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

The Headlines

Manchester City sanctioned by UEFA’s Financial Fair Play

Manchester City has been sanctioned under UEFA’s Financial Fair Play (FFP) regulations for two seasons for ‘overstating its sponsorship revenue in its accounts and in the break-even information’ it had provided UEFA. The February 14 decision of the Adjudicatory Chamber of the Club Financial Control Body (CFCB) likely heralds the start of a long and bitter legal war between Manchester City and UEFA, which may end up settling many of the questions surrounding the legality of FFP rules. Since its introduction in 2010, the compatibility of FFP with EU law, especially in terms of free movement and competition law, has been a continued point of contention amongst the parties concerned and commentators (see discussion here, here and here). It was only a matter of time that a case would arise to test this issue and the present circumstances seem to indicate that this may go all the way.                                 

Regardless, the ban will not be enforced this season and in light of the appeal process, it is hard to predict when the CFCB’s decision will have any effect. Indeed, Manchester City has shown an incredible willingness to fighting this out in the courts and shows no signs of backing down. The next stop will be the CAS and perhaps followed by the Swiss Federal Tribunal. It should also be recalled that the CAS has already examined FFP in its Galatasaray award, where it found FFP compatible with EU law (see commentary here). There is even a decent chance that this emerging saga may end up in front of the European Commission and eventually the Court of Justice of the European Union.

Sun Yang CAS award published

After a much-anticipated public hearing, the Panel’s award in the Sun Yang case has finally been published, sanctioning Sun Yang with an eight-year period of ineligibility (see here for a detailed commentary). The decision does not reveal anything groundbreaking in terms of its legal reasoning and in many ways the case will most likely be remembered for its historical significance: the case that jumpstarted a new era of increased public hearings at the CAS.

Perhaps of some interest is the extent to which the panel took into account Sun Yang’s behavior during the proceedings in order to support its assessment of the case. For example, the panel describes how Sun Yang had ignored the procedural rules of the hearing by inviting ‘an unknown and unannounced person from the public gallery to join him at his table and act as an impromptu interpreter’. The Panel interpreted this as Sun Yang attempting ‘to take matters into his own hands’ which it found resembled the athlete’s behavior in the case (see para 358). The Panel also found it ‘striking’ that Sun Yang did not express any remorse concerning his actions during the proceedings. Since the proceedings were held publicly and have been recorded, it is possible to verify the Panel’s assessment in this regard.

In the end, it is possible that Sun Yang may seek to reduce the period of ineligibility once the 2021 WADA Code comes into force (see para 368). For now, Sung Yang may also try to appeal the award to the Swiss Federal Tribunal on procedural grounds, and has already indicated his wish to do so.

Major International Sports Law Decisions

• CAS - CAS 2019/A/6148 World Anti-Doping Agency v. Sun Yang & Fédération Internationale de Natation
• CAS – CAS 2019/A/6298 Manchester City FC v. UEFA
• CAS - CAS 2019/A/6274 Inês Henriques, Claire Woods, Paola Pérez, Johana Ordóňez, Magaly Bonilla, Ainhoa Pinedo, Erin Taylor-Talcott & Quentin Rew v. IOC
• CAS - CAS 2018/A/6040 Club Atlético Boca Juniors v. CONMEBOL & Club Atlético River Plate

Recently Released CAS Decisions (since December 2019) where FIFA is a party:

• CAS - CAS 2019/A/6278 Cruzeiro EC v. FIFA
• CAS – CAS 2019 A 6276 Eskisehir Kulübü Dernegi v. Ruud Boffin & FIFA
• CAS - CAS 2019 A 6345 Club Raja Casablanca v. FIFA
• CAS - CAS 2019 A 6406 Football Association of Penang v. FIFA
• CAS - CAS 2019 A 6268 Clube Atlético Mineiro v. FIFA
• CAS - CAS 2018 A 5560 & 5650 Kuwait FA v. FIFA
• CAS - CAS 2019 A 6027 Sociedade Esportiva Palmeiras v. FIFA 
• CAS - CAS 2019 A 6305 Club Raja Casablanca v. FIFA
• CAS - CAS 2017 O 5264 & 5265 & 5266 Miami FC & Kingston Stockade FC v. FIFA, CONCACAF & USSF
• CAS - CAS 2019 A 6239 Cruzeiro EC v. FIFA

Official Documents and Press Releases

CAS

• CAS - Sun Yang is found guilty of a doping offense and sanctioned with an 8-year period of ineligibility
• CAS - CAS procedure between the World Anti-Doping Agency (WADA) and the Russian Anti-Doping Agency (RUSADA)
• CAS - CAS upholds the appeal of Italian swimmer Filippo Magnini - annuls four-year ban
• CAS - CAS registers the appeal of Manchester City v. UEFA
• CAS - CAS reduces the suspension of Russian race walker Alexander Ivanov to two years
• CAS - CAS lifts the suspension of the Brazilian swimmer Gabriel da Silva Santos
• CAS - CAS does not have jurisdiction to rule on the appeals that sought the inclusion of a Womens 50km Race Walk at the Tokyo 2020 Olympic Games
• CAS - CAS orders Club Atlético River Plate to play its next two Copa Libertadores matches behind closed doors

FIFA

• FIFA - FIFA set to launch global fund for player salary protection
• FIFA - FIFA Disciplinary Committee sanctions four players for involvement in match manipulation
• FIFA - FIFA’s transfer report: Big 5 accounted for almost three quarters of global spending in January 2020
• FIFA – Letter: Amendments to the Regulations on the Status and Transfer of Players
• FIFA - Football stakeholders agree further steps in the reform of the transfer system

IOC

• IOC – Free Speech for Olympic Athletes
• IOC – IOC Sanctions One Athlete for Failing Anti-Doping Tests at London 2012

WADA

• WADA – WADA Compliance Review Committee update
• WADA - WADA update regarding testing of Chinese athletes in light of coronavirus
• WADA - WADA publishes Independent Observer Team Report from 2019 African Games
• WADA - WADA statement regarding CAS public hearing – WADA V. SUN YANG & FINA

Other

• Athletics Integrity Unit – First Instance Decision: Peter Kewmoi
• Athletics Integrity Unit – First Instance Decision: Ruth Jebet
• Athletics Integrity Unit – First Instance Decision: Virjilio Griggs
• Fédération Equestre Internationale (FEI) – FEI Tribunal issues Final Decisions
• Fédération Equestre Internationale (FEI) – Prohibited substance cases under FEI anti-doping rules
• FIBA - Mexican Basketball Federation suspended
• FIBA - Luxembourg Appeals Court rules in favor of FIBA Europe in Euroleague case
• FINA - FINA STATEMENT - Sun Yang (CHN)
• FIVB – Legal Commission praises the FIVB’s principles of transparency and good governance
• Global Athlete – Global Athlete Survey Results: Athlete Rights, Welfare and Representation
• Global Athlete – Athlete Groups Calling for an Open Hearing at Court of Arbitration of Sport for the RUSADA Proceedings
• Global Athlete – Weightlifting Athletes Support the Independent Investigation Being Led by Mr. Richard McLaren
• International Biathlon Union – IBU Anti-Doping Hearing Panel renders verdicts on Sleptsova and Ustyugov
• International Luge Federation (FIL) - FIL President Fendt announces penalty for Summer Britcher
• International Tennis Federation – 2019 Tennis Anti-Doping Programme testing summary
• UEFA - UEFA and CONMEBOL renew Memorandum of Understanding to enhance cooperation
• UEFA - Club Financial Control Body Adjudicatory Chamber decision on Manchester City Football Club
• World Curling - Membership of Polish Curling Association suspended

In the News

Football

• Tariq Panja - Audit Finds Suspicious Financial Dealings in African Soccer
• Martyn Ziegler - Manchester City demanded damages from ‘unlawful’ Uefa after Champions League ban recommendation, court documents reveal
• Philippe Auclair and Pål Ødegård – Out of Africa
• Tariq Panja and Rory Smith - Manchester City Banned From Champions League for 2 Seasons
• Rory Smith - Manchester City Vows to Fight, Because Losing Is Unthinkable
• Florian Soenen -Manchester City sanctionné : « Le Tribunal arbitral du sport pourrait considérer qu’il y a une inégalité avec le PSG »
• Jonathan Liew - Manchester City backers are not the sort to take Uefa's punishment lying down
• Associated Press - Soccer official challenges 10-year FIFA ban for self-dealing
• David Conn - Manchester City offer an olive branch now Uefa holds all the power
• Andrew Das - U.S. Women’s Soccer Team Sets Price for Ending Lawsuit: $67 Million
• Tariq Panja - FIFA, Seeking $1 Billion for Club World Cup, Hires U.S. Firm to Find It
• Graham Dunbar - A look at the legal issues in Man City’s appeal against UEFA

Doping

• Ali Iveson - Anti-doping testing in China suspended because of coronavirus fears
• Christoph Becker – Keine Transparenz im Anti-Doping-Kampf
• Graham Dunbar - Swimming authorities worked to protect Sun Yang from ban
• Tariq Panja - Dear CAS: With Flurry of Letters, Russia May Delay Olympic Ban
• Graham Dunbar - Olympic champion Sun Yang banned for 8 years in doping case

Other

• Eddie Pells - Survey finds Olympic, elite athletes struggling financially
• Andrew Keh and Ben Dooley - Grappling With Coronavirus, Tokyo Olympic Leaders Have No Good Options
• Alex Capstick and Rachel Nickolds - Blake Leeper: Paralympian appeals to CAS in bid to make 2020 Olympics

Academic Materials

International Sports Law Journal

• Chui Ling Goh - To what extent does the Paralympic Games promote the integration of disabled persons into society?

