for two seasons, observers waited impatiently to see the outcome of this high profile dispute. The CFCB’s decision had found that Manchester City FC overstated sponsorship revenues and in its break-even information given to UEFA. While some feared this showdown could lead to the demise of UEFA’s Financial Fair Play (FFP) regulations, the now publicized CAS panel’s decision is more nuanced. The panel’s decision turned on (see analysis here and here) (a) whether the ‘Leaked Emails’ were authentic and could be admissible evidence, (b) whether the ‘CFCB breached its obligations of due process’, (c) whether the conclusions of the 2014 Settlement Agreement prevents the CFCB from charging Manchester City FC, (d) whether the charges are time-barred, (e) the applicable standard of proof, (f) whether Manchester City FC masked equity funding as sponsorship contributions, and (g) whether Manchester City FC failed to cooperate with CFCB. In the end, among other findings, the Panel held that some of the alleged breaches were time-barred but maintained that Manchester City FC had failed to cooperate with CFCB’s investigation. In light of this, the Panel significantly reduced the sanction placed on Manchester City FC by removing the two-season suspension and reducing the sanction from 30 million euros to 10 million euros.

Qatar Labour Law Reforms Effectively Abolishes the Kafala System

Just a few days after Human Rights Watch released a lengthy report on abusive practices suffered by migrant workers in Qatar, Qatar adopted a series of laws that effectively gets rid of the Kafala system by no longer requiring migrant workers to obtain a ‘No Objection Certificate’ from their employer in order to start another job. The International Labour Organization declared that this development along with the elimination of the ‘exit permit requirements’ from earlier this year means that the kafala system has been effectively abolished. In addition to these changes, Qatar has also adopted a minimum wage that covers all workers and requires that employers who do not provide food or housing at least give a minimum allowance for both of these living costs. Lastly, the new laws better define the procedure for the termination of employment contracts.

In reaction to these changes, Amnesty International welcomed the reforms and called for them to be ‘swiftly and properly implemented’. Indeed, while these amendments to Qatar’s labour laws are a step in the right direction, Amnesty International also cautions that the minimum wage may still be too low, and in order to be effective, these new laws will have to be followed with ‘strong inspection and complaint mechanisms’.

CAS Decision Concerning Keramuddin Karim Abuse Case

In June of last year, Keramuddin Karim, former president of Afghanistan’s soccer federation, was banned by FIFA for life (see the decision of the adjudicatory Chamber of the FIFA Ethics Committee) after reports of sexual and physical abuse that emerged in late 2018. Following a lengthy and tumultuous investigation in Afghanistan, Afghan officials came forward with an arrest warrant for Mr. Karim. Nevertheless, despite attempts to apprehend Mr. Karim, Mr. Karim has still avoided arrest over a year later. Most recently in August, Afghan Special Operation officers attempted to apprehend him but he was not at the residence when they arrived.

Meanwhile, Mr. Karim had appealed FIFA’s lifetime ban to the CAS and the CAS Panel’s decision has recently been released. In its decision, the Panel upheld both the lifetime ban and the 1,000,000 CHF fine, finding that due to the particular egregious nature of Karim’s acts, ‘they warrant the most severe sanction possible available under the FCE’. Since both Karim and his witnesses were unable to be heard, the case raises questions connected to the respect of fundamental procedural rights at the CAS. 

Major International Sports Law Decisions

• CAS - CAS 2020/A/6785 Machester City FC v. UEFA
• CAS – CAS 2019/A/6388 Karim Keramuddin v. FIFA
• CAS - CAS 2018/A/6075 Igor Labuts v. Football Association of Ireland
• CAS - CAS 2018/A/5725 Santos Futebol Clube v. FC Barcelona, Neymar da Silva Santos Junior, Neymar da Silva Santos, Neymar Sport e Marketing s/s Limitada and FIFA& CAS 2018/A/5726 Neymar da Silva Santos Junior v. Santos Futebol Clube& FIFA
• CAS - CAS 2018/O/5830 International Surfing Association v. International Canoe Federation

Official Documents and Press Releases

CAS

• CAS – CAS Bulletin 2020/01
• CAS - CAS issues its decision in the appeal filed by Trabzonspor A.S. against UEFA
• CAS - CAS confirms the life ban imposed on Keramuddin Karim
• CAS - Decision in the arbitration procedure between Manchester City FC & UEFA
• CAS - CAS annuls the seven-point deduction imposed on PAOK FC and refers the matter back to the Hellenic Football Federation Appeals Committee for adjudication
• CAS - Amendments to the Rules of the Court of Arbitration for Sport (CAS): Spanish becomes the 3rd official language for CAS arbitrations
• CAS - CAS arbitration Manchester City FC v. UEFA: the hearing has concluded / decision to be issued in July
• CAS - CAS registers the appeals filed by Andrea Iannone and the World Anti-Doping Agency (WADA) against the FIM International Disciplinary Court decision of 31 March 2020
• CAS – The Court of Arbitration for Sport (CAS) Decides that the International Surfing Association shall be the International Federation Governing and Administrating the Sport of Stand-Up Paddleboard at Olympic Level
• CAS - The Court of Arbitration for Sport (CAS) Finds Ibai Salas Zorrozua Guilty of an Anti-Doping Rule Violation; Imposes Four-Year Period of Ineligibility
• CAS - The Court of Arbitration for Sport (CAS) Dismisses the Appeal Filed by the UAE Football Association

