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- 03/27/15--03:03: _The CAS and Mutu - ...
- 06/02/15--08:06: _Book Review: Reform...
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- 10/28/15--09:10: _Blog Symposium: The...
- 10/29/15--08:10: _Blog Symposium: Pro...
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- 11/27/15--06:11: _Unpacking Doyen’s T...
- 01/08/16--04:01: _Goodbye 2015! The H...
- 01/20/16--05:01: _International Sport...
- 02/05/16--05:02: _International and E...
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- 04/08/16--07:04: _International and E...
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The Asser International Sports Law Centre is part of the
- 06/02/15--08:06: Book Review: Reforming FIFA, or Not
- Significant impairment to the Athlete’s health if the substance or method were withheld,
- Lack of performance enhancement beyond a return to a normal state of health through the use of the substance or method,
- Absence of any other reasonable therapeutic alternative, and
- Necessity for use not a consequence of prior use without a valid TUE.
- 11/27/15--06:11: Unpacking Doyen’s TPO deals - Introduction
- 01/08/16--04:01: Goodbye 2015! The Highlights of our International Sports Law Year
- 01/20/16--05:01: International Sports Law in 2015: Our Reader
Christopher Clarey - Tennis Announces Review of Anticorruption Efforts
NY Times- World Sailing Official Is Fired
19 February - Asser International Sports Law Lecture: The Court of Arbitration for Sport in 2015: an Appraisal. By Prof. Antonio Rigozzi – The Hague, the Netherlands
25-26 February 2016 - LawInSport Annual Conference - Understand the Rules of the Game 2016
8 March 2016 – Hearing of the Pechstein v ISU case at the Bundesgerichtshof in Karlsruhe, Germany
9-10 March 2016 - EU Sport Forum 2016– The Hague, the Netherlands
Michelangelo Rucci - Some Essendon players to appeal two-year WADA in Swiss courts
Amanda Coletta - Speedskater Is Poised to Upend Rule of Sports’ Highest Court
Ben Van Rompuy and Oskar van Maren – ‘EU Control of State Aid to Professional Sport: Why Now?’
Luke Kerr-Dineen – The only way to fix FIFA is to completely destroy it
Deidra Dionne – Olympic sponsorship model sometimes hurts athletes
Josu Alonso - El Sporting ¿puede recibir una sanción de la FIFA?
Alam Baldwin - Force India waiting on 2017 rules in EU complaint
Margareta Baddeley - Important piece (in French) on need for (Swiss) court intervention in sport
Narelle Bedford and Greg Weeks, Doping in Sport: What Role for Administrative Law?
26 May – Asser International Sports Law Lecture: You’ve won before CAS, now how to make sure you get paid? By Fabrice Robert-Tissot. Asser Institute, The Hague, The Netherlands
9 June - Actualiteitencursus Internationaal Sportrecht. De Kempenaer Advocaten, Arnhem, The Netherlands
27 and 28 June - Sport & EU Conference 2016. Institute for European Studies, CEU-San Pablo University, Madrid, Spain
Jason Blevins - Steamboat Olympian Justin Reiter abandoning lawsuit against IOC
Elena Atienza Macias, Nutritional Supplements and Doping in Sports – A Controversial Issue
Antoine Duval, Ben Van Rompuy (ed.), The Legacy of Bosman, Revisiting the Relationship Between EU Law and Sport
Rosmarijn van Kleef, Liability of Football Clubs for Supporters' Misconduct
- European Commission Decision on the State aid measure implemented by the Netherlands with regard to the professional football club PSV in Eindhoven
- European Commission Decision on the State aid measure implemented by the Netherlands in favour of the professional football club Willem II in Tilburg
- European Commission Decision on the State aid measure implemented by the Netherlands in favour of the professional football club MVV in Maastricht
- European Commission - Press release - State aid: Commission clears support measures for certain football clubs in the Netherlands
- European Commission - Press release - State aid: Commission decides Spanish professional football clubs have to pay back incompatible aid
- European Commission refers Austria to CJEU over restrictions on foreign ski instructors
- FIFA extends match-manipulation sanction against vice-president of Equatorial Guinea FA
- FIFA overhauls development scheme that served as corruption vehicle in the past
- INTERPOL – Euro 2016 / operation targeting Asian illegal gambling networks
- IOC sanctions Ukrainian weightlifter for failing anti-doping test at London2012 Olympics
- Italian Tennis Federation gambling/match-fixing report
- UEFA Football and Social Responsibility Report 2014/2015
- WADA Statement on “Operation Puerto” Athlete Blood Bags
- WADA reinstates Rio Laboratory accreditation in time for the Rio Games
- Ken Belson and Jamie Trecker – British soccer teams brace for the impact of ‘Brexit
- Willem Feenstra and Mark Misérus – FIFA president Infantino violated code of ethics with voting advice
- Thomas Hastings, Lionel’s messy tax affairs are part of a bigger problem in football
- AP – 2 Russian weightlifters banned for doping
- AP – Ex-WADA president says Russia should not go to Rio Olympics
- Rachel Axon – System fails to address state-sponsored doping
- Vilhelm Carlström – Finland's anti-doping authority just dealt Norwegian skiers a huge blow
- Karen Crouse – Clean Athletes, and Olympic Glory Lost in the Doping Era
- Olivier Dickson Jefford – Marco Cecchinato banned for 18 months for "Illegal Behaviour"
- Andre Lowe – Morgan heading to CAS to appeal omission from Jamaica Olympic Team
- Chris Yuscavage – Drug Dealers in Rio Use Olympic Rings on Cocaine Baggies to Help Push Product
- Despina Mavromati, The Rules of the CAS Anti-Doping Division and the CAS Ad Hoc Division at the Olympic Games
- The International Sports Law Journal, Volume 16, July 2016, Issue 1-2, Pages 1-127
- James Bunting, Applying team sanctions for doping: what Essendon has told us about the use of evidence at CAS
- Sean Cottrell, Key legal issues ahead of the Rio Olympic and Paralympic Games
- Tom Cripps, Ground sharing arrangements in the Premier League and Premiership: Regulations
- Jon Elphick, Playing the game: The UK’s approach to taxing sports stars
- Nick De Marco, The dichotomy and future of sports arbitration - Appointment of arbitrators (part 1)
- Nick De Marco, The dichotomy and future of sports arbitration - Appointment of arbitrators (part 2)
- Nick De Marco, The dichotomy and future of sports arbitration - Appointment of arbitrators (part 3)
- Nick De Marco, The dichotomy and future of sports arbitration - Appointment of arbitrators (part 4)
- Antoine Duval, The rules of the game: The need for transparency in sports governance
- Antoine Duval, Kester Mekenkamp and Oskar van Maren, With or without them? Russia’s State doping system and the Olympic fate of Russian athletes
- Pete Hackleton, The current legal status of image rights companies in football
- Joseph M. Hanna, Major League Baseball considers action against the Cardinals over database hack
- Nandan Kamath, Fighting sports corruption in India: A review of the National Sports Ethics Commission Bill 2016
- Benoît Keane, State aid in European football: A review of the EC’s ruling on Real Madrid, FC Barcelona and Valencia CF
- Charles Maurice and Tom Collins, Why football players and managers should own their own trade marks
- Despina Mavromati, The Legality of the Arbitration Agreements in favour of CAS (Pechstein) Part 1
- Despina Mavromati, The Legality of the Arbitration Agreements in favour of CAS (Pechstein) Part 2
- Marine Montejo, Brexit and EU law: Beyond the Premier League (Part 1)
- Marine Montejo, Brexit and EU law: Beyond the Premier League (Part 2)
- Nicola Parkinson, 7 key tax law issues affecting sports today
- Ariel Reck, A review of Argentina’s new sports training-compensation law
- Tom Rudkin, Maria Sharapova: Key facts of the ITF doping decision and her chances on appeal
- Hugh Southey, Road to Rio: Immigration and Sport
- Oskar van Maren, The EU State aid and sport saga: The Showdown
- Jeremy Whiteson, Football Creditors Rule: Is The Football League’s new insolvency policy a step in the right direction?
- Antoine Duval, Ben Van Rompuy (ed.), The Legacy of Bosman, Revisiting the Relationship Between EU Law and Sport
- Marjolaine Viret, Evidence in Anti-Doping at the Intersection of Science & Law
- 2 & 3 September - International Sport Arbitration 6th Conference CAS& SAV, The Court of Arbitration for Sport (CAS), the Swiss Bar Association (SAV / FSA) and the Swiss Arbitration Association (ASA), Lausanne Switzerland
- 16 September - The future of the ‘legal autonomy’ of sport, Anglia Ruskin University, Cambridge, UK
- 26 September - Soccerex - Global Convention 2016, Manchester, UK
- on the one hand, sporting nationality is the eligibility concept in use within the world of sport to define the participation of athletes in international competitions, i.e. sporting events between the members of an international federation or the National Olympic Committees in the context of the Olympic Games; and
- on the other hand, sporting nationality refers to the legal relationship between an athlete and the national governing body for whom he/she is eligible according to the applicable regulations. Each international federation and organizers of multisport events, such as the International Olympic Committee (IOC), maintain their own set of rules. Consequently, an athlete may have as many sporting nationalities as there are governing bodies in his/her sport.
- In United States Olympic Committee (USOC) and USA Canoe/Kayak / International Olympic Committee (IOC), the Panel held that the Olympic Charter did not provide for any exception to the nationality requirement; and
- In Angel Perez / International Olympic Committee (IOC), the same Panel held this time that “the word ‘nationality’ in Rule 46 and its Bye-law should be construed broadly. In so far as it is relevant to consider whether a person has lost his or her nationality, the Panel is of the view that a person may be found to have lost it both in circumstances where he or she is de jure or de facto stateless”. Consequently, the Panel found that the athlete had changed his nationality for more than three years and was eligible to represent the United State Olympic Committee in the 2000 Sydney Olympic Games.
- Naturalize athletes; Italy, Greece and Australia have acted in such a way ahead of their Olympic Games; or
- Openly advertise participation in the next Olympic Games on the (sporting) market, in particular to their diaspora.
- 1992 Barcelona Olympic Games: athletes from the Federal Republic of Yugoslavia participated in the Olympic Games as Independent Athletes. They were not allowed to bear the colors of their country due to sanctions of the UN Security Council (i.e. the Federal Republic of Yugoslavia was banned from all international competitions);
- 2000 Sydney Olympic Games: Athletes from East Timor were authorised to participate under the Olympic banner due to the secession of their country from Indonesia;
- 2012 London Olympic Games: three athletes from the Netherland Antilles and one from South Sudan were placed under the Olympic flag. The absence of a National Olympic Committee in these countries triggered the decision of the IOC. Athletes from the Netherland Antilles now compete with the Netherlands;
- 2014 Sochi Olympic Games: three Indian athletes marched under the Olympic banner during the opening Ceremony due to the suspension of their National Olympic Committee by the IOC. They were subsequently authorised to bear their own colors following the removal of the ban on their country.
Jeré Longman - Understanding the Controversy Over Caster Semenya
The Anti-Doping Database - List of athletes who has tested positive during the Rio Olympic Games
Johannes Aumüller and Thomas Kistner - 500 Tickets für das Fußball-Finale, bitte
Ulrich Haas and Deborah Healey, Doping in Sport and the Law
Satchit Bhogle, WADA v Narsingh Yadav - Who's to Blame?
Commission Decision of 4.7.2016 on the Measures SA.41614 - 2015/C (ex SA.33584 - 2013/C (ex 2011/NN)), implemented by the Netherlands in favour of the professional football club FC Den Bosch in 's-Hertogenbosch
Murad Ahmed and Lucinda Elliott - Champions League rival wins backing of La Liga chief
Frans de Weger, The Jurisprudence of the FIFA Dispute Resolution Chamber - 2nd Edition - ASSER International Sports Law Series
On 21 January 2015, the Court of
arbitration for sport (CAS) rendered its award in the latest avatar of the Mutu case, aka THE sports law case that
keeps on giving (this decision might still be appealed to the Swiss Federal
tribunal and a complaint by Mutu is still pending in front of the European
Court of Human Right). The decision was finally published on the CAS website on
Tuesday. Basically, the core question focuses on the interpretation of Article
14. 3 of the FIFA Regulations on the Status and
Transfer of Players in its 2001 version. More precisely, whether, in case of a dismissal of a player
(Mutu) due to a breach of the contract without just cause by the
player, the new club (Juventus and/or Livorno) bears the duty to pay the
compensation due by the player to his former club (Chelsea). Despite winning maybe
the most high profile case in the history of the CAS, Chelsea has been desperately
hunting for its money since the rendering of the award (as far as the US), but
it is a daunting task. Thus, the English football club had the idea to turn
against Mutu’s first employers after his dismissal in 2005, Juventus and
Livorno, with success in front of the FIFA Dispute Resolution Chamber (DRC),
but as we will see the CAS decided otherwise.
I. Facts and Procedure of the Mutu Case
The Mutu saga is probably one of the most well known sagas in the sports law world (with the unavoidable Bosman case and the up and coming Pechstein one). It cumulates the glamour drama of a star’s downfall due to a positive cocaine test and many important legal developments.
The saga started in July 2004 with a private drug test conducted by Chelsea on Mutu that turned out to be positive to cocaine. The club issued a fine and a warning. But, in October 2004, Mutu was again tested positive to cocaine, this time by the English FA. Upon this finding, and Mutu’s admission of having ingested cocaine, Chelsea decided to terminate his contract on 28 October 2004. On 29 January 2005 the player was registered at Livorno, before being transferred two days later to Juventus. Juventus had reached its quota of non-EU players it could recruit from outside Italy and used this strategy to circumvent the Italian rules applicable at that time.
Meanwhile, Mutu had challenged in front of the FA’s Appeals Committee (FAPLAC) the decision of Chelsea to terminate his employment contract. In April 2005, the FAPLAC decided that Mutu had committed a breach of his employment contract without just cause. Mutu appealed this decision to the CAS without success (CAS 2005/A/876). In May 2006, Chelsea launched a complaint before the DRC to obtain compensation against the player on the basis of the contractual breach without just cause. The DRC in its decision from 26 October 2006 (available here) held that it could not pronounce itself on the matter and that Chelsea had to turn to FAPLAC. Chelsea appealed the decision to the CAS, which enjoined the DRC to decide on the matter (CAS 2006/A/1192). Consequently, the DRC decided on 7 May 2008 to award €17, 173 990 in damages to Chelsea. Unsurprisingly, Mutu decided to appeal the decision to the CAS, he was especially contesting the amount of compensation awarded, which on 31 July 2009 endorsed the decision of the DRC (CAS 2008/A/1644). It even held that the damage claims of Chelsea were higher, but decided it could not go ultra petita and award a higher sum to the club. Mutu, which had unsuccessfully challenged the independence and impartiality of one of the arbitrators due to his previous participation in the first Mutu case (CAS 2005/A/876), went on to contest the validity of the award in front of the Swiss Federal Tribunal (SFT) mainly on this basis. In its decision (4A_458/2009), the SFT rejected Mutu’s claims regarding the lack of independence of the arbitrator, a decision that has attracted widespread criticisms in the literature. Moreover, it also held that the amount of compensation awarded was not a restriction to free movement in the sense of the Bosman ruling and could not amount to an infringement of Mutu’s personality rights. Thereafter, Mutu decided to continue his fight in yet another forum: the European Court of Human Rights (40575/10).
Chelsea had the final award giving it the right to damages, but still needed to get hold on the money. To do so, it even asked (and obtained) for the recognition and the enforcement of the award in the US (see here), where Mutu was expected to have some property. Nevertheless, Mutu went on to play for smaller and smaller teams, thus earning less and less, and Chelsea’s hope of getting paid in full faded away. However, on 15 July 2010, five years after Mutu’s move to Italy’s Serie A in the first place, Chelsea decided to submit a petition to the FIFA DRC against Juventus and Livorno, asking the DRC to find them jointly liable for the awarded compensation. The claim was based on Article 14.3. of the RSTP 2001, stating that: "If a player is registered for a new club and has not paid a sum of compensation within the one month time limit referred to above, the new club shall be deemed jointly responsible for payment of the amount of compensation." The DRC, in an unpublished decision dated 25 April 2013 (see here and here), followed the interpretation of Article 14.3. RSTP suggested by Chelsea and found that “under the clear wording of Article 14.3, the Player's New Club was automatically jointly responsible for the payment of the Awarded Compensation due by the Player, should the latter fail to fulfil his obligations within a month of notification of the relevant decision”. This provision would make “no distinction between the termination of the contract by a player without just cause and the termination of a contract by a club with just cause”. It also held that "the registrations of the player with both [Appellants] were so closely connected that, given the exceptional circumstances of this specific matter, both Juventus and Livorno should be considered the player's new club in the sense of art. 14 of the Application Regulations”.
Both Juventus and Livorno decided to appeal this decision to the CAS, which in its award decided to reject the DRC’s reasoning.
II. The Meaning of Article 14.3 FIFA RSTP
The whole case focuses on the interpretation of the wording of Article 14.3 of the RSTP 2001. Does it mean that every club, whatever the circumstances, must pay compensation when it hires a player that bears the responsibility of the breach of his contract? Or, does it restrict this duty to the cases where the breach can be reasonably imputed to the will of the player to leave his former club?
A. Contractual or statutory interpretation?
In order to determine the interpretative tools to be used to identify the meaning of article 14.3 RSTP, the Panel must first clarify the nature of Article 14.3 under Swiss law. Basically, is the provision of a contractual or quasi-statutory nature? The Panel “does not consider that there is a contractual relationship between the Appellants and Chelsea”. Indeed, “[i]f there is no contractual relationship between an indirect member (i.e. any of the Parties) and a sport federation (i.e. FIFA), the conclusion should be the same as regards the relationship between two indirect members of the same federation”. Furthermore, the “[a]cceptance of general rules (such as FIFA Regulations) does not necessarily entail subjection to specific obligations when their scope must be determinable on the basis of minimum criteria”. Thus, the question raised implies only the interpretation of the bylaw of a Swiss legal entity, FIFA.
The Panel highlights four methods of interpretation under Swiss law:
- the literal interpretation ("interprétation littérale");
- the systematic interpretation ("interprétation systématique");
- the principle of purposive interpretation ("interprétation téléologique");
- the principle of so-called "compliant interpretation" ("interprétation conforme").
The “starting point”  is always the wording of the text. The Swiss Federal Tribunal recognizes that “[t]here is no reason to depart from the plain text, unless there are objective reasons to think that it does not reflect the core meaning of the provision under review”. Moreover, when asked to interpret a law, the SFT “adopts a pragmatic approach and follows a plurality of methods, without assigning any priority to the various means of interpretation”. However, the question is whether those interpretative methods should also apply to the (private) bylaws of a private association. The Panel notes that “[a]s regards the statutes of larger entities, it may be more appropriate to have recourse to the method of interpretation applicable to the law, whereas in the presence of smaller enterprises, the statutes may more legitimately be interpreted by reference to good faith”. It finds that “FIFA's regulations have effects which are felt worldwide, and should therefore be subject to the more objective interpretation principles” applicable to Swiss laws.
In short, the Panel is of the opinion that FIFA regulations, bylaws of an association under Swiss law, are to be interpreted analogously to national laws.
B. EU law as THE decisive contextual element to interpret the RSTP
The Panel first tries to interpret Article 14.3 on the basis of its wording. However, it is of the opinion that the wording is ambiguous and therefore “it is necessary to look beyond the wording of this provision” and adopts what it calls a “contextual approach”.
In short, “the context surrounding the implementation of the RSTP 2001 is of crucial importance in interpreting Article 14.3”. In the view of the Panel (and the appellants), this context is constituted by the application of EU law to sport and especially the Bosman case of the Court of Justice of the EU. Indeed, it is “[a]s part of the reform of the FIFA and UEFA rules following the Bosman decision, [that] FIFA adopted the RSTP 2001”. Thus, the requirements set by the CJEU’s jurisprudence in sports matters are decisive to define the reach of the provisions included in the RSTP. Moreover, the rejection decision of the Commission regarding the complaint submitted against FIFA’s transfer regulations is also important. Specifically, the Panel deduces from the Commission’s decision that it recognizes the need to sanction unilateral termination of contracts.
In the present case, it is precisely the “contractual stability [that] is at the centre of the debate”. In a nutshell, does the paramount objective of contractual stability justify that Juventus and Livorno be considered jointly liable for the breach of contract of Mutu leading to the termination by Chelsea of his contract?
In this regard, Chelsea considers that Article 14.3 “is designed to protect contractual stability by means of a deterrent, namely by ensuring that the parties who benefit from the player's breach – the player himself and his New Club – are not allowed to enjoy that benefit without paying compensation to the player's former club”. While, Juventus and Livorno consider that “Article 14.3 – and FIFA regulations in general – are not meant to protect a club's bad investment”. Which one of this two interpretations is EU law supporting? That is the question.
For the Panel “the Player was the author of his misfortune, but the Club was not required to terminate his employment if they still valued his services and preferred to hold him to his contract”. Indeed, “[t]he Club was entitled, not obliged, to dismiss him” and it “makes all the difference in terms of assessing the position of his subsequent employer(s) under the FIFA regulations, read in light of their object and purpose”. As “Chelsea put an end to the Player's Employment Contract, no issue of contract stability, whose purpose was to safeguard the functioning and regularity of sporting competition, was at stake”. Thus, “it strains logic for the club now to contend that the Appellants somehow enriched themselves by acquiring an asset (the player) which it chose to discard”. Moreover, “the Panel finds it hard to understand how, in the name of contract stability, Chelsea's claim of € 17,173,990 against the Player is to be borne jointly and severally by the New Club, which has never expressed a specific agreement in this regard, had nothing to do with the Player's contractual breach, and was not even called to participate in the proceedings, which established the Awarded Compensation”. Additionally, it seems “incongruous for Chelsea to try to seek an advantage from the fact that the New Club benefits from the Player’s services, whereas Chelsea was no longer interested in his service”. Hence, “Chelsea's conduct appears to have had no other purpose than to increase its chances for greater financial compensation” and the Panel “does not see the connection between the damage being claimed and the interest of protecting legitimate contractual expectations”. In other words, the interpretation of Article 14.3 RSTP supported by Chelsea does not fit the fundamental objective of this provision, as highlighted by its legislative context (mainly the Lethonen case of the CJEU and the Commission’s rejection decision in the competition law complaint against the FIFA transfer system) and cannot be followed.
Interestingly, the Panel also recognized that “[t]here must be a balance between the players’ fundamental right to free movement and the principle of stability of contracts, as supported by the legitimate objective of safeguarding the integrity of the sport and the stability of championships”. In the present case, “[i]f the New Club had to pay compensation even if it is established that it bears no responsibility whatsoever in the breach of the Employment Contract, the player would be hindered from finding a new employer”. Indeed, “it is not difficult to perceive that no New Club would be prepared to pay a multi-million compensation (or transfer fee), in particular for a player who was fired for gross misconduct, was banned for several months, and suffered drug problems”. In short, “Chelsea's interpretation of Article 14.3 would bring the matter back into pre-Bosman times, when transfer fees obstructed the players' freedom of movement”. This is unacceptable for the Panel. Had Chelsea’s interpretation been tolerated “the balance sought by the 2001 RSTP between the players' rights and an efficient transfer system, which responds to the specific needs of football and preserves the regularity and proper functioning of sporting competition would be upset”. Consequently, this interpretation is deemed “incompatible with the fundamental principle of freedom to exercise a professional activity and is disproportionate to the protection of the old club's legitimate interests”. Thus, the Panel concludes “that Article 14.3 does not apply in cases where it was the employer's decision to dismiss with immediate effect a player who, in turn, had no intention to leave the club in order to sign with another club and where the New Club has not committed any fault and/or was not involved in the termination of the employment relationship between the old club and the Player”.
This award is of great interest, not so much for its solution - it is difficult to understand how the FIFA DRC could construct Article 14.3 RSTP as imposing a joint liability on Juventus and Livorno - as for the method used to reach it. The CAS had already in the past based its interpretation of the RSTP on its legislative history and especially on it being the result of a negotiation with the EU Commission in the aftermath of the Bosman ruling. It is the first time, however, that it does so in such length and depth. This contextual reading of Article 14.3 tipped decisively the balance in favor of the appellants. Furthermore, it is a timely reminder for other CAS Panels that FIFA’s RSTP must be interpreted in conformity with EU law and especially the case law of the CJEU on the free movement of workers. If not, CAS awards will face problems at the enforcement stage, as highlighted by the recent SV Wilhelmshavenruling of the OLG Bremen (see our comment here on the EU law dimension). This implies that the restrictions it imposes on the free movement of players must be justified by a legitimate objective recognized by the CJEU and be proportionate to attain this objective. In the present case, the interpretation of 14.3 promoted by the DRC runs counter to this requirement as it is not truly aimed at an acceptable legitimate objective and certainly not a proportionate mean to attain contractual stability. Nonetheless, this reasoning could also put into question previous interpretations of the FIFA RSTP. This is especially true for the case-law on the implementation of Article 17 RSTP. The Panel, conscious of the potential implication of the analysis used, is adamant that this case-law is compatible with an EU law conform interpretation. Yet, EU law scholars strongly oppose this view and it can be reasonably argued that the way damages are calculated in case of a breach of a contract under Article 17 is not compatible with the letter and spirit of EU law as applied to the transfer system in Bosman and after.
This case will set a resounding precedent for future CAS awards. Lawyers dealing with disputes involving the FIFA RSTP in front of the FIFA DRC and the CAS should take note of this development and introduce wider references to EU law in their briefs.
 For this article I have much profited from the outstanding research assistance of Thalia Diathesopoulou.
G. Von Segesser, ‘Equality of Information and Impartiality of Arbitrators’, in P. Wautelet, T. Kruger, G. Coppens (eds), The Practice of Arbitration: Essays in Honour of Hans van Houtte
Hart, 2012, pp.45-51 and L. Beffa, ‘Challenge of International Arbitration Awards in Switzerland for Lack of Independence and/or Impartiality of an Arbitrator – Is it Time to Change the Approach?’ (2011) ASA Bulletin 598 et seq.