Other

• Steven A. Bank - FIFA, Forced Arbitration, and the U.S. Soccer Lawsuits

Blog

Asser International Sports Law Blog

• Thomas Terraz - How 2019 Will Shape the International Sports Law of the 2020s

Law in Sport

• Despina Mavromati - Riza v Turkey: European Court of Human Rights gives further guidance on establishing independent arbitral tribunals
• Christopher Flanagan - Manchester City's Financial Fair Play ban: the legal questions and consequences
• Christopher Chase - Rule 40 in the United States: new opportunities for sponsors but with strings attached
• Viktoria Tsvetanova - How competition law is shaping Olympic sponsorship: Part 1 – the origins and evolution of Rule 40
• Viktoria Tsvetanova - How competition law is shaping Olympic sponsorship: Part 2 – Germany's Competition Authority helps ease restrictions on athletes
• Celia Rooney - For the love of money: exploring the decision in the Saracens salary cap case
• Jack Anderson - A detailed review of the CAS Panel’s decision in WADA v Sun Yang & FINA

Play the Game

• Stanis Elsborg - A fist of freedom or a fist of iron? Rule 50 and the Olympic paradox

SportLegis

• Despina Mavromati - Sun Yang v. WADA & FINA – A CAS letter on the admissibility of the appeal is not an appealable decision to the Swiss Federal Tribunal

Upcoming Events

18-19 June 2020 – Sport& EU 2020 Annual Conference, Rijeka and Opatija, Croatia

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

The Headlines

Coronavirus Pandemic Takes Over Sports

Since the last monthly report, the coronavirus pandemic has completely taken over the headlines and has had enormous impacts on the sports field. The most significant of these impacts so far was the rather slow (see here and here) decision by the IOC to move the Tokyo 2020 Olympic Games to 2021 after a widespread push among athlete stakeholders to do so. Concerns were raised that besides the wellbeing of the participants, athletes under lockdowns would not have the access to the training facilities, meaning preparations for the Games would suffer. The IOC has already started its new planning for Tokyo 2021 and sees this new opportunity to be ‘an Olympic flame’ at the end of a ‘dark tunnel’ for the entire world.

Besides the Olympics, football has also experienced colossal effects as this crisis landed right as leagues were approaching the end of their season. In this context, FIFA has released specific guidelines on player contracts and transfer windows, which has included extending player contracts to the new postponed end of season dates. It has also organized a working group on COVID-19, which has already made recommendations to postpone all men and women’s international matches that were to be played during the June 2020 window. Earlier in March, UEFA had already announced that the EURO 2020 was also postponed by 12 months and has also recently approved guidelines on domestic competitions. These guidelines place emphasis on ‘sporting merit’ and urge ‘National Associations and Leagues to explore all possible options to play all top domestic competitions giving access to UEFA club competitions to their natural conclusion’. Nevertheless, UEFA also emphasizes that the health of all stakeholders must remain the top priority.

In the end, numerous sport federations have also had to amend their calendars due to the pandemic (see UCI and FIBA) and a variety of sport stakeholders have been confronted with immense financial strain (e.g. football, tennis and cycling). For example, UEFA has acted preemptively in releasing club benefit payments to try to alleviate the economic pressure faced by clubs. There have also been efforts to support athletes directly (e.g. FIG and ITF). All in all, the social and economic impacts of the coronavirus pandemic on sport have been unprecedented and will require creative solutions while continuing to place public health as the top priority.

Platini’s ECtHR Appeal Falls Flat

There have also been a few other stories that have (understandably) been overshadowed by the pandemic. One of these include Michel Platini’s unsuccessful appeal to the ECtHR challenging his 2015 football ban. The ECtHR’s decision concerned the admissibility of his appeal and in the end found it to be ‘manifestly ill-founded’. This is because he failed to raise his procedural rights concerns under Article 6 (1) ECHR in his proceedings at the Swiss Federal Tribunal. Besides rejecting his other claims based on Article 7 and 8 ECHR, the ECtHR decision also touched upon the issue of CAS’ procedural and institutional independence. In doing so, it referred to its Pechstein decision and once more affirmed that the CAS is sufficiently independent and impartial (see para 65), further giving credence to this notion from its case law. However, there are still concerns on this matter as was highlighted in thePechstein dissent. Overall, the decision indicates that the ECtHR is willing to give the CAS the benefit of the doubt so long as it sufficiently takes into account the ECHR in its awards.

Mark Dry – UKAD Dispute

In February, Mark Dry was suspended by UKAD after a decision of the National Anti-Doping Panel (NADP) Appeal Tribunal  for four years after having given a ‘false account’ in order to ‘subvert the Doping Control process’. Specifically, Dry had told anti-doping authorities that he had been out fishing after he had missed a test at his residence. After further investigation, Dry admitted that he had forgotten to update his whereabouts while he was actually visiting his parents in Scotland and in panic, had told anti-doping authorities that he had been out fishing. Following the decision of the NADP Appeal Tribunal, athlete stakeholders have argued the four-year ban was disproportionate in this case. In particular, Global Athlete contended that Whereabouts Anti-Doping Rule Violations only occur in cases where an athlete misses three tests or filing failures within a year. Furthermore, even if Dry had ‘tampered or attempted to tamper’, a four-year sanction is too harsh. Subsequently, UKAD responded with a statement, arguing that ‘deliberately providing false information’ is ‘a serious breach of the rules’ and that the UKAD NADP Appeal Tribunal ‘operates independently’. In light of the mounting pressure, Witold Bańka, WADA President, also responded on Twitter that he is ‘committed to ensuring that athletes’ rights are upheld under the World Anti-Doping Code’.

Major International Sports Law Decisions

• CAS  - World Anti-Doping Agency v. Sun Yang & Fédération Internationale de Natation (Full Award)
• Court of Justice of the European Union - Cases T-732/16 Valencia Club de Fútbol v Commission and T-901/16 Elche Club de Fútbol v Commission (Valencia Club de Fútbol v Commission, Elche Club de Fútbol v Commission)
• European Court of Human Rights – Platini c. Suisse

Official Documents and Press Releases

CAS

• CAS – The Court of Arbitration for Sport (CAS) Emergency Guidelines
• CAS - CAS dismisses the appeal of Hiromasa Fujimori v. FINA
• CAS - The Court of Arbitration for Sport (CAS) Annuls the Suspension of Jarrion Lawson

FIFA

• FIFA – Statement from the FIFA President
• FIFA - FIFA guidelines to address legal consequences of COVID-19
• FIFA - Bureau of the FIFA Council decisions concerning impact of COVID-19
• FIFA - FIFA Congress rescheduled due to COVID-19
• FIFA - FIFA to collaborate with WHO to tackle coronavirus
• FIFA - Dedicated COVID-19 working group proposes recommendations after first meeting
• FIFA - FIFA Football Law Annual Review 2019 – online edition
• FIFA - Haitian Football Federation President provisionally banned from all football-related activities
• FIFA - FIFA and FIFPRO discuss collaboration to support and further develop women's football
• FIFA - FIFA, WHO and football stakeholders draft medical considerations and risk assessment tool

IOC

• IOC - Joint Statement from the International Olympic Committee and the Tokyo 2020 Organising Committee

• IOC – IOC continues working on human rights and takes first steps on a strategy
• IOC - IOC Sanctions One Athlete for Failing Anti-Doping Tests at London 2012
• IOC - IOC And Tokyo 2020 Joint Statement - Framework for Preparation of The Olympic and Paralympic Games Tokyo 2020 Following Their Postponement to 2021
• IOC - IOC Statement on the Rodchenkov Act
• IOC - IOC Statement on Tamás Aján
• IOC - IOC Takes Leadership Role in UN Women Sports for Generation Equality Initiative
• IOC - IOC AC call: Updating athletes on anti-doping and the Olympic Movement Funding Model
• IOC - IOC Approves A Financial Envelope of up to USD 800 Million to Address the Covid-19 Crisis