FIFA

• FIFA – FIFA Statement
• FIFA - Bureau of the FIFA Council approves FIFA COVID-19 Relief Plan regulations
• FIFA – Regulations on the Status and Transfer of Players – June 2020 Edition
• FIFA – FIFA greatly welcomes Brazilian court’s decision rejecting Spuni lawsuit
• FIFA - FIFA welcomes CAS decision in the case of former president of Afghan Football Federation Keramuudin Karim
• FIFA - Five-substitute option extended into 2021 in response to COVID-19 pandemic
• FIFA - Relive the Football Law Annual Review 2019 conference
• FIFA - Adjudicatory chamber of the independent Ethics Committee sanctions Markus Kattner
• FIFA – Decision of the FIFA Disciplinary Committee – Arsenal Football Club
• FIFA - Decision of the FIFA Disciplinary Committee – Markus Kattner
• FIFA - FIFA acknowledges WTO panel report
• FIFA - FIFA provides further guidance on COVID-19 football regulatory issues
• FIFA - Further changes to the international match calendars due to the COVID-19 pandemic unanimously approved by the Bureau of the Council
• FIFA - Statement from the chairperson of the investigatory chamber of the independent Ethics Committee
• FIFA - Independent Ethics Committee extends provisional ban on Yves Jean-Bart and sanctions other Haitian football officials
• FIFA - Bureau of the FIFA Council temporarily adapts rules on release of players for September 2020 window due to COVID-19
• FIFA - FIFA publishes first reports for Disciplinary & Ethics Committees and on anti-doping activities
• FIFA - Regulations on the Status and Transfer of Players – August 2020 Edition
• FIFA - FIFA insists Trinidad and Tobago dispute has to be resolved at CAS
• FIFA - FIFA publishes first reports for Disciplinary & Ethics Committees and on anti-doping activities

IOC

• IOC – International Olympic Committee Publishes 2019 Annual Report and Financial Statements
• IOC - Candidatures for IOC Vice Presidency And Executive Board
• IOC - UN General Assembly Confirms New Dates for the Observation Period of the Olympic Truce
• IOC – IOC Executive Board makes Decisions with Regard to International Weightlifting Federation

UEFA

• UEFA - UEFA statement on CAS Manchester City decision
• UEFA - Temporary emergency measures for Financial Fair Play
• UEFA - FFP update on the 2019/20 monitoring of clubs by the CFCB

WADA

• WADA – Strategic Plan 2015-2019
• WADA - WADA publishes its Five-Year Strategic Plan under the theme ‘Leading Anti-Doping in a New Era’
• WADA - WADA responds in detail to ONDCP Report regarding Agency’s funding
• WADA - WADA publishes final designed version of Athletes’ Anti-Doping Rights Act
• WADA - WADA publishes final versions of 2021 World Anti-Doping Code and International Standards in English and French
• WADA - WADA update on its follow-up of McLaren investigation into the International Weightlifting Federation
• WADA - WADA delays call for proposals for 2021 Social Science Research Grant Program to October
• WADA - WADA statement on investigation into the International Weightlifting Federation
• WADA - WADA suspends accreditation of New Delhi Laboratory for another period of up to six months
• WADA - WADA Compliance Review Committee update
• WADA - WADA statement on the dismissal of RUSADA’s Director General

• Association of Summer Olympic International Federations (ASOIF) - Third Review Of International Federation Governance
• Athleten Deutschland - Mehr Teilhabe bei der Planung der Olympischen Spiele in Tokio 2021
• Athleten Deutschland - Stellungnahme zur Überprüfung von Regel 50 der Olympischen Charta
• Fédération Equestre Internationale (FEI) - FEI Tribunal issues Final Decision in human anti-doping case
• Fédération Equestre Internationale (FEI) - CAS rules on appeal against horse abuse sanctions
• Fédération Equestre Internationale (FEI) – Court of Arbitration for Sport issues Decision on equine anti-doping appeal
• Fédération Equestre Internationale (FEI) – FEI Tribunal hands down record sanction in horse abuse case
• Fédération Equestre Internationale (FEI) - FEI Tribunal dismisses athlete appeals on Villeneuve-Loubet decision
• Fédération Internationale de Gymnastique (FIG) - FIG makes significant progress towards the highest standards of good governance
• Fédération Internationale de Gymnastique (FIG) - Antidoping - A Brazilian athlete sanctioned
• FIBA – FIBA Executive Committee condemns all forms of racism in open letter from President
• FINA - FINA allocates US$ 6.4 million in a COVID-19 support plan
• International Biathlon Union - The IBU joins UN climate action initiative for sports
• International Fencing Federation (FIE) - FIE Announces 2020 Global support Plan for World Fencing Family
• International Judo Federation -The Judo Family Stands up Against Racism
• International Paralympic Committee - IPC Anti-Doping Code revised
• International Shooting Sport Federation - The ISSF significantly improves its position on Governance
• International Tennis Federation – ITF Announces Further Measures to Support Stakeholders
• International Tennis Federation – ITF Welcomes Publication of ASOIF Governance Review
• International Table Tennis Federation (ITTF) – ITTF united against racism and all forms of discrimination
• International Table Tennis Federation (ITTF) - ITTF delivers on promise to improve its Governance
• International Weightlifting Federation - McLaren Findings And IOC Support Driving Reform Process At International Weightlifting Federation
• SportIreland - Anti-Doping Rule Violation - Issued on behalf of Swim Ireland and Sport Ireland
• Tennis Integrity Unit – Tunisian Tennis Player Majed Kilani Banned For Seven Years And Fined $7,000 After Conviction On Match-Fixing And Associated Corruption Charges
• UCI - The UCI strengthens the health protocol for procedures to be followed with the reopening of the 2020 season of road cycling competitions
• UCI - The UCI publishes its 2019 Annual Report
• UCI - ASOIF ranks the UCI among top International Federations for its good governance
• UCI - Decision of the UCI Anti-Doping Tribunal regarding Kanstantsin Siutsou
• World Archery – World Archery Improves in International Federation Good Governance Report
• World Athletics – World Athletics Council resolves to expel RusAF if payments not received by 15 August
• World Athletics - Statement on Russian Federation
• World Athletics - ASOIF governance review recognises significant progress in World Athletics reform agenda
• World Para Powerlifting - Para powerlifter Johannes Hernandez given 15-month ban
• World Rowing - ASOIF Governance review highlights key accomplishments for FISA
• World Rugby - Rugby unified in solidarity against racism
• World Sailing – Third Review of IF Governance reveals significant progress, challenges remain
•  World Sailing - World Sailing confirms International Olympic Committee financial support
• World Taekwondo –World Taekwondo improves position in ASOIF’s IF Governance Review