 CAS 2013/A/3365 & 3366, para 39.
Ibid, para. 121-136
 Ibid, para. 131
 Ibid, para. 131
 Ibid, para. 131
 Ibid, para.137
 Ibid, para.138
 Ibid, para.139
Ibid, para. 161
Ibid, para. 163
Ibid, para. 163
Ibid, para. 165
Ibid, para. 166
Ibid, para. 168
Ibid, para. 169
Ibid, para. 172
 Ibid, para.174
‘It must be remembered that the FIFA Regulations have been issued to regulate the legal and economic aspects of the transfer of players in accordance with the principle of free movement of workers as established by the EC treaty and substantiated by the European Court of Justice in its ruling of 15 December 1995 (case C-415/93), thereby taking the specific needs of professional football into account. In this context, any provisions in the FIFA regulations affecting the player’s freedom of movement should be interpreted narrowly.’ CAS 2004/A/691 FC Barcelona SAD v. Manchester United FC, para. 38; ‘However, the principle behind Art. 5 para. 5 of the Application Regulations is clear: the free movement of workers within the EU/EEA must not be restricted by the imposition of a requirement for the payment of sums by way of compensation for training and education in respect of a player to whom the training club does not offer a contract. In such a case, the failure to offer a contract is an important factor in the assessment of compensation. The compensation payable should not be of such an amount as would impede the player’s ability to move to a new club.’ CAS 2006/A/1125 Hertha BSC Berlin v. Stade Lavallois Mayenne FC, award of 1 December 2006, para. 25; ‘Finally, because of the potentially high amounts of compensation involved, giving clubs a regulatory right to the market value of players and allowing lost profits to be claimed in such manner would in effect bring the system partially back to the pre-Bosman days when players’ freedom of movement was unduly hindered by transfer fees and their careers and well-being could be seriously affected by them becoming pawns in the hands of their clubs and a vector through which clubs could reap considerable benefits without sharing the profit or taking corresponding risks. In view of the text and the history of article 17 par. 1 of the FIFA Status Regulations, allowing any form of compensation that could have such an effect would clearly be anachronistic and legally unsound.’ CAS 2007/A/1298 Wigan Athletic FC v/ Heart of Midlothian& CAS 2007/A/1299 Heart of Midlothian v/ Webster & Wigan Athletic FC& CAS 2007/A/1300 Webster v/ Heart of Midlothian, para. 81.
 A. Duval, ‘The Court of Arbitration for Sport and EU law: Chronicle of an Encounter’, Maastricht Journal of European and Comparative Law, forthcoming.
 See, R. Parrish, ‘Article 17 of the FIFA Regulations on the Status and Transfer of Players: Compatibility with EU Law ‘Maastricht Journal of European and Comparative Law, forthcoming. See also, Pearson, G. (2015), Sporting Justifications under EU Free Movement and Competition Law: The Case of the Football ‘Transfer System’. European Law Journal, 21: 220–238.
Editor’s note: This short book review will be published in a different format in the International Sports Law Journal, due to its timeliness we decided to reproduce it here.
Reforming FIFA, or Not
Book Review: Mark Pieth (ed.), Reforming FIFA, Dike Verlag, St. Gallen, 2014, 28.00 CHF, p.178
This book looks back at the work of the Independence Governance Committee(IGC). This Committee, constituted in 2011, had as primary objective to drive a reform process of FIFA initiated by its President Sepp Blatter. After ordering from the Swiss anti-corruption expert Mark Pieth, a report on the state of FIFA’s governance, FIFA decided to mandate him with the leadership of a consulting body composed of a mix of independent experts and football insiders, which would be accompanying and supervising the internal reform process of FIFA. The IGC was officially dissolved at the end of 2013, after completing its mandate. The book is composed of eight chapters, written by former members of the IGC, including former chairman Mark Pieth. In addition to the chapters, it includes the different reports (available here,here and here) submitted by the IGC to FIFA across the years. In the words of Pieth, this account is “fascinating because it gives a hands-on, realistic perspective of the concrete efforts, the achievements and the remaining challenges in the struggle for the reform of this organization [FIFA], avoiding the usual glorification or vilification.” This review will first summarize the core of the account of the FIFA reform process provided by the book, before critically engaging with the outcome of the process and outlining the deficiencies that culminated on 29 May 2015 with the re-election of Sepp Blatter as FIFA president.
I. Reforming FIFA…
In his introduction to the book, Mark Pieth provides a compelling account of the reasons why FIFA needs a reform process in the first place. He talks of the ““old boys” suddenly becoming rich” and of the lack of “public accountability” of FIFA. This narrative is similar to the one provided by Guillermo Jorge later in the book. He highlights the fact that FIFA relies on a “solide patronage network”, creating “incentives for member associations to engage in rent seeking – which means: spend time and efforts in obtaining such funds – and, at the same time, creates incentives for incumbents to request the favour back at the ballot box.” Jorge’s detailed account of the institutional features of FIFA underlying this “patronage system” is in itself of great value.
It is further argued that with the scandals triggered by the Bin Hammam affair, in 2011, “Mr Blatter, realized that the governance structure needed to be adapted to the new challenges.” In other words, it “was a product of the personal ambition of its president.”  All along the book, Pieth and other members of the IGC, consider Blatter as a key supporter of the reform process and shift the blame for its incompleteness on UEFA’s shoulders amongst others.. UEFA, it is claimed, has been instrumental in blocking a centralized integrity check on FIFA officials (especially the members of the ExCo). Blatter, for his part, is said to have understood “sooner than many of his colleagues”, that “the system” was falling apart” and that a “self-controlled reform seemed to be a rational response to pre-empt or delay external regulation and mitigate the risk for future, more uncertain investigations.”
The substance of the reform triggered by the IGC is not discussed in great detail, nor is its implementation in practice assessed in depth. To be fair, the book chapters were probably written early 2014 and could hardly have done so. The core changes highlighted by the members of the IGC concern the function and structure of the Ethics Committee and the Audit and Compliance Committee. As claimed by Pieth, “the most tangible changes are the institutional changes in the area of the Ethics Committee and the Audit and Compliance Committee.” In particular, “the independent permanent chairs and deputy chairs of the Ethics Committee and the Audit and Compliance Committee.” Pieth praises the fact that “[t]he investigator and his deputy have full discretion which cases they take on and decide to investigate.” Moreover, the “investigation is independent both from the FIFA administration and from the judicial chamber.” This is also underlined by the contribution of Lord Peter Goldsmith focusing on the investigatory process. Damian Heller discusses the core changes introduced to the Audit and Compliance Committee (ACC) in a separate chapter. After the reform, the ACC has gained new important competences, e.g. drawing up the Organisation Regulation (governing the rights and obligations of FIFA’s organs), controlling the compensation policy of FIFA executives, monitoring the bidding process for the World Cup and auditing the use of the development funds. In addition to this, the independence of the Committee members has been reinforced. Thus, Pieth expect “that these independent agents within FIFA will make a big difference in the culture of the organization during their tenure.”
The members of the IGC are not all positive about the changes triggered by the reform process engaged by FIFA. For Leandro Grosso, the member of IGC representing FIFPro, the football players’ union, the reform is clearly a failure. Pieth himself is cautious enough to remind in his introduction “that pure self-regulation is a slow and uncertain process.” He insists, that “[t]o be successful it has to change the culture of the whole organization, it needs to reach the associations in particular and it has to permeate the everyday life of the organization.” Yet, throughout the book, there is still a clear sentiment that the FIFA reform process was a success. Indeed, Pieth considers that “[w]ith the new independent chairs in place, a first essential step has been taken.” He adds: “it must be acknowledged that, overall, the last three years have been rather successful in bringing the regulations up to a certain standard.” As another IGC member puts it “[t]he IGC has largely succeeded in its efforts to reform FIFA’s governance.” After the reform, “there are far greater systems and controls and far greater ethical standards within FIFA.” In short, “FIFA is today much closer to public and corporate governance standards than it was two years ago.” Is this true?
II. …Or Not
The IGC’s members’ optimism might go a bit too far. The recent events surrounding the investigation of the bidding process for the World Cup 2018 and 2022 seem to call for a critical assessment of the scope of progress made. Independent investigatory personnel make little difference if a final report is later shelved without allowing for external scrutiny of its findings as happened with the by now infamous Garcia report on the attribution of the 2018 and 2022 World Cup. Similarly, having a competent check on FIFA’s compensation policy is of little use if those rigorous accounts are not made freely available for journalists and the public to peruse them. The institutional changes celebrated by the members of the IGC are not negligible, but to gain real currency they must be coupled with a duty of transparency and the new Committees must be able to dispose of their findings independently. The resignation of Michael Garcia, who was deemed a token figure of the success of the reforms supported by the IGC, is there to remind us that even the, allegedly, best individuals are powerless if the institution is in a position to block their work. With his scorecard (see also here and the response of FIFA) on the reform process, Roger Pielke had convincingly quantified the limited nature of FIFA’s reforms. His findings are now corroborated in practice; even the few reform proposals FIFA actually implemented did not fundamentally change the institution. This is critical stance is shared by a recent report on ‘The reform of football governance’ adopted by the Parliamentary Assembly of the Council of Europe, urging FIFA to reinforce transparency and accountability across the board.
The IGC’s members were probably blinded by Blatter’s apparent goodwill. In fact, Blatter may even have held these good intentions, though his new stint at the head of FIFA is there to remind us that however enlightened, he remains a power-hungry monarch. Moreover, Blatter is truly accountable to only one forum: the FIFA Congress. Thus, it is doubtful that the “patronage system” put in place to control it will go away without resistance. In fact, Blatter would probably have never been re-elected in 2015 if he had imposed a radical clean up of past (and maybe present) FIFA practices relating to the use of development funds and vote buying. In that regard, the recent decision to give to the FIFA Congress the responsibility for the election of the host state of the FIFA World Cups is a potentially dangerous move that could enhance the risk of vote-buying. It shifts even more the decisive power away from the biggest Confederations to the small peripheral FAs.
All in all, it is naturally difficult for the members of a body that was invested with the responsibility to guide FIFA’s latest reform to recognize their failure to really change the way FIFA works. Some members of the IGC have done so; Alexandra Wrage resigned in protest against FIFA's “rotten reform record”. Even though one can criticize the independence of the IGC, the IGC’s members were probably genuinely committed to changing FIFA. But the main lesson one can draw from their very limited success in doing so is that sheer commitment and expertise is not enough to transform an institution grounded on a political system that promotes inertia and to some extent corruption. The illusion of an enlightened reform of FIFA driven by insiders, especially by Mr. Blatter, has been shattered. In the case of FIFA, a revolution is needed, heads need to roll, and a radically new political system needs to be put in place. Those are not easy tasks. Triggering a revolution will take time and energy. It will involve the appliance of extreme political pressure, either through the open threat of secession of UEFA or through criminal proceedings initiated by public authorities. In the end, Pieth himself is right: “self-regulation alone rarely works”. This points to ‘[t]he responsibility of the host country’. The “lax regulatory attitude” of the Swiss government is certainly a key disincentive to a true FIFA reform. It is Switzerland’s duty to “define the minimum standard for organizations, in particular in the areas of democracy, accountability and financial controls.” As the recent raid by the Swiss Police has proven, if there is the will to intervene, there is no insurmountable legal obstacle to do so. It is true, as many members of the IGC argue, that States are not in an easy position. The power of the FIFAs and IOCs of this world is extremely strong. Through their exit option, they can blackmail national States, and in particular Switzerland, into adopting an accommodating stance. But, it is simply not true that “ISOs [International Sporting Organisations] have extensive privileges and immunities, and are not governed by national laws – so cannot generally be reached by such prosecutors and regulators”, as Lord Goldsmith states. Still, it makes sense that the most far-reaching interventions to date that triggered reforms of Sports Governing Bodies (SGBs) were made by the EU and the US. Both are strong enough to confront the political strength of the SGBs. Hence, the recent indictment of a number of FIFA officials on various criminal grounds in the US might be the first necessary step towards truly reforming FIFA.
This book is a valuable testimony of a process that has unfortunately failed to fundamentally change FIFA for the time being. One should not radically undermine the progress done, the new institutions put in place and rules adopted might serve as a basis for an overhaul of FIFA in the future, though for that to happen it will most likely need an assist from the EU or the US.
 M. Pieth, ‘Reforming FIFA’ in M. Pieth (ed.) Reforming FIFA, Dike Verlag, St. Gallen, 2014, p.1
 M. Pieth, ‘Introduction’ in M. Pieth (ed.) Reforming FIFA, p.8. In similar terms see M. Hershman, ‘The need for reform’ in M. Pieth (ed.) Reforming FIFA, p.17-18.
 M. Pieth, ‘Introduction’, p.9
 Guillermo Jorge, ‘From Patronage to managerial accountability’ in M. Pieth (ed.) Reforming FIFA, p.53
 M. Pieth, ‘Introduction’, p.9
 G. Jorge, ‘From Patronage to managerial accountability’, p.56
 M. Pieth, ‘Beyond changing the code: reforming culture’, in M. Pieth (ed.) Reforming FIFA, p.60
 G. Jorge, ‘From Patronage to managerial accountability’, p.57
 M. Pieth, ‘Introduction’, p.15
 M. Pieth, ‘Beyond changing the code: reforming culture’, p.61
 See in particular the contribution by Lord Peter Goldsmith, ‘How to investigate misbehaviour in international sports organizations’ in M. Pieth (ed.) Reforming FIFA, p.31-38
 D. Heller, ‘The role of the Audit & Compliance Committee’ in M. Pieth (ed.) Reforming FIFA, p.63-69
 M. Pieth, ‘Beyond changing the code: reforming culture’, p.61
 Leonardo Grosso, ‘The reform’s impact on stakeholder involvement from the players’ perspective’ in M. Pieth (ed.) Reforming FIFA, p.39-48
 M. Pieth, ‘Introduction’, p.16
Ibid and M. Pieth, ‘Beyond changing the code: reforming culture’, p.59-62 . In similar terms, see G. Jorge, ‘From Patronage to managerial accountability’, p.58
 M. Pieth, ‘Introduction’, p.16
 M. Pieth, ‘Beyond changing the code: reforming culture’, p.59
 M. Hershman, ‘The need for reform’, p.20
 M. Pieth, ‘Introduction’, p.16
 G. Jorge, ‘From Patronage to managerial accountability’, p.57
 M. Pieth, ‘The responsibility of the host country’ in M. Pieth (ed.) Reforming FIFA, pp.23-30, p.26
 Ibid, pp.23-30.
 Ibid, p.25.
 Ibid, p.26
 Lord Peter Goldsmith, ‘How to investigate misbehaviour in international sports organizations’, p.32
 See for the EU, A. Geeraert & E. Drieskens, ‘The EU controls FIFA and UEFA: a principal–agent perspective’, Journal of European Public Policy, 03/2015. See for the US, R. Pielke, ‘How can FIFA be held accountable?’, Sport Management Review 16 (2013) 255–267.
Editor’s note: Chuck Blazer declined our official interview request but thanks to some trusted sources (the FIFA indictment and Chuck’s testimony) we have reconstructed his likely answers. This is a fictional interview. Any resemblance with real facts is purely coincidental.
Mr Blazer, thank you for agreeing to this interview, especially considering the circumstances. How are you doing?
I am facing ten charges concerning, among others, conspiracy to corrupt and money laundering. But apart from that, I am doing great (laughs)!
It is good to know that you have not lost your spirit. And since you’ve been involved in football, or as you call it soccer, for years could you please first tell us what was your career at FIFA and its affiliates like?
Let me see… Starting from the 1990s I was employed by and associated with FIFA and one of its constituent confederations, namely the Confederation of North, Central American and Caribbean Association Football (CONCACAF). At various times, I also served as a member of several FIFA standing committees, including the marketing and television committee. As CONCACAF’s general secretary, a position I proudly held for 21 years, I was responsible, among many other things, for negotiations concerning media and sponsorship rights. From 1997 to 2013 I also served at FIFA’s executive committee where I participated in the selection process of the host countries for the World Cup tournaments. Those years at the helm of world soccer were truly amazing years of travel and hard work mainly for the good of the beautiful game. I might add that I even managed to document some of my voyages on my blog. I initially called it “Travels with Chuck Blazer” but Vladimir (Putin) convinced me to change the name to “Travels with Chuck Blazer and his Friends”. You should check it out.
Sure, but you ended up facing corruption and tax fraud charges in the US. What happened?
Concerning the charges I am currently facing, I pleaded guilty to participating in a conspiracy to corrupt FIFA and its related constituent organizations through various bribery schemes. In addition, I acknowledged taking part in money laundering process, violation of certain financial reporting laws, and tax evasion. But please keep it quiet. My family was devastated when they heard about this. After all, they know me as a kind-hearted and giving type, especially if you consider that, given my appearance, I’m always Santa Claus when Christmas time is around.
Concretely, around 1992 and together with other representatives of the soccer world, I agreed to accept a bribe in connection with the selection of the host nation of the 1998 World Cup. Together with other FIFA executive committee members I also accepted illegal payments concerning the selection of South Africa as the 2010 World Cup host. Simultaneously, since approximately 1993, still with the same bunch of soccer executives, I accepted bribes connected to the award of broadcasting and other rights to the 1996, 1998, 2000, 2002 and 2003 Gold Cup, a tournament analogue to the Copa América, featuring member associations of CONCACAF.
I know it’s wrong. But at FIFA a lot of people were doing it and it was just a common practice at that time. Money was flowing in my bank accounts and it felt right. We were working so hard to organize those tournaments, you know.
How come the US authorities’ ended up investigating you and FIFA?
I am not completely sure. When I testified back in 2013 the judge indicated that FIFA and its attendant or related constituent organizations were identified as a RICO enterprise, that is, a Racketeering Influenced Corrupt Organization if I remember correctly. I was terrified, it sounded very intimidating at first. Now I guess I got used to the sound of it. I am even thinking about calling my next cat Rico (laughs). I also recall that the Department of Justice’s involvement in the case was due to the fact that we used the US financial system to funnel the money. In hindsight, it was a very bad idea.
Could you give us some more details on how the corruption mechanism actually worked in practice?
In general terms there were media and marketing rights to be sold. Those rights, and often their extensions, were awarded in exchange for bribes, sometimes via intermediaries. The sports marketing companies engaged in the schemes were then able not only to profit from the acquired rights themselves, but also to accept illegal payments for passing on some of those rights to sponsors.
(Long pause) Take for instance Copa Libertadores. The tournament developed and gained popularity which sparked sports marketing companies’ interest in acquiring marketing rights to the competition. Around 2000 an entity affiliated with one of the sports marketing companies was awarded sponsorship rights for the tournaments which took place between 2001 and 2007, with a subsequent renewal of the contract in 2007 and 2012. In the early 2000s Nicolás Leoz, acting as the president of Confederación Sudamericana de Fútbol (CONMEBOL) and a member of its executive committee, sold his support to award the rights to a specific company. What is more, not only did he receive the money, he also gave instructions to forward approximately $2 million to his personal bank accounts, a sum which was owed to CONMEBOL itself based on the awarded sponsorship rights’ contract. The Copa Libertadores was only one of the many affected soccer competitions.
And what were the other tournaments affected?
I am American so please excuse my accent, but besides Copa Libertadores, also Copa América, Copa do Brasil, Gold Cup, and the World Cup qualifiers games. I might also add that corruption affected at least the FIFA 2011 presidential elections, the voting process concerning the hosts of the 1998 and 2010 World Cups, and Brazil’s national team’s sponsorship.
Who would you identify as the main players in the corruption schemes?
Except myself you mean (laughs)? Well, definitely a number of FIFA officials that you hear a lot about in the news lately. I can easily mention a few of my colleagues, like Rafael Esquivel who served as the president of the Venezuelan soccer association and a vice president on the CONMEBOL executive committee. There was also my good friend Eugenio Figueredo, a former president of the Uruguayan soccer association who was a member of FIFA’s executive committee, a vice president at FIFA, a member of various FIFA standing committees, and a vice and then president of CONMEBOL. Surely you know of José Maria Marin and Jeffrey Webb. The former was the president of the Brazilian soccer association, and sat on several FIFA standing committees. The latter was the president of Cayman Islands Football Association and a member of the Caribbean Football Union’s (CFU) executive committee. He was also appointed as the president of CONCACAF and a FIFA vice president. The funny thing is that Webb took these positions in order to clean up after the corruption scandal which led to the resignation of Jack Warner.
Jack Warner, you mean the former president of CONCACAF and the vice president of FIFA?
Correct. But do not forget that he was also the secretary and then a special advisor to the Trinidad and Tobago Football Federation (TTFF), and the president of the CFU. Jack is probably the most corrupt soccer official I ever met. Personally I did not like him, he just couldn’t get enough. Already in the early 1990s he began exploiting his position for personal gains. In this regard, he did not only treat the assets of the organizations he served as his own, but also actively solicited bribes in connection with for example the 1998 World Cup. Hundreds of thousands of dollars in bribes were also paid to him with regard to the award of commercial rights to several editions of the Gold Cup. Moreover, acting as the president of the CFU and a special advisor to the TTFF he orchestrated the sale of media rights to World Cup qualifying matches which the national members of the CFU decided to sale as a bundle. Following negotiations Traffic, a sports marketing company, acquired the rights to 2002, 2006, 2010, and 2014 World Cup qualifier matches. A substantial part of the value of the contracts concluded by Warner on behalf of the CFU was automatically transferred to accounts under his personal control. He was also involved in a $10 million bribe related to the award of the 2010 World Cup to South Africa. I could go on and on.
You mentioned Traffic. Could you tell us more about it?
Of course. Several of these sports marketing companies were involved, but to my knowledge Traffic was one of the biggest players. This multinational company was based in Brazil and comprised of subsidiaries operating around the globe including the US where it commenced its operations around 1990. The US branch alone was engaged in a number of bribery and fraud schemes in connection with their efforts to obtain various rights from soccer organization and federations in the region. The beneficiaries of these schemes included, among others, Jack Warner, Nicolás Leoz, and Rafael Esquivel. Traffic’s main goal was to expand its operations through developing ties with soccer governing bodies. I remember that in 1991 during Nicolás’ term as CONMEBOL’s president Traffic acquired exclusive commercial rights to three editions of Copa América. Nicolás then threatened to walk away. He claimed that Traffic was about to make a lot of money out of the deal and that it was only fair for him to get his share of the pie. With each of the new editions of the Copa América, Nicolás would demand fresh bribes, a personal business of his which, to my knowledge, went on until 2011. Additional payments were made by Traffic based on their subsequent profits. Esquivel also benefited by requesting bribes in exchange for his ongoing support for Traffic’s position. As I said, bribery at FIFA was often the result of the initiative on the part of its officials. But coming back to Traffic, their involvement is best described in numbers. Out of the twelve bribery schemes I know of, Traffic was involved in nine of them. However, if we disregard the schemes concerning FIFA elections and the voting process for the World Cup hosts the share is nine out of ten. You also need to keep in mind that a former employee of the US branch of Traffic involved in the corruption scheme went on to serve as a general secretary of CONCACAF. On a side note, I think I was a much better general secretary than he ever was. I still receive birthday cards from my former colleagues at CONCACAF.
You stated that several companies were involved. How did they share the rights acquisition between themselves?
I’m not entirely sure about the exact mechanisms involved. What I know, however, is that sometimes conflicts emerged between the different companies seeking to secure contracts for themselves. On other occasions they were able to join forces, for example with the media and marketing rights to Copa América. At first, CONMEBOL entered into a contract with Traffic on the basis of which the latter was awarded the exclusive rights to, among others, the 2015 edition of the tournament, and an option to retain those rights for the next three editions. But in 2010 CONMEBOL signed another agreement, this time with Full Play, on the basis of which Full Play was granted media and marketing rights to several editions of the tournament, including the 2015 edition already sold to Traffic. As you can imagine, Traffic was not happy. They decided to sue CONMEBOL and Full Play. In the end the companies came to an understanding and formed Datisa, a new entity which was to obtain and exploit the commercial rights to the Copa América. In return, Traffic was to shoulder a share of the bribes offered to CONMEBOL officials.
I also recall that there were tensions between Traffic and another company established by a former employee of Traffic who, after bribing Brazilian federation’s officials in order to acquire a contract for the rights to Copa do Brasil, was accused by Traffic’s owner of stealing his business. But they also managed to solve the issue by combining their “efforts” and by sharing the financial burden of the “investments” made to acquire the rights.
And what sums are we talking about?
Not so much, really (laughs). Concerning Datisa the company agreed to pay between $100 and $110 million in bribes to CONMEBOL officials all of whom worked also at FIFA. The FBI told me that they estimated that the “business” generated approximately $150 million in bribes, an amount which may increase if new information come to light. In the end, I did not get so much out of it compared to some of my dear colleagues. Sometimes I think that I should have been more firm during the “negotiations”. For a long time I have been dreaming about having an additional apartment in the Trump Tower. I remember that when I got the first one it almost seemed as it came from some divine intervention.
Wow, that’s a lot. How did they manage to conceal it?