UEFA

• UEFA - UEFA postpones EURO 2020 by 12 months
• UEFA - Resolution of the European football family on a coordinated response to the impact of the COVID-19 on competitions
• UEFA - UEFA postpones all June national team matches
• UEFA - Executive Committee approves guidelines on eligibility for participation in UEFA competitions
• UEFA – UEFA EURO 2020 club benefits paid in advance

WADA

• WADA – WADA Compliance – raising the standard of Anti-Doping Organizations’ work worldwide
• WADA - WADA calls on US Senate to consider widely held concerns about Rodchenkov Act
• WADA - WADA updates its COVID-19 guidance for Anti-Doping Organizations
• WADA - WADA responds to athlete queries concerning anti-doping in light of COVID-19
• WADA - WADA statement on Olympic and Paralympic Games Tokyo 2020 postponement
• WADA - WADA removes International Taekwondo Federation from World Anti-Doping Code non-compliant list
• WADA - WADA publishes first Code Compliance Annual Report
• WADA - WADA Compliance Review Committee update
• WADA - WADA hands over priority athlete cases to Anti-Doping Organizations in Russia investigation
• WADA – 2021 Model Rules for International Federations
• WADA - WADA fully reinstates accreditation of Salt Lake City Laboratory after partial suspension
• WADA - WADA publishes updated Question and Answer document for athletes related to COVID-19
• WADA - WADA study reveals no meaningful link between TUEs and the likelihood of winning an Olympic medal
• WADA - 2021 Model Rules for Major Events Organizations
• WADA - WADA invites stakeholders to nominate candidates for 2021 Standing Committee member vacancies
• WADA - WADA updates its COVID-19 guidance for Anti-Doping Organizations

Other

• Badminton World Federation - BWF Freezes Rankings
• Bundeskartellamt - Proceeding against Sky and DAZN discontinued – Award procedure relating to Champions League broadcasting rights
• Centre for Sport and Human Rights - Games Time: Planning and Acting to Respect Human Rights in Mega-Sporting Events
• Centre for Sport and Human Rights - Putting People First: Guidance for Sport on How to Respond to the COVID-19 Crisis
• EU Athletes - EU Athletes statement on COVID-19 impact on sport
• Fédération Equestre Internationale (FEI) - FEI publishes return to play policy as equestrian adapts to “new normal”
• Fédération Equestre Internationale (FEI) - Prohibited substance cases under FEI anti-doping rules
• Fédération Internationale de Gymnastique (FIG) - Official news from the Executive Committee meeting - April 2020
• Fédération Internationale de Gymnastique (FIG) - FIG statement on the suspension of a former US national coach
• Fédération Internationale de Gymnastique (FIG) - FIG sets up a solidarity fund to support Gymnastics community affected by pandemic
• FIBA – FIBA's Executive Committee confirms global calendar update
• FIBA - FIBA publishes Guidelines for the Return to Basketball
• FIFPro – Coronavirus Impact on Professional Football
• Global Athlete – The Future of the Olympic Movement Must Include the Ability for Athletes to Collectively Bargain
• Global Athlete – Athletes Pushed the International Olympic Committee to Make an Immediate Decision to Postpone the Olympic Games
• Global Athlete – Global Athlete Survey Results: Athlete Feedback on Anti-Doping Programs
• Global Athlete – Global Athlete Survey Results: Athlete Rights, Welfare and Representation
• Global Athlete - In the Case of Mark Dry, British Athletics Athlete
• International Canoe Federation - ICF athlete statement on Covid-19 situation
• International Canoe Federation - ICF updates event status due to coronavirus
• International Canoe Federation - ICF board approves competition and rule changes
• International Handball Federation  - EHF Executive Committee Announces Competition Decisions for 2020
• International Handball Federation  - CAS Confirms IHF Arbitration Tribunal Decision in Moccia Case
• International Ice Hockey Federation – Three players suspended
• International Ice Hockey Federation – 2020 IIHF Ice Hockey World Championship cancelled
• International Ice Hockey Federation – CAS upholds Salmond suspension
• International Ice Hockey Federation – Women’s Worlds cancelled
• International Ski Federation (FIS) – Decision in the doping matter of Algo Kärp (EST)
• International Ski Federation (FIS) – IOC: Tokyo 2020 postponement a 'formidable opportunity' for Beijing 2022
• International Ski Federation (FIS) – FIS Anti-Doping programme and COVID-19
• International Tennis Federation – ITF Announces Further Suspensions Across All Tours
• International Tennis Federation – Tennis Unites to Create COVID-19 Player Relief Programme
• International Tennis Federation – Economic Challenges Resulting from the COVID-19 Pandemic
• International Tennis Federation – Tennis Rallies Together for Player Relief Programme
• International Tennis Federation – ITF to Announce Further Support Programme for Lower-Ranked Players
• International Weightlifting Federation - IWF Executive Board Accepts Resignation Of IWF President Tamas Ajan
• International Weightlifting Federation - Reporting for the McLaren Enquiry
• Qatar 2022 – Fifth Annual Workers’ Welfare Progress Report
• Tennis Integrity Unit – Advice to Players from the TIU re unsanctioned tennis events
• Tennis Integrity Unit – Tennis Integrity Supervisory Board Reaches Decisions on Return to Tennis Campaign, Naming ff New Integrity Organisation and Anti-Doping Integration
• UCI - The UCI joins the movement for climate action initiated by the UN
• UCI - The UCI reveals the broad lines of the revised 2020 UCI International Road Calendar
• UCI - The UCI adopts a series of measures to confront the effects of the coronavirus on cycling and the Federation
• UCI - UCI statement on Luis Ricardo Villalobos Hernandez
• UKAD - UKAD statement on Mark Dry case
• UNI Global Union - World Players Association Welcomes Postponement of 2020 Tokyo Olympics Due to COVID-19
• USADA - AAA Panel Imposes Four-Year Sanction on Cycling Athlete Daniel Bond
• USADA - Dr. Lucas Penchel Accepts Sanction for Violation of UFC Anti-Doping Policy
• Velon - Hammer Series 2020 suspended
• World Archery - World Archery and the Foundation for Global Sports Development Launch Covid-19 Fund for International Athletes
• World Athletics - World Athletics announces protected window for 2020 national championships
• World Athletics - World Athletics and IIRM form Outbreak Prevention Taskforce for mass events
• World Athletics - World Athletics makes commitment to a cleaner, greener, more equitable world
• World Athletics - World Athletics Council issues package of sanctions in relation to RusAF’s breach of anti-doping rules
• World Rowing Federation - FISA Executive Committee working on all fronts
• World Rugby - World Rugby, unions, competitions and players unified in tackling global COVID-19 rugby impact
• World Rugby – World Rugby announces global COVID-19 relief strategy
• World Rugby - World Rugby Statement: Francis Kean resignation
• World Rugby - Update: Global COVID-19 relief funding strategy
• World Triathlon – World Triathlon approves the COVID-19 Prevention Guidelines for Event Organisers
• World Triathlon – World Triathlon extends the suspension of activities until June 30

In the News

Football

• Tariq Panja - In Spain, Soccer Transfers and ‘Ghost Clubs’ Collide in a Tax-Fraud Case
• Tariq Panja - FIFA Plans Huge Emergency Fund to Support Ailing Soccer Industry
• Tariq Panja - U.S. Success Puts Focus on Swiss Failures in FIFA Corruption Case
• Tariq Panja - The Soccer Club as Sovereign State
• Tariq Panja - Sexual Abuse Case in Global Soccer Puts FIFA Under Scrutiny Again
• Tariq Panja and Kevin Draper - U.S. Says FIFA Officials Were Bribed to Award World Cups to Russia and Qatar
• Graham Dunbar - Swiss prosecutor disciplined for misconduct in FIFA case
• Graham Dunbar - 1st trial in Swiss FIFA investigation opens in court Monday
• Graham Dunbar - Sports court hears UAE challenge to Qatar’s Asian Cup title
• Graham Dunbar - Swiss trial in 2006 World Cup case suspended, nears collapse
• Graham Dunbar - CAS to hear Man City’s appeal against 2-year ban in June
• Ronald Blum - US prosecutors allege bribes in 2018, 2022 World Cup votes
• Barney Ronay - Resistance to Fifa is futile: fall in line or prepare to be Normalised
• Rémi Dupré - FIFA : « Le comportement de Gianni Infantino est éthiquement blâmable »
• Henry Habegger - Ex-Staatsanwalt über geheimes Lauber-Infantino-Treffen: «Es besteht ein dringender Verdacht gegen den Fifa-Chef»

Doping

• Jack Anderson - Sun Yang ban shows world swimming body must establish an integrity commission
• Tracey Holmes - Shayna Jack to appeal four-year ban at Court of Arbitration for Sport, after decision by ASADA panel
• Alex Hutchinson - We Can Now Estimate the Effect of Blood Doping
• Associated Press - 2 Olympic champions among 4 Russians with new doping charges