International/national Organizations

• Belgische Mededingingsautoriteit - Het Mededingingscollege heeft geweigerd voorlopige maatregelen op te leggen zoals gevraagd door Royal Excelsior Virton
• International Labour Organization - Dismantling the kafala system and introducing a minimum wage mark new era for Qatar labour market 

Civil Society Organizations/Unions

• Amnesty International UK  - Qatar: 100 World Cup stadium workers not paid for up to seven months
• Centre for Sport and Human Rights – 2019 Sporting Chance Forum – Meeting Report
• EU Athletes - Covid-19 impact on players and their player associations
• FIFPro – Playing Our Part: Footballers During the Covid-19 Pandemic
• FIFPro - Afghanistan Women's National Team Sexual Abuse: Statement
• FIFPro – FIFPro and ECA Develop Guidelines on Player Health Protection
• Global Athlete – Athlete Groups Call On World Anti-Doping Agency To Implement Stronger Reforms
• Global Athlete – Global Athlete Statement On Olympic Charter Rule 50
• Global Athlete – Sport, Politics, Protest … And The Olympics
• Global Athlete – Global Athlete Calls On The International Weightlifting Federation (IWF) To Implement Independent Athlete Oversight As A Result Of The McLaren Independent Investigation
• Global Athlete – Athlete Groups Cal on World Anti-Doping Agency to Implement Stronger Reforms
• Human Rights Watch - “I Was Hit So Many Times I Can’t Count”: Abuse of Child Athletes in Japan
• Rapid Transition Alliance - Report: Playing Against The Clock: Global sport, the climate emergency and the case for rapid change
• UNI Global Union - Sport& Rights Alliance: IOC Should Uphold Human Rights

In the News

Football

• David Conn - Manchester City decision does not mean end of financial fair play
• David Conn - Der Spiegel claims new Manchester City emails cast doubt on Cas verdict
• Tariq Panja - Secret Contracts Held a Surprise for Fiorentina’s New Owners
• Graham Dunbar - Swiss attorney general offers to resign in FIFA case fallout
• Graham Dunbar - FIFA bans former finance director Kattner for 10 years
• Graham Dunbar - FIFA has 13 ongoing investigations, plus 62 other cases
• Graham Dunbar - Banned for life by FIFA, soccer officials line up to appeal
• Graham Dunbar - Fresh Swiss investigation targets ex-FIFA president Blatter
• Graham Dunbar - IOC to open talks about easing protest ban at Olympics
• Graham Dunbar - Slovak club fights UEFA at CAS over Champions League forfeit
• Sean Ingle - Saudi TV piracy ruling puts Newcastle takeover under renewed scrutiny
• John Leicester - Former IAAF president turns on son at corruption trial
• Matt Slater and Sam Lee - Man City v UEFA: The full 93-page CAS judgment explained
• Guillem Balague - Lionel Messi hands in Barcelona transfer request
• Associated Press - Platini quizzed in Swiss investigation of $2M FIFA payment

Doping

• Gabrielle Tétrault-Farber - Russian anti-doping chief rejects social media corruption allegation
• James Ellingworth - Investigation finds doping cover-ups in weightlifting
• Andy Brown - RusAF Restoration Commission meeting postponed

Other

• Dave Zirin and Jules Boykoff – Athletes Are Fighting the Olympic Ban on Protests
• Jules Boykoff and Dave Zirin - Op-Ed: Tokyo’s 2020 Olympics are showing the nightmare waiting for L.A. in 2028
• Dave Zirin and Jules Boykoff - Racist IOC President Avery Brundage Loses His Place of Honor
• Dave Zirin and Jules Boykoff - Should the World Boycott the 2022 Beijing Olympics?
• Philip Barker - CANOC President calls for IOC to rescind life bans issued to athletes 48 years after podium protests
• Bill Donahue - The Price of Gold
• Peter Olusoga and David Olusoga - From Muhammad Ali to Colin Kaepernick, the proud history of black protest in sport
• Neil Shefferd - Athletes Germany welcomes plan to review Rule 50 of Olympic Charter
• Liam Morgan - IOA vice-president slams IOC and FIH for refusing to take action against Batra
• Clément Guillou - Le Tribunal arbitral du sport, arbitre controversé
• Clément Guillou - Au Tribunal arbitral du sport, un petit nombre d’arbitres trustent les nominations
• Ben Bloom - Athletes taking a knee at Tokyo 2021 Olympics and Paralympics face bans
• Michael Pavitt - IOC "fully respects" athlete statements as USOPC pledges to hold forum amid protests
• Michael Pavitt - World Uyghur Congress lodges complaint to IOC over Beijing 2022 Winter Olympics
• David Wharton - L.A. Olympic officials ask IOC to allow athlete protests
• Gillian R. Brassil and Jeré Longman - Who Should Compete in Women’s Sports? There Are ‘Two Almost Irreconcilable Positions’
• Thomas Gibbons-Neff and Fahim Abed - Afghan Soccer Official, Charged With Sexual Abuse, Evades Arrest
• Marc Stein - Led by N.B.A., Boycotts Disrupt Pro Sports in Wake of Blake Shooting