As I already mentioned the “business” was sometimes conducted via intermediaries. Jose Margulies was one of the prominent ones. He was the brother of an old friend of the owner of Traffic, and often used accounts in the names of offshore corporations in order to makes payments on his behalf. In addition, he tried to conceal the bribes by using accounts at Swiss banks, made recourse to currency dealers, destroyed documentation, and discouraged the corrupt soccer officials from using accounts in their own name in order to avoid detection from law enforcement bodies, an advice which was not always taken seriously. People like Nicolás Leoz for example did not hesitate to have sums being paid to their personal bank accounts on the basis of “consulting contracts”. As I already mentioned, Jack (Warner), for his part, concluded a double agreement in the name of the TTFF concerning rights to World Cup qualifier games. He first sold the TTFF’s rights as part of a bundle, and later on sold them again, but this time separately. There was also the famous $10 million paid by South Africa’s authorities to the CFU in order to “support the African diaspora”, a payment which was in fact made in exchange for votes regarding the 2010 World Cup host. This money was diverted back into Jack’s pockets via a number of tricks. Using family members’ accounts was another way of deception. Lately, the business of taking bribes was getting more and more complicated, prompting officials to look for new complex schemes. In fact, the attempts to conceal illegal payments made in connection with the rights to the World Cup 2018 and 2022 qualifiers caused a lot of headache to Jeffrey Webb in his capacity as a high level CFU official. One of the companies with whom Traffic was to make payment to Webb had difficulties finding the right way to discretely transfer the money to him. This led to long negotiations between Webb’s associate and the company’s executives in order to find a clean method to make the outstanding payment.
Thank you so much Mr Blazer for your time and your invaluable insights!
You’re welcome. I am a big fan of the ASSER International Sports Law Blog so anything for you guys.
Marjolaine Viret: An attorney-at-law at the Geneva bar, specialising in sports and health law. Her doctoral work in anti-doping was awarded a summa cum laude by the University of Fribourg in early 2015. She gained significant experience in sports arbitration as a senior associate in one of Switzerland’s leading law firms, advising clients, including major sports federations, on all aspects of anti-doping. She also holds positions within committees in sports organisations and has been involved in a variety of roles in the implementation of the 2015 WADC. Her book “Evidence in Anti-Doping at the Intersection of Science & Law” is scheduled for publication in 2015.
Emily Wisnosky: An attorney-at-law admitted to the California bar, she currently participates in the WADC 2015 Commentary research project as a doctoral researcher. She also holds an LLM from the University of Geneva in International Dispute Settlement, with a focus on sports arbitration. Before studying law, she worked as a civil engineer.
Doping often results from the illegitimate use of a therapeutic product. As a result, many Prohibited Substances and Methods are pharmaceutical innovations that are or have been developed to serve legitimate therapeutic purposes. Much is being done within the anti-doping movement to coordinate efforts with the pharmaceutical industry in order to prevent abuse of drugs that have been discontinued or are still in development phase. Conversely, at the other end of the range, some Athletes may require legitimate medical treatment and wish to receive that treatment without being forced to give up their sports activities.
This post takes a cursory look at how the World
Anti-Doping Code (“WADC” or “Code”) tackles these issues and provides a summary
of the main changes that affect the modalities for Athletes to receive medical
treatment after the 2015 revision. The first part discusses the avenues open to
an Athlete to compete while under treatment, namely by applying for a
Therapeutic Use Exemption (“TUE”) or, in some cases, navigating the provisions
governing conditionally prohibited substances. The second part addresses the
consequences in case an Athlete should fail to take the proper avenues. The
post closes with observations regarding the current system in light of one of
the pillars of the anti-doping movement: the Athlete’s health.
1. Obtaining Clearance to Compete – Therapeutic Use Exemptions and Conditional Prohibitions
Amendments to Procedural Requirements for Granting a TUE
An Athlete undergoing medical treatment that involves a Prohibited Substance must seek a TUE from the competent Anti-Doping Organisation (“ADO”). The 2015 regime preserves the “national vs international” distinction that existed under the previous rules. The basic principle is that International-Level Athletes request TUEs from their International Federation, while National-Level Athletes request TUEs from their National Anti-Doping Organisation (“NADO”). During the consultation process leading to the 2015 Code, recommendations were made for an international independent TUE Committee that would grant TUEs in a centralised manner. No such system has been introduced at this point, but the 2015 revision does take steps to ease the procedural burden and enhance clarity for those Athletes whose competition schedule would require multiple TUEs (e.g. those transitioning from national-level competition to international-level competition). In particular the 2015 Code:
§ Provides a streamlined process for Athletes seeking international recognition of a national-level TUE. TheseAthletes are now relieved from having to go through a whole new application process if they already have the benefit of a TUE granted by their NADO: they can have the TUE “recognised” by the International Federation, which “must” grant such recognition if the TUE is in compliance with the International Standard for Therapeutic Use Exemptions (“ISTUE”).
§ Encourages the automatic recognition of TUEs. ISTUE 7.1 newly encourages International Federations and Major Event Organizers to declare automatic recognition of TUEs, at least in part – e.g. those granted by certain selected other ADOs or for certain Prohibited Substances.
Another key procedural change reflected in the 2015 revision is an increased storage time for application data, in accordance with the extended statute of limitation period for initiating anti-doping proceedings from 8 to 10 years (revised WADC 17). During the TUE process, the application must include the diagnosis as well as evidence supporting such diagnosis. This sensitive medical data is newly stored for 10 years under the revised 2015 regime for the approval form (versus 8 years under the 2009 regime). All other medical information must be kept for eighteen months from the end of the TUE validity.
Amendments to Substantive Requirements for Granting a TUE
The requirements to receive a TUE have been slightly adapted in the revised 2015 ISTUE, but not in a manner that would significantly alter the assessment. In short, the TUE Committee must find that the following four criteria are fulfilled:
With regards to the manner in which these criteria operate, the 2015 revision:
§ Places the burden of proof on the Athlete. The 2015 ISTUE received an explicit addition that confirms and codifies the interpretation of the CAS panel in the recent ISSF v. WADA award (Article 4.1, in initio): “An Athlete may be granted a TUE if (and only if) he/she can show that each of the following conditions is met” (emphasis added). While a welcome addition for legal predictability, the hurdle for the Athlete to overcome is high and can lead to nearly insurmountable evidentiary situations, such as in ISSF v. WADA regarding beta-blockers in shooting and lack of additional performance-enhancement.
§ Remains silent as to the standard of proof. The requisite standard of proof to establish these substantive criteria is still not explicitly stated. Although the issue was left undecided in ISSF v. WADA, the solution most in line with the WADC and general principles of evidence seems the “balance of probability”-standard, as per the general provision for establishing facts related to anti-doping rule violations (WADC 3.1).
§ Newly allows retroactive TUEs for “fairness” reasons. As a rule, TUEs must be obtained prior to using the Prohibited Substance or Method (ISTUE 4.2). Exceptionally, a TUE may be granted with retroactive effect, which mostly concerns lower-level Athletes for whom the applicable anti-doping rules accept such possibility (WADC 4.4.5), or for emergency situations (ISTUE 4.3). The 2015 ISTUE contains a new possibility to grant a retroactive TUE if WADA and the relevant ADO agree that “fairness” so requires. The scope of this new exception remains unclear. A recent award rejected an Athlete’s plea that (s)he did not “timeously” request a TUE based on ignorance of the system. One may wonder whether fairness related reasons could offer a solution for situations of venire contra proprium factum, i.e. when the Athlete received assurance from a competent ADO that the substance or method was not prohibited and the latter could thus reasonably be considered estopped from pursuing a violation based on a subsequent positive test.
Transparency for Conditionally Prohibited Substances
Only minor changes were made in the 2015 revision in the context of conditionally prohibited substances. Some categories of Prohibited Substances are widely used to treat minor conditions, including in the context of sports medicine. Moreover, their effects on the Athlete may depend on the mode of use. Thus, the Prohibited List prohibits the following substances only conditionally:
§ Beta-2 agonists (class S.3) – e.g. Salbutamol, the active ingredient of “Ventolin” –widespread against asthma in endurance sports. “Limits of use” have been determined that are deemed to reflect an acceptable therapeutic use of the substance.
§ Glucocorticoids (class S.9), which have been the subject of debates for their use in sports medicine, are prohibited only when administered by certain routes (oral, intravenous, intramuscular or rectal). A contrario all other routes of application are permitted.
These categories require adjustments for establishing an anti-doping rule violation compared to the standard regime, as the finding of a violation calls for information beyond the mere detection of the substance. Unless a distinctive trait for dosage or route of administration can be identified directly during Sample analysis, the information must be gathered during results management and generally supposes explanations from Athletes regarding the causes that led to the findings. In particular, for these types of substances, the 2015 Code:
§ Applies a different burden of proof. Whereas the burden is on the Athlete to show that the criteria for a TUE are realised (see above), or to demonstrate the origins of the analytical findings to obtain a reduced sanction (WADC 10), for S.3 and S.9 substances proving dosage and/or route of administration is part of the requirements for a violation. A specific allocation of the burden to the Athlete is only provided in the Prohibited List for findings of Salbutamol and Formoterol above a certain Threshold. In all other situations, it ought to be sufficient for the Athlete to present credible explanations (e.g. listing the substance on the Doping Control form) that the Prohibited Substance originated from an authorised Use. The burden of proof ought then to be on the ADO to convince the hearing panel to a comfortable satisfaction (WADC 3.1) that a prohibited Use occurred.
§ Prefers short-cut procedures and transparency. The International Standard for Laboratories (“ISL”) introduces the “Presumptive Adverse Analytical Finding” to promote procedural economy by allowing a laboratory to enquire with the Testing Authority whether a TUE exists prior to the confirmation step of the A Sample for a S.3 or S.9 class substance (normally the presence of a TUE is determined after report of the Adverse Analytical Finding, during the initial review by the ADO). The revised 2015 regime maintains this pragmatic solution, but seeks to foster transparency in order to avoid this short cut from being abused by ADOs to stop cases from going forward. The 2015 ISL makes it explicit that any such communication and its outcome must be documented and provided to WADA (ISL 188.8.131.52.1.1).
2. Sanctions for Legitimate Medical Treatment without a TUE
An Athlete who is undergoing legitimate medical treatment that involves a Prohibited Substance, but does not have a TUE might – if tested – return an Adverse Analytical Finding. As mentioned above, an anti-doping violation cannot be invalidated for reasons of legitimate medical treatment, save in exceptional circumstances where the system allows for a retroactive TUE or for authorized Use of S.3 & S.9 class substances. Thus, Athletes will typically first turn to the options in the sanctioning regime to reduce or eliminate the sanction for Fault-related reasons. The success of this effort varies considerably from case-to-case, with no clear pattern emerging in the CAS jurisprudence.
The 2015 WADC has not improved the clarity of the situation for violations involving legitimate medical treatment, unless contamination is involved. In the 2009 WADC, if Athletes were “fortunate” enough to have inadvertently Used a Specified Substance then the Panel had the flexibility to settle on a sanction ranging from a reprimand and no period of Ineligibility, up to a two-year period of Ineligibility; if the Prohibited Substance was non-Specified, the shortest period of Ineligibility available was one year. This raises questions of fairness, since violations under similar factual circumstances, and with similar levels of fault are punished with very different sanctions. The 2015 WADC remedied this disparate treatment when the violation involves a Contaminated Product. No analogous exception to receive a facilitated reduction in the case of legitimate medical treatment is available, even though similar policy arguments could also be lodged in this context.
Before Athletes can seek to establish a Fault-related reduction, newly under the 2015 WADC they must first avoid a finding that the violation was committed “intentionally”. This prospect poses interpretational issues for medications. According to the definition in WADC 10.2.3, “the term ‘intentional’ is meant to identify those Athletes who cheat.” However, the core of the definition defines “intentional” conduct as encompassing both knowing and reckless behaviour. Since the violations considered in this post involve the knowing administration of a medication, it can be expected that Athletes will rely on the reference to “cheating” to argue that their conduct falls outside of this definition. If they were to succeed with this line of argumentation before hearing panels, then their basic sanction starts at a two-year period of Ineligibility that is subject to further reduction for Fault-related reasons. If they were to fail, they face a strict four-year period of Ineligibility, which would inevitably raise proportionality concerns for this type of violation.
The Fault-related reductions in the 2015 WADC, like those in the 2009 WADC, rest in an interpretive grey area for violations arising from legitimate medical use. A sanction can be reduced for Fault-related reasons if the Athlete can establish a factual scenario that is accepted to reflect No Fault or Negligence, or No Significant Fault or Negligence. On one hand, it is well-established that medications often contain Prohibited Substances, thus panels expect a high-level of diligence from an Athlete to avoid a violation arising from medications. Thus, these types of violations often are committed with a high level of negligence at least bordering on “significant” and at times approaching “reckless”. As to the level of Fault, CAS panels are not consistent. One CAS panel found that a legitimate medical Use of a Prohibited Substance that could have been (and eventually was) excused by a TUE can implicate only a low-level of Fault, whereas others have come to the opposite conclusion, holding that the (alleged) “legitimate therapeutic use” of a medication was “irrelevant”, and contributed to the Athlete’s significant level of Fault. In light of these different characterisations, it is difficult to predict how a panel would sanction these violations under the 2015 Code.
Conclusion – Remember Health Considerations behind Anti-Doping
Athletes do not have it easy when it comes to reconciling necessary medical treatment with high-level competition in sport. The conditions for claiming the right to compete despite Use of a Prohibited Substance or Method are stringent, and the procedure at times burdensome. There is no doubt that the system must strictly monitor any possible abuse of medical treatment as a cover up for doping attempts. Nevertheless, this system should not escalate into penalising Athletes who had a legitimate need for treatment and resorted in good faith to such treatment, especially since in many cases the performance-enhancing effects of the Use of a Prohibited Substance or Method are hypothetical at most.
The current system requires considerable Athlete transparency in matters related to their health. The TUE process is not the only context in which Athletes may have to reveal information about medical conditions and/or ongoing treatment for these conditions. Apart from the disclosure of medication and blood transfusion that Athletes are required to make on the Doping Control form, the anti-doping proceedings themselves may bring to light information about medical conditions affecting the Athlete. This may occur either because the Athlete is bound to reveal information to build a defence, or because the detection system itself may uncover collateral data indicating a pathology – known or unknown to the Athlete.
In return for these expectations, the anti-doping movement must keep in mind one of its key stated goals – the protection of the Athlete’s health – when regulating matters implicating legitimate medical treatment. This protection must include efforts to avoid the Athlete inadvertently committing an anti-doping rule violation while under therapeutic treatment, which may include more systematic labelling of medication with explicit warnings. The attentiveness to the Athlete’s health, however, could go beyond these efforts and exploit the data collected as part of Doping Control also for the benefit of the Athlete. The current regime already allows for suspected pathologies detected on the occasion of Doping Control to be communicated to the Athlete on certain specific aspects. As Athletes agree to disclose large parts of their privacy for the sake of clean sport, it might be desirable to explore paths through which clean sport might wish to pay these Athletes back by providing them and their physicians with an additional source of data on health matters, an aspect of Athlete’s lives that is always on the brink of being endangered in elite sports.
 Article 4.4.4 further addresses the right for Major Event Organisations to provide specific requirements for their Events ; for more details, see Rigozzi A, Viret M, Wisnosky E, Does the World Anti-Doping Code revision live up to its promises? Jusletter, 11 November 2013, n° 173 et seq.
 See e.g. ISTUE, Annex 2.
 See Rigozzi A, Viret M, Wisnosky E, The ISSF v. WADA CAS Award: Another Therapeutic Use Exemption Request for Beta Blockers Shot Down, Anti-Doping Blog, 10 August 2015.
 CAS 2014/A/3876, Stewart v. FIM, April 27, 2015. See, for a detailed analysis, see our comment on the Stewart CAS Award in Rigozzi A, Viret M, Wisnosky E, Switzerland Anti-Doping Reports, International Sports Law Review (Sweet & Maxwell), Issue 3/15, p.61 et seq, also available online at: wadc-commentary/stewart
 The Prohibited List is an “open list”, which means that simply consulting the list does not always provide a conclusive answer as to whether a particular substance or method is prohibited. Prohibited Methods (“M” classes) need by their very nature to be described in somewhat general scientific terms that always leave a certain room for interpretation (see e.g. CAS 2012/A/2997, NADA v. Y). For substances (“S” classes), the precision of the description of the prohibition under the Prohibited List varies depending on the substance at stake.
 Not to be confused with a Threshold concentration in the Sample. Only Salbutamol and Formoterol currently have a form of Threshold with a Decision Limit (in TD2014DL), beyond which the finding is presumed not to result from a therapeutic use and the Athlete needs to produce an administration study to invalidate the Adverse Analytical Finding.
 New terminology under the 2015 Prohibited List. Up to the 2014 List, “glucocorticosteroid”.
 In particular by finding Metabolites that differ depending on the route of administration. A solution codified e.g. in the revised TD2014MRPL, Table 1, for the glucocorticoid budesonide.
 The standard Doping Control Form and ISTI 7.4.5 (q) invite Athletes to disclose all recent medication, supplements and blood transfusions (for blood sampling). On the legal implications of this disclosure, see Viret M, Evidence in Anti-Doping at the Intersection of Science & Law, p. 573 et seq.
 On the imprecise use of the term TUE, see Viret M, Evidence in Anti-Doping at the Intersection of Science & Law, p. 379 et seq. ADOs would rely in practice on Athlete declarations on the Doping Control Form. The 2015 WADA Results Management Guidelines encourage ADOs to contact the Athlete to enquire about the route of administration if there is no TUE on the record (Section 184.108.40.206).
 See also our comment on the Stewart CAS award in Switzerland Anti-Doping Reports, International Sports Law Review (Sweet & Maxwell), Issue 3/15, p.61 et seq.
 A new provision (WADC 10.5.1.2) allows for these types of violations to be subject to a flexible zero-to-two year period of Ineligibility, regardless of the type of substance involved.
 “Intentional” violations draw a four-year period of Ineligibility, whereas non-“intentional” violations start with a two-year basic sanction. Only non-intentional violations are subject to further reduction for Fault-related reasons. See, more generally, on intentional doping, the contribution by Howard Jacobs in this Blog Symposium.
 Article 10.2.3 ab initio: “As used in Articles 10.2 and 10.3, the term ‘intentional’ is meant to identify those Athletes who cheat. The term, therefore, requires that the Athlete or other Person engaged in conduct which he or she knew constituted an anti-doping rule violation or knew that there was a significant risk that the conduct might constitute or result in an anti-doping rule violation and manifestly disregarded that risk.”
 For a discussion of the expected role of the term “cheat” in establishing that a violation was “intentional”, see Rigozzi A, Haas U, Wisnosky E, Viret M, Breaking Down the Process for Determining a Basic Sanction Under the 2015 World Anti-Doping Code, International Sports Law Journal, June 10, 2015. On a related note, an argument akin to those made in the Oliveira/Foggo line of cases under the 2009 Code could also arise here: If Athletes do not have actual knowledge that their medications contain a Prohibited Substance, would purposefully consuming the product still be considered “intentional”?
 Article 10.2.1 places the burden of proof to establish that the violation was not “intentional” on the Athlete if the violation did not involve a Specified Substance, and on the Anti-Doping Organisation to establish that the violation was “intentional” if the violation did involve a Specified Substance.
 See, e.g. CAS 2014/A/3876, Stewart v. FIM, April 27, 2015, para. 79; See also, CAS 2012/A/2959, WADA v. Nilforushan, April 30, 2013, para. 8.21. In rare cases, Athletes have been able to establish No Fault or Negligence under very specific circumstances. See, e.g. CAS 2005/A/834, Dubin v. IPC, February 8, 2006.
 See, e.g. CAS 2014/A/3876, Stewart v. FIM, April 27, 2015, para. 84 where the CAS panel held that the Athlete’s level of Fault must be considered “light” where he was prescribed the medication by a doctor and later obtained a TUE. See also CAS 2011/A/2645, UCI v. Kolobnev, February 29, 2012, paras. 87-90, which does not specifically address the possibility of obtaining a TUE, but confirmed a first instance decision (after weighing a list of factors) that a Prohibited Substance taken for purposes unrelated to sport performance, and upon medical advice fell at “the very lowest end of the spectrum of fault”.
 See, e.g. the ITF Independent Anti-Doping Tribunal, ITF v. Nielsen, June 5, 2006, that found that it not relevant “whether the player might have been granted a therapeutic use exemption”. See also CAS 2008/A/1488, P. v. ITF, August 22, 2008, para. 19, which found it of “little relevance to the determination of fault that the product was prescribed with ‘professional diligence’ and ‘with a clear therapeutic intention’”. These cases were both referenced in CAS 2012/A/2959, WADA v. Nilforushan, April 30, 2013, para. 8.20.
 See, as a prominent example, the Claudia Pechstein saga with respect to the explanations – doping or rare pathology? - for her abnormal blood values.
 See the Guidelines for Reporting & Management of Human Chorionic Gonadotrophin (hCG) and Luteinizing Hormone (LH) Findings in male athletes, as well as the recommendations for ABP expert review in the Athlete Biological Passport Operating Guidelines.
Howard Jacobs is solo practitioner in the Los Angeles suburb of Westlake Village, California. Mr. Jacobs has been identified by various national newspapers and publications as one of the leading sports lawyers in the world. His law practice focuses on the representation of athletes in all types of disputes, with a particular focus on the defense of athletes charged with doping offenses.Mr. Jacobs has represented numerous professional athletes, Olympic athletes, world record holders, and amateur athletes in disputes involving doping, endorsements, unauthorized use of name and likeness, salary issues, team selection issues, and other matters. He is at the forefront of many cutting edge legal issues that affect athletes, winning cases that have set precedents that have benefited the athlete community. More information is available at www.athleteslawyer.com.
Historically, under the anti-doping rules of most organizations (including the World Anti-Doping Code), the concept of “strict liability” has meant that the proof of intent (or lack thereof) was irrelevant to the issue of whether or not the athlete has violated the anti-doping rules. However, so long as the rules provide for sanction ranges instead of a set sanction for all offenses, the issue of intent to dope has always been somewhat relevant to the issue of sanction length. The 2015 World Anti-Doping Code, with its potential four-year sanctions for a first violation based on whether or not the anti-doping rule violation was intentional, will make the question of intent an important issue in virtually every anti-doping case. This article analyzes these new rules allowing for four-year sanctions for a first violation, in the context of how intent (or lack of intent) will be proven.
I. Why Intent Matters under the 2015 World Anti-Doping Code
It should be remembered that under the 2015 World Anti-Doping Code (“WADC”). intent is still irrelevant to the issue of whether or not an athlete has committed an anti-doping rule violation. This is clear from the Comment to Article 2.1.1: “An anti-doping rule violation is committed under this Article without regard to an Athlete’s Fault. This rule has been referred to in various CAS decisions as “Strict Liability”. An Athlete’s Fault is taken into consideration in determining the Consequences of this anti-doping rule violation under Article 10. This principle has consistently been upheld by CAS.”
Article 10 of the WADC – dealing with length of sanction, has always taken “intent” into account in determining whether or not a sanction should be reduced. In other words, a sanction that would ordinarily be 2 years could be reduced to no sanction where the athlete had no fault or negligence whatsoever, or could be reduced to some degree if the athlete was not significantly at fault or negligent. In this way, intent is indirectly relevant to the issue of how much, if at all, an otherwise applicable sanction (sometimes referred to as the “default sanction”) could be eliminated or reduced. This is because an athlete who can prove that he or she did not intend to violate the anti-doping rules would be much more likely to establish a lack of significant fault or negligence in committing the violation in the first place.
Now, however, the 2015 WADC makes the issue of intent directly relevant to the first issue of the length of the default sanction itself. Therefore, intent is now not only relevant to the issue of reducing the default sanction, but is also relevant to the threshold issue of what the default sanction is in the first place.
Specifically, Art. 10.2.1 of the 2015 WADC provides:
“The period of Ineligibility shall be four years where:
10.2.1.1 The anti-doping rule violation does not involve a Specified Substance, unless the athlete or other Person can establish that the anti-doping rule violation was not intentional.
10.2.1.2 The anti-doping rule violation involves a Specified Substance and the anti-doping organization can establish that the anti- doping rule violation was intentional.”
Art. 10.2.2 of the 2015 WADC goes on to state that “if Article 10.2.1 does not apply, the period of Ineligibility shall be two years.” Therefore, under the 2015 WADC, the default sanction is determined as follows:
1. where the violation does not involve a “Specified Substance,” the default sanction is four years unless the athlete can prove that the violation was “not intentional;” if the athlete meets this burden of proving “lack of intent,” then the default sanction is two years.
2. where the violation involves a “Specified Substance,” the default sanction is two years unless the National Anti-Doping Organization (“NADO”) or the International Federation (“IF”) can prove that the violation was “intentional;” if the NADO or IF meets this burden of proving “intent,” then the default sanction is four years.
In either case, “intent” is now directly relevant to the length of the default sanction; the only difference is who bears the burden of proving “intent” or “lack of intent,” depending on whether or not the substance involved is a Specified Substance.
II. How will the NADO / IF prove “intent” in cases involving “Specified Substances”?
Many older CAS cases have discussed the difficulty that a NADO or IF faces in proving that an athlete “intended” to use a prohibited substance, in their discussions of the justification of the “strict liability” rule.
While this difficulty in proving that an athlete “intended” to use a prohibited substance to enhance their sport performance has not changed in theory, it has changed in practice with the definitions that WADA provided for proving “intent” within the meaning of Art. 10.2.1 of the 2015 WADC. Specifically, Art. 10.2.3 now provides the following definition of “intent:”
“As used in Articles 10.2 and 10.3, the term “intentional” is meant to identify those athletes who cheat. The term, therefore, requires that the athlete or other Person engaged in conduct which he or she knew constituted an anti-doping rule violation or knew that there was a significant risk that the conduct might constitute or result in an anti-doping rule violation and manifestly disregarded that risk. An anti-doping rule violation resulting from an adverse analytical finding for a substance which is only prohibited In-Competition shall be rebuttably presumed to be not “intentional” if the substance is a Specified Substance and the athlete can establish that the Prohibited Substance was used out-of-Competition. An anti-doping rule violation resulting from an adverse analytical finding for a substance which is only prohibited In-Competition shall not be considered “intentional” if the substance is not a Specified Substance and the athlete can establish that the Prohibited Substance was used out-of-Competition in a context unrelated to sport performance.”