Other

• Michael Pavitt – RusAF fined $10 million as World Athletics cap neutral athlete process for Olympics
• Dave Zirin and Jules Boykoff - The Coronavirus Exposes Why the Tokyo 2020 Olympics Should Be Canceled
• Rachel Bachman and Louise Radnofsky - Pressure From Athletes to Delay Olympics Intensifies
• Pete Pattisson and Roshan Sedhai - Covid-19 lockdown turns Qatar's largest migrant camp into 'virtual prison'
• Jack Anderson - Why the fall-out from postponing the Olympics may not be as bad as we think
• Brian Homewood - Athletes' association says change of culture needed at IOC
• Jules Boykoff - Coronavirus postponed the 2020 Tokyo Games. But the Olympic system is still sick.
• Antoni Slodkowski, Nathan Layne, Mari Saito and Ami Miyazaki - Exclusive: Japan businessman paid $8.2 million by Tokyo Olympics bid lobbied figure at center of French corruption probe
• Craig Lord - Sun Yang Dropped From Olympic Training Squad After WADA Alerted To Potential Breach Of Code
• Adam Nelson - IOC’s Haddad rejects Global Athlete’s collective bargaining call, backs solidarity model
• Associated Press - Policy allowing transgender athletes to compete as girls found to violate US law

Academic Materials

International Sports Law Journal: Volume 20, Issue 1-2, April 2020

• Johan Lindholm - When sports is the most important utterly non-important thing in the world
• Margareta Baddeley - The extraordinary autonomy of sports bodies under Swiss law: lessons to be drawn
• Ben Cisneros - Challenging the call: Should sports governing bodies be subject to judicial review?
• Chui Ling Goh - To what extent does the Paralympic Games promote the integration of disabled persons into society?
• Jacob Kornbeck - Statutory provision as a legal base for data transfers to third countries for anti-doping purposes, under EU and German law

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

Other

• Antoine Duval - Time to Go Public? The Need for Transparency at the Court of Arbitration for Sport
• Johan Lindholm - What's Global Sports Law? The View from the Twittersphere
• Richard Pound - The Russian Doping Scandal: Some Reflections on Responsibility in Sport Governance
• Arnout Geeraert and Edith Drieskens - The dynamics of de‐delegation: A principal–agent explanation of the reversal of private authority in international sport governance

Blog

Asser International Sports Law Blog

• Thomas Terraz - Mega-sporting events and human rights: What role can EU sports diplomacy play? - Conference Report
• Thomas Terraz - (A)Political Games: A Critical History of Rule 50 of the Olympic Charter

Law in Sport

• Christopher Flanagan - Manchester City's Financial Fair Play ban: the legal questions and consequences
• Toni Roca and Xavi Fernández - The 2020 changes to FIFA’s Regulations on the Status and Transfer of Players
• Luka Milanovic and Dr. Vesna Bergant Rakocevic - COVID-19: the impact on players’ contractual rights & obligations (key principles from case law)
• Frans de Weger and Arne Al - COVID-19: a legal perspective on FIFA’s guiding principles for national football associations
• Marianne Clayton and Maria J. Segura Catalán - State aid in Spanish football - EU General Court annuls European Commission decision on Valencia CF & Elche CF
• Jonathan Taylor QC - Assessing contamination and thresholds under the World Anti-Doping Code: an advocate’s view on Lawson v IAAF (CAS 2019/A/6313)
• Michael Savva  and Stuart Bolton - A guide to Financial Fair Play and the ability of European football clubs to raise finance (Part 1)
• Mark James - COVID-19: ensuring participant & spectator safety as sports activities resume (UK guidance & legal duties)
• Wilfred Synrem - A guide to the main changes under the 2021 World Anti-Doping Code

Play the Game

• Andreas Selliaas - Football Leaks raises many questions – also for the media

• Jens Weinreich - A leaked list discloses how much cash the IOC paid for the 2016 Olympics in Rio
• Jens Sejer Andersen - FBI vs. FIFA: How deep an impact?

Sport Integrity Intitiative

• Andy Brown - FIFA asked to implement a human rights roadmap

Sportlegis

• Despina Mavromati - Scope and limits of res judicata of a previous CAS Award related to the same contract and the same parties
• Despina Mavromati - Enforcement of a CAS Award requested by the Swiss State Courts: the case of KMSC v. FIM

Other

• ATFIELD Sports Law - COVID-19 : FIFA Issues Guidelines Regarding Employment Contracts and Transfer Agreements
• ATFIELD Sports Law - Public Aid to Sports Clubs and Organisations Affected by Covid-19 Must Respect EU State Aid Rules
• ATFIELD Sports Law - State Aid in Sports: How to Maintain Fair Play?
• Doriane Labelet Coleman - Semenya and ASA v IAAF: Affirming the Lawfulness of a Sex-Based Eligibility Rule for the Women’s Category in Elite Sport

Upcoming Events

• 17-18 September 2020 - Understand The Rules Of The Game 2020 - LawInSport Annual Conference
• 17-18 June 2021 – Sport & EU 2020 Annual Conference, Rijeka and Opatija, Croatia

The Headlines

CAS Decision on Manchester City FC Case

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

Qatar Labour Law Reforms Effectively Abolishes the Kafala System

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

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

CAS Decision Concerning Keramuddin Karim Abuse Case

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

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

Major International Sports Law Decisions

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

Official Documents and Press Releases

CAS

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

FIFA

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

IOC

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

UEFA

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

WADA

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

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

International/national Organizations

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

Civil Society Organizations/Unions

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

In the News

Football

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

Doping

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

Other

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

Academic Materials

International Sports Law Journal

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

Tilburg Law Review

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

Other

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

Blog

Asser International Sports Law Blog

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

Law in Sport

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

Play the Game

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

Sport and EU Blog

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

Sport Integrity Initiative

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

SportLegis

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

Other

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

Podcasts

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

Upcoming Events

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

The Headlines

Human rights and sport  

Caster Semenya

Human rights issues are taking the headlines in the sporting world at present. A short time ago, Caster Semenya’s appeal at the Swiss Federal Tribunal against the CAS decision was dismissed, perhaps raising more questions than answering them. Within the last few days however, the message from the Semenya camp has been that this is not over (see here).  See the contributions from a range of authors at Asser International Sports Law Blog for a comprehensive analysis of the Semenya case(s) to date.

Navid Afkari

As the sporting world heard of the execution of Iranian Wrestler Navid Afkari, a multitude of legal and ethical questions bubbled to the surface. Not least of all and not a new question: what is the responsibility of sport and the governing bodies therein, in the space of human rights?  And, if an athlete is to acquire a high profile through sporting excellence, does that render athletes vulnerable to be made an example of and therefore in need of greater protection than is currently afforded to them? There are differing views on how to proceed. Consider the following from the World Players Association (Navid Afkari: How sport must respond) and that from the IOC (IOC Statement on the execution of wrestler Navid Afkari) which shows no indication through this press releases and other commentary, of undertaking the measures demanded by World Players Association and other socially active organisations. (See also, Benjamin Weinthal - Olympics refuses to discuss Iranian regime’s murder of wrestler).

Yelena Leuchanka

As this is written and relevant to the above, Yelena Leuchanka is behind bars for her participation in protests, resulting in several sporting bodies calling for her immediate release and for reform in the sporting world around how it ought to deal with these issues. As a member of the “Belarus women's national basketball team, a former player at several WNBA clubs in the United States and a two-time Olympian”, Leuchanka has quite the profile and it is alleged that she is being made an example of. (see here)

Uighur Muslims and Beijing Winter Olympics

British Foreign Secretary, Dominic Raab does not rule out Winter Olympics boycott over Uighur Muslims. ‘The foreign secretary said it was his "instinct to separate sport from diplomacy and politics" but that there "comes a point where that might not be possible".’ Though Raab’s comments are fresh, this issue is shaping as a “watch this space” scenario, as other governments might echo a similar sentiment as a result of mounting pressure from human rights activist groups and similar, in lead up to the Winter Games.