Academic Materials

International Sports Law Journal

• Borja Garcia-Garcia, Mark James, Dionne Koller, Johan Lindholm, Despina Mavromati, Richard Parrish and Ryan Rodenberg - The impact of Covid-19 on sports: a mid-way assessment
• Jan Exner - Fixed sanction frameworks in the World Anti-Doping Codes 2015 and 2021: Can hearing panels go below the limits in the pursuit of proportionate punishments?
• Artur Flamínio da Silva and Daniela Mirante - Mandatory arbitration as a possible future for sports arbitration: the Portuguese example
• Jan Łukomski - On the finalisation of international football transfers and professional football players’ contracts
• Björn Hessert - Cooperation and reporting obligations in sports investigations
• Jacob Kornbeck - What can sports governing bodies do to comply with EU antitrust rules while maintaining territorial exclusivity?
• Cedrick Aghey - Integration of eSports in the structure of Ifs: disruption or continuity?
• Shaun Star and Sarah Kelly - A level playing field in anti-doping disputes? The need to scrutinize procedural fairness at first instance hearings

Tilburg Law Review

• Antoine Duval and Daniela Heerdt -FIFA and Human Rights – a Research Agenda
• Wojciech Lewandowski - The Implications of the Recent Jurisprudence of the Court of Justice of the European Union for the Protection of the Fundamental Rights of Athletes and the Regulatory Autonomy of Sporting Federations
• Bodo P. Bützler and Lisa Schöddert - Constitutionalizing FIFA: Promises and Challenges
• Raquel Regueiro - Shared Responsibility and Human Rights Abuse: The 2022 World Cup in Qatar
• Michele Krech - Towards Equal Rights in the Global Game? FIFA's Strategy for Women’s Football as a Tightly Bounded Institutional Innovation

Other

• Dikaia Chatziefstathiou, Borja García and Benoit Séguin (eds) - Routledge Handbook of the Olympic and Paralympic Games
• Johan Lindholm and Richard Parrish - Horizontal direct effect of Union citizenship and the evolving sporting exception: TopFit

Blog

Asser International Sports Law Blog

• Marjolaine Viret - Anti-Doping in Times of COVID-19: A Difficult Balancing Exercise for WADA

Law in Sport

• Benoît Keane and Ben Foster – Sport and competition law – the year in review 2019/20
• David Menz and Maximilian Wegge - Political protest in football – is it time for a (legal) debate? Analysing FIFA’s regulations and recent actions in the Bundesliga
• John Mehrzad QC and Joseph Bryan - Can sports clubs compel players to return to play and waive health and safety liability?
• Jack Anderson - Sports governance - the year in review 2019/20
• Lindsay S. Brandon and Howard Jacobs - Lawson v. IAAF: a view from the perspective of athletes' counsel
• Michiel Fierens and Jan De Bruyne - Artificial intelligence in sports – the legal and ethical issues at play

Play the Game

• Mary Hums, Eli A Wolff and Nina Siegfried - Making a case for athlete advocacy: Humanitarians, Olympism and good governance
• Jens Sejer Andersen - The man who blew the whistle on his own corruption
• Faraz Shahlaei – Athletes’ gestures are protected by international human rights law
• Nikki Dryden - Athletes should not be gagged in exchange for Olympic dream

Sport and EU Blog

• Joanna Harper - Right to compete: Transgender women
• Dhananjay Dhonchak - Football Player Contracts in times of Covid-19
• Maximilian Seltmann - Covid-19: Amplifying the Voice of Athletes

Sport Integrity Initiative

• Andy Brown - RUSADA completes analysis of ROC & RPC audit
• Andy Brown - FIDAL doctors & official acquitted of responsibility in Schwazer case
• Andy Brown - Leading Russian athletes consider changing citizenship
• Andy Brown - ‘Whereabouts’ & ‘Tampering’ charges snare another athlete
• Andy Brown - US may withhold WADA funding due to failure to reform
• Andy Brown - CAS annuls FAI’s ban on Latvian player for match-fixing
• Andy Brown - Peruvian swimmer sanctioned with eight year ban for second offence
• Kuo Zhao - Are you allowed to be heard? How the Sun Yang case reveals the systematic prejudice against athletes in sport arbitration

SportLegis

• Despina Mavromati - A. v. IFAF, USA Football, Football Canada et al. – Election dispute – Ultra Petita
• Despina Mavromati - Appeal against the CAS award of June 8, 2018 by the Court of Arbitration for Sport (CAS 2017/A/5301 and CAS 2017/A/5302)
• Despina Mavromati - Judgment 4A_662/2018 of May 14, 2019 FC A. v. FC B. Request for revision of the CAS Award 2015/O/4502