Therefore, for the purpose of proving “intent” within the meaning of WADC Art. 10.2.1, in the case of Specified Substances, the NADO / IF can meet its burden by proving simply that the athlete engaged in conduct where the athlete “knew that there was a significant risk that the conduct might constitute or result in an anti-doping rule violation and manifestly disregarded that risk.” However, practical realities of this “proof” must be considered against the following questions:
(i) How will this definition of “intent” contained in WADC Art. 10.2.3 be read in connection with the seemingly contradictory comment to 2015 WADC Art. 4.2.2 that specified substances are “substances which are more likely to have been consumed by an Athlete for a purpose other than the enhancement of sport performance”?
(ii) How will an athlete who knowingly takes a “risky supplement” without knowing that the supplement contained a banned “Specified Substance” be viewed in connection with this definition of “intent” contained in WADC Art. 10.2.3?
Furthermore, in cases where an athlete intentionally used a supplement, but the athlete did not know that the supplement contained a prohibited substance (and where the lack of knowledge was reasonable, such as in cases involving misleading ingredient lists), what will the NADO /IF be required to prove? Will the burden be to prove that the athlete knew or should have known that the supplement contained a prohibited substance, or will it be sufficient to prove that the type of supplement or the supplement manufacturer itself could be viewed as risky, such that the athlete’s use of the supplement could be considered as a manifest disregard of a significant risk, for which the athlete should receive a four-year sanction? The manner in which CAS tribunals resolve this use could dramatically impact the applicable “default sanction” in cases involving nutritional supplements.
III. How does the athlete prove “no intent” in cases not involving “Specified Substances”?
In cases that do not involve “Specified Substances,” the athlete carries the burden of proving “no intent” to avoid the application of a four-year default sanction. In many cases, therefore, this burden of proof will mean the difference between a career-ending sanction and one from which an athlete could potentially return. Therefore, the manner in which this burden of proof is applied by the arbitral tribunals will be critical.
As mentioned above, Art. 10.2.3 of the 2015 WADC provides that “an anti-doping rule violation resulting from an adverse analytical finding for a substance which is only prohibited In-Competition shall not be considered “intentional” if the substance is not a Specified Substance and the athlete can establish that the Prohibited Substance was used out-of-Competition in a context unrelated to sport performance.” Therefore, in cases involving non-specified stimulants, an athlete can avoid a “default sanction” of four years by proving that the stimulant was used out-of-Competition in a context unrelated to sport performance. This raises a number of important issues:
a) will arbitral tribunals accept a low concentration level of the prohibited stimulant in the anti-doping test, which low levels would be inconsistent with the purposeful use of the stimulant “in Competition,” as sufficient proof of out-of-Competition use?
b) will arbitral tribunals accept a polygraph finding that the athlete was truthful in stating that he did not use the prohibited substance at issue on the day of the competition at issue as sufficient proof of out-of-Competition use ? 
c) how will arbitral tribunals analyze the issue of whether the out-of-Competition use of the stimulant was “in a context unrelated to sport performance?” As has been seen in past cases, arguments can be made that virtually any substance that an athlete consumes, including food, is done in a context related to sport performance. Therefore, in order to avoid an analysis that renders this phrase meaningless, arbitral tribunals must apply a common-sense and realistic meaning to the issue of when something is consumed in a context that is actually related to sport performance, as opposed (for example) to consuming a product for general health purposes.
For substances that are banned at all times, such as anabolic agents, the analysis of “in-competition” vs. “out-of-Competition’ use will be unnecessary. In these cases, in order to avoid a “default sanction” of four years, the athlete will be required to prove that he or she did not take the substance intentionally. It is therefore critical to consider what will happen to the athlete who has no idea what caused his or her positive test, and who, despite investigation, is unable to prove the source of the prohibited substance. For these athletes, how will arbitral tribunals analyze this issue, which could mean the difference between a career-ending four-year sanction and a “default sanction” of two years? Some important questions arise:
a) Will the athlete’s failure to prove how the prohibited substance entered his or her system (within the meaning of 2015 WADC Art. 10.4 and Art. 10.5.2) automatically result in a 4-year default sanction? Arbitral tribunals should recognize the difference between (i) proving the source of the prohibited substance as a pre-condition to receiving a reduction in the “default sanction,” and (ii) the requirement of proving “no intent” in order to avoid the application of a “default sanction” of four years. An athlete should be able to prove “no intent” without proving the source of the prohibited substance, at least in the abstract.
b) Assuming that the failure to prove how the prohibited substance entered the athlete’s system is not automatically equated with intent to use the prohibited substance, how will the athlete who cannot prove the source of the prohibited substance prove lack of intent? Will it be sufficient, for example, for an athlete to submit a polygraph finding that the he was truthful in stating that he did not knowingly use the prohibited substance at issue, as sufficient proof of lack of intent, such that the applicable “default sanction” is two years instead of four? Or, even in the absence of a polygraph exam, could an athlete establish “no intent” within the meaning of 2015 WADC Art. 10.2.1.1 solely through her own credible testimony that she did not knowingly ingest the prohibited substance at issue? These will be important evidentiary issues for arbitral tribunals to consider, and the manner in which they are determined will have a significant impact on the sanction length for many athletes under the 2015 WADC.
The concept of giving longer sanctions to athletes who intend to cheat, and shorter sanctions to those athletes who do not have such an intent, is certainly laudable, and the 2015 WADC has introduced a number of new legal and evidentiary issues in an effort to further differentiate between intentional and non-intentional “dopers.” However, as is often the case, the 2015 WADC has provided very broad concepts, which the arbitral tribunals will have to interpret and apply to real-world situations. How these general concepts are applied in reality will – for many athletes – mean the difference between a two-year sanction that is “merely” devastating and a four-year sanction that is career ending. In those cases where an athlete has no idea where the prohibited substance came from, the arbitral tribunals must be very careful in how they apply these new concepts.
These new concepts related to “intent” will change the manner in which arbitral tribunals address the preliminary issue of the applicable “default sanction”. They will not materially affect the manner in which these tribunals address the issues related to the reduction in the “default sanction.” However, because of the limitations in how much the “default sanction can be reduced (in cases of no significant fault, the maximum reduction in the “default sanction” is 50 percent), the determination of this new “intent” issue as related to the “default sanction” will be doubly important in cases where the older “exceptional circumstances” rules are being asserted as a basis for sanction reduction.
 See, e.g., 2015 WADC Art. 10.4: “if an athlete or other Person establishes in an individual case that he or she bears no fault or negligence, then the otherwise applicable period of Ineligibility shall be eliminated”; and Art. 10.5 on the Reduction of the Period of Ineligibility based on No Significant Fault or Negligence.
 See, e.g., C. v. FINA (CAS 95/141) Digest of CAS Awards, Vol. 1, at p. 220, par. 13: “Indeed, if for each case the sports federations had to prove the intentional nature of the act (desire to dope to enhance one’s performance) in order to be able to give it the force of an offence, the fight against doping would become practically impossible”.
Mike Morgan is the founding partner of Morgan Sports Law LLP. His practice is focused exclusively on the sports sector. He advises on regulatory and disciplinary issues and has particular experience advising on doping and corruption disputes.
Mike acted on behalf of National Olympic Committees at
three of the last four Olympic Games and has represented other sports bodies,
clubs and high profile athletes in proceedings before the High Court, the FIFA
Dispute Resolution Chamber, the American Arbitration Association and the Court
of Arbitration for Sport.
According to the World Anti-Doping Agency (“WADA”), the 2015 World Anti-Doping Agency Code (the “2015 Code”), which came into effect on 1 January 2015, is a “stronger, more robust tool that will protect the rights of the clean athletes”. Among the key themes of the revised Code, is the promise of “longer periods of Ineligibility for real cheats, and more flexibility in sanctioning in other specific circumstances”.
While Article 10 of the 2015 Code unquestionably provides for longer periods of ineligibility, the validity of WADA’s claim that the harsher sanctions will be reserved for “real cheats” depends partly on how one defines the term “realcheat”, and partly on how the 2015 Code’s mechanisms for reducing sanctions are to be interpreted.
This blog reflects on the totality of the
context from which the current sanctions regime arose. That is important because Article 10 will have
to be applied in a manner consistent with that context in mind if the 2015 Code
is to become the tool promised by WADA and if it is to avoid the scrutiny of
A. Katrin Krabbe
In the lead up to the adoption of the first version of the WADA Code (the “2003 Code”), there was considerable debate as to what length of sanction could lawfully be imposed on an athlete for a first violation.
The decision finally to settle on a two-year ban for first offences was heavily influenced by the findings of the Munich Courts in the case of Katrin Krabbe, that a suspension exceeding two years was disproportionate:
(a) The Regional Court held that a two-year suspension imposed on an athlete for a first offence “represents the highest threshold admissible under fundamental rights and democratic principles”.
(b) The High Regional Court held that the three-year ban imposed by the IAAF “was excessive in respect of its objective. Such a rigid disciplinary measure as a sanction for a first sports offence is inappropriate and disproportionate”.
And so it came to pass that a first violation under Article 10.2 of the 2003 Code would be punished with a two-year sanction. Various legal opinions procured by WADA between 2003 and 2008 affirmed the position that a two-year sanction for a first violation (1) was a significant incursion on the rights of the individual affected; and (2) was likely the limit of the severity that could be imposed in the absence of aggravating circumstances.
B. Specified Substances
The 2003 Code proved somewhat inflexible, which resulted in two-year bans for unintentional and minor anti-doping rule violations. One of the starkest examples of that inflexibility arose in CAS OG 04/003 TorriEdwards v IAAF & USATF.
Edwards had consumed glucose powder that, unbeknownst to her, contained the stimulant nikethamide. A two-year ban was imposed on her on the basis that she could not meet the thresholds for “No Fault” and “No Significant Fault” and despite the fact that she had, in the words of the CAS panel, “conducted herself with honesty, integrity and character, and that she has not sought to gain any improper advantage or to ‘cheat’ in any way”.
Ms Edwards’ case became a cause célèbre, leading the IAAF to lobby WADA to have nikethamide and other similar stimulants reclassified as Specified Substances. The then vice-president of the IAAF, Dr Arne Lungqvist explained as follows:
I asked Torri Edwards whether she would allow me to use her case as an example of the importance of making some sort of differentiation between those weak stimulants that you can get over the counter by accident, carelessness, negligence or whatever. We are not after those who are negligent.
WADA acceded to the IAAF’s lobbying and downgraded nikethamide to the Specified Substance list in September 2005. The IAAF Council shortly thereafter reinstated Edwards to competition further to the doctrine of lex mitior. Following Edwards’ reinstatement, Dr Lungqvist explained as follows:
The IAAF wishes to see strong penalties for real cheats. This was a different case, […] I did not feel comfortable when I had to defend the then-existing rules against her at the CAS hearing in Athens.
I judge that Torri has paid a high price for having inadvertently taken a particular substance at the 'wrong' time, shortly before [the reclassification] and from now on such an intake would result in a warning only. (Emphasis added)
Four years later, WADA went one step further and, with the introduction of the 2009 version of the WADA Code (the “2009 Code”), broadened the list of substances that would be categorised as Specified Substances, promising “lessened sanctions….where the athlete can establish that the substance involved was not intended to enhance performance” under Article 10.4.
The aim was to avoid the likes of the Edwards case. Indeed, a number of cases determined
under the 2009 Code which involved the same glucose brand that had landed Edwards with a two-year ban in 2004,
resulted in periods of ineligibility ranging between 0 – 6 months.
C. The rise and fall of “aggravating circumstances”
The primary themes of the 2009 Code were, according to WADA, “firmness and fairness”. “Fairness” was to be reflected by the broadening of the Specified Substance list, while “firmness” was intended to manifest itself through the concept of “aggravating circumstances” .
The presence of “aggravated circumstances” permitted Anti-Doping Organizations (“ADOs”) to increase periods of ineligibility beyond the standard two-year ban up to a maximum of four years.
91. […] it is clear that the intention to enhance performance is not in and-of-itself an aggravating circumstance.
92. […] This provision makes it clear that cheatingis an important element of the notion of aggravating circumstances. However, the mere fact of cheating alone is not sufficient. Additional elements are required.
93. The essence of the concept of aggravating circumstances is thus a qualified kind ofcheating, which involves an additional element. (Emphasis added)
Not only, therefore, was actual cheating required to invoke the provision but there needed to be something more than the mere fact of cheating. Examples provided by the 2009 Code included being part of a doping scheme or using multiple prohibited substances.
The “aggravated circumstances” provision was rarely invoked and, when it was, it rarely resulted in the maximum increase. That ultimately led to the removal of the “aggravated circumstances” provision from the 2015 Code and the introduction of standard four-year sanctions, explained as follows by WADA:
There was a strong consensus among stakeholders, and in particular, Athletes, that intentional cheaters should be Ineligible for a period of four years. Under the current Code, there is the opportunity for a four-year period of Ineligibility for an Adverse Analytical Finding if the Anti-Doping Organization can show “Aggravating Circumstances.” However, in the more than four years since that provision has been part of the Code, it has been rarely used. (Emphasis added)
The decision to double the standard two-year sanctions to four years may have surprised anyone who had ever read the Third WADA Legal Opinion, since that opinion had expressly cautioned as follows:
138. […] one should bear in mind that a four-year ban would most often put an end to an athlete’s (high level) career and thus be tantamount to a life ban. Therefore, an aggravated first offence could de facto be punished as harshly as numerous second offences (Article 10.7.1) and almost all third offences (Article 10.7.3).
139.This could raise problems if the ineligibility period were automatically of four years in the presence of aggravating circumstances. In reality, Art. 10.6 provides for an increased suspension of up to four years, which means that the adjudicating body is afforded sufficient flexibility to take into account all the circumstances to ensure that aggravating circumstances do not systematically result in a four-year period of ineligibility. (Emphasis added)
The principle of proportionality plays an important role in the determination of sanctions applicable in doping matters. The principle pervades Swiss law, EU law and general principles of (sports) law.
The CAS itself has consistently measured sanctions imposed on athletes against the principle of proportionality both before the inception of the WADA Code and since.
(a) Pre-WADA Code: the anti-doping rules of many sports prior to the creation of the WADA Code mandated fixed sanctions without the possibility of reductions. The CAS nevertheless sometimes reduced these sanctions on the basis they were not proportionate.
(b) Post-WADA Code: The WADA Code introduced mechanisms by which sanctions could be reduced or eliminated. However, the CAS has made clear that the introduction of these mechanisms does not remove the obligation of disciplinary panels to measure the sanctions applied in any particular case against the principle of proportionality. In CAS 2005/A/830 Squizzato v. FINA, the CAS held that:
10.24 […] the Panel holds that the mere adoption of the WADA Code […] by a respective Federation does not force the conclusion that there is no other possibility for greater or less reduction a sanction than allowed by DC 10.5. The mere fact that regulations of a sport federation derive from the World Anti-Doping Code does not change the nature of these rules. They are still – like before – regulations of an association which cannot (directly or indirectly) replace fundamental and general legal principles like the doctrine of proportionality a priori for every thinkable case.
Though the 2015 Code asserts that it “hasbeen drafted giving consideration to the
principles of proportionality and human rights”,
that obviously does not mean that proportionality no longer plays a part in the
assessment of sanctions for the same reasons propounded by the CAS in Squizzato.
Indeed, the 2015 Code itself recognises that it “is intended to be applied
in a manner which respects the principles of proportionality and human rights”.
Moreover, the most recent CAS decisions in which the principle of proportionality was
applied concerned the sanctioning regimes of the 2003 and 2009 Code, both of
which mandated default sanctions of two years, not four years. The principle of proportionality is,
therefore, arguably even more relevant now than it previously was.
While the 2015 Code does have more mechanisms by which to modify the default sanctions than in previous versions of the WADA Code, that is partly because the default sanctions with regards to most of the violations have doubled:
Default sanction under the 2015 Code for a first offence
Default sanction under the 2009 Code for a first offence
Presence of a Specified Substance (Art. 2.1)
Two years (Art. 10.2.2)
Two years (Art. 10.2.1)
Presence of a non-Specified Substance (Art. 2.1)
Four years (Art. 10.2.1)
Two years (Art. 10.2.1)
Use or Attempted Use of a Specified Substance (Art. 2.2)
Two years (Art. 10.2.2)
Two years (Art. 10.2.1)
Use or Attempted Use of a non-Specified Substance (Art. 2.2)
Four years (Art. 10.2.1)
Two years (Art. 10.2.1)
Evading, Refusing or Failing to Submit to Sample Collection (Art. 2.3)
Four years (Art. 10.3.1)
Two years (Art. 10.3.1)
Whereabouts Failures (Art. 2.4)
Two years (Art. 10.3.2)
One to two years (Art. 10.3.3)
Tampering or Attempted Tampering (Art. 2.5)
Four years (Art. 10.3.1)
Two years (Art. 10.3.1)
Possession of a Specified Substance (Art. 2.6)
Two years (Art. 10.2.2)
Two years (Art. 10.2.1)
Possession of a non-Specified Substance (Art. 2.6)
Four years (Art. 10.2.1)
Two years (Art. 10.2.1)
Trafficking or Attempted Trafficking (Art. 2.7)
Four years to life (Art. 10.3.3)
Four years to life (Art. 10.3.2)
Administration or Attempted Administration (Art. 2.8)
Four years to life (Art. 10.3.3)
Four years to life (Art. 10.3.2)
Complicity (Art. 2.9)
Two to four years (Art. 10.3.4)
Elements of this violation previously formed part of the “Administration or Attempted Administration” violation.
Prohibited Association (Art. 2.10)
Two years (Art. 10.3.5)
This violation did not exist under the 2009 Code.
Athletes accused of committing a violation under Articles 2.1, 2.2, 2.3 or 2.6 are now in a position in which they are required to meet the Article 10.2 thresholds regarding “intent” simply to get them back to the two-year default sanctions that would have applied under previous versions of the Code.
If the 2015 Code is to become the tool promised by WADA and if it is to avoid or survive legal challenges, tribunals will need to ensure that their interpretations of the reduction mechanisms, such as those contained at Article 10.2, do not result in disproportionate sanctions.
The parameters within which the proportionality of a sanction falls to be measured were described as follows by the panel in CAS 2005/C/976 & 986 FIFA & WADA:
139. A long series of CAS decisions have developed the principle of proportionality in sport cases. This principle provides that the severity of a sanction must be proportionate to the offense committed. To be proportionate, the sanction must not exceed that which is reasonably required in the search of the justifiable aim. (Emphasis added)
The evaluation of whether a sanction is proportionate therefore begins with the identification of the “justifiable aim”. According to WADA, the increased sanctions were intended to target “intentional cheats”. That is echoed by the wording of Article 10.2.3 of the 2015 Code, which provides as follows:
As used in Articles 10.2 and 10.3, the term “intentional” is meant to identify those Athletes who cheat. The term, therefore, requires that the athlete or other Person engaged in conduct which he or she knew constituted an anti-doping rule violation or knew that there was a significant risk that the conduct might constitute or result in an anti-doping rule violation and manifestly disregarded that risk [….] (Emphasis added)
The final sentence emphasised above is, arguably, open to interpretation. However, the first line identifies the overarching aim of the provision – i.e. “the term ‘intentional’ is meant to identify those athletes who cheat”.
According to the Oxford Dictionary, a “cheat” is a “person who behaves dishonestly in order to gain an advantage” and the act of “cheating” amounts to “a fraud or deception”. A reasonable inference, therefore, is that athletes who “cheat” are athletes who have acted knowingly and dishonestly to gain an unfair advantage.
Article 10.2 cannot, therefore, be intended to punish careless athletes. Bearing in mind the limits pronounced by the courts in Krabbe and bearing in mind the “justifiable aim”, any interpretation of the provision that would result in a four-year ban for nothing more than careless – or even reckless, but otherwise honest - conduct would risk inviting the sort of scrutiny exercised by the German courts in the Pechstein and Krabbe cases.
Likewise, the interpretation of the other reduction mechanisms, such as Article 10.5 (“No Significant Fault or Negligence”), will require the same degree of pragmatism. If the parameters for “No Significant Fault” were to be applied as strictly today as they were in the Edwards case, anti-doping would end up right back to where it was in 2004, when the Code’s sanctioning regime was perceived to be so inflexible that it had to be overhauled in 2009. Assuming that the aim of the 2015 Code is not to take 11 years’ worth of backward steps, tribunals will have to ensure that “No Significant Fault” is interpreted in a manner that fulfils WADA’s promise of “greaterflexibility”, particularly in cases involving Specified Substances and Contaminated Products.
IV. Concluding Remark
The 2015 Code has the potential to become the fairest WADA Code to date. However, it also has the potential to be the cruelest. Interpreting it in a manner consistent with the totality of the context from which it was conceived is the surest way to ensure that the right version prevails.
 See (1) http://library.la84.org/OlympicInformationCenter/OlympicReview/1999/OREXXVI26/OREXXVI26s.pdf; and (2) http://library.la84.org/OlympicInformationCenter/OlympicReview/1999/OREXXVI26/OREXXVI26t.pdf
 See Kaufmann-Kohler, G., Rigozzi, A., and Malinverni, G., “Doping and fundamental rights of athletes: comments in the wake of the adoption of the World Anti-Doping Code”, I.S.L.R. 2003, 3(Aug), 39–67 *61
Krabbe v. IAAF et. al., Decision of the LG Munich of17 May 1995, SpuRt 1995 p. 161, p. 167
Krabbe v. IAAF et. al., Decision of the OLG Munich of28 March 1996, SpuRt 1996 p. 133, 138
 See (1) Legal Opinion on the Conformity of Certain Provisions of the Draft World Anti-Doping Code with Commonly Accepted Principles of International Law, dated 23 February 2003, paragraphs 142 and 143; (2) Legal Opinion on whether Article 10.2 of the World Anti-Doping Code is compatible with the Fundamental Principles of Swiss Domestic Law, dated 25 October 2005, paragraph 3 (b) (aa) at page 26 and paragraph 3. (f) (aa) at page 32; and (3) Legal Opinion on the Conformity of Article 10.6 of the 2007 Draft World Anti-Doping Code with the Fundamental Rights of Athletes, dated 13 November 2007, at paragraphs 33, 114, 138 and 139
 See IAAF press release dated 22 November 2005
 2009 Code, Article 10.4 (“Elimination or Reduction of the Period of Ineligibility for Specified Substances under Specific Circumstances”)
 See (1) CAS 2011/A/2493Antidoping Switzerland v/ X; (2) CAS 2013/A/3327 Marin Cilic v. International Tennis Federation& CAS 2013/A/3335 International Tennis Federation v. Marin Cilic; (3) AFLD Decision No. 2011-71 dated 7 July 2011; (4) AFLD Decision No. 2009-50 dated 10 December 2009
 Article 10.6 of the 2009 WADA Code (Aggravating Circumstances Which May Increase the Period of Ineligibility)
 Note that Violations under Articles 2.7 (Trafficking) and 2.8 (Administration) were not subject to the application of Article 10.6 since the sanctions for those violations (four years to life) already allowed discretion for aggravating circumstances
 See commentary to Article 10.6 of the 2009 Code
 WADA, Significant Changes between the 2009 Code and the 2015 Code, Version 4.0, 1 September 2013
 See paragraphs 47 and 48 of Case C-519/04 P Meca-Medina & Majcen v Commission  ECR I-6991
 See paragraph 83 of the First WADA Legal Opinion
 See page 11 of the 2015 Code - “Purpose, Scope and Organization of the World Anti-Doping Program and the Code”
 See the Introduction at page 17 of the 2015 Code
 Note that the table only reflects the default sanctions applicable before consideration of any of the mechanisms intended to increase or decrease those sanctions
 Note that article 10.2 only applies to those violations. For a detailed assessment of Article 10.2, see Rigozzi, Antonio and Haas, Ulrich and Wisnosky, Emily and Viret, Marjolaine, Breaking Down the Process for Determining a Basic Sanction Under the 2015 World Anti-Doping Code (June 10, 2015). ISLJ, (2015) 15:3-48
 Notably, the concept of “No Significant Faultor Negligence” in previous versions of the Code was limited to ‘‘exceptional circumstances’’. That limitation has been removed in the context of Specified Substances and Contaminated Products under Article 10.5.1 of the 2015 Code. Thus, it should now be easier for athletes to trigger the application of “No Signiﬁcant Fault” in those types of cases than it previously was. See Section 6.2 of Rigozzi et al for a detailed discussion of the point
Book Review: Vaitiekunas A (2014) The Court of
Arbitration for Sport : Law-Making and the Question of Independence,
Stämpfli Verlag, Berne, CHF 89,00
book under review is the published version of a PhD thesis defended in 2013 by
Andrew Vaitiekunas at Melbourne Law School. A PhD is often taking stock of
legal developments rather than anticipating or triggering them. This was
definitely not the case of this book. Its core subject of interest is the study
of the independence of the Court of Arbitration for Sport (CAS) – an issue that
has risen to prominence with the recent Pechstein ruling of January 2015 of the
Oberlandesgericht München. It is difficult to be timelier indeed.
The fundamental question underlying Vaitiekunas’ research is: “does CAS have sufficient independence to be a law-maker?”. Indeed, as many in the field, Vaitiekunas considers the CAS as a key institution in the production of a lex sportiva or transnational sports law. Hence, he thinks that “the closer CAS’s standards of independence and impartiality are to those that apply to the judiciary, the stronger may be the claim that CAS’s lex sportiva constitutes law”. Although I am myself sympathetic to the idea of the existence of a lex sportiva, I would be cautious in attributing it mainly to the CAS. Instead, I think that the notion of lex sportiva is rather reflecting the complex legal interaction between the rules (and raw political power) of international Sports Governing Bodies (SGBs) and the CAS’s jurisprudence. Yet, this should not detract from the value of posing the question of CAS independence as a hallmark of its legitimacy.