Major International Sports Law Decisions

CAS Decisions (September)

• CAS 2017/A/5444 Olga Zaytseva v. International Olympic Committee (IOC)
• CAS 2017/A/5435 Yana Romanova v. International Olympic Committee (IOC)
• CAS 2017/A/5434 Olga Vilukhina v. International Olympic Committee (IOC)
• CAS 2019/A/6483 Wydad Athletic Club v. Confédération Africaine de Football (CAF) & Espérance Sportive de Tunis

Official Documents and Press Releases

CAS

• Decisions rendered by the CAS in the appeal arbitrations between Russian athletes Olga Vilukhina, Yana Romanova and Olga Zaytseva, and the IOC
•  CAS dismisses the appeal of Wydad Athletic Club
• CAS decides that the International Surfing Association shall be the International Federation governing and administrating the sport of Stand-Up Paddleboard at Olympic level
•  CAS finds Ibai Salas Zorrozua guilty of an anti-doping rule violation; imposes four-year period of ineligibility
•  CAS dismisses the appeal filed by the UAE Football Association

FIFA

•  FIFA publishes first-ever manual on third-party influence and ownership
•  Manual on “TPI” and “TPO” in football agreements
• FIFA publishes first reports for Disciplinary & Ethics Committees and on anti-doping activities
• DISCIPLINARY& ETHICS REPORT 2019/20
• ANTI–DOPING REPORT 2019/20
• FIFA publishes its Guide to Submitting a Minor Application
•  PROTECTION OF MINORS Guide to submitting a Minor Application SEPTEMBER 2020 EDITION
• Regulations on the Status and Transfer of Players October 2020 Edition (including COVID-19 temporary amendments)
• Post FIFA Congress press conference
• FIFA President meets US President and US Attorney General
• FIFA COVID-19 Relief Plan helps restart Thai league
• UNODC, FIFA partner to kick out corruption and foster youth development through football
• Normalisation committee appointed for Venezuelan Football Association
• FIFA suspends the Trinidad and Tobago Football Association

FIFPro

• Fake contracts with Turkish clubs

IOC

• IOC Executive Board meeting – Information for the media
• IOC and Tokyo 2020 agree on measures to deliver Games fit for a post-corona world

UEFA

• UEFA allows return of fans at maximum 30% of capacity pending approval of local authorities
• The Executive Committee approved special rules for the group stage of the UEFA Champions League and UEFA Europa League with regard to the organisation of matches in the light of Covid-19.
• 2020/21 UEFA Women’s Champions League, competition regulations revised accordingly and special rules have been introduced, in case of both travel restrictions and positive Covid-19 tests.

WADA

• WADA publishes new Guidelines for Education
• WADA welcomes decision of French court in Diack case
• WADA to boost investigations capabilities with new compliance team
• WADA publishes revised Technical Letter TL22: Ethylmorphine
• WADA issues revised 2021 International Standard for the Protection of Privacy and Personal Information
• WADA publishes redesigned, more athlete-friendly, 2021 Prohibited List
• WADA issues 2021 International Standard for Laboratories
• WADA launches stakeholder consultation regarding 2021 Technical Documents

ITF

• TENNIS GOVERNING BODIES STATEMENT: PLAYER REPRESENTATION

World Athletics

• World Athletics Council extends deadline for RusAF’s reinstatement plan
• World Athletics statement on today's Paris Criminal Court ruling
• World Athletics welcomes Swiss Federal Tribunal decision on its Eligibility Rules for Athletes with Differences of Sex Development (DSD)
•  World Athletics publishes Annual Report

Other Civil Society Organizations/Unions

• World Players responds to WADA’s new rules for substances of abuse: urgent action required
• EU Athletes report - Covid-19 impact on players and their player associations
• Full report - Preliminary Research on the impact of the COVID-19 Pandemic on Players and their Player Associations European Elite Athletes Association
• EU Athletes supports Belarusian athletes and calls for the release of Yelena Leuchanka

In the News

Cricket

• CSA may consider criminal case against Thabang Moroe after damning findings - Cricket South Africa (CSA) has finally released a summary of the Fundudzi Report which revealed serious allegations of mismanagement by former chief executive Thabang Moroe.

Doping

• U.S. Cycling Athlete Jeff Martin Accepts Sanction for Anti-Doping Rule Violation
• U.S. Weightlifting Athlete Morgan Millican Accepts Sanction for Anti-Doping Rule Violation
•  Liam Morgan - Kenyan President troubled by doping cases among country's athletes
• Sean Ingle - Former Team Sky doctor destroyed laptop before handing it to experts, tribunal told

• French Open 2020: Alleged match-fixing investigated in women's doubles match

Academic Materials

International Sports Law Journal

• Shaun Star & Sarah Kelly - A level playing field in anti-doping disputes? The need to scrutinize procedural fairness at first instance hearings
• Cedrick Aghey - Integration of eSports in the structure of Ifs: disruption or continuity?
• Jacob Kornbeck - What can sports governing bodies do to comply with EU antitrust rules while maintaining territorial exclusivity?

Blog

Asser International Sports Law Blog

• SFT rejects Semenya appeal: nothing changes - By Andy Brown
• The Semenya Decision of the Swiss Federal Tribunal: Human Rights on the Bench - By Faraz Shahlaei
• The SFT’s Semenya Decision under European human rights standards: Conflicting considerations and why a recourse could be successful at Strasbourg - By Kevin Gerenni
• Selected procedural issues –and questions– arising out the Caster Semenya Judgment of the Swiss Federal Tribunal - By Despina Mavromati
• Caster Semenya Case Exposes Design Flaws in International Sports Governance - By Roger Pielke Jr.
• Caster Semenya at the SFT – in 10 points - By Jack Anderson
• Chronicle of a Defeat Foretold: Dissecting the Swiss Federal Tribunal’s Semenya Decision - By Marjolaine Viret
• New Transnational Sports Law Articles Released on SSRN - Antoine Duval

 Law in Sport

• WADA v. Sun Yang & FINA: Reflections of a Chinese lawyer & lessons for sports in China
• Freedom of speech vs. employment obligations in Germany – the cases of Joshiko Saibou & Jadon Sancho
• Cheating in esports: a review of ESIC’s "coach spectator bug" decision
• How rugby union is responding to Covid-19: a legal update
• Is there trouble on the horizon for algorithms in sport?
• What does The Singapore Convention mean for the future of international sports mediation?

Play the Game

• Athletes’ gestures are protected by international human rights law
• The same clubs dominate Champions League despite the corona pandemic: CL Diversity Index 2020/21
• Athletes should not be gagged in exchange for Olympic dream
• Australian football executives sue FIFA whistleblower

Sport and EU Blog

• The Professional Tennis Players Association: a vehicle for improvement in governance standard

Sport Integrity Initiative

• Six tennis players involved in fixed matches
• Fiji footballers set to appeal doping bans
• Sports Integrity Briefs – 1 October 

SportLegis

• Lack of legal interest worthy of protection in case of a sporting competition that already took place
• A letter of appointment of a sole arbitrator is not a decision that can be appealed directly to the Swiss Federal Tribunal
•  Questions of standing to be sued and alleged violation of procedural public policy
• Partial annulment of a CAS award due to violation of the party’s right to be heard

Podcasts

LawInSport

• Ricky Volante, Chief Executive Officer at the Professional Collegiate League - E95
• #Justice4Navid - How should sport respond?– E94
• Moving from exclusive to inclusive models of sport - Takuya Yamazaki - E93

The Forward Line

• EPISODE 27: TFL TACKLES Broadcast Wars, the Big 10 Conference & Conor McKenna's Retirement
• EPISODE 25: TFL TACKLES the Pink Mercedes, Free the Flag & the Tour of Poland

Editor's note: Björn Hessert is a research assistant at the University of Zurich and a lawyer admitted to the German bar.

The discussion revolving around the invalidity of arbitration clauses in organised sport in favour of national and international sports arbitral tribunals has been at the centre of the discussion in German courtrooms.[1] After the decisions of the German Federal Tribunal[2] (“BGH”) and the European Court of Human Rights[3] (“ECtHR”) in the infamous Pechstein case, this discussion seemed to have finally come to an end. Well…not according to the District Court (LG) of Frankfurt.[4] On 7 October 2020, the District Court rendered a press release in which the court confirmed its jurisdiction due to the invalidity of the arbitration clause contained in the contracts between two beach volleyball players and the German Volleyball Federation[5] (“DVV”) – but one step at a time.

1.     Arbitration clauses in organised sport

Over the past few decades, the Olympic movement has created its own judicial system in its endeavour to create and maintain a uniform judicial level playing field outside national courts. This is important, because athletes participating in international sports competitions need to be subject to the same sanctioning regime in the light of fairness and equality in sport.[6] In this regard, the jurisdiction of national courts threatens the uniform application of rules and regulations of international sports federations insofar as they could apply them differently. This could lead to the unsatisfying result that, for example, an athlete from Germany is punished for an anti-doping rule violation with a 2-year ineligibility sanction while a Swedish athlete is subject to a lifetime ban for the same misconduct.