Other

• Andrew Boyce - Aggrieved football clubs turn to EU antitrust law after Covid-19 stops play
• Nii Anteson – Reconsidering Rule 50
• Richard Martin and Ihar Nekrashevich - Covid-19 And Anti-Doping Testing: Is Virtual Testing the Answer and the Future?
• Andrea Cattaneo - Financing sport after Brexit: challenges lie ahead
• Human Rights Defender – Special Issue: The Human Rights of Athletes

Podcasts

• International Network of Doping Research – Interview with Howard Jacobs
• BBC - Is the party over for the Olympics?
• LawInSport - Brent Nowicki, Head of the CAS Anti-Doping Division - E92
• LawInSport - How sports diplomacy can help the sport sector respond to COVID19 crisis - Dr J Simon Rofe E91

Upcoming Events

• 17-18 September 2020 - Understand The Rules Of The Game 2020 - LawInSport Annual Conference
• 24 September 2020– Women In Sports Law 4^th Annual Online Conference
• 17-18 June 2021 – Sport & EU 2020 Annual Conference, Rijeka and Opatija, Croatia

I have just released on SSRN four of my most recent articles on Lex Sportiva/Transnational Sports Law. The articles are available open access in their final draft forms, the final published version might differ slightly depending on the feedback of the editors. If you wish to cite those articles I (obviously) recommend using the published version.

I hope they will trigger your attention and I look forward to any feedback you may have!

Antoine

• Transnational Sports Law: The Living Lex Sportiva - Forthcoming in P. Zumbansen (ed.), ’Oxford Handbook of Transnational Law’, Oxford University Press (2020).
  

Abstract: This chapter focuses on the emergence of a transnational sports law, also known as lex sportiva, ruling international sports. In the transnational law literature, the lex sportiva is often referred to as a key example or case study, but rarely studied in practice. Yet, it constitutes an important playground for transnational legal research and practice, and this chapter aims to show why. The focus of the chapter will first be on the rules of the lex sportiva. Law, even in its transnational form, is still very much connected to written rules against which a specific behaviour or action is measured as legal or illegal. As will be shown, this is also true of the lex sportiva, which is structured around an ensemble of rules produced through a variety of law-making procedures located within different institutions. The second section of this chapter will aim to look beyond the lex sportiva in books to narrate the lex sportiva in action. It asks, what are the institutional mechanisms used to concretize the lex sportiva in a particular context? The aim will be to go beyond the rules in order to identify the processes and institutions making the lex sportiva in its daily practice. Finally, the enmeshment of the lex sportiva with state-based laws and institutions is highlighted. While the lex sportiva is often presented as an autonomous transnational legal construct detached from territorialized legal and political contexts, it is shown that in practice it operates in intimate connection with them. Hence, its transnational operation is much less characterized by full autonomy than assemblage.

• Seamstress of Transnational Law: How the Court of Arbitration for Sport Weaves the Lex Sportiva - Forthcoming in N. Krisch (ed.) ‘Entangled Legalities’, Cambridge University Press (2020).

Abstract: This chapter aims to show that the work of the Court of Arbitration for Sport (‘CAS’), which is often identified as the institutional centre of the lex sportiva, can be understood as that of a seamstress weaving a plurality of legal inputs into authoritative awards. In other words, the CAS panels are assembling legal material to produce (almost) final decisions that, alongside the administrative practices of sports governing bodies (‘SGBs’), govern international sports. It is argued that, instead of purity and autonomy, the CAS’ judicial practice is best characterised by assemblage and hybridity. This argument will be supported by an empirical study of the use of different legal materials, in particular pertaining to Swiss law, EU law and the European Convention on Human Rights (‘ECHR’), within the case law of the CAS. The chapter is a first attempt at looking at the hermeneutic practice of the CAS from the perspective of a transnational legal pluralism that goes beyond the identification of a plurality of autonomous orders to turn its sights towards the enmeshment and entanglement characterising contemporary legal practice.

• Time to Go Public? The Need for Transparency at the Court of Arbitration for Sport - A. Duval & A. Rigozzi (eds), Yearbook of International Sports Arbitration 2017, T.M.C. Asser Press, Springer (2019).

Abstract: Has the time come for the Court of Arbitration for Sport to go public? This article argues that after the Pechstein decision of the European Court of Human Rights, CAS appeal arbitration must be understood as forced arbitration and therefore must fully comply with the due process guarantees enshrined in Article 6(1) ECHR. In particular, this entails a strong duty of transparency with regard to the hearings at the CAS and the publication of its awards. This duty is of particular importance since the rationale for supporting the validity of CAS arbitration, if not grounded in the consent of the parties, must be traced back to the public interest in providing for the equality before the (sports) law of international athletes. Thus, the legitimacy and existence of the CAS is linked to its public function, which ought to be matched with the procedural strings usually attached to judicial institutions. In short, if it is to avoid lengthy and costly challenges to its awards, going public is an urgent necessity for the CAS.

• Offside? Challenging the Transnational Legality of Israeli Football Activities in the Occupied Palestinian Territories - A.Duval & E. Kassoti (eds.), ‘The Legality of Economic Activities in Occupied Territories: International, EU Law and Business and Human Rights Perspectives’, Routledge (2020).