The book is relatively slow in tackling this question. The author is keen on providing a comprehensive analysis of the general context of his work in Chapter 2 on the CAS and the lex sportiva, of his theoretical apparatus in Chapter 3 on the relevant theories of law and of his analytical frame to assess the independence of the CAS in Chapter 4 on independence and impartiality. Although these parts are certainly useful to comprehend the red thread guiding his research, they certainly could have been synthetized and shortened. Any reader interested mainly in the assessment of the independence of the CAS might be tempted to jump directly to Chapter 5 and 6 providing the core of the author's analysis and his most valuable contribution to legal scholarship.
Chapter 5 reviews in detail the well-known favourable assessment by the Swiss Federal Tribunal of the independence of the CAS. Yet, the most important and interesting aspect of the chapter is that it already engages in a critical assessment of this jurisprudence. When discussing the impact of the post-Gundel Paris reform agreement, Vaitiekunas concludes that “a number of facets of the reform indicate continuing links, albeit indirect between the Olympic governing bodies and CAS, thus undermining the perception that CAS is truly an independent arbitral body”. He notes that “[w]hether ICAS members are appointed from within or outside the membership of the top sports bodies, they ultimately owe their appointment to these bodies”. He criticizes the CAS arbitrator list as it “does not indicate who nominated the individual arbitrators, leaving an athlete at risk of choosing an arbitrator nominated by the very IF [International Federation] against which they are taking CAS proceedings”. In any case, “the appointment [as CAS arbitrator] can be seen as occurring under the control of the Olympic governing bodies through their members or delegates in ICAS”. Interestingly, this reasoning is analogue to the one used by the Oberlandesgericht München in its Pechstein ruling. Unsurprisingly, Vaitiekunas is also extremely critical of the SFT’s judgment in the Lazutina case endorsing the independence and the legitimacy of the CAS post-Gundel. He argues that the SFT “appears almost as an apologist for CAS” and criticizes its “non-objective approach to statements by people close to CAS”. Moreover, he denounces a “formalistic approach in assessing CAS’s independence from the IOC”. Indeed, by privileging formal factors, such as the ICAS formal legal independence, “the SFT implicitly chose not to lift ICAS’s veil to consider who has the real powers behind ICAS”. Importantly in light of the Pechstein case, he attacks the fact that “the SFT limited its analysis concerning CAS’s institutional independence solely to CAS’s independence from the IOC and did not consider CAS’s independence from the Olympic governing bodies collectively”. Finally, he reiterates his critique against the closed list system, arguing that “the very process for the nomination and selection of arbitrators to the list creates an appearance of bias in favour of the Olympic governing bodies”.
Henceforth, Chapter 6 vows to pitch CAS’s independence against judicial independence standards discussed in Chapter 4. Coming from Chapter 5, the suspense as to the outcome of the assessment is relatively limited, it is clear ex ante that the author is doubtful of the independence of CAS. He assesses first the individual independence of the arbitrators, referring to four main criteria:
"The four main recognised safeguards of a judge’s personal independence under judicial independence norms are security of tenure in a judge’s appointment, restrictions on the removability of a judge, adequate and secure remuneration for judicial service and immunity from legal action in the exercise of judicial functions."
Furthermore, he contends that an arbitrator must fulfil a yardstick of substantive independence implying “a judge to be free from any inappropriate connections or influences". In this regard, he argues “all CAS arbitrators […] owe their presence on the closed list to the Olympic governing bodies, thereby creating the appearance of a lack of independence from them”. Finally, regarding the institutional independence of the CAS, Vaitiekunas suggests three main focal points: the structural links, the administrative links and the financial links. The structural links of the CAS are perceived as the main hindrances to CAS’s independence. This is because, “[g]iven the mutual ties and links which the IOC, the IFs and the NOCs […] have under the Olympic Charter, these bodies may appear to have influence collectively on ICAS”. His conclusions is sans appel: “The potential influence that the Olympic governing bodies may be perceived to exercise over ICAS and the CAS secretary general is inconsistent with judicial independence norms which require judicial matters to be exclusively within the responsibility of the judiciary”.
This highly sceptical view regarding the independence of CAS, leads him to propose a set of potential reforms. His first recommendation is to implement “a restructuring of ICAS to ensure that it is institutionally independent”. This would imply that “appointments to ICAS should exclude members of the IOC, executive members of the IFs, NFs and NOCs and their employees and anyone recently in these roles”. Moreover, “the CAS code should be amended to prohibit the appointment of Olympic governing body associates or athlete associates as CAS arbitrators”. Regarding the funding of ICAS and CAS, he suggests “the imposition of a levy on the broadcasting rights to or sponsorships of major sports events”. In order to secure CAS arbitrators individual independence, he is in favour of appointing them “on a tenured basis to a specified retirement aged”. He also recommends, “that arbitrators be appointed randomly to cases or on a predetermined basis”. Eventually, he advises “to provide arbitrators with greater security in remuneration by appointing them on a fixed salary, like judges, payable regardless of whether and how many cases they are appointed to arbitrate”. Vaitiekunas is convinced that if his recommendations were implemented, “CAS would be a true sports court, rather than an arbitral tribunal”.
The final chapter 7 of the book dedicated to CAS’s independence from external judicial review is a bit of a mystery to the reviewer. Vaitiekunas offers a relatively succinct but rigorous comparative study of the various national (and European) judicial avenues where CAS awards can be reviewed. He concludes rightly that CAS awards can be subjected to the control of national courts and European Institutions. However, his assumption that “CAS awards must be independent from review or intervention by state courts, such that they operate as final authority in the resolution of sports disputes” and especially the consequence he derives from it, denying to lex sportiva any status as a legal order seems to be flawed. Indeed, in no legal context, national or otherwise, is a judicial decision absolutely final. National courts’ judgments are often contested when their recognition is asked in another country, this does not entail that national law is not law. Similarly, the subjection of the judgments of the highest national courts of the EU Member States to the preliminary reference mechanism in place under EU law should not lead us to deny any legal value to national law. We are living in a pluralist legal age ruled by complex transnational legal assemblages and lex sportiva fits very well into this picture. Nonetheless, on this point I share the view of the author of this book, the question of the legitimacy of both the rulemaking bodies of lex sportiva (read FIFA or the IOC) and its adjudicative bodies (read the CAS) is of great importance. In fact, their illegitimacy, and here I differ from Vaitiekunas’ argument, should not mainly imply their non-existence as law-making bodies, but the need for a reform (or even a revolution) in the way they operate.
This book is precious, because it highlights very well the challenges ahead in our transnationalizing legal world. Democratizing international (or transnational in this case) judicial bodies is key, if the ideal and democratic function of an independent justice for world citizens is to be sustained. We need to understand that transnational private bodies are in the business of exercising a kind of public authority and should live up to analogous accountability and legitimacy standards than the one that have been progressively developed in the framework of the nation-states for national courts. The CAS is one of those, and the pending Pechstein case is a necessary itch to reflexively trigger a much-needed reform of its internal structure and functioning. Which precise form this reform will take is not crucial. What is essential, however, is that it ensures that CAS arbitrators be seen as rendering sporting justice at a personal (if not geographical) distance from those who are adopting and enforcing the rules of the lex sportiva. This book is an important critical contribution in that direction.
 Vaitiekunas A (2014) The Court of Arbitration for Sport: Law-Making and the Question of Independence. Stämpfli Verlag, Berne, p 2.
 Ibid, p 3.
 Ibid, pp 7-50.
 Ibid, pp 51-83.
 Ibid, pp 85-120.
 Ibid, pp 121-177.
 Ibid, p 142.
 Ibid, p 146.
 Ibid, p 150.
 Ibid, p 151.
 See supra n 1, Oberlandesgericht (OLG) München , paras 3b, bb, 3aaa and bbb.
Supra n 2, Vaitiekunas, pp 168-174.
 Ibid, p 169.
 Ibid, p 171.
 Ibid, p 174.
 Ibid, pp 179-200.
 Ibid, p 184.
 Ibid, p188.
 Ibid, p 189.
 Ibid, p 191.
 Ibid, p 193.
 Ibid, pp 197-199.
 Ibid, p 197.
 Ibid, p 198.
 Ibid, p 199.
 Ibid, p 265.
 Ibid, p 269 : ”CAS’s lack of final authority, in particular where state public policy or EU law are in question, derogates from CAS’s lex sportiva being an independent legal order“.
 For a similar idea applied to international courts, see Von Bogdandy A, Venzke I (2014) In Whose Name? A Public Law Theory of International Adjudication. Oxford University Press, New York.
The football world has been buzzing with Doyen’s name for a few years now. Yet, in practice very little is known about the way Doyen Sports (the Doyen entity involved in the football business) operates. The content of the contracts it signs with clubs was speculative, as they are subjected to strict confidentiality policies. Nonetheless, Doyen became a political (and public) scapegoat and is widely perceived as exemplifying the ‘TPOisation’ of football. This mythical status of Doyen is also entertained by the firm itself, which has multiplied the (until now failed) legal actions against FIFA’s TPO ban (on the ban see our blog symposium here) in a bid to attract attention and to publicly defend its business model. In short, it has become the mysterious flag bearer of TPO around the world. Thanks to a new anonymous group, inspired by the WikiLeaks model, we can now better assess how Doyen Sports truly functions. Since 5 November someone has been publishing different types of documents involving more or less directly the work of Doyen in football. These documents are all freely available at http://footballleaks.livejournal.com/. By doing so, the group has given us (legal scholars not involved directly in the trade) the opportunity to finally peruse the contractual structure of a TPO deal offered by Doyen and, as we purport to show in the coming weeks, to embark upon a journey into Doyen’s TPO-world.
The footballleaks group leaked two types of documents: documents related to the internal structure of Doyen and documents related to the various deals (involving mainly Portuguese and Spanish clubs and FC Twente) signed by Doyen. Regarding Doyen Sports itself as a company, the documents provide a good overview of its functioning and shareholder structure. The company based in Malta was registered in May 2011 and is controlled by two main shareholders, Refik Arif and Malik Ali. The aims of the company, based on its Memorandum and Articles of Association (point 1.1), include:
1. Acquisition and sale of representation rights of football players, coaches and managers and representation of football players, coaches and managers in all aspects of their football career, including associated off-field and commercial activities (including, where necessary, through licensed agents);
2. Acquisition and sale of football players and/or the economical rights of football players;
3. Making an offer to the player for his player registration documentation, a part thereof or some other offer to the player and/or football clubs;
4. Transferring football players, coaches and managers between different football clubs;
5. Representing football clubs;
6. Having a benefit or take an active role in the day-to-day running of football clubs, subject to complying with the FIFA Regulations and other relevant national or international regulations;
7. Granting loans to football clubs; and
8. Carry out such activities as may be ancillary to the above or as may be necessary or desirable to achieve the above objects without territorial restriction anywhere in the world.
Thus, Doyen’s business model blends different types of activities: investment and loans to clubs (broadly speaking the TPO side of Doyen’s activities) and the representation of players/coaches (the agent side of Doyen’s activities). We will not investigate further the internal structure of Doyen or its shareholders; such enquiries are better left to investigative journalists.
We, for our part, are going to focus on the contracts signed by Doyen with two clubs: FC Twente (Twente) and Sporting Club Portugal (Sporting). This analytical and descriptive exercise will feed into an evaluation of the compatibility of FIFA’s TPO ban with EU law. While it is difficult to know who precisely is responsible for footballleaks (maybe the ideal of transparency should also apply to the group), one thing is sure: the group seems to have a keen interest in the activities of Sporting (and Portuguese clubs in general). The emergence of this website targeting in priority Doyen might be linked to the on-going dispute between Doyen and Sporting about the TPO agreement signed over the transfer of the player Marcos Rojo. The dispute has been heard in September by the CAS, which will render its award on the matter in the coming month(s). In any case, the documents released until now by footballleaks enable us to draw a detailed profile of the TPO deals struck by Doyen with Twente and Sporting. The deal between Doyen and Twente, and its legal ramifications, will be the subject of a first blog early next week. We will map the network of obligations to which Twente accepted to be subjected in return for Doyen’s capital injection in the club. The case stirred a public controversy in the Netherlands and already led to the departure of Twente’s President. The second blog will focus on Sporting and more precisely on the “Rojo” TPO-deal with Doyen and its legal implications. Based on these empirical studies of the structure and implementation of the TPO agreements struck by Doyen, we will revisit the crucial pending question of the compatibility of FIFA’s TPO ban with EU competition law.
2015 was a good year for international sports law. It started early in January with the Pechstein ruling, THE defining sports law case of the year (and probably in years to come) and ended in an apotheosis with the decisions rendered by the FIFA Ethics Committee against Blatter and Platini. This blog will walk you through the important sports law developments of the year and make sure that you did not miss any.
The Court of Arbitration for Sport challenged by German Courts
The more discrete SV Wilhelmshaven ruling came first. It was not even decided in 2015, as the ruling was handed out on 30 December 2014. Yet, unless you are a sports law freak, you will not have taken notice of this case before 2015 (and our blog). It is not as well known as the Pechstein ruling, but it is challenging the whole private enforcement system put in place by FIFA (and similar systems existing in other SGBs). Indeed, the ruling foresees that before enforcing a sanction rendered by FIFA, the national (or in that case regional) federation must verify that the award underlying the sanction is compatible with EU law. The decision has been appealed to the Bundesgerichtshof (BGH) and a final ruling is expected in 2016.
Later on, in January, the Oberlandesgericht München dropped its legal bomb in the Pechstein case. The court refused to recognize the CAS award sanctioning Claudia Pechstein with a doping ban, as it was deemed contrary to German antitrust rules. The reasoning used in the ruling was indirectly challenging the independence of the CAS and, if confirmed by the BGH, will trigger a necessary reform of the functioning and institutional structure of the CAS. Paradoxically, this is a giant step forward for international sports law and the CAS. The court acknowledges the need for CAS arbitration in global sport. However, justice must be delivered in a fair fashion and the legitimacy of the CAS (which relies on its independence from the Sports Governing Bodies) must be ensured (see our long article on the case here).
We will see how the BGH will deal with these cases in 2016. In any event, they constitute an important warning shot for the CAS. In short, the CAS needs to take EU law and itself seriously. If it truly addresses these challenges, it will come out way stronger.
The new World Anti-Doping Code and the Russian Doping Scandal
On the doping front, 2015 is the year in which the new World Anti-Doping Code (WADC) came into force (see our Blog Symposium). The Code introduces substantial changes in the way the anti-doping fight is led and modifies the sanction regime applicable in case of an adverse analytical finding. It is too early to predict with certainty its effects on doping prevalence in international sports. For international sports lawyers, however, it is in any event a fundamental change to the rules applicable to anti-doping disputes, which they need to get closely acquainted with.
The new World Anti-Doping Code was largely overshadowed by the massive doping scandal involving Russian sports, which was unleashed by an ARD documentary (first released in 2014) and revived by the crushing report of the Independent Commission mandated by the World Anti-Doping Agency to investigate the matter. This scandal has shaken the legitimacy of both the anti-doping system and the International Association of Athletics Federations (IAAF). It has highlighted the systematic shortcomings of the anti-doping institutions in Russia, and, the weakness of the control exercised on these institutions at a transnational level, be it by IAAF or WADA.
In 2015 again, doping proved to be a scourge intimately linked with international sports. The confidence and the trust of the public, and of clean athletes, in fair sports competitions is anew put to the test. WADA, which was created in the wake of another massive doping scandal in the nineties, has shown its limits. In practice, the decentralization of the enforcement of the WADC empowers local actors, who are very difficult to control for WADA. Some decide to crackdown on Doping with criminal sanctions (see the new German law adopted in December 2015), others prefer to collaborate with their national athletes to improve their performances. The recent proposals at the IOC level aiming at shifting the testing to WADA can be perceived as a preliminary response to this problem. Yet, doing so would entail huge practical difficulties and financial costs.
EU law and sport: 20 years of Bosman and beyond
2015 was also the year in which the twentieth anniversary of Bosman was commemorated through multiple conferences and other sports law events. The ASSER International Sports Law Centre edited a special edition of the Maastricht Journal of European and Comparative Law and a book celebrating the legacy of the ruling is forthcoming with the publisher Springer. The ruling did not have the dramatic effects predicted at the time of the decision, since football is still alive and kicking. Surely, it has given way to new challenges and sharply accelerated the transnationalization of football (and sport in general). A key legacy of Bosman is that this transnationalization, which goes hand in hand with the commercialization of sport, cannot side-line an essential category of stakeholders: the athletes.
It is with this spirit in mind, and a little push of the ASSER International Sports Law Centre, that the European Commissiondecided to open an investigation into the rules of the International Skating Union (ISU) barring, under the threat of a life ban, speed skaters (and any other affiliate) from joining speed skating competitions which are not condoned by the ISU. Though the case is rather low profile outside of the Netherlands, this is an important step forward for the EU Commission, as it had not opened an EU competition law investigation in sporting matters in almost 15 years. Many other competition law complaints (e.g. TPO or Formula 1) involving sport are currently pending in front of the EU Commission, but it is still to decide whether it will open a formal investigation. 2015 is also the year in which we have desperately expected the release of the EU State aid decisions regarding football clubs, and amongst them Real Madrid, but in the end this will be a matter for 2016.
FIFA and the chaotic end of the Blatter reign
FIFA is not the only SGB to have put an abrupt end to the (very) long reign of its great leader (think of the messy downfall of Diack at the IAAF). Yet, when talking about FIFA and football, the resonance of a governance crisis goes well beyond any other. It is truly a global problem, discussed in nearly all news outlets. This illustrates very much how a Swiss association became a global public good, for which an Indian, Brazilian, American or European cares as much as a Swiss, who is in traditional legal terms the only one able to influence FIFA’s structure through legislation. The global outrage triggered by the progressive release by the US authorities of information documenting the corrupt behaviour of FIFA executives has led to two immediate consequences: a change of the guard and a first reform of the institution.
There are now very few FIFA Executive Committee members left who were present in 2010 for the election of Qatar as host city for the 2022 World Cup. The long-time key figures of FIFA, Blatter, Platini and Valcke, are unlikely to make a comeback any time soon. And, the upcoming February election of the new FIFA president is more uncertain than ever with five candidates remaining. Simultaneously, FIFA has announced some governance reforms, which aim at enhancing the transparency of its operation and the legitimacy of its decision-making. We are living through a marvellous time of glasnost and perestroika at FIFA. The final destination of this transformative process remains unknown. There are still some major hurdles to overcome (starting with the one association/one vote system at the FIFA congress) before FIFA is truly able to fulfil its mission in a transparent, accountable and legitimate manner. We hope it will be for 2016!
The ASSER International Sports Law Blog in 2015
Finally, a few words on our blog in 2015. In one year we have published 60 posts, our most-read-blog concerned the Pechstein ruling that was read 3054 times.
Our readers are based all around the world, but the majority is based in the EU and the US.
We hope to be able to keep you interested and busy in 2016 and we wish you a great year!
The ASSER International Sports Law Blog Team
This post offers a basic literature review on publications on international and European sports law in 2015. It does not have the pretence of being complete (our readers are encouraged to add references and links in the comments under this blog), but aims at covering a relatively vast sample of the 2015 academic publications in the field (we have used the comprehensive catalogue of the Peace Palace Library as a baseline for this compilation). When possible we have added hyperlinks to the source.