In order to preserve the uniform application of sporting rules and – ultimately – a legal level playing field, the rules and regulations of the respective sports federation or individual contracts, including employment contracts or athlete agreements and licence agreements (“entry forms”), generally contain arbitration clauses in favour of private sports arbitral tribunals, e.g. the Court of Arbitration for Sport (“CAS”). As a result, the arbitration agreement between the parties to membership contracts or entry forms ousts the jurisdiction of national courts.[7] Due to the fact that athletes are not generally direct members of national and international sports federations, contractual clauses in their employment contracts or entry forms make reference to arbitration clauses set out in the rules and regulations of said sports federations. For example, international football players are generally bound by the regulations of the Fédération Internationale the Football Association (“FIFA”), including its statutes. Article 58(1) of the FIFA Statutes (2020 edition) provides that “[a]ppeals against final decisions passed by FIFA’s legal bodies against decisions passed by confederations, member associations or leagues shall be lodged with CAS […]”. References in individual contracts of sportspersons contained in the rules and regulations of sports federations, so-called “arbitration agreements by reference”, have been considered to be valid. In this respect, the Swiss Federal Tribunal (“SFT”) held that

“in sporting matters the Swiss Federal Tribunal examines arbitration agreements between parties with a certain goodwill in order to promote the fast resolution of disputes by specialised courts, which as the CAS, offer comprehensive guarantees of independence and neutrality.”[8]

Athletes are generally forced to accept such arbitration agreements in favour of sports arbitral tribunals due to the monopolistic structure in organised sport, meaning that only one national and international sports federation governs each sport on the basis of the pyramidal European Model of Sport (so-called Ein-Platz-Prinzip).[9] In other words, athletes can only choose between accepting such arbitration agreements (by reference) or renouncing their calling as professional athletes.[10] Against this background, it appears to be questionable whether mandatory arbitration agreements in organised sport concluded between monopolistic sports federations and athletes are valid, taking into account that arbitration as a mechanism of alternative dispute resolution generally finds its basis in the free and voluntary will of the parties to the dispute concerned. The validity of mandatory arbitration agreements was at the heart of the Pechstein[11] case and has now been addressed in the recent decision rendered by the District Court of Frankfurt[12].

2.     The decisions of the BGH and the ECtHR in the Pechstein case

Claudia Pechstein is a professional speed-skater. Prior to the speed-skating world championships, organised by the International Skating Union (“ISU”), she signed an entry form, including an arbitration agreement in favour of the CAS.[13] During her proceedings before German courts and the ECtHR, Pechstein argued that the arbitration agreement concluded between her and the ISU had not been accepted freely and voluntarily, because otherwise she would not have been eligible to participate in professional speed-skating competitions.

After the Higher Regional Court (OLG) of Munich had decided that the arbitration agreement signed by Ms Pechstein was invalid under German competition law as a result of ISU’s abuse of a dominant position[14], the BGH overruled this decision.[15] In the view of the BGH, the ISU is a monopoly within the meaning of sec. 19(1) of the German Competition Act (“GWB”).[16] However, the BGH took the view that the dominant position of a party to the arbitration agreement does not automatically revoke the voluntary nature of the consent to an arbitration agreement in favour of private sports arbitral tribunals.[17] Instead, the examination of the validity of the arbitration agreement is subject to a balancing process in consideration of the interests of both parties, i.e. sports federations and individual athletes.[18] In consideration of the legal protection of athletes and the specificity of sport, particularly in ensuring fair competitions and uniform case law in organised sport, which “would be seriously jeopardised”[19] by the invalidity of the arbitration agreement, the court came to the conclusion that the interests of the ISU prevail in this regard.[20] The CAS is a genuine arbitration court and guarantees legal protections for athletes equivalent to national courts.[21] Furthermore, the consistent application of the rules and regulations of sports federations by a specialised arbitration institution is not only in the interest of sports federations, but also in the interest of athletes.[22] 

The ECtHR indirectly confirmed the validity of the arbitration agreement concluded between Ms Pechstein and the ISU. However, in determining the free will of athletes when entering into an arbitration agreement with a monopolistic sports federation, the court held that the arbitration clause is generally not based on the free consent of the athlete and thus has a forced nature.[23] In case the athlete is compelled to accept an arbitration agreement, Article 6(1) of the ECHR is applicable to the sports arbitration proceedings in protection of the procedural rights of the athlete.[24] 

However, arbitration agreements in organised sport are not compulsory per se if the applicable sports rules and regulations leave it to the sports federation and the athlete to freely and voluntarily agree on an arbitration agreement. In this case, athletes are not in the same predicament and may therefore choose between different clubs before signing an arbitration agreement.[25]Furthermore, the complaining athlete must provide evidence that “other professional football clubs, which perhaps have more modest financial means, would have refused to hire him on the basis of a contract providing for dispute settlement in ordinary courts.”[26]

According to the BGH, the validity of arbitration agreements in organised sport is subject to a balancing process between the competing interests of the parties to it. However, if an athlete was compelled to accept arbitration clauses of monopolistic sports federations, the ECtHR concluded that Article 6(1) of the ECHR is applicable to the arbitration proceedings concerned. Both courts therefore set the benchmark against which the validity of arbitration agreements and proceedings in organised sport is measured. 

3.     Decision of the District Court of Frankfurt (based on the press release)

The decision of the District Court of Frankfurt is insofar remarkable as the court was in the position to consider both the decision of the BGH and the ECtHR in its decision-making process. With regard to the validity of the arbitration agreement concluded between two volleyball players and the DVV, the court stated in its press release of 7 October 2020[27] as follows:

“Die Streitigkeit habe nicht vorrangig vor einem Schiedsgericht ausgetragen werden müssen. Zwar enthielten die Verträge der Klägerinnen mit dem Beklagten jeweils eine Schiedsvereinbarung. Dieser sei aber unwirksam, «weil die Klägerin sich ihr nicht freiwillig unterworfen habe», so die Richter. Seit der Entscheidung des Europäischen Gerichtshofs für Menschenrechte (EGMR) im Fall Pechstein sei bei professionellen Leistungssportlern von einer unfreiwilligen Unterwerfung unter einer Schiedsgerichtsbarkeit auszugehen, wenn die Profisportler «vor der Wahl stehen, eine Schiedsklausel anzunehmen, um durch die Ausübung ihres Sports ihren Lebensunterhalt bestreiten zu können, oder sie nicht zu akzeptieren und damit vollständig auf ihren Lebensunterhalt durch Ausübung des Sports zu verzichten.» Es sei nicht belegt, dass die Klägerinnen seinerzeit tatsächlich die Wahl hatten, die Schiedsklauseln abzuschliessen oder nicht. Deswegen sei von einer Unfreiwilligkeit auch dann auszugehen, wenn die Volleyballerinnen die Klauseln kritiklos unterzeichnet hätten.”

[free translation: The dispute did not have to be settled primarily before an arbitration tribunal. It is true that the plaintiffs' contracts with the defendant each contained an arbitration agreement. However, this was invalid ‘because the plaintiff did not voluntarily submit to it’, the judges said. Since the decision of the European Court of Human Rights (ECtHR) in the Pechstein case, professional athletes must be presumed to have involuntarily submitted to arbitration if the professional athletes ‘are faced with the choice of accepting an arbitration clause in order to be able to earn their living by practising their sport or not accepting it and thus refrain completely from earning a living from their sport’. There is no evidence that the plaintiffs at the material time actually had the choice of whether or not to accept the arbitration clauses. Therefore, it can be assumed that the arbitration was involuntary even if the volleyball players had signed the clauses without criticism/objection.]

Based on the wording of the press release – and in absence of the full judgement – it appears that the court sided with the findings of the ECtHR insofar as it qualified the arbitration agreement contained in entry forms of athletes as mandatory in nature.

Furthermore, it can only be speculated why the court stated in its press release that the athletes had not objected to the signing of an arbitration clause. The court may have considered that the volleyball players were in a similar position than Ms Pechstein. This approach would be consequent, because beach volleyball players, like the plaintiffs in the proceedings before the District Court Frankfurt, are generally faced with the same dilemma as Ms Pechstein was. They cannot choose between different national federations for the sport of volleyball. In this case, it is not necessary for the athletes to show that they could not conclude a contract with the DVV without an arbitration agreement in favour of a sports arbitral tribunal.

Be it as it may, it is – with the BGH decision in the Pechstein case in mind– difficult to understand how the District Court of Frankfurt came to the conclusion that the arbitration agreement between the beach volleyball players and the DVV is invalid. It appears that the court deduces this invalidity from the compulsory nature of arbitration clauses in organised sport, as highlighted by the ECtHR. This would contradict the BGH’s view that forced arbitration can be justified in the sporting context and that the validity of particular clause must be determined on the basis of a balancing process.[28] If the District Court of Frankfurt applied such a balancing process between the competing interests of the parties to the dispute, it will be interesting to see why the court arrived at the conclusion that the arbitration agreement is invalid. In light of the above, the specificity of sport, particularly the consistent and uniform application of rules and regulations of sports federations, is a strong argument in favour of forced arbitration. Indeed, the legal level playing field and ultimately the sporting level playing field would be jeopardised if national courts would decide on sporting cases instead of national sports arbitral tribunals, such as the German Court of Arbitration for Sport (“DIS”) or the CAS. The interest of sports federations also prevails in domestic disputes. Otherwise, there is a risk that the national courts will interpret the sporting rules of a particular sports federation inconsistently.

On balance, it will be important to carefully analyse how the Frankfurt court substantiated its departure from the BGH decision in the Pechstein case. In my view, the press release indicates that the court was apparently unable to strike a fair balance between the competing interests involved, bearing in mind the specificities of sport.