Abstract: In 1998 the FIFA welcomed the Palestinian Football Association as part of its members - allegedly, as an attempt by then FIFA President, the Brazilian João Havelange, to showcase football as an instrument of peace between Israeli and Palestinians. Ironically, almost 20 years after Palestine’s anointment into the FIFA family, instead of peace it is the conflict between Israeli and Palestinians that moved to FIFA. In recent years the Palestinian Football Association (PFA) and the Israeli Football Association (IFA) have been at loggerheads inside FIFA over the fate - I will refer to it as the transnational legality – of five (and then six) football clubs affiliated to the IFA which are physically located in the Israeli settlements in the Occupied Palestinian Territories (OPT). This chapter chronicles the legal intricacies of this conflict, which will serve as a backdrop to discuss arguments raised regarding the legality of business activities of corporations connected to the Israeli settlements. Indeed, as will be shown in the first part of this chapter, the discussion on the legality of economic activities in the OPT has recently taken a business and human rights turn involving systematic targeting of corporations by activists. Interestingly, we will see that this business and human rights turn also played a role in the conflict between the IFA and the PFA. This case study is therefore an opportunity to examine how the strategy of naming and shaming private corporations, and in our case not-for-profit associations, for their direct or indirect business involvement in the settlements has fared. It is also an occasion to critically assess the strength of the human rights ‘punch’ added to the lex sportiva, by the UNGPs.

Editor's note: Marjolaine is a researcher and attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences.

On 25 August 2020, the Swiss Supreme Court (Swiss Federal Tribunal, SFT) rendered one of its most eagerly awaited decisions of 2020, in the matter of Caster Semenya versus World Athletics (formerly and as referenced in the decision: IAAF) following an award of the Court of Arbitration for Sport (CAS). In short, the issue at stake before the CAS was the validity of the World Athletics eligibility rules for Athletes with Differences of Sex Development (DSD Regulation). After the CAS upheld their validity in an award of 30 April 2019, Caster Semenya and the South African Athletics Federation (jointly: the appellants) filed an application to set aside the award before the Swiss Supreme Court.[1] The SFT decision, which rejects the application, was made public along with a press release on 8 September 2020.

There is no doubt that we can expect contrasted reactions to the decision. Whatever one’s opinion, however, the official press release in English does not do justice to the 28-page long decision in French and the judges’ reasoning. The goal of this short article is therefore primarily to highlight some key extracts of the SFT decision and some features of the case that will be relevant in its further assessment by scholars and the media.[2]

It is apparent from the decision that the SFT was very aware that its decision was going to be scrutinised by an international audience, part of whom may not be familiar with the mechanics of the legal regime applicable to setting aside an international arbitration award in Switzerland.

Thus, the decision includes long introductory statements regarding the status of the Court of Arbitration for Sport, and the role of the Swiss Federal Tribunal in reviewing award issued by panels in international arbitration proceedings. The SFT also referred extensively throughout its decision to jurisprudence of the European Court of Human Rights (ECtHR), rendered in cases related to international sport and the CAS.

1.    Standing to sue before the SFT & admissibility of the challenge

As a preliminary matter, the SFT considered the standing to sue of both Caster Semenya and the South African Athletics Federation. Both were found to have an interest worthy of protection. Caster Semenya was considered to be particularly affected by the CAS award, since the DSD Regulation require her to fulfil certain requirements in order to participate in certain categories of races at international athletics events. As for the South African Athletics Federation, the SFT considered that as a member federation of World Athletics, it has a duty to cooperate with the international sports governing body and to support it in the implementation of the DSD Regulation, including to alert the medical manager in case it has a suspicion that an athlete might be falling within the scope of the DSD Regulation, so that it had an interest worthy of protection separate and distinct from Caster Semenya’s (para. 4.1.2).

The SFT then examined the clause of waiver to appeal CAS awards, enshrined in the DSD Regulation. Based on its jurisprudence originating in the Cañas matter, the SFT confirmed that an athlete cannot, as a rule, validly waive the right to challenge an award in sports arbitration matters before the SFT:

“It is all the more imperious that the will to waive the appeal be not vitiated through any form of constraint, since such waiver would deprive its author from the possibility to challenge any future award, even if the award should breach fundamental principles inherent to a State operating under the rule of law [… ]” (para. 4.2.4).

 Interestingly, the SFT found that its jurisprudence, developed based on the lack of free consent on part of those athletes, can be equally invoked by a national member federation with respect to arbitration clauses contained in the rules of its international governing body (para. 4.2.4).

2.    Independence of the CAS& role of the SFT

Before entering the merits of the case, the SFT stressed that it was essential to delimit the legal framework of the dispute, the role of the SFT when reviewing an appeal in international arbitration matters and the scope of its power of review (para. 5).

Citing its own Latuzina jurisprudence as well as recent ECtHR decisions in Mutu & Pechstein v. Switzerland, and Platini v. Switzerland, the SFT concluded, as to the status of the CAS:

“One must keep in mind that the appellants have been able to bring their dispute against IAAF before CAS, which is not only an independent and impartial court, with full power of review in fact and in law, but also a specialised jurisdiction” (para. 5.1.3).

The SFT then summarised its role and power of review when dealing with an international arbitration award. In particular, the SFT cannot – save in exceptional circumstances – consider issues of fact, and is bound by the facts as set out in the arbitration award. In addition, the SFT only reviews the award from the perspective of a limited set of grounds, listed in Art. 190(2) of the Swiss Private International Law Act (SPILA). The SFT insisted that the ECtHR

“has emphasised that there is a distinct interest in disputes arising within professional sport, in particular those with an international dimension, being submitted to a specialised jurisdiction capable of ruling in a prompt and cost-efficient way” (para. 5.2.4).