Stefano Bastianon (ed.), La sentenza Bosman vent'anni dopo. Aspetti giuridico-economici della sentenza che ha cambiato il calcio professionistico europeo (Giappichelli, Torino 2015)
Stefano Bastianon (ed.), L'Europa e lo sport. Profili giuridici, economici e sociali. Atti del 4° Convegno (Bergamo, 26 novembre 2014) (Giappichelli, Torino 2015)
Frédéric Buy & al (ed.), Droit du sport (L.G.D.J, Paris 2015)
Johnny Maeschalk et al., Sportrecht (Die Keure, Brugge, 2015)
Mathieu Maisonneuve (ed.), Droit et olympisme : contribution à l'étude juridique d'un phénomène transnational, (Presses Universitaires d'Aix-Marseille, Aix en Provence 2015)
Despina Mavromati and Matthieu Reeb, The Code of the Court of Arbitration for Sport : commentary, cases and materials (Wolters Kluwer, Alphen aan den Rijn 2015)
David McArdle, Dispute Resolution in Sport: Athletes, Law and Arbitration (Routledge, Taylor & Francis Group, London, New York 2015)
Patrick Meier, Dopingsanktion durch Zahlungsversprechen: das Beispiel der Ehrenerklärungen des Weltradsportverbands UCI (Duncker and Humblot, Berlin 2015)
Mario Merget, Beweisführung im Sportgerichtsverfahren am Beispiel des direkten und indirekten Dopingnachweises (Duncker and Humblot, Berlin 2015)
Katarina Pijetlovic, EU sports law and breakaway leagues in football (Asser Press, The Hague 2015)
Moritz Tauschwitz, Die Dopingverfolgung in Deutschland und Spanien. Eine strafrechtliche und kriminologische Untersuchung(Duncker and Humblot, Berlin 2015)
Klaus Vieweg (ed.), Lex Sportiva (Duncker and Humblot, Berlin 2015)
Klaus Vieweg, Gert-Peter Brüggemann, Franz Steinle (ed.), "Techno-Doping": Leistungssteigerung durch technische Hilfsmittel aus naturwissenschaftlicher und juristischer Perspektive (Boorberg, Stuttgart 2015)
Klaus Vieweg (ed.), Impulse des Sportrechts (Duncker and Humblot, Berlin 2015)
Marjolaine Viret, Evidence in Anti-Doping at the Intersection of Science & Law (T.M.C. Asser Press, 2016)
Markus Zimmermann, Vertragsstabilität im internationalen Fußball : unter besonderer Berücksichtigung der Rechtsprechung der FIFA und des CAS (Richard Boorberg, Stuttgart 2015)
The International Sports Law Journal
Antonio Rigozzi, Ulrich Haas, Emily Wisnosky, Marjolaine Viret, Breaking down the process for determining a basic sanction under the 2015 World Anti-Doping Code, June 2015, Volume 15, Issue 1, pp 3-48
Elena Atienza-Macias, 2015 WADA code comes into effect: significant changes in the Spanish legal arena, June 2015, Volume 15, Issue 1, pp 49-54
Antoine Duval, Cocaine, doping and the court of arbitration for sport, June 2015, Volume 15, Issue 1, pp 55-63
Corinna Coors, Are sports image rights assets? A legal, economic and tax perspective, June 2015, Volume 15, Issue 1, pp 64-68
Simon Boyes, Legal protection of athletes’ image rights in the United Kingdom, June 2015, Volume 15, Issue 1, pp 69-82
Tom Serby, The Council of Europe Convention on Manipulation of Sports Competitions: the best bet for the global fight against match-fixing?, June 2015, Volume 15, Issue 1, pp 83-100
Jonathan Liljeblad, Foucault, justice, and athletes with prosthetics: the 2008 CAS Arbitration Report on Oscar Pistorius, June 2015, Volume 15, Issue 1, pp 101-111
Jacob Kornbeck, Lisbonisation without regulation: engaging with sport policy to maximise its health impact?, June 2015, Volume 15, Issue 1, pp 112-122
Sergey Yurlov, Right to participate in sporting competition: a human right or legal fiction and the Russian legal framework for sport, June 2015, Volume 15, Issue 1, pp 123-127
SpuRt: Zeitschrift für Sport und Recht
Fabian Stancke, ‘Pechstein und der aktuelle Stand des Sportkartel‘ (2015), Volume 22, Issue 2, 46-51
Jan F. Orth, Martin Stopper, ‘Entscheidungsvollzug in der Verbandspyramide und Ausbildungsentschädigung‘ (2015), Volume 22, Issue 2, 51-56
Philipp Wackerbeck, ‘Das Aus der Spielervermittlerlizenz und das "Dritteigentum an Spielerrechten" - eine erste, kritische Bestandsaufnahme‘ (2015), Volume 22, Issue 2, 56-61
Michael Geistlinger, Julia Schaffelhofer, ‘Die Vierjahressperre nach dem WADC 2015 aus dem Blickwinkel der grundrechtlichen Berufsfreiheit‘ (2015), Volume 22, Issue 3, 101-105
Causa Sport:die Sport-Zeitschrift für nationales und internationales Recht sowie für Wirtschaft
Peter W. Heermann, ‘Related Parties gemäss Financial Fair Play: Erste Erfahrungen‘ (2015), Issue 1, 3-9
Markus Zimmermann, ‘Komplexe Konsequenzen bei Vertragsauflösungen im Fussball‘ (2015), Issue 1, 16-22
Patrick Redell, ‘Spielerverträge mit Minderjährigen: droht ein neuer "Bosman" Fall?‘ (2015), Issue 1, 28-36
Anne-Sophie Morand, ‘Verbote religiöser und politischer Symbole im Sport im Lichte des Persönlichkeitsrechts‘ (2015), Issue 1, 72-81
Luca Beffa& Olivier Ducrey, Review of the 2014 Case Law of the Swiss Federal Tribunal concerning Sports Arbitration (2015), Issue 2, 115-123
Marco Del Fabro, Optionen nach dem Verbot von Third Party Ownerships (2015), Issue 3, 219-230
Ralf Eckert & Clauia Wisser, Die Genehmigungsgebühr des DLV im Lichte des <Pechstein-Urteils> des OLG München (2015), Issue 3, 238-241
Matthias Neumann, Die Lizenzbox : attraktives Steuerungsinstrument für Fußballklubs im Rahmen des Merchandising (2015), Issue 3, 295-303
Dominik Kocholl, Schiedsklauseln im internationalen Sport : gewollt oder nicht? : Anmerkungen zur Entscheidung des Gerichtshofs vom 18. Februar 2015 3 Ob 157/14f (2015), Issue 3, 311-321
Urs Scherrer, FIFA : Reflexionen zu Fakten, zu Spekulationen und zur Zukunft (2015), Issue 3, 322-325
Jonas Leder, Das Bewerbungsverfahren um die Ausrichtung der Olympischen Spiele nach der IOC-Agenda 2020 (2015), Issue 4, 339-343
Robin van der Hout & Christian Wagner, Neue Möglichkeiten beihilferechtskonformer Finanzierung von Sportinfrastrukturen (2015), Issue 4, 344-352
Paul Lambertz, Problematische Namensveröffentlichungsregelung in Dopingfällen gemäss WADA-Code (2015), Issue 4, 369-373
Peter W. Heermann, Abstellung von Nationalspielern aus kartellrechtlicher Sicht (2015), Issue 4, 384-391
Revista española de derecho deportivo
Diego Medina Morales, ‘Derecho del deporte y normas de juego’ (2015), Volume 35, Issue 1, 11-18
Sandra L. Echeverry Velásquez, ‘Límites en la actividad publicitaria de naturaleza general y especial aplicada al deporte’ (2015), Volume 35, Issue 1, 55-78
Emilio A. García Silvero, ‘La disciplina deportiva en las federaciones deportivas internacionales: algunos aspectos básicos para su adecuada comprensión’(2015) Volume 35, Issue 1, 79-102
Rivista di diritto ed Economia dello sport
Mario Vigna, La Saga Pechstein : Tremano le colonne del tempio tas ? (2015), Issue 1, 13-30
Alessandro Coni, Le Third-Party Ownership, (2015), Issue 1, 31-68
Spadini, La normativa FIFA a tutela dei minori alla luce del
« caso Barcellona »
(2015), Issue 2, 17-46
Piero Sandulli, Acquisizione e valutazione della prova nel processo sportivo : Profili problematici ? (2015), Issue 2, 47-58Maria Herta Palomba, L’esclusione del calciatore dalla rosa della prima squadra e il concetto di giusta causa nella giurisprudenza del CAS e della FIFA (2015), Issue 2, 59-74
Luca Smacchia, Il lodo Mutu : Come il diritto europeo limita la specificità dello sport (2015), Issue 2, 75-88
Gerardo Russo, Lo sviluppo tecnico normativo nella lotta al doping e l’impatto sul rilascio delle licenze world tour UCI : Il caso Astana (2015), Issue 2, 89-116
Salvatore Civale, L'Indennità di formazione e il contributo di solidarietà nei trasferimenti internazionali dei calciatori alla luce della circolare FIFA n.1500 (2015), Issue 2, 117-126
Massimiliano Zampi & Giovanna Tassoni, Il doping tra medicina legale e diritto, osservazioni sulla liceità dei prelievi e sulle modlità di accertamento(2015), Issue 2, 135-148
Alessandro Coni, Il caso RFC Sérésien : La prima condanna per violazione del divieto di TPO (2015), Issue 2, 135-148
Sweet & Maxwell's international sports law review
James M. Dorsey, ‘To watch or not to watch? : Middle Eastern Women's Sporting Rights’ (2015) Sweet & Maxwell's international sports law review
Lauri Tarasti, ‘First International Convention against Sport Manipulation’ (2015) Sweet & Maxwell's international sports law review
Kevin Carpenter & Adam Pendlebury, ‘Tweeting the Game into Disrepute : Regulation of Social Media by Governing Bodies : Lessons from English Football’ (2015) Sweet & Maxwell's international sports law review
Ulrich Haas, ‚The Court of Arbitration for Sport in the Case Law of the German Courts’ (2015) Sweet & Maxwell's international sports law review
Toine Spapens and Marjan Olfers, Match-fixing: The Current Discussion in Europe and the Case of The Netherlands (2015) European Journal of Crime Criminal Law and Criminal Justice; vol. 23, Issue. 4, 333-358
Ulrich Haas, Der Court of Arbitration for Sport im Spiegel der deutschen Rechtsprechung (2015) Zeitschrift fur Vergleichende Rechtswissenschaft; vol. 114, issue. 4, 516-544
Andrew Wacke, Spiel und Wette (insbesondere Sportwetten) in der Entwickliung des europäischen Zivilrechts (2015) Zeitschrift für europäisches Privatrecht, Issue 1, 88-104
Valerie Kaplan, UEFA Financial Fair play Regulations and the European Union Antitrust Law Complications (2015) Emory International Law Review, Volume 29, Issue 4, 799-857
Philippe Cavalieros, Janet (Hyun Jeong) Kim, Can the Arbitral Community learn from Sports Arbitration? (2015) Journal of International Arbitration, Volume 32, Issue 2, 237-260
Ralf Eckert, Maut fürs Laufen : zur Rechtmäßigkeit einer von einem Sportverband erhobenen Abgabe (2015) Wirtschaft und Wettbewerb, Volume 65, Issue 5, 480-489
Evelyne Lagrange, L'État et les puissances privées : digressions sur la compétence plénière de l'État et "l'autonomie du mouvement sportif" in Pierre d'Argent, Béatrice Bonafé et Jean Combacau (eds.) Les limites du droit international : essais en l'honneur de Joe Verhoeven, 183-204, 2015, ISBN 9782802742913
Mark Pieth, Ist der FIFA noch zu helfen? (2015) Zeitschrift fur Schweizerisches Recht, vol. 134, Issue. 1, 135-148
Danielle Wood, Giving Competition a Sporting Chance? : The Role for Antitrust Laws in Promoting Competition from New Sporting Leagues in Australia and the United States (2015) Australian Business Law Review; vol. 43, Issue. 3, 206-227
Oliver Budzinski, Stefan Szymanski, Are restrictions of competition by sports associations horizontal or vertical in nature? (2015) Journal of Competition Law & Economics, Volume 11, Issue 2, 409-429
Phinney Disseldorp, Voetballers niet langer te koop!? : Over een verbod op Third Party Ownership (2015) Tijdschrift voor sport & recht, Issue 1, 1-7
Geoff Pearson, Sporting Justifications under EU Free Movement and Competition Law: The Case of the Football ‘Transfer System’ (2015) European Law Journal, Volume 21, Issue 2, 220–238
Ben Van Rompuy, The Role of EU Competition Law in Tackling Abuse of Regulatory Power by Sports Associations (2015) Maastricht Journal of European and Comparative Law, vol. 22, issue. 2, 179-208
Nicolaides Phedon, A Critical Analysis of the Application of State Aid Rules to Sport (2015) Maastricht Journal of European and Comparative Law, vol. 22, issue. 2, 209-223
Antoine Duval, The Court of Arbitration for Sport and EU Law: Chronicle of an Encounter (2015) Maastricht Journal of European and Comparative Law, vol. 22, issue. 2, 224-255
Richard Parrish, Article 17 of the FIFA Regulations on the Status and Transfer of Players: Compatibility with EU Law, (2015) Maastricht Journal of European and Comparative Law, vol. 22, issue. 2, 256-282
Jacob Kornbeck, The Stamina of the "Bosman" Legacy : The European Union and the Revision of the World Anti-Doping Code (2011-2013) (2015) Maastricht Journal of European and Comparative Law, vol. 22, issue. 2, 283-304
Anna Sabrina Wollman, Olivier Vonk & Gerard-René De Groot, Towards a Sporting nationality? (2015) Maastricht Journal of European and Comparative Law, vol. 22, issue. 2, 305-321
Stefano Bastianon, The Striani Challenge to UEFA Financial Fair-Play. A New Era after Bosman or Just a Washout? (2015) Competition Law Review, Volume 11 Issue 1, 7-39
Beverley Williamson, Premiership Rugby Union: Through the Antitrust Looking Glass (2015) Competition Law Review, Volume 11 Issue 1, 41-60
Oskar van Maren, The Real Madrid case: A State aid case (un)like any other? (2015) Competition Law Review, Volume 11 Issue 1, 83-108
Anastasios Kaburakis, Ryan M. Rodenberg, John T. Holden, Inevitable: Sports Gambling, State Regulation, and the Pursuit of Revenue (10 January 2015)
Ben Van Rompuy, The Odds of Match Fixing - Facts & Figures on the Integrity Risk of Certain Sports Bets (22 January 2015)
Craig Dickson, Complex Rules & Inconsistent Interpretation: Duty of Care and Causation in Collision Sports (27 February 2015)
Craig Dickson, Courtsiding' in Sport: Cheating, Sharp Practice or Merely Irritating? (13 March 2015)
Kyle Mulrooney, Katinka Van de Ven, ”Muscle Profiling”: Anti-Doping Policy and Deviant Leisure (23 March 2015)
Antoine Duval, Ben Van Rompuy, The Compatibility of Forced CAS Arbitration with EU Competition Law: Pechstein Reloaded (23 June 2015)
Dick Pound, Sports Arbitration: How it Works and Why it Works (16 June 2015)
Kathryn Henne, Reforming Global Sport: Hybridity and the Challenges of Pursuing Transparency (20 August 2015).
Kathryn Henne, Defending Doping: Performances and Trials of an Anti-Doping Program (20 August 2015).
Thomas Margoni, The Protection of Sports Events in the European Union: Property, Intellectual Property, Unfair Competition and Special Forms of Protection (August 29, 2015).
Teresa Scassa and Benoit Séguin, Ambush Marketing Legislation to Protect Olympic Sponsors: A Step Too Far in the Name of Brand Protection? (October 7, 2015).
Others:Bulletin TAS/CAS Bulletin 2015/2
 This literature review would not have been possible without the precious support of our former intern Piotr Drabik.
 Only the articles deemed relevant from an international sports law perspective are listed here.
Editor’s note: Our first innovation for the year 2016 will be a monthly report compiling 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 world of professional sport has been making headlines for the wrong reasons in January. Football’s governing body FIFA is in such a complete governance and corruption mess that one wonders whether a new President (chosen on 26 February) will solve anything. More recently, however, it is the turn of the athletics governing body, IAAF, to undergo “the walk of shame”. On 14 January the WADA Independent Commission released its second report into doping in international athletics. Where the first report (released on 9 November 2015) primarily focussed on the widespread use of doping by Russian athletes, the second report demonstrated a much wider scope of corruption and manipulation, including illegal sponsorship deals, marketing agreements and bidding processes. Guardian sport correspondents Owen Gibson and Sean Ingle have written excellent pieces here and here.
Incidentally, on that same 14 January, FIFA announced that it sanctioned Real Madrid and Atlético Madrid for breaching the FIFA Regulation on the international transfer of minors. Both clubs will not be allowed to register any new players for the next two transfer windows, i.e. summer 2016 and January 2017. The sanction is identical to the one FC Barcelona received by FIFA for its failure to comply with the FIFA Regulation on the international transfer of minors. Real Madrid and Atlético Madrid have appealed the sanction to the FIFA Appeal Committee. On 30 January, the appeals were granted suspensive effect by the chairman of the FIFA Appeal Committee until the Appeal Committee has taken and notified its decision on the merits of the appeals.
One can indeed say that January was not the best month for Spanish giants Real Madrid. In addition to the FIFA sanction, the club became a new victim of football’s own version of WikiLeaks namely “footballleaks”. The publication of the transfer agreement between Real Madrid and Tottenham Hotspur concerning Gareth Bale brought to light the actual transfer sum of the Welsh player. Real Madrid had always claimed that it paid a “mere” €91 million. Yet the leaked agreement shows that the club actually paid €101 million, thereby making Bale the most expensive player of all time. Further claims that this transfer agreement was financed by banking institutions previously bailed out by the EU can be read in Sam Wallace’s piece (The Telegraph) here. The leaked documents by “footballleaks” led to widespread outrage. Bale’s agent, Jonathan Barnett, stated that “(t)here should be an independent investigation because it’s outrageous. I think it is disgraceful that people can get hold of this stuff. It shows complete disregard for both clubs and the player”. FIFA, on the other hand, is backing “footballleaks”, stating that the leaks are useful and admitting that it now uses the site as an information source. Furthermore, it forms an important source of information necessary to understand the functioning of Third Party Ownership and whether FIFA’s ban of the practice can be justified. The Asser International Sports Law Blog has already covered the leaked Economic Rights of Players Agreements (ERPA’s) concerning FC Twente and Sporting Lisbon, but more analysis will follow.
Meanwhile, on 23 January the European Parliament organised a debate on TPO and FIFA’s ban. The debate included some rather emotional calls by Doyen’s CEO Nélio Lucas and La Liga’s President Javier Tebas in defence of TPO. They empathically argued that a prohibition was in breach of EU competition Law. UEFA’s Julien Zylberstein, FIFA’s Omar Ongaro and FIFPro’s Jonas Baer-Hoffmann all defended the banning of the practice. The European Commission, who was not present at the debate, and is yet to decide whether it will launch a formal investigation.
Last but not least, tennis fans around the world were shocked by reports of widespread betting related match-fixing. To the surprise of some, however, all of the players allegedly involved in match-fixing were allowed to continue playing by the Tennis Integrity Unit. On 24 January tennis officials announced that an Independent Review Panel will investigate the sport, its anticorruption programme and even the Tennis Integrity unit itself. In order to get a better understanding of the reasons behind players getting involved in match-fixing, we would recommend thepiece by Jon Wertheim published in Sports Illustrated on 20 January. Tennis’ vulnerability to match fixing, as he lays out pretty well, lies in the inequalities between the earnings of the top players and the players further down the ranking.
The Court of Arbitration for Sport (CAS) published its long awaited decision concerning the alleged doping violation of the thirty-four current and former players of Essendon Football Club. Even though the CAS had already announced its decision in May 2015 (as is extensively discussed on our Blog), it is definitely worthwhile reading the award to grasp the reasoning behind the decision.
On a different note, the High Court of Justice Queen's Bench Division Manchester District Registry Mercantile Court published a very interesting judgment in the field of international sports arbitration on 19 January. The case concerned a CAS award from August 2014 by which the Italian football club Palermo was ordered based on a penalty clause included in the contract to pay €9.4 million to the English firm Pencil Hill Limited. Thus, the legal question posed to the English Court was whether enforcing this CAS award based on a penalty clause would be contrary to public policy. In a nutshell, the judge held that “the public policy of upholding international arbitral awards…outweighs the public policy of refusing to enforce penalty clauses”.
Official Documents and Press Releases of the SGBs
Hull City, Panathinaikos and Sporting CP have exited the settlement regime with the UEFA Club Financial Control Body (CFCB) investigatory chamber. Galatasaray has been referred to the CFCB adjudicatory chamber
In the news
Christopher Clarey - Tennis’s Watchdog Seems to Operate in the Dark
Footballleaks and TPO
Nicholas Hirst - Spanish soccer demands progress in ‘slavery’ probe
FIFA Presidential Elections
Snedden Hall & Gallop Lawyers - The Essendon 34: a new perspective
Release of the Deloitte Football Money League Report 2016
Case law (CAS, others)
Pencil Hill Ltd v US Citta Di Palermo SpA 2016 WL 212897 – High Court enforces reduced CAS penalty clause award for first time
(Newspaper Article) Hungary's top court rejects referendum on 2024 Olympic bid
Christopher J. Boudreaux, R. Morris Coats and Gokhan Karahan - Bend it Like FIFA: Corruption On and Off the Pitch
Philip Hartig-Franc - Big-Data, Surveillance, Sports and the Law
Angelo D'Andrea and Donato Masciandaro - Financial Fair Play in European Football: Economics and Political Economy - A Review Essay
Upcoming events February-March
 For more information see Sam Borden, “In Race for FIFA President, Two Front-Runners and Many Possibilities”, New York Times 26 January 2015.
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 eagerly awaited FIFA Presidential elections of 26 February provided for a “new face” at the pinnacle of international football for the first time since 1998. One could argue whether Infantino is the man capable of bringing about the reform FIFA so desperately needs or whether he is simply a younger version of his predecessor Blatter. Both men are of course Swiss, and both were general secretaries of an international football governing body (UEFA and FIFA respectively) before becoming FIFA President. Only time will tell whether Infantino manages to cleanse FIFA from all the corruption and demonstrate that he is the right man for the job. In this regard, Infantino’s portrait by Sam Borden is definitely worth a read.
Though no FIFA official was lifted from his hotel bed by the police in the days before this FIFA Extraordinary Congress, the build-up was not entirely flawless. Two of the four Presidential Candidates, Prince Ali and Jérôme Champagne, turned to CAS prior to the elections with the aim of “incorporating transparent voting booths as well as independent scrutineers, in order to safeguard the integrity of the voting process and to ensure that the vote is conducted in secret. In addition, Prince Ali also asked for the FIFA Presidential Election to be postponed in the event the CAS could not rule on the request for provisional measures before the election.” Unfortunately for the two candidates, on 24 February CAS rejected their requests (press releases are accessible here and here), promising that the “full order with grounds will be communicated in a few days”. Yet, the CAS website remained mute since then.
At that same Extraordinary FIFA Congress of 26 February, several reforms were also approved. The reforms include term limits for the FIFA President, FIFA Council members and members of the Audit and Compliance Committee and of the judicial bodies of max. 12 years, and the disclosure of individual compensation on an annual basis of the FIFA President, all FIFA Council members, the Secretary General and relevant chairpersons of independent standing and judicial committees. A summary of these reforms can be read here.
Another headline involving FIFA was the FIFA’s Appeal Committee’s decision to uphold the sanctions imposed on the Belgian club FC Seraing for infringing the rules on Third Party Ownership (TPO). The sanctions include a fine of CHF 150.000 and a complete transfer ban for four consecutive transfer windows starting in the summer of 2016. TPO (or FIFA’s decision to ban the practice) was once again making headlines in February, in large part thanks to the website of footballleaks(for more on the people behind this website, I recommend this interview published by Der Spiegel). On 1 February footballleaks published the Economic Rights Participation Agreement (ERPA) between Doyen Sport and the Spanish club Sevilla FC regarding the economic rights of the French football player Geoffrey Kondogbia. Another ERPA that was made accessible for the general public also involved Doyen and a Spanish club, namely Sporting de Gijón.
In addition to new agreement releases by footballleaks, the consequences of earlier releases were slowly being felt in February. For example, the release of the Gareth Bale transfer agreement between Tottenham Hotspur and Real Madrid on 20 January caused quite a few raised eyebrows throughout Europe. Most interestingly, three Members of the European Parliament officially asked the European Commission whether it is planning to “take action under its competition law and state aid responsibilities”, since one of the banks involved in the transfer agreement (Bankia) was previously saved by the European Stability Mechanism (ESM) with public money. The Commission’s answer to this question can be expected shortly.
As regards other issues involving EU law and sport, February was a relatively quiet month. The most interesting new development took place on 22 February with the Euroleague Basketball stating that it submitted a competition complaint before the European Commission against FIBA and FIBA Europe. In a nutshell, Euroleague Basketball is attacking the “unacceptable and illegal threats and pressures that FIBA and its member federations are making against clubs, players and referees to force them to abandon the Euroleague and the Eurocup and only participate in FIBA competitions”. The point of view of FIBA on this issue can be read here. It remains open whether the Commission decides to investigate the matter formally.
This same question can be asked about FIFPro’s complaint against the transfer system. FIFPro has decided to launch #GameChangers campaign to support the complaint and pressure the European Commission into opening an investigation. For an in-depth analysis of the issue, I recommend this piece by Nick de Marco and Alex Mills.
A report listing the sportslaw headlines would be incomplete these days without references to all the doping related news. It is worth remembering that the two reports by the WADA Independent Commission into doping in international athletics lead to the IAAF banning for life three of its senior officials. This IAAF decision was appealed by the three officials in front of CAS on 1 February. The outcome of this appeal is currently still pending. The Russian Government, meanwhile, heavily criticised the two reports, holding that there is no evidence that it was involved in State-supported doping.
The German Appeal Court in Rheinland-Pfalz reached a decision in the Müller case on 17 February. Contrary to what the Labour Court of Mainz held in March 2015, the Appeal Court argued that football players are employed under a fixed-term contract. The judgment has not been made public (yet), so we do not know the full extent of the Appeal Court’s legal argumentation. Further appeal options were available to Müller, but it is unclear whether he exercised them.
On 4 February, another German Appeal Court (the OLG Frankfurt) rendered its decision in the Rogon case (we commented the first ruling on provisory measure in June) involving the German implementation of the new FIFA Regulations on Working with Intermediaries. Here again, the full text of the ruling is still missing and we can only elaborate on press reports (here and here). Yet, it seems that the Court has decided to partially uphold the new Regulations (especially the no-fee for minors provision), while it also stroke down some aspects of the new rules (especially the intermediary’s duty to register with the DFB).
Official Documents and Press Releases
In the news
Sam Borden - A Guide to This Week’s Extraordinary FIFA Congress
Speed skating – Pechstein
Arnout Geeraert - 'The EU in international sports governance'
Drs Raffaele Poli, Loïc Ravenel and Roger Besson - Foreign players in football teams
Schwell, A., Buchowski, M., Kowalska, M., Szogs – ‘New Ethnographies of Football in Europe’
 In fact, Infantino grew up in the town of Brig, less than 10 km from Visp, Blatter’s home town.
 Media Release by the Court of Arbitration for Sport of 24 February 2016, “CAS rejects HRH Prince Ali Al Hussein’s request for urgent provisional measures”, http://www.tas-cas.org/fileadmin/user_upload/Media_Release_4459_decision.pdf accessed 23 March 2016.
 The Independent Commission Report #1 of 9 November 2015, https://wada-main-prod.s3.amazonaws.com/resources/files/wada_independent_commission_report_1_en.pdf accessed 24 March 2016; and The Independent Commission Report #2 of 14 January 2016, https://wada-main-prod.s3.amazonaws.com/resources/files/wada_independent_commission_report_2_2016_en_rev.pdf accessed 24 March 2016.
 I.e. Papa Massata Diack, Valentin Balakhnichev and Alexei Melnikov.
 For more information on the Müller case in first instance, read the blogs by Piotr Drabik: “Compatibility of Fixed-Term Contracts in Football with Directive 1999/70/EC. Part.1: The General Framework”, http://www.asser.nl/SportsLaw/Blog/post/part-1-compatibility-of-fixed-term-contracts-in-football-with-directive-1999-70-ec-the-general-framework-by-piotrek-drabik accessed 24 March 2016; and “Compatibility of fixed-term contracts in football with Directive 1999/70/EC. Part 2: The Heinz Müller case”, http://www.asser.nl/SportsLaw/Blog/post/compatibility-of-fixed-term-contracts-in-football-with-directive-1999-70-ec-part-2-the-heinz-muller-case-by-piotr-drabik accessed 24 March 2016.
 Prof. Ben Van Rompuy of the Asser Institute contributed tot his report with his piece “The role of the betting industry”, pages 236-241.
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.
Marine Montejo is a graduate from the College of Europe in Bruges and is currently an Intern at the ASSER International Sports Law Centre.
The Belgian Court of Appeal released its judgment this month regarding Doyen’s legal battle against the FIFA TPO ban. The Appeal Court confirmed the first instance decision and ruled out any provisional measures to block the ban’s implementation (for an in depth review, see our blog post). More importantly, the Court reaffirmed that Swiss based sport federations are liable in front of EU Members’ States courts when EU competition law is involved. That means the next important step for this legal battle is whether or not the European Commission is going to open a formal proceeding (Doyen already lodged a complaint) to assess the compatibility, and more importantly, the proportionality of the TPO ban with EU law. Only a preliminary ruling by the CJEU could hasten the decision if one of the European national courts, hearing a case brought by Doyen (France or Belgium), decided to refer a preliminary question.
Alongside these legal debates, FIFA continues to pursue breaches of the ban on third-party influence and/or third-party ownership of players’ economic rights. Its Disciplinary Committee sanctioned several clubs in that regard but one in particular is having a hard time. The Dutch club, FC Twente, was fined CHF185 000, but decided not to appeal the decision. That sanction is the latest to plague the club, which is struggling with the fallout from its ties with Doyen. Four members of the Board of Directors were forced to resign after the publication of a critical governance report and are now facing charges in relation to their liability for the financial situation.
The newly elected president of FIFA, Gianni Infantino, announced his intention to reform and rebuild FIFA in his first speech after the presidential bid. Since several FIFA officials were arrested on corruption charges in Zurich before its Extraordinary Congress back in May 2015, the FIFA defence has remained the same, focusing on clearing the institution of any wrongdoing and blaming the confederations involved (CONMEBOL and CONCACAF). Suffice to say that the request for restitution FIFA has filed with US authorities after US prosecutors seized millions of dollars during corruption probes surprised everyone. For the first time, FIFA acknowledged bribes were paid to members of the Executive Committee in the selection of the 1998 and 2010 World Cups. In its bid to reclaim the money paid to its corrupt officials and subsequently seized, FIFA has also stated that the actions of these officials have deeply tarnished the FIFA brand and its reputation. This change of strategy from FIFA is likewise apparent in the Investigatory chamber of the independent Ethics Committee’s decision to open formal proceedings regarding the awarding of the 2006 FIFA World Cup to Germany.
That decision resonated with the German football federation which released the long awaited Freshfield report on the scandal surrounding alleged votes buying for the 2006 World Cup bid awarded to Germany. The law firm has found no evidence of wrongdoing, but because files and information are still missing, it cannot completely rule out any vote buying. On another note, the pressure on the DFB is still very high as the German competition authority decided to open formal proceedings on the ticket sales for the Euro 2016. The cartel office is looking into the DFB’s decision to make the purchase of Euro 2016 tickets for German nationals dependent on each individual first being a (paid) member of the national team’s fan club.
Michel Platini and Joseph S. Blatter have filed their appeals at CAS against their six year bans from taking part in any football-related activities at both the national and international level. They both were first sentenced with an eight year ban by the Adjudicatory Chamber of the FIFA Ethics Committee for several breaches of the FIFA ethics code. This sanction was later reduced by the FIFA Appeal Committee (you can read the first decision here, and the appeal one here).