[1] See e.g. District Court (LG) Cologne, decision of 13 September 2006, 28 O (Kart) 38/05; District Court (LG) Munich I, decision of 26 February 2014, 37 O 28331/12; Higher Regional Court (OLG) Munich, decision of 15 January 2015– U 1110/14 Kart.

[2] BGH, decision of 7 June 2016, KZR 6/15; a translation of the decision is published on the CAS website.

[3]Mutu and Pechstein v Switzerland, ECtHR,Application no. 40575/10 and no. 67474/10, 2 October 2018.

[4] District Court Frankfurt, 7 October 2020, 2-06 O 457/19 (unpublished); press release available at https://ordentliche-gerichtsbarkeit.hessen.de/sites/ordentliche-gerichtsbarkeit.hessen.de/files/PM%207_10_2020%20Schadensersatz%20f%C3%BCr%20Profi-Volleyballerinnen_0.pdf.

[5] Press Release, District Court Frankfurt, 7 October 2020 available at https://ordentliche-gerichtsbarkeit.hessen.de/sites/ordentliche-gerichtsbarkeit.hessen.de/files/PM%207_10_2020%20Schadensersatz%20f%C3%BCr%20Profi-Volleyballerinnen_0.pdf.

[6]Mutu and Pechstein v Switzerland, ECtHR,Application no. 40575/10 and no. 67474/10, 2 October 2018, para. 98.

[7] Daniel Girsberger and Nathalie Voser, International Arbitration (3rd edn, Schulthess Juristische Medien AG, 2016) 4; see also Antoine Duval, ‘Not in my Name! Claudia Pechstein and the Post-Consensual Foundations of the Court of Arbitration for Sport’ Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No 2017-01.

[8] SFT, decision of 7 November 2011, 4A_246/2011, para. 2.2.2; see also SFT, decision of 28 May 2018, 4A_314/2017, para. 2.3.1; SFT, decision of 2 February 2018, 4A_490/2017, para. 3.1.2.

[9] Commission of the European Communities, ‘White Paper on Sport’, COM(2007) 391 final, 13. SFT, decision of 22 March 2007, 4P.172/2006, para. 4.3.2.2.; BGH, decision of 7 June 2016, KZR 6/15; Mutu and Pechstein v Switzerland, ECtHR,Application no. 40575/10 and no. 67474/10, 2 October 2018, para. 113.

[10] SFT, decision of 22 March 2007, 4P.172/2006, para. 4.3.2.2.; BGH, decision of 7 June 2016, KZR 6/15; Mutu and Pechstein v Switzerland, ECtHR,Application no. 40575/10 and no. 67474/10, 2 October 2018, para. 113.

[11] BGH, decision of 7 June 2016, KZR 6/15; Mutu and Pechstein v Switzerland, ECtHR,Application no. 40575/10 and no. 67474/10, 2 October 2018.

[12] District Court Frankfurt, 7 October 2020, 2-06 O 457/19 (unpublished)¸ ); press release available at https://ordentliche-gerichtsbarkeit.hessen.de/sites/ordentliche-gerichtsbarkeit.hessen.de/files/PM%207_10_2020%20Schadensersatz%20f%C3%BCr%20Profi-Volleyballerinnen_0.pdf.

[13] BGH, decision of 7 June 2016, KZR 6/15, para. 2.

[14] Higher Regional Court (OLG) Munich, decision of 15 January 2015– U 1110/14 Kart.

[15] BGH, decision of 7 June 2016, KZR 6/15.

[16] Ibid, para. 9.

[17] Ibid, para. 54; Ulrich Haas, ‘The German Federal Court on Treacherous Ice- A final point in the Pechstein case’ in Christoph Müller, Sébastian Besson and Antonio Rigozzi (eds), New Development in International Commercial Arbitration 2016 (1^st edn, Schulthess Juristische Medien AG, 2016) 219, 256 et seq.

[18] Ibid, para. 55.

[19] Ibid, para. 50.

[20] Ibid, para. 59; Ulrich Haas, ‘The German Federal Court on Treacherous Ice- A final point in the Pechstein case’ in Christoph Müller, Sébastian Besson and Antonio Rigozzi (eds), New Development in International Commercial Arbitration 2016 (1^st edn, Schulthess Juristische Medien AG, 2016) 219, 263 et seq.

[21] Ibid, para. 62.

[22] Ibid.

[23]Mutu and Pechstein v Switzerland, ECtHR,Application no. 40575/10 and no. 67474/10, 2 October 2018, para. 113.

[24]Mutu and Pechstein v Switzerland, ECtHR,Application no. 40575/10 and no. 67474/10, 2 October 2018, para. 115.

[25] Ibid, para. 120.

[26] Ibid, para. 119.

[27] Press Release, District Court Frankfurt, 7 October 2020, 2.

[28] Ulrich Haas, ‘The German Federal Court on Treacherous Ice- A final point in the Pechstein case’ in Christoph Müller, Sébastian Besson and Antonio Rigozzi (eds), New Development in International Commercial Arbitration 2016 (1^st edn, Schulthess Juristische Medien AG, 2016) 219, 250.

The Headlines

Aguero and Massey-Ellisincident: An Opportunity for Change and Education?

In mid-October a clip went viral of Argentinian star Sergio Aguero putting his hands on sideline referee, Sian Massey-Ellis. A heated debate ensued in many circles, some claiming that Aguero’s conduct was commonplace, others taking aim at the appropriateness of the action, around players touching official and a male touching a female with an unsolicited arm around the back, the squeeze and pull in. Putting the normative arguments aside for a moment, the irony of the debate was that all sides had a point. Football, almost exclusively, has grown a culture of acceptance for touching officials despite the regulations. Male officials who have let such conduct slide, have arguably let their female colleague down in this instance.

Whilst a partial defence of Aguero might be that this kind of conduct takes place regularly, the incident could serve as a learning experience. If Massey-Ellis’ reaction was not enough, the backlash from some of the public might provide Aguero and other players the lesson, that touching a woman in this way is not acceptable.

Returning to football, the respect and protection of officials in sport, the key here appears to be cracking down on touching officials entirely. This is not a foreign concept and football need only look at the rugby codes. Under no circumstances does the regulations or the culture permit that a player from the rugby codes touch a referee. It is likely the case that the obvious extra level of respect for officials in these sports derives from a firm culture of no touching, no crowding officials, communicating with officials through the team captain only, with harsh sanctions if one does not comply.

The Football Association of England has decided no action was necessary, raising questions of how seriously they take the safety of officials, and gender issues. This is ultimately a global football issue though, so the confederations or international bodies may need step in to ensure the protections that appear at best fragile.  

Rugby Trans issue

The World Rugby Transgender guideline has been released and contains a comprehensive unpacking of the science behind much of the regulatory framework. Despite many experts applauding World Rugby on the guidelines and the extensive project to reach them, the England Rugby Football Union is the first to defy the World Rugby ruling and transgender women will still be allowed to play women’s rugby at all non-international levels of the game in England for the foreseeable future. This clash between national bodies and the international body on an important issue is concerning and will undoubtedly be one to keep an eye on.

CAS rejects the appeal of Munir El Haddadi and the Fédération Royale Marocaine de Football (FRMF)

The refusal to authorise a footballer to change national federation is in the headlines with the CAS dismissing the appeal of the player and Moroccan federation, confirming the original determination of the FIFA Players’ Status Committee.

This has been given considerable recent attention and seemingly worth following, perhaps best summed up by FIFA Director of Football Regulatory, James Kitching, where in a tweet he notes: “The new eligibility rules adopted by the FIFA Congress on 18 September 2020 have passed their first test. We will be publishing our commentary on the rules in the next fortnight. Watch this space.”