According to the SFT judges, State parties to the European Convention on Human Rights enjoy wide discretion as to how to approach alleged breaches of substantive provisions ECHR within proceedings for setting aside awards in international arbitration cases. Citing the example of Art. 8 ECHR and the freedom to exercise a professional activity, the SFT further recalled that a sports association – as a private entity – is not directly subjected to the ECHR. Positive duties of a State party to the ECHR to take action only arise to a certain extent, where necessary to establish a legal framework that appropriately takes into account the various interests at stake (para. 5.2.5).

In the light of these findings, the SFT concluded that the current Swiss legal system whereby review of international arbitration awards is subject to a set of exhaustive grounds, with a review of the merits of the decision essentially limited to breaches of public policy, and with strict requirements on the parties to assert and substantiate these grounds, is compatible with the ECHR.

3.    Breach of public policy

The SFT briefly discussed the two grounds of irregular constitution (art. 190(2)(a) SPILA) and right to be heard (art. 190(2)(d) SPILA) invoked by the appellants, and rejected them.

The SFT then went into what can be viewed as the real core of its decision: the analysis of the ground of breach of substantive public policy (art. 190(2)(e) SPILA). For doing so, it divided the breaches asserted by the Appellants into three limbs: i.) prohibition of discrimination, ii.) personality rights and iii.) human dignity.

The SFT started by recalling the well-established notion of public policy within the context of international arbitration, and its boundaries:

“An award is incompatible with public policy if it disregards essential and widely accepted values which, according to the views prevailing in Switzerland, should constitute the foundation of any legal system” (para. 9.1).

The SFT went on to insist that it is an extremely rare occurrence (“chose rarissime”) for arbitral awards to be set aside on this ground. The concept is more restrictive than arbitrariness, and the award must be incompatible with public policy not only in its reasoning, but also in its outcomes. Also, neither the breach of constitutional rights, nor of ECHR rights, can be invoked directly under this ground, even though principles underpinning the relevant provisions of the ECHR or of the Swiss Constitution can be taken into account to crystallize the concept of public policy (para. 9.2).

Critically, the SFT’s reasoning had to be based on the premises that the CAS award had set, whereby athletes targeted by the DSD Regulation enjoy – due to their levels of testosterone – an advantage over other female competitors that is ‘insurmountable’, in the sense that it would allow them to systematically beat female athletes without DSD (see e.g. para. 9.8.2). The SFT thus worked on the assumption that there were also two groups of interests in conflict, i.e. the ‘protected class’ (“classe protégée”) of the female category versus the class of the athletes with DSD. There are some indications within the decision, however, that the SFT judges probably largely endorsed the CAS findings (e.g. the extract: “the statistics are particularly compelling in this respect”, para. 9.8.3.3.).

Another important aspect of the case is that World Athletics – unlike many international federations – is not based in Switzerland but in Monaco, and is thus not organised as an association of Swiss law. Indeed, as the SFT stressed in several instances (e.g. para. 5.1.1, para. 9.1, para. 9.2), Swiss law was not applicable on the merits of the dispute and the case had no connection to Switzerland other than the seat of the arbitral tribunal that made the challenged award.

i.               Prohibition of discrimination

With respect to the first limb of discrimination, the SFT stressed that the prohibition of discrimination enshrined in art. 8(2) Swiss Constitution – aside from the fact that Swiss constitutional law was not applicable in the case in the first place – could only apply to the relationship between the State and individuals. The provision is aimed at protecting individuals from the State and does not deploy so-called ‘direct horizontal effect’ among private parties.

Thus, the SFT doubted that the prohibition of a discrimination originating from such private party could be characterised as part of the essential values that form public policy. The SFT did, however, find the appellants’ argument relevant whereby the “relationship between an athlete and a global sports federation shows some similarities to those between an individual and a State” (para. 9.4).

In the end, the SFT found that the issue could be left undecided, holding that, in any event, the award did not enshrine any discrimination contrary to public policy.

Indeed, even under Swiss constitution law, a discriminating measure based on one of the enumerated criteria (e.g. sex) can be justified if they rely on biological differences that categorically exclude an identical treatment (para. 9.5). The SFT found that the CAS had – in a 165-page award – conducted a thorough assessment of all arguments brought forward by the parties, dealing both with complex scientific issues and delicate legal questions (para. 9.8.3.1). The outcome reached by the CAS was, to the SFT, not only “not untenable, it was not even unreasonable” (para. 9.8.3.3).

To support its view, the SFT relied heavily on the notion of fairness of sports competition, referring in particular to the ECtHR decision on the whereabouts system (FNASS et al. v. France) in connection with anti-doping regulation. In a somewhat troubling parallel, the SFT summarised this decision as

“confirming thus that the search for a fair sport represents an important goal which is capable of justifying serious encroachments upon sportspeople’s rights” (para. 9.8.3.3).