As per usual these days, doping scandals continue to make headlines. After Maria Sharapova’s confession that she tested positive to the banned substance meldonium (see this article by the Guardian on this particular substance), the Russian Sports Minister said that a total of 27 sportsman and sportswomen had tested positive to date. The Times, for its part, revealed a systemic doping program in Russian swimming, forcing WADA to issue a statement clarifying that it was looking into it along with FINA. All of these revelations probably led the Russian parliament to try to introduce criminal liability for inciting individuals to use banned substances, while WADA reaffirmed that it was against such a criminal offence.
Advocate general Whatelet released an opinion calling for stricter EU competition law control of arbitral awards. The decision of the Court on this particular case could be important for CAS award. The AG stated that the task of arbitrators in international commercial arbitration is to interpret and apply the contract binding the parties correctly. In the performance of this task, arbitrators may naturally find it necessary to apply EU law, if it forms part of the law applicable to the contract or the law applicable to the arbitration. However, the responsibility for reviewing compliance with European public policy rules lies with the courts of the Member States and not with arbitrators. As a consequence, one or more parties to agreements which might be regarded as anticompetitive cannot put these agreements beyond the reach of review under Articles 101 TFEU and 102 TFEU by resorting to arbitration (pt.61 and 72).
Official Documents and Press Releases
In the news
U.S. College Sport
Rebecca Ruiz – FIFA match agent pleads guilty in U.S. corruption case
Michael Powell – Winter sports athletes ask for the doping spotlight
Hansjörg Stutzer and Michael Bösch, Footnote 5 of the Revised IBA Guidelines on Conflicts of Interest in International Arbitration or: CAS quo vadis?
Matthew Andrews and Peter Harrington, Off Pitch: Football's Financial Integrity Weaknesses, and How to Strengthen Them
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.
This month saw the conflict between FIBA Europe and the Euroleague (more precisely its private club-supported organizing body, Euroleague Commercial Assets or ‘ECA’) becoming further entrenched. This dispute commenced with FIBA creating a rival Basketball Champions League, starting from the 2016-2017 season with the hope to reinstate their hold over the organization of European championships. The ECA, a private body that oversees the Euroleague and Eurocup, not only decided to maintain its competitions but also announced it would reduce them to a closed, franchise-based league following a joint-venture with IMG. In retaliation, FIBA Europe suspended fourteen federations of its competition (with the support of FIBA) due to their support for the Euroleague project. More importantly, this suspension could concern the 2016 Rio Olympics and the Spanish title-holder whose federation backs up the ECA. In February 2016, the ECA announced it had filed a complaint before the European Commission against FIBA and FIBA Europe as a consequence of an alleged abuse of their dominant position in forcing national federations to rescind their participation in the Euroleague competitions. In response, FIBA filed a complaint in April against the ECA before the same European Commission for the same breach of EU competition law provisions. DG Competition is expected to decide on the opening of both cases unless the ongoing negotiations between both parties resolves these issues first.
Sport has placed a lot of emphasis on EU competition law in the past weeks. In a similar situation to basketball, the FEI is fighting the emergence of the successful Longines Global Champions League (‘LGCL’), a private worldwide horse jumping competition. The Belgian competition authority already granted interim measures to the LGCL in a dispute arising when the FEI tried to suspend riders and horses that were participating in the unsanctioned league from its own competitions. While still waiting for the final decision in the case, the FEI recently suspended two of its officials for six months following the first leg of the LGCL in Miami.
On the media selling rights front, the German competition authority has decided to impose the “no single buyer” obligation starting in 2017. This clause was first imposed by the European Commission as a remedy against the risk of monopolization in the Premier League selling media rights case. The rule is designed to ensure that more than one TV broadcaster will win all live broadcasting rights, changing the status quo in Germany which had previously awarded all broadcasting rights to Sky Deutschland. The decision was made in order to ensure that innovation on the Internet-based offering is not at risk.
The Greek government is involved in a bitter struggle with FIFA over its decision to cancel its national cup due to the crowd violence witnessed this season. FIFA provided the Greek authorities with a new deadline to change their decision, otherwise the national federation will face a suspension. An agreement between both parties seems to have been found.
The very long awaited Hillsborough stadium disaster decision was delivered on the 26th of April 2016. The jury in the inquest ruled that 96 persons were unlawfully killed 27 years ago and that the behaviour of Liverpool fans did not contribute to the disaster. The jury also said that the police’s planning for the match and actions on the day did contribute to the tragedy. The prosecutor now has to decide whether criminal charges should be brought against individuals or organizations.
The UK Information Tribunal ordered the London Legacy Development Corporation (‘LLDC’), which managed the London Olympic Stadium, to publish the deal it has with the West Ham football club concerning the use of the stadium. The LLDC was fighting a freedom of information campaign that argued there was not enough transparency concerning this contract. West Ham will move to the Olympic Stadium at the end of the season.
The Paris Court of Appeal decided that it was not necessary to refer for a preliminary ruling to the European Union Court of Justice and rejected the appeal relating to alleged violations of EU law by the now revoked FIFA Regulations on the Status and Transfer of Player concerning the players’ agents profession. This decision is probably the final point of the never-ending Piau case. FIFA first modified its provisions for players’ agents after the European Commission opened a case for an alleged breach of EU competition law. Mr. Piau contested the European Commission’s decision to close the investigation but both of its appeals at the European Court of Justice were rejected (see here and here).
The British Tax and Chancery Chamber of the Upper Tribunal referred a question for a preliminary ruling to the Court of Justice of the European Union relating to tax law. The CJEU will have to tackle the definition of sport in deciding whether bridge is a sport (Case C-90/16).
Official Documents and Press Releases
In the news
Christopher M. Matthews, Aruna Viswanatha and Joe Flint - U.S. Considers Role of Banks, Sponsors in Soccer Bribery Probe
Manuel Veth - Dinamo Moscow and GestiFute – A Deal with the Devil?
Robert Livingstone - Swiss Olympic Considers Agenda 2020, Sets Realistic Roadmap For Olympic Bidders
Caroline Stauffer - More Olympic projects under investigation for corruption - prosecutor
Gerald Imray and Mutwiri Mutuota - WADA: Kenya has until May 2 or will be non-compliant
Kaypeem Mohan - The meldonium conundrum
Rebecca Ruiz - Swiss City Is ‘the Silicon Valley of Sports’
Michael Shields - Swiss crack down on bribery as 'Lex FIFA' set to take force
Daniel Geey and Jonny Madill, What would Brexit really mean for the Premier League?
Anastasia Tsoukala, Geoff Pearson and Peter Coenen(Eds.), Legal Responses to Football Hooliganism in Europe
Oskar van Maren, EU State Aid Law and Professional Football: A Threat or a Blessing?
Upcoming Events May and June
Challenged membership put a lot of emphasis on football federations in May. The Court of Arbitration for Sport (“CAS”) has rendered an award, on 27 April 2016, ordering the FIFA Council to submit the application of the Gibraltar Football Association (GFA) for FIFA membership to the FIFA Congress (the body authorised to admit new members to FIFA). The GFA has sought since 1999 to become a member of UEFA and FIFA. In May 2013, it became a member of the UEFA and went on to seek membership of FIFA. The latter refused to submit the application to its Congress as the conditions for it were (allegedly) not met. The GFA filed an appeal to this decision to CAS which also ordered that the FIFA Congress take all necessary measures to admit the GFA as a full member of FIFA as soon as possible and within the limits of the FIFA Statutes, as it does not have the power to directly award it with FIFA membership. FIFA discussed the matter during its 66th Congress on 12&13 May and finally granted it with membership, along with Kosovo. Gibraltar had to face an opposition from Spain due to its long-standing dispute over the status of its territory. On another front, following the decision of the UEFA Congress on May 3 to integrate the football federation of Kosovo, the Football Association of Serbia (FSS) has filed an appeal with CAS against the Kosovar membership. UEFA is already looking to integrate Gibraltar and Kosovo to its 2018 World Cup qualification tournament. Kosovo is a self-proclaimed state and not a member of the United Nations. Its national Olympic committee became a full member of the International Olympic Committee in 2014 and is recognized by a number of international sports federations.
The ongoing legal battle between FIBA/FIBA Europe and Euroleague Commercial Assets (“ECA”) is firing around Europe. This time, the Spanish Higher Council for Sports (“Consejo Superior de Deportes” – “CSD”) annulled the agreement between the Spanish basketball league (“ACB”) and the Euroleague because it breaches the rules of the Spanish national basketball federation (“FEB”). Such an agreement is an infringement of the federation jurisdiction to decide on the participation of Spanish basketball clubs to international competitions. The Spanish national team was under the threat of being withdrawing of the 2016 Rio Olympic Games and the 2017 EuroBasket by the international federation (“FIBA”) and the European federation (“FIBA Europe”) because of the participation of Spanish professional basketball clubs to the Euroleague. FIBA is battling with Euroleague to impose its own European competition, the Basketball Champions League (recent update on the ongoing disagreements between the two can be found here).
The Spanish competition authority (“CNMC”) published its report on the audiovisual rights’ selling conditions for the Spanish football first and second leagues (“La Liga” and “Segunda División”) and national cup (“Copa del Rey”) until 2019. In April 2015, joint selling of the national football media rights has been imposed in Spain. The Spanish National League has to seek the advice of the competition authority previous to its tender. The main observations of the CNMC is that the penultimate and ultimate La Liga matches day should be broadcast on free-to-air TV. Also, the possibility for pay-TV broadcasters to buy more Copa del Rey matches could be anti-competitive.
Michel Platini’s suspension from all football-related activities at both national and international level was lowered by the CAS from six to four years. The former UEFA President was first sentenced with an eight years ban by the Adjudicatory Chamber of the FIFA Ethics Committee for several breaches of the FIFA Ethics Code. This sanction was later reduced to a six years suspension by the FIFA Appeal Committee. Michel Platini filed his appeal at CAS which rendered its decision on May, 9. CAS concluded that the employment contract between FIFA and Michel Platini was valid, however, the alleged unpaid part of his salary (CHF 2 millions) was not legitimate and, as such, was an undue advantage in breach of Article 20 of the FIFA Code of Ethics. The arbitral panel also concluded on a conflict of interest in breach of article 19 of the same code. However, CAS only retained these two breaches and did not found him guilty of the others, as a consequence, its six-year suspension was reduced to four years. In particular, CAS highlighted the fact that FIFA knew about this payment in 2011 and only started its investigations in 2015. Michel Platini resigned from the UEFA presidency and announced his intention to appeal the award in front of the Swiss Federal Tribunal.
CAS released its award on the appeal brought by the Croatian international water polo player Niksa Dobud against FINA Doping panel decision which sanctioned him for failure to submit to a doping test. He was previously sanctioned with a four-year period of ineligibility, the disqualification of the results obtained after 21 March 2015, the date of the attempt to test him and the forfeit of any medals, points and prizes achieved from that date. The panel found him guilty of evading a doping test and confirmed FINA decision.
Official Documents and Press Releases
In the news
Competition Policy International - US: Judge dismisses antitrust suit filed by Olympic runner
Lynne Cox - Olympians Shouldn’t Swim Through Sewage
Justin McCurry, Owen Gibson - Tokyo Olympics: Japan to 'fully cooperate' with suspicious payments inquiry
Rebecca R. Ruiz - Justice Department Opens Investigation Into Russian Doping Scandal
Bram Logger, Hester den Boer, The scope of state aids to Dutch football clubs
Servan Peca, Adrià Budry Carbó - "Subprime" financing of football after the ban on TPO
Robert A. Baade and Victor A. Matheson, Going for the Gold: The Economics of the Olympics
Dionne L. Koller, Putting Public Law into 'Private' Sport
Alexander Vantyghem, National Law in International Sports Disputes
27 & 28 June - Sport & EU 11th annual conference, Institute for European Studies, CEU-San Pablo University, Madrid, Spain
28 June – LawInSport Networking Drinks, London, UK
6 July - Asser International Sports Law Lecture and Book Launch: Antidoping in the wake of the meldonium cases: How to balance scientific complexity and legal fairness. By Marjolaine Viret, Asser Institute, The Hague, The Netherlands
19 – 21 July - Executive Programme in International Sports Law, Sports Law and Policy Centre, Ravello, Italy
2 & 3 September - International Sport Arbitration 6th Conference CAS& SAV, The Court of Arbitration for Sport (CAS), the Swiss Bar Association (SAV / FSA) and the Swiss Arbitration Association (ASA), Lausanne Switzerland
16 September - The future of the ‘legal autonomy’ of sport, Anglia Ruskin University, Cambridge, UK
What a month June turned out to be. Waking up the morning after the 23rd, the results of the UK referendum on EU membership were final. The words of Mark Twain: “Apparently there is nothing that cannot happen today”, might provide the most apt description of the mood felt at the time. The Leave campaign’s narrow victory has brought along tremendous economic, political and legal uncertainties for both the UK and the (other) Member States. To give but one example, with regard to the implications of Brexit on Europe’s most profiting football league, we recommend an older blog by Daniel Geey and Jonny Madill.
Perhaps just as shocking as the UK’s wish for secession, was the Bundesgerichtshof decision in the infamous Pechstein case. On 7 June the highest German civil court ruled in favour of the validity of forced CAS arbitration and the independence of the CAS, leaving Claudia Pechstein to cough up roughly EUR 300 000 in legal expenses. For a critical analysis of the decision see Antoine Duval’s blog.
Operación Puerto, deemed “one of the most infamous and obscure doping sagas in history”, saw a new chapter being added on 14 June. A Spanish special criminal appeal chamber held that the more than 200 blood bags of professional athletes (which had been stored since their confiscation in 2006) can be delivered to the Spanish Anti-Doping Agency (AEPSAD), WADA, the UCI and the Italian Olympic Committee (CONI). Oskar van Maren examined the case in a blog.
Last but not least, in June we witnessed the IAAF upholding its decision not to reinstate the Russian Athletics Federation (RusAF) for IAAF Membership. This means that Russian athletes will still not be allowed to compete in International Competitions under IAAF Rules including the European Championships and the Rio 2016 Olympic Games. A few days later, the 21th of June, the IOC endorsed IAAF’s position. Though it also potentially opened the door for Russian athletes to demonstrate that they are clean. The IAAF’s decision was appealed collectively by 61 Russian athletes to the CAS, and the final decision is due before the start of the Olympic Games in Rio.
On June 3rd a temporary injunction was granted by the Landgericht München in the case between the International Basketball Federation (FIBA) and FIBA Europe versus several basketball clubs. The court ruled that FIBA may not prevent these clubs from participating in the so-called Euroleague competitions. The alleged abuse of a dominant position is addressed in a blog by Marine Montejo. Yet the injunction was annulled in a subsequent decision of the LG München.
Famous tennis star Maria Sharapova was found to have violated anti-doping rules for the use of the controversial ‘meldonium’. A specially appointed independent tribunal imposed a two-year ban, disqualifying her from professional tennis from 26 January 2016 to 25 January 2018 (see also this piece by James Segan). In reply, she appealed the decision to the CAS, which is due to decide the case in September. This will prevent her from participating at the Olympic Games in Rio.
A key player in our Unpacking Doyen’s TPO deals blogs, football club FC Twente, found itself in a rollercoaster of conflicting decisions during the end of season 2015/2016. On 18 May the licensing committee of the Dutch football federation (KNVB) issued a decision in which it relegated the club to the second (and lowest) professional league. It did so by creating a new ad hoc license for the second league, which did not exist before. Subsequently on 10 June, in summary proceedings before the district court, FC Twente’s request for provisional measures got rejected, and the relegation approved. Yet only a week later, the KNVB’s appeal committee overturned the licensing committee’s initial ruling. As a result FC Twente will stay in the highest professional league.
Official documents and Press releases
CAS – List upcoming hearings
In the news
Rebecca R. Ruiz, Juliet Macur and Ian Austen - Even With Confession of Cheating, World’s Doping Watchdog Did Nothing
Culture, Media and Sport Committee – Whistleblower Dan Stevens in front of the Committee
James M. Dorsey - Kuwaiti Rulers Fight their Internal Battles on the Sports Field
Deutschlandfunk - "Sportler sollten Gerichtsbarkeit wählen können"
Johannes Herber - Urteil im Fall Pechstein, "Siegen oder sterben"
David Leggat - Kane Radford, Charlotte Webby set to appeal Olympic snubs
Dawn Aquilina and Angelo Chetcuti, The Aftermath of a Match-Fixing Case that Shook Two Nations: Insights into How Malta and Norway Are Seeking to Redeem Their Football
Bruce W. Bean, FIFA — The Reform Charade Continues
Antoine Duval, Herman Ram, Marjolaine Viret, Emily Wisnosky, Howard L. Jacobs and Mike Morgan - The World Anti-Doping Code 2015: ASSER International Sports Law Blog symposium
Arnout Geeraert and Edith Drieskens, Theorising the EU and International Sport: The Principal-Agent Model and Beyond
Ryan M. Rodenberg, Jeff Sackmann and Chris Groer - Tennis integrity: a sports law analytics review
Joshua D. Winneker, Philip Schultze and Sam C. Ehrlich, Lights, Camera, … Injury! The NBA Needs to Ban Courtside Cameramen
Michael Barry, James Skinner and Terry Engelberg, Research Handbook of Employment Relations in Sport
Antoine Duval, Ben Van Rompuy (Eds.), The Legacy of Bosman, Revisiting the Relationship Between EU Law and Sport
LawInSport and the British Association for Sport and Law, Sports Law Yearbook 2015/16 - UK, Ireland and EU eBook.
Carol Couse and Jake Cohen, The potential impact of Brexit on European football
Johanna Croon-Gestefeld, Der BGH und Pechstein: Transnationaler Konstitutionalismus sieht anders aus
Thomas Croxford and Nick De Marco, Fiduciary duties, football, and the fundamental importance of the contractual relationship
Juan de Dios and Crespo Pérez, Operación Puerto: A long and winding road in the fight against doping
Antoine Duval, The BGH’s Pechstein Decision: A Surrealist Ruling
Jonny Madill and Jack Jones, Sharing sports clips in the digital age: 6 things you should know
Oskar van Maren, The EU State aid and Sport Saga: Hungary revisited? (Part 2)
Oskar van Maren, Operación Puerto Strikes Back!
Lance Miller, Celeste Koravos and Nick Fitzpatrick, Sustainable procurement at Tokyo 2020 Olympics: Top 10 tips for a winning bid
Kimberly Morris and Barry Lysaght, How FIFA TMS Investigations increase transparency and accountability in international football transfers
Fabian Reinholz, Das Pechstein urteil nimmt dem sport reformdruck
Jennifer E. Rothman and Eugene Volokh, Brief of 28 constitutional law and intellectual property law professors as Amici Curiae in support of petitioner in, No. 15-1388, In the Supreme Court of the United States, National Collegiate Athletic Association, petitioner, v. Edward C. O’Bannon et al., Respondents
The Swiss Rambler, Nottingham Forest - From The Ritz To The Rubble
The Swiss Rambler, Wolverhampton Wanderers - After The Gold Rush
Mathias Wittinghofer and Sylvia Schenk, A Never Ending Story: Claudia Pechstein’s Challenge to the CAS
14 July - Sports Corruption 2016 Conference, MBL Seminars London
19 – 21 July - Executive Programme in International Sports Law, Sports Law and Policy Centre, Ravello, Italy
2 & 3 September - International Sport Arbitration 6th Conference CAS & SAV, The Court of Arbitration for Sport (CAS), the Swiss Bar Association (SAV / FSA) and the Swiss Arbitration Association (ASA), Lausanne Switzerland
16 September - The future of the ‘legal autonomy’ of sport, Anglia Ruskin University, Cambridge, UK
26 September - Soccerex - Global Convention 2016, Manchester, UK
 Mark Twain, American author (30 November 1835/21 April 1910)
Editor’s note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we have overlooked.
The McLaren Report on Russia’s State Doping System
It is difficult not to start this monthly report without referring to the never-ending Russian doping investigation that is shaking the sporting world. On 18 July, the independent investigation on Sochi 2014 winter Olympics led by Prof. McLaren, a Canadian law professor, and requested by the World Anti-Doping Agency (“WADA”), released its report. It confirmed evidence of widespread, State-sponsored doping in Russian sports and called for a full ban on the country from the next Rio Olympics. In response to the report, the International Olympic Committee (“IOC”) vowed to take the “toughest sanctions available”. However, and despite the race against time in the run-up to Rio 2016, the IOC delayed its decision for several days amid a WADA statement and several press articles calling for a ban of Russia from Rio Olympics. Meanwhile, it did open an investigation against Russia’s sports minister, Vitaly Mutko, the head official who allegedly supervised the overall doping cover up and explored all possible legal actions against Russia. On 21 July, the Court of Arbitration for Sport (“CAS”) rejected the appeal of the Russian Olympic Committee and 68 Russian athletes against the International Association of Athletics Federations (“IAAF”) decisions to suspend All Russia Athletics Federation (ARAF) from IAAF membership given the evidence of a state-sponsored doping system. As a consequence, Russian track and field athletes were also banned from Rio 2016 Olympics. With the IAAF welcoming this decision, one could think that nothing was standing in the way of a full Olympic ban for all Russian athletes. While some Russian athletes announced that they would appeal the CAS award to the Swiss Federal Court. Yelena Isinbayeva, the banned pole vault champion, even took it a step further by claiming that she would challenge the IAAF decision as far as the European Court of Human Rights. Yet, it is very improbable that any of these challenges be decided in time for the Rio Games.
On 24 July, the IOC Executive Board finally handed out its decision on the question of the participation of Russian athletes to the Rio Olympics. The decision left no one satisfied, least of all WADA. In a nutshell, the IOC passed the buck to international federations by deciding that the evidence uncovered by the report is not sufficient to adopt a general ban of the Russian Olympic Committee. Instead, it is for every international sports federation to judge on a case-by-case fashion whether a Russian athlete is eligible to be qualified for the Olympics. Sports governing bodies have to decide following two criteria, namely whether the athlete was previously controlled by laboratories situated outside of Russia and whether he/she was never convicted of anti-doping breach in his/her career. The International swimming federation (“FINA”), for example, decided to ban seven swimmers, some of them have already announced their intention to appeal before CAS. And this is just the beginning. The IOC decision not to decide has been highly criticized (see for example here and here), but it is probably the IOC Olympic ban on Yulia Stepanova, the Russian whistle-blower through whom the scandal emerged, that was criticized the most. A global online petition was set up to draw attention to her case and athletes from around the world launched a crowdfunding appeal. For more information on this sprawling case you can read our blog.
The CAS before German courts
The next very salient sports law issue of the month is the ongoing challenges against CAS awards and their enforcement in Germany. Early July, Claudia Pechstein announced that she would be challenging BGH ruling in front of the German constitutional Court around two main arguments, namely, the access to justice and the freedom to exercise her profession. On 7 June the highest German civil court ruled that CAS was sufficiently independent and that an arbitration agreement in favour of CAS was legal under German civil and competition law (see our blog). CAS swiftly published an English version of the judgment (though we are still waiting for the official translation of the previous OLG München decision) that you can find here. Another important case, but this time concerning the application of EU free movement law in the framework of the enforcement of a CAS award, is the BGH ruling in the SV Wilhemshaven case. The BGH announced early July that it would release its judgment on 27 September. As a quick reminder, this case is concerning an Argentinian-Italian football player transferred to a German club. The latter is refusing to pay training compensations imposed by the FIFA Regulations for the Status and Transfer of Players and challenged the enforceability of the CAS award in this case (see our blog).
EU Commission State Aid Decisions
The other big sports law story of this month was the long awaited European Commission decisions on State aid granted in favour of Spanish professional football clubs. The Commission decided that public support measures granted by Spain to seven football clubs gave those clubs an unfair advantage leading to distorted competition and, as a consequence, the amounts at stake have to be recovered (i.e.: for example, Real Madrid - €18.4 million and FC Valencia - €20.4 million). For a full commentary on the “Spanish recovery decisions” see our blog. On the exact same day, the European Commission also cleared municipal support measures for five professional football clubs in the Netherlands (FC Den Bosch, MVV Maastricht, NEC Nijmegen, PSV Eindhoven, and Willem II in Tilburg). In the case of PSV, the Commission determined that the municipality’s purchase of the land on which the PSV stadium stands, and the subsequent lease-back agreement, was in line with the so-called “Market Economy Investor Principle”. The measure, therefore, did not constitute State aid. The remaining Dutch football clubs did receive State aid, according to the Commission. However, these measures were granted in accordance with the Community Guidelines on State aid for rescue and restructuring firms in difficulty, and were consequently regarded as compatible State aid. Notwithstanding these eight State aid decisions, it also became apparent that the Commission does not foresee other State aid investigations on EU football clubs at this point.
The Court of Arbitration for Sport (“CAS”) released two decisions on Rio 2016 selections. The first one concerns Australian trap shooter Mitchell Iles (CAS A1/2016) challenging the Australian men’s trap shooting selection for Rio 2016 and, ultimately, his non-selection. The arbitrator has found that the Appeals Tribunal of Shooting Australia rejecting the athlete’s appeal had erred in a question of law. CAS upheld the appeal, set aside the decision taken by the Appeals Tribunal of Shooting Australia, and referred the case of Mitchell Iles back to Shooting Australia.
In the second case CAS has upheld a request for provisional measures filed by Korean swimmer Tae Hwan Park. The swimmer was sanctioned by FINA for an anti-doping breach (sanction that ended on 2March), but was prevented from participating in Rio 2016 by Korean Sport and Olympic Committee regulations imposing a three-year ban from national teams after the completion of a doping sanction. CAS ruled that Tae Hwan Park is eligible for selection for the Korean national team for Rio 2016.
CAS also delivered its award concerning Norwegian cross country skier Martin Johnsrud (CAS 2015/A/4233). The International Ski Federation’s (“FIS”) Doping panel did not sanction the skier after two in-competition doping controls that revealed levels exceeding the applicable limits for salbutamol. The WADA referred the case to CAS. The arbitrators found that use of a substance beyond the applicable limit without a Therapeutic Use Exemption was a breach of anti-doping rules. They sanctioned the skier with a two-month period of ineligibility and disqualification for the competitions concerned as there were medical justifications in that case.
Official Documents and Press Releases
In the news
Upcoming Events September
Editor’s note: Yann Hafner is a Phd researcher at the University of Neuchâtel specialized
in sports and nationality issues. He is also Legal Affairs Manager at the Fédération
Internationale de Volleyball. Yann is
an editor of the ASSER International Sports Law Blog and has previously
published on the blog on nationality conundrums at the FIFA World Cup 2014 in
Brazil (see here).
This contribution aims to decipher the relationship between sporting nationality and the Olympic Games. To this end, the author will first define sporting nationality and discuss athletes’ eligibility in national team in the context of the Olympic Games. Then, selected issues in relation with sporting nationality and the Olympic Games (with an emphasis on issues related to the Rio 2016 Olympic Games) will be investigated.
Defining sporting nationality at the Olympic Games
Sporting nationality is in essence twofold:
Turning now to athletes’ eligibility for national teams, one should acknowledge that this issue has not always been a primary concern for sports governing bodies, including for the International Olympic Committee (IOC). For instance, the first three editions of the Olympic Games foresaw the participation of transnational teams, i.e. teams composed of athletes from different countries competing under one flag. This most notably occurred in track and field, rowing, football, polo, swimming and tug of war. The decision of the IOC to impose the creation of one National Olympic Committee per country in order to facilitate the organization of the Olympic Games put an end to this practice as of 1908. That said, the IOC did not regulate sporting nationality at the Olympic Games before 1920. Nowadays, sporting nationality is governed by Rule 41 Olympic Charter 2015 which reads as follows:
“41 Nationality of competitors
1. Any competitor in the Olympic Games must be a national of the country of the NOC which is entering such competitor.
2. All matters relating to the determination of the country which a competitor may represent in the Olympic Games shall be resolved by the IOC Executive.
Bye-law to Rule 41
1. A competitor who is a national of two or more countries at the same time may represent either one of them, as he may elect. However, after having represented one country in the Olympic Games, in continental or regional games or in world or regional championships recognised by the relevant IF, he may not represent another country unless he meets the conditions set forth in paragraph 2 below that apply to persons who have changed their nationality or acquired a new nationality.
2. A competitor who has represented one country in the Olympic Games, in continental or regional games or in world or regional championships recognised by the relevant IF, and who has changed his nationality or acquired a new nationality, may participate in the Olympic Games to represent his new country provided that at least three years have passed since the competitor last represented his former country. This period may be reduced or even cancelled, with the agreement of the NOCs and IF concerned, by the IOC Executive Board, which takes into account the circumstances of each case.
3. If an associated State, province or overseas department, a country or colony acquires independence, if a country becomes incorporated within another country by reason of a change of border, if a country merges with another country, or if a new NOC is recognised by the IOC, a competitor may continue to represent the country to which he belongs or belonged. However, he may, if he prefers, elect to represent his country or be entered in the Olympic Games by his new NOC if one exists. This particular choice may be made only once.
4. Furthermore, in all cases in which a competitor would be eligible to participate in the Olympic Games, either by representing another country than his or by having the choice as to the country which such competitor intends to represent, the IOC Executive Board may take all decisions of a general or individual nature with regard to issues resulting from nationality, citizenship, domicile or residence of any competitor, including the duration of any waiting period.”
The connecting factor between an athlete and his/her National Olympic Committee is currently rooted in nationality. The French version of the Olympic Charter refers however to being a “ressortissant” of the National Olympic Committee which is entering the athlete in the Olympic Games. Unfortunately, these two concepts do not necessarily overlap; the term ressortissant may have a broader meaning than nationality. To add another layer of uncertainty, a Court of Arbitration for Sport (CAS) ad hoc Panel has adopted contradictory approaches in this respect:
To our knowledge, CAS has never discussed the distinction between nationality and “ressortissant” further. This is not to provide certainty to athletes who may enter into a dispute over eligibility in national team.
It should finally be noted that the Olympic Charter does not mandate for the fulfillment of any other eligibility requirements, such as residency, except in the case of a change of sporting nationality. In this specific case, athletes must have to sit out for three years since they last represented their previous national team before being eligible for a second National Olympic Committee. That said, the Olympic Charter stated that the Executive Board may take all decisions of a general or individual nature with regard to issues resulting from nationality, citizenship, domicile or residence of any competitor, including the duration of any waiting period. This clause aims at covering situations in which there is no National Olympic Committee to enter an athlete for instance.
The host nation syndrome:
All host nations of the Olympic Games share one common thread: the fear of not performing during “their” event. This is notably due to the fact that the country welcoming the world during the Olympic Games generally receives a certain quota of places in each sport, including for sports with little or no local tradition. While certain nations have set up traditional talent detection and training programs in order to grow a new generation of elite athletes in time, others have chosen a completely different route; they either:
The “Brazilian Rugby Players Wanted” campaign is the latest example of this. It was launched by the Brazilian Rugby Union (“Confederação Brasileira de Rugby”) in 2013 and aims at finding rugby players with a Brazilian passport or Brazilian descent who are currently unknown to the national governing body and who may qualify for its High Performance Program in view of the Rio 2016 Olympic Games.
The Team of Refugee Olympic Athletes:
On 2 March 2016, the IOC Executive Board decided to create a Team Refugee Olympic Athletes. The approach of the IOC was to allow athletes who had fled their country to be directly entered in the 2016 Rio Olympic Games without the need to resort to the National Olympic Committee of their nationality. To date, ten athletes meeting the relevant sporting requirements have been selected to be part of the Team Refugee Olympic Athletes.
Although portrayed as a first, the IOC Executive Board has made use of its powers on multiple occasions to allow the participation of athletes without a country or without a National Olympic Committee:
The concept of a Unified Delegation:
The concept of a United Delegation is only in use for North and South Korea. It is similar to a confederation of National Olympic Committees. In other words, they march together at the opening and closing Ceremonies but maintain separate sporting spheres. Consequently, medalists are honored by the flag of their respective National Olympic Committee, not by their common flag. Of note, the North and South Korean National Olympic Committees are currently engaged in merger negotiations. If successful, there would be only one National Olympic Committee for two countries – and this would be unique in the Olympic Movement. The effects of such a merger on Rule 41 Olympic Charter are currently unknown.
TAS 92/80 du 25 mars 1993, B. / Fédération Internationale de Basketball (FIBA),in : Reeb, Rec. I, n° 13 p. 287 ff.
 GARRIGUES Christian, Activités sportives et droit communautaire, Thèse (Université Robert Schuman), Strasbourg (S.I.) 1982, p. 569.
“National eligibility rules confine the right to represent a national side and, thus, to participate in international competition: the criteria employed include nationality, place of birth and residence in the territory for a prescribed period of time” [MCARDLE David, Player Quotas, National Eligibility Restrictions, and Freedom of Movement under EU Law, European Union Studies Association (EUSA), Biennial Conference 2003 (8th), March 27-29, 2003, p. 14].
 Shachar Ayelet, Picking Winners: Olympic Citizenship and the Global Race for Talent, in : The Yale Law Journal, Vol. 120 (2011), p. 2134; Siekmann Robert, Sport and Nationality : Accelerated Naturalisation for National Representative Purposes and Discrimination Issues in Individual Team Competition under EU law, in : The International Sports Law Journal, 2011/3-4, 2011, p. 87; Wollmann Anna Sabrina, Vonk Olivier, Groot Gérard-René de, Towards a sporting nationality?, in : Maastricht Journal of European and Comparative Law, Volume 22, Number 2, 2015, p. 306.
 Hafner Yann, La nationalité sportive et les Jeux Olympiques, in : Droit & Olympisme : Contribution à l’étude juridique d’un phénomène transnational, Actes du colloque du 4 septembre 2013, Maisonneuve Mathieu (dir.), Aix-en-Provence (Presses Universitaires d’Aix-Marseille), 2015, p. 81.
 The existence of transnational teams is however supported by the International Olympic Committee in the context of the Youth Olympic Games. See: Parry Jim, The Youth Olympic Games – Some Ethical Issues, in : Sport, Ethics and Philosophy, Vol. 6, No 2, 2012, p. 144; Wong Donna, The Youth Olympic Games: Past, Present and Future, in : The International Journal of History of Sport, Vol. 28, No 13, 2011, p. 1836.
 Hafner Yann, La nationalité sportive et les Jeux Olympiques, in : Droit& Olympisme : Contribution à l’étude juridique d’un phénomène transnational, Actes du colloque du 4 septembre 2013, Maisonneuve Mathieu (dir.), Aix-en-Provence (Presses Universitaires d’Aix-Marseille), 2015, p. 81 and references.
 Foreign nationals serving in the army of another state or persons under the protection of a sate (i.e. protected persons) are deemed ressortissant of this particular state. See: Weis Paul, Nationality and statelessness in international law, 2ème éd., Alphen an den Rijn – Germantown (Sijthoff & Noordhoff) 1979, p. 7.
 CAS ad hoc Division OG 2000/001 dated 13 September 2000, United States Olympic Committee (USOC) and USA Canoe/Kayak / International Olympic Committee (IOC), in : Reeb, Rec. II, p. 600 s., n° 22 ff.
 CAS ad hoc Division OG 2000/005 dated 19 September 2000, Angel Perez / International Olympic Committee (IOC), in : Reeb, Rec. II, p. 631, n° 27.
 Gillon and Poli conducted a survey during the 2004 Athens Olympic Games, and found that 2,6% of the athletes registered had previously represented another country [Gillon Pascal, Poli Raffaele, La naturalisation de sportifs et fuite des muscles. Le cas des Jeux Olympiques de 2004, in : La nationalité dans le sport : Enjeux et problèmes, Actes du Congrès des 10 et 11 novembre 2005, Oswald Denis (éd.), Neuchâtel (Editions CIES) 2006, p. 59]. This figure is slightly lower than the percentage of players who have changed national affiliation before participating in the 2014 FIFA World Cup [http://www.asser.nl/SportsLaw/Blog/post/blurred-nationalities-the-list-of-the-23-and-the-eligibility-rules-at-the-2014-fifa-world-cup].
 Rule 44.2 Olympic Charter 2015 provides that “Only NOCs recognised by the IOC may submit entries for competitors in the Olympic Games”. Accordingly, Beloff et al. note that “[t]his would seem to exclude the possibility of the IOC independently permitting athletes to compete in the Games, but is has been argued that the IOC enjoys a residual discretion to that effect” [Beloff Michael J. QC, Kerr Tim, Demetriou Marie, Beloff Rupert, Sports law, 2ème éd., Oxford – Portland, Oregon (Hart) 2012, n° 1.72 p. 21].
 Gillon Pascal, Poli Raffaele, La naturalisation de sportifs et fuite des muscles. Le cas des Jeux Olympiques de 2004, in : La nationalité dans le sport : Enjeux et problèmes, Actes du Congrès des 10 et 11 novembre 2005, Oswald Denis (éd.), Neuchâtel (Editions CIES) 2006, p. 63.
 To avoid any embarrassment, certain international federations, such as the Fédération Internationale de Hockey (FIH), have now reviewed their Host Country Places policy. The host nation is no longer guaranteed a quota and must meet minimum sporting standards in order to enter a team: http://www.fih.ch/media/808384/2014-02-rio-2016-qualification-system-hockey-final.pdf (02.08.2016).
 Shachar Ayelet, Picking Winners: Olympic Citizenship and the Global Race for Talent, in : The Yale Law Journal, Vol. 120 (2011), p. 2093.
 BAYLE Emmanuel, DURAND Christophe, Sport professionnel et représentation nationale : Quel avenir ?, in : Reflets et Perspectives de la vie économique, Volume 39 (2-3), 2000, p. 164, footnote n° 29; Gillon Pascal, Poli Raffaele, La naturalisation de sportifs et fuite des muscles. Le cas des Jeux Olympiques de 2004, in : La nationalité dans le sport : Enjeux et problèmes, Actes du Congrès des 10 et 11 novembre 2005, Oswald Denis (éd.), Neuchâtel (Editions CIES) 2006, p. 58 and 63.
 Grasso John, Mallon Bill, Heijmans Jeroen, Historical Dictionary of the Olympic Movement, 5èmeéd., Lanham (Rowman & Littlefield) 2015, p. 582.
 To date, there have been three Unified Delegations in 2000; 2004 and 2008 (MERKEL Udo, The Politics of Sport Diplomacy and Reunification in Divided Korea: One Nation, Two Countries and Three Flags, in : International Review for the Sociology of Sport, vol. 43, no. 3, 2008, p. 298).
 Hafner Yann, La nationalité sportive et les Jeux Olympiques, in : Droit& Olympisme : Contribution à l’étude juridique d’un phénomène transnational, Actes du colloque du 4 septembre 2013, Maisonneuve Mathieu (dir.), Aix-en-Provence (Presses Universitaires d’Aix-Marseille), 2015, p. 91.
For the world of Sport, the elsewhere known “sleepy month” of August turned out to be the total opposite. Having only just recuperated from this year’s Tour de France, including a spectacular uphill sprint on bicycle shoes by later ‘Yellow Jersey’ winner Chris Froome, August brought another feast of marvellous sport (and subsequent legal drama): The 2016 Olympic Games in Rio de Janeiro.
The Olympic Games
Amongst those athletes that stood out in Rio were, of course, the “most decorated Olympian of all time” Michael Phelps and the “fastest man on earth” Usain Bolt. However, standing out can also happen for the wrong reasons. One sad example of this is the downfall of former “Lord of the Rings”, gymnast Yuri van Gelder. The Dutchman reached the Olympic finals for the rings, but was sent home by the Dutch National Olympic Committee after a night out in Rio de Janeiro. He subsequently unsuccessfully launched legal proceedings before a Dutch court in an attempt to reclaim his place in the finals. For an in depth legal analysis of the case see the blog by Guido Hahn.
Yet, the Van Gelder case is certainly not THE legal highlight of the Rio Games. In this regard, the CAS ad hoc Division (for a good overview of the procedure at the division, click here) was the court to watch in Rio. The CAS Ad Hoc Division was installed to resolve legal disputes arising during the Olympic Games. These disputes can relate to, for instance, matters of qualification, disciplinary sanctions or doping (on appeal). During the three weeks of the Games, it dealt with a caseload of 26 cases, 16 of which were linked with the Russian doping scandal. For the first time, a CAS anti-doping division was also active in Rio (with a caseload of 8 cases). The CAS Anti-doping Division, was aimed specifically at resolving doping cases. Through this office, the CAS handles (potential) doping cases in first instance. It can organize hearings of the parties concerned and impose provisional suspensions pending the conclusion of the procedure. The final decisions could be appealed before the CAS ad hoc Division or the CAS in Lausanne after the Olympic Games have ended. The links to all the published Rio awards can be found below under case law.
Much controversy arose during the Games regarding the debate over the divide between male and female athletes. In the centre of attention stood South African runner Caster Semenya and Indian track-and-field athlete Dutee Chand. Both are at the centre of an on-going medical, ethical and legal discussion about the policies regulating hyperandrogenism in sport. Our blog hosted two posts on the matter one by Marjolaine Viret and Emily Wisnosky on “Regulating the human body in sports: Lessons learned from the Dutee Chand case” and a more personal point of view by Marjolaine Viret, “Why we should stop focusing on Caster Semenya”.
Finally, this Olympic summer of legal disputes would not be complete without a brief discussion of the Paralympics ban of the Russian Paralympic Committee (RPC). Indeed, this week marked the kick-off of the Paralympic Games, which will take place from 7 to 18 September. Exactly a month before the start of the games, on 7 August, the International Paralympic Committee (IPC) Governing Board decided unanimously to suspend the RPC with immediate effect. In a statement on its website the IPC explained that it regarded the RPC unable to “fulfil its IPC membership responsibilities and obligations”, in particular those under the IPC and WADA doping rules. On 30 August the CAS delivered a much-expected award in which it dismissed the appeal by the RPC and confirmed the decision rendered by the Governing Board of the IPC. In particular, the CAS Panel found that the ban did not violate procedural rules and amounted to a proportionate measures considering the circumstances.
CAS awards of the CAS ad hoc Division
CAS awards of the CAS anti-doping Division
Swiss Federal Tribunal
IOC sanctions for doping violations at 2008-2012 Games
Official documents and Press releases
In the news
Samantha Michaels - The Biggest Issue in Women's Sports Is About to Come to a Head
The New York Times -Who Gets to Race as a Woman?
Karen Crouse - Clean Athletes, and Olympic Glory Lost in the Doping Era
Nicole He, Rebecca Lai and Paul Murray, Athletes Who Were Denied. Their Olympic Medal Moments. Because Others Were Doping
Ian Johnson - The New Face of Olympic Doping
Richard Goldstein - João Havelange, Who Built and Ruled World Soccer With Firm Hand, Dies at 100
Oskar van Maren - Clave para el fútbol español
Olympic and Paralympic Games
The Conversation, Centre circle - To clean up the Olympic brand, the IOC must restore trust
Andrew Keh and Kevin Quealy - At Least 44 Table Tennis Players in Rio Are Chinese-Born. Six Play for China
Cathal McMahon and Shane Phelan - Brazil judge issues warrant for passports of John Delaney and five other OCI officials
Michael Powell - In the Brazilian Rain Forest, ‘a White Elephant, a Big One’
Rebecca Ruiz - I.O.C. Members Berate WADA Over Russia Scandal
Catalin Simpanu - Anonymous Hacks World Anti-Doping Agency & International Sports Court
Andrew Ross Sorkin - An Olympic Event Where 1st Prize Is the Chance to Lose Billions
Transparency International - Five key lessons from the Rio Olympics
Adam Epstein and Kathryn Kisska-Schulze, Northwestern University, The University of Missouri, and the “Student-Athlete”: Mobilization Efforts and the Future
Gina Pauline, Barbara Osborne and John J. Miller, Do Entry Form Waivers Properly Inform Triathlon Participants of the Dangers of the Sport?
Betul Sekendiz, Robin Ammon and Daniel P. Connaughton, An Examination of Waiver Usage and Injury-Related Liability Claims in Health/Fitness Facilities in Australia
Adam Lewis, Jonathan Taylor, Nick De Marco and James Segan, Challenging Sports Governing Bodies
Phillippa Kaufmann and Sarah Hannett, How public law principles balance the power of sports governing bodies
Ilya Kokorin, Russian Rio 2016 Saga: Lex Sportiva in Action
Marjolaine Viret, Why we should stop focusing on Caster Semenya
Marjolaine Viret and Emily Wisnosky, Regulating the human body in sports: Lessons learned from the Dutee Chand case
The Conversation - Why Caster Semenya and Dutee Chand deserve to compete (and win) at Rio 2016
16 September - The future of the ‘legal autonomy’ of sport, Anglia Ruskin University, Cambridge, UK
26 September - Soccerex - Global Convention 2016, Manchester, UK
4 October – Demi-Journee Cedidac 2016 en Droit du Sport, Lausanne, Switzerland
Save the Date!
28 October – ‘The Wilhelmshaven case: Challenging FIFA and the CAS’, FBO, Zeist, the Netherlands
September hosted the very last bit of the sport summer 2016, most notably in the form of the Rio Paralympic Games. Next to the spectacular achievements displayed during these games, in the realm of sports law similar thrilling developments hit town. The first very much expected #Sportslaw highlight was the decision by the German Bundesgerichtshof in the case concerning SV Wilhelmshaven. The second major (less expected) story was the Statement of Objections issued by the European Commission against the International Skating Union.
The Bundesgerichtshof’s ruling in the SV Wilhelmshaven case
On Tuesday 20 September, Germany’s highest court, the Bundesgerichtshof (BGH), sided with the German (now) amateur football club SV Wilhelmshaven in its fight against a forced relegation at the end of the 2013/2014 season, ordered by FIFA and effectuated by the North German Football Federation. This relegation was the ultimate result of the non-payment of training compensation fees owed by SV Wilhelmshaven to two Argentinian Clubs under the FIFA training compensation system. For the ins and outs of the story leading up to the BGH’s decision, please read our earlier blog post ‘SV Wilhelmshaven: a Rebel with a cause!’.
In short, the current ruling annulled the relegation, because of the unclear nature of the North German Football Federation’s statutes. A disciplinary measure can only be applied when it derives from the federation’s statutes. The BGH found that the penalty in the form of a forced relegation could not be inferred from the statutes. It was not foreseeable for SV Wilhelmshaven that their non-payment of the imposed trainings fees would lead to this dire consequence. Unfortunately, the BGH did not answer the question whether the forced relegation infringed the free movement rights of football players under Article 45 TFEU. Thus ignoring the criticisms raised by the Bremen court in earlier instance. Henceforth, the ruling constitutes an important blow for the German football federations and a relatively harmless defeat for FIFA.
The EU Commission’s Statement of objections to ISU
On the morning of 27 September, for the first time nearly 20 years(!), the European Commission issued a Statement of Objections (SO) in the field of sport. The SO was addressed to the International Skating Union (ISU) in relation to its eligibility rules. The ASSER Institute (via Ben Van Rompuy and Antoine Duval) was at the origin of the complaint and was representing the skaters along the proceedings. The SO concluded the first phase of the Commission’s investigation that was opened in October 2015 following a complaint by two Dutch professional speed skaters, Mark Tuitert and Niels Kerstholt.
The preliminary view of the Commission is that the ISU breaches EU competition law through its rules under which athletes can be severely penalized (i.e. a ban from the Olympic Games or the World Championship, and possibly even life time bans) for their participation in speed skating events not authorised by the ISU. The commercial freedom of athletes is ‘unduly’ restricted by these rules, which ultimately leads to preventing new entrants on the market of speed skating events, as these organizers are not able to attract the top athletes. Commissioner Vestager expressed the concerns that ‘the penalties the ISU imposes on skaters through its eligibility rules are not aimed at preserving high standards in sport but rather serve to maintain the ISU's control over speed skating’. The length of the possible penalties (leading up to a ban for life) are, considered the short time span of a professional athlete’s career, extremely harmful and potentially career ending. The Commission is thus concerned that these ISU eligibility rules are ‘disproportionately punitive’ and, as such, may breach Article 101 TFEU.
In a defensive response, the ISU declared that it believes the European Commission’s allegations are unfounded. The ‘surprised’ ISU stressed that the SO is merely a one of the stages in a Commission antitrust investigation and ‘does not imply that the ISU is responsible or liable for any violation of EU antitrust legislation’. Striking was the claim stating that any such allegations appear ‘to be based on a misplaced understanding of the governance structure of sport and the Olympic movement’ together with the reference to the wore-out life buoy of the ‘autonomous governance structure of sport’.
In any case, the mere fact that the Commission decided to issue an SO is a strong indicator of its grave concerns regarding the (bad) governance of global sport and the tendency of the Sports Governing Bodies (SGBs) to abuse their monopoly position for the sole sake of making more money for themselves. That, or Margrethe Vestager has a secret passion for ice skating.
The month of September also saw the publication of the Spanish Tribunal Supremo’s ruling of 28 July 2016 concerning the legality of the whereabouts requirement imposed on athletes in the fight against doping. The case dates back to 2013 when the Spanish High Council for Sports adopted resolution 1648/2013 providing two forms (Annex I and Annex II) for athletes to complete in order to fulfil their whereabouts requirements. In June 2014, the Adiencia Nacional (an Exceptional High Court) considered that the resolution was contrary to the right to privacy and was going beyond the wording enshrined Spain’s anti-doping laws. It consequently declared the whereabouts requirement null and void. For more information on the Audiencia Nacional’s judgment, see our Blog from July 2014. In cassation, the Supreme Court agreed with the Audiencia Nacional and deemed the whereabouts requirement to be disproportionate and contrary to the right to privacy. According to the Court, the general policy (objective) of a (global) fight against doping cannot be considered a sufficient justification for limiting a person’s freedom too such an extent.
As regards the aftermath of the Rio Olympics, the CAS Ad Hoc Division proved to have a rather busy schedule during and after these games. One of the main reasons for this was the ‘willingness’ of Russian athletes to challenge the ban imposed on them by the IAAF. Even though these decisions have been rendered in August, we published a five-part blog by Antoine Duval this month, which analyses the published CAS awards related to Russian athletes: Act I: Saved by the Osaka déjà-vu, Act II: On being implicated, Act III: On being sufficiently tested, Act IV: On bringing a sport into disrepute and Act V: Saving the Last (Russian) Woman Standing.
EU commission Spanish State Aid decisions
EU commission Dutch State Aid decisions
Official documents and Press releases
In the news
Play the Game, Antoine Duval - The rules of the game: Tackling Doping Seriously
Hein Verbruggen - WADA Should be Independent, Not Almighty and Unaccountable
Josimar - The President’s Man
Steve Menary - Integrity in football needs compliance and collaboration
Oskar Van Maren - Clave para el fútbol español
Olympic and Paralympic Games
John T. Holden, Ryan M. Rodenberg and Anastasios Kaburakis, Esports Corruption: Gambling, Doping, and Global Governance
Ulrich Haas and Deborah Healey, Doping in Sport and the Law
Adam Lewis, Jonathan Taylor, Nick De Marco and James Segan, Challenging Sports Governing Bodies
Thomas H. Murray and Voo Teck Chuan (Eds),The Ethics of Sports Technologies and Human Enhancement
Württembergischer Fußballverband, 40 Jahre wfv-Sportrechtsseminare: 1975-2015 - Nationales und internationales Sportrecht im Überblick
Ilya Kokorin, Russian Rio 2016 Saga: Lex Sportiva in Action
The Swiss Ramble, Manchester United - Power In The Darkness
13 October – ‘British Association for Sport and Law Annual Conference 2016’, Olympic Stadium, London, UK
28 October – ‘The Wilhelmshaven case: Challenging FIFA and the CAS’, FBO, Zeist, the Netherlands
4 November – ‘Contemporary Issues in Sports Law and Practice 2016’, De Montfort University, Leicester, UK