Stressing that the case before it was not a doping matter (“no one challenges that athletes 46 XY DSD have never cheated”; para. 9.8.3.3), the SFT considered nevertheless that certain biological characteristics can also distort fairness of competition. Any binary division such as the one between male and female in athletics necessarily creates difficulties of classification (para. 9.8.3.3). In the SFT’s eyes, the DSD Regulation were a proportionate way of addressing these difficulties.

ii.              Breach of personality rights

With respect to the breach of an athlete’s personality rights under Art. 27 et seq. of the Swiss Civil Code, the SFT recalled its jurisprudence whereby a breach of personality rights can, in certain circumstances, amount to a breach of public policy – i.e. if there is a clear and severe violation of a fundamental right – but that these circumstances were not realised in casu (para. 10.1).

In particular, the SFT found that the measures provided under the DSD Regulation were not such as to affect the essence of the athlete’s physical integrity: the required examinations were to be conducted by medical professionals and might also be beneficial to the athlete by revealing medical data to those who were unaware that they had DSD, the treatments (oral contraceptives) were not compulsory in the sense that an athlete could not be compelled to take such treatment.

From the viewpoint of economic freedom, the SFT found that the matter was not comparable to the Matuzalem case– nota bene the first matter in which the SFT annulled an arbitral award based on grounds of substantive public policy – since the DSD Regulation could not be considered to make participation in the ‘specified competitions’ impossible, and athletes remain free to participate in races outside those specified categories, including at international level, so that their economic existence was not jeopardised. In addition, the DSD Regulation was to be considered a measure capable of achieving the legitimate goals of fairness in sport and the preservation of the ‘protected class’ of female athletes, and were necessary and proportionate to these goals (para. 10.5).

iii.            Human dignity

Finally, the SFT found that the DSD Regulation were not contrary to human dignity. On the one hand, the SFT considered that the CAS award did not seek to question the female gender of the athletes, nor to assess whether these were ‘female enough’.

“In certain contexts that are as special as competitive sports, one can accept that biological characteristics can, exceptionally and for purposes of fairness and equal opportunities, eclipse legal sex or gender identity of an individual. Otherwise, the sheer notion of a binary division man/woman, which is present in the vast majority of sports, would lose its raison d’être” (para. 11.1). 

On the other hand, with respect to the treatments at stake, the SFT merely reaffirmed that there was no compulsory treatment, in the sense that athletes retained the option to refuse such treatment:

“While it is true that such refusal will result in the impossibility to take part in certain athletic competitions, it cannot be accepted that this consequence could, in and by itself, amount to a violation of an individual’s human dignity” (para. 11.2).

Thus, to the SFT, the appellants’ reference to “humiliating pharmacological experiments” or to the notion of “human guinea pigs” appeared inappropriate.

Having found that the award was not in breach of public policy, the SFT found that the appeal had to be dismissed on this ground also.

Conclusion

Over the next days and weeks, many commentators will dissect the SFT decision. Unsurprisingly, reactions already point at the responsibility of Switzerland for failing to protect sportspeople, and the unsuitability of the current sports dispute resolution system for dealing with human rights issues.

These issues undoubtedly deserve a debate, if decisions rendered in international sports matters are to maintain – or, rather at this point, regain – their credibility.

From the perspective of the current Swiss legal system and international arbitration law, the SFT only had little leeway to navigate the delicate issues before it: the grounds cited in art. 190(2) SPILA – which apply to all international arbitration proceedings in Switzerland, whether commercial or sports-related – are exhaustive, and the SFT has so far systematically refused to broaden the notion of substantive public policy to give it a ‘sports-specific’ meaning for arbitration award rendered by the CAS. Moreover, the SFT cannot question the facts as set forth in an arbitral award. Finally, the SFT was asked to review the decision because of the seat of the CAS in Lausanne, but neither the athlete nor the international federation that had adopted the rules in dispute were based in Switzerland, and Swiss law was not applicable to the merits.

The SFT judges may, however, have missed an opportunity that was available to them de lege lata, in failing to use the ‘escape door’ of the severe breach of personality rights, interpreted as part of public policy. The very broad wording of the SFT jurisprudence in this context leaves a lot of discretion to adapt to individual situations in which the SFT judges may feel that there is something ‘unfair’ at stake. Though the SFT went to great lengths to distinguish the case from the Matuzalem matter, the situation in which athletes subject to the DSD Regulation are placed could arguably have been construed and framed in a way that would have fitted the requirements of this ground, if it had been the SFT’s desire to reach such a conclusion. The general impression, however, is that the SFT judges became genuinely convinced of the justification for the ‘protected’ female category and the fact that competitors subject to the DSD Regulation would enjoy an insurmountable advantage over other female competitors if they were authorised to compete freely in the specified competitions. In any event, it was not within their power of review to question these findings of the CAS award.

It may come as a disappointment to many that these difficult questions raising complex scientific issues could not be addressed in the context of the SFT proceedings. However, it is essential to keep in mind that, like the CAS in its award, the SFT did leave the door open for future challenges:

“That being said, the CAS did emphasise that the DSD Regulations could, at a later point, reveal themselves to be disproportionate in case it should prove impossible or excessively difficult to apply them. One is bound to admit that the CAS did not give validation, once and for all, to the DSD Regulations, but, on the contrary, explicitly reserved the possibility to conduct, as the case may be, a new assessment under the angle of proportionality when applying the regulation to a particular matter” (para. 9.8.3.5).

Thus, regardless of what avenues Caster Semenya may decide to take immediately with respect to the SFT decision, we may soon see new developments and new legal proceedings around the implementation of the DSD Regulation. The jury is still out.

[1] The author was consulted on sports arbitration issues in connection with this application to set aside.

[2] All extracts quoted are private translations by the author of the original decision in French.