Major International Sports Law Decisions

CAS Decisions (September)

• CAS 2020/A/6807 Blake Leeper v. International Association of Athletics Federations

• CAS 2020/A/7356 ŠK Slovan Bratislava v. UEFA & KÍ Klaksvík

Official Documents and Press Releases

CAS

• CAS confirms the IBSF Anti-Doping Hearing Panel decision of 16 January 2019 in relation to Aleksander Zubkov, Aleksander Pushkarev, Aleksander Kasyanov& Ilvir Khuzin

• The CAS hearing in the procedure between the World Anti-Doping Agency (WADA) and the Russian Anti-Doping Agency (RUSADA) is maintained

• CAS dismisses the appeal of Andriamirado Aro Hasina Andrianamimanana & Kaizer Chiefs FC

• CAS partially upholds the appeal of Blake Leeper

• Update on the CAS proceedings in the arbitrations Andrea Iannone v/FIM and WADA v/ Andrea Iannone & FIM

FIFA

•  FIFA publishes first annual Players’ Status report
•  FIFA Player Status Department Report web 2019-2020
•  Trinidad and Tobago Court of Appeal rules in favour of FIFA
• Second meeting of Concussion Expert Group recommends trials of additional permanent substitutions
• Investigatory chamber of independent Ethics Committee concludes investigation into Yves Jean-Bart and sanctions another Haitian football official
• Bureau of the FIFA Council approves International Match Protocol and adapts rules on release of players

FIFPro

• FIFPro Issues Warning on Numerous Improper Match-Fixing Bans
• FIFPro Publishes Football Industry Recovery Recommendations
  

IOC

• Statement by the IOC Regarding the Situation of the IWF
• Executive Board (EB) of the International Olympic Committee (IOC) was today provided with interim reports on the situation of athletes in the Republic of Belarus

UEFA

• Temporary suspension of UEFA matches in Armenia and Azerbaijan
• UEFA secures Irish High Court order to halt illegal streaming of matches
• UEFA, Premier League and Canal+ International, welcome decision of Rwandan court in the fight against piracy

WADA

• WADA’s Education Committee focused on strengthening Clean Sport education worldwide
• WADA publishes revised Policy for the Acceptance of New World Anti-Doping Code Signatories
• WADA develops new method of identifying sample tampering as part of weightlifting investigation
• WADA Compliance Review Committee discusses way forward for compliance monitoring in light of COVID-19

World Athletics

• World Athletics’ response to CAS announcement of decision in Leeper case

Other Civil Society Organizations/Unions

• Asian Racing Federation council on anti-illegal betting & related financial crime – Quarterly Bulletin

In the News

Rugby

• International Player Release: the French legal challenge to World Rugby’s authority
• How Rugby Union is Responding to Covid-19: a Legal Update

Doping

• Mamadou Sakho Secures Apology and Damages from WADA
• Dr Richard Freeman admits third data loss after UCI request over bloods
• Entire Cycling Anti-Doping Foundation Board resigns before sport's switch to ITA
• After Doping Scandal, Russia Hacked the Olympics, U.S. and Britain Say
• Spanish court rules biological passport not valid for Salas' doping ban
• Christian Coleman banned for two years for missing drugs test

eSports 

• The difference in a letter: Is eSport “Sport”? The legal complexities of a booming industry
• An $11 Billion Merger, 500 Million Fans: ESports’ Time Is Approaching

Gymnastics

• British Gymnastics chief Jane Allen steps down in wake of abuse scandal
• Michelle Kinneavy: Former gymnast speaks of historical abuse in the sport

Other

• Polish Olympian Wins Fight to Compete in Fencing for Team U.S.A.
• Former FIFA official guilty, PSG head cleared at Swiss trial

Academic Materials

International Sports Law Journal

• Björn Hessert - The protection of minor athletes in sports investigation proceedings

Oxford Human Rights Law Review

• Lena Holzer - What Does it Mean to be a Woman in Sports? An Analysis of the Jurisprudence of the Court of Arbitration for Sport

Blog

Asser International Sports Law Blog

• Invalidity of forced arbitration clauses in organised sport…Germany strikes back! - By Björn Hessert
• The Specificity of Sport - Comparing the Case-Law of the European Court of Justice and of the Court of Arbitration for Sport - Part 1 - By Stefano Bastianon
• The Specificity of Sport - Comparing the Case-Law of the European Court of Justice and of the Court of Arbitration for Sport - Part 2 - By Stefano Bastianon

 Law in Sport

• Claiming commission on football sponsorship deals: lessons for agencies & clubs from Winlink v Liverpool FC
• Key trends in sports broadcasting: does the model really need to change?
• Trinidad and Tobago Football Association v. FIFA – the validity of normalisation committees and exclusive jurisdiction of CAS
• Name, image & likeness rights in the NCAA: the evolving legal landscape for college athletes
• Why football’s new handball rule is proving so controversial
• Indian sports law update: BCCI conflict of interest cases and IPL’s Covid-19 rules
• Cyber threats to sports organisations (and key steps to reduce exposure)
• Discrimination in football: a guide to The FA’s new charging policies and sanctioning guidelines

Play the Game

• Belarusian athletes take lead in battle for democracy
• Time to look beyond organised crime to stop match-fixing

Sport Integrity Initiative 

• UKAD retested just 120 samples in nine years
• Football: Restitution of over CHF 36 million

Podcasts

LawInSport

• The Premier League COVID-19 testing - legal & logistical with Prenetics
• Launch of Sports Law News Roundtable E1

Play On the Morgan Sports Law Podcast

• EP6: World Rugby’s Governance Review | Dan Leo, Matt Toomua, Ben Cisneros
• EP5: (Spanish Audio) FIFA’s rules on TPO & TPI | Gema Barrasa, Patricia Rodríguez, Marco Amezcua 

Editor’s note: Rhys Lenarduzzi recently completed a Bachelor of Law (LL.B) and a Bachelor of Philosophy (B.Phil.) at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.

In September 2018, the Football Stakeholders Committee endorsed the idea of a Clearing House that was subsequently approved in October of the same year by the FIFA Council. A tender process commenced in July 2019 for bidders to propose jurisdiction, operation and establishment. Whilst many questions go unanswered, it is clear that the Clearing House will be aimed at closing the significant gap between what is owed and what is actually paid, in respect to training compensation and solidarity payments. The Clearing House will have other functions, perhaps in regard to agents’ fees and other transfer related business, though those other operations are for another blog. It will hence act as an intermediary of sorts, receiving funds from a signing and therefore owing club (“new” club) and then moving that money on to training clubs. Whilst separate to FIFA, to what extent is unclear.

I have landed at the position of it being important to include a section in this blog series on the soon to commence Clearing House, given it appears to be FIFA’s (perhaps main) attempt to improve the training compensation and solidarity mechanisms. As will be expanded upon below, I fear it will create more issues than it will solve. Perhaps one should remain patient and optimistic until it is in operation, and one should be charitable in that there will undoubtedly be teething problems. However, it is of course not just the function of the Clearing House that is of interest, but also what moving forward with the project of the Clearing House represents and leaves unaddressed, namely, the issues I have identified in this blog series.

1. Operation and Function of the Clearing House

The Clearing House will apparently work in the following ways:

When a player is registered as a professional for the first time, or, in the case an international transfer becomes known via TMS (Transfer Matching System), a Preliminary Player Passport will be created. This will contain the information acquired by FIFA from the relevant national associations and money owing will be calculated, per the FIFA redistributive mechanisms (enshrined in Article 20 and Annex 4 of the RSTP in the case of training compensation, and at Article 21 and Annex 5 in the case of the solidarity mechanism; see Blog 1 for a comprehensive overview). Aforesaid calculation will be undertaken by FIFA and not the Clearing House, and the Preliminary Passport will be reviewed, then given the green light or conversely disputed by the relevant member associations, rather than the training clubs supposedly due compensation. Payment directions, including bank accounts and official contact details of clubs and national associations connected to the redistribution will then be communicated by FIFA to the Clearing House. An invoice may then be issued to the new club and the obligation of that club is to pay accordingly, to the Clearing House. The Clearing House will then distribute to the training clubs, though its mandate extends to confirming and ensuring the amounts and details are correct, and the money makes it to its destination. FIFA will be made aware of which payment obligations have been fulfilled, and which have not. It is FIFA and not the Clearing House then who may sanction non-compliant clubs.

For a more comprehensive overview of the Clearing House, please see Toni Roca’s piece on the LawInSport website; FIFA’s Clearing House: The Future Of Solidarity Mechanism & Training Compensation.

2. Potential Positives & Success of a Kind

One can see the positive side of modernising, centralising and digitising the transfer system, so as to improve compliance and efficiency in accordance with the regulations as they stand and the payment obligations that arise from those regulations. If achieved, FIFA can say it has ticked that box and many stakeholders will be pleased.

As mentioned in the second blog of this series, “In 2018, it was reported that just USD$67.7m of the USD$351.5m due to be distributed in solidarity contributions, was actually paid. That is a mere 19.3% of what should have trickled down and perhaps just as alarming is that this percentage has been worsening”. If FIFA does in fact close the gap between what is owed and what is paid by way of the Clearing House, that would indeed be success of kind. Hundreds of millions of dollars might make it to training clubs, some of those undoubtedly do not need the compensation, but a large share of those that might benefit are the kind of club I have referred to throughout this series as nurseries and/or victims of the so-called muscle drain. If achieved, one would then have to take their hats off to FIFA, as a specific objective would have been accomplished.

Success in the way imagined above would just be solving one issue, however. I appreciate that hundreds of millions of dollars can go a long way in achieving some form of redistributive solidarity and the fruits of that redistribution could potentially be far-reaching. Though lingering behind this hypothetical success would of course be, what proceeding with the Clearing House ignores.

3. Cause for Concern

Whilst one has to applaud FIFA’s efforts towards improvements, there appears a myriad of questions left unanswered not only about the Clearing House but additionally about the redistributive mechanisms themselves. To proceed under the guise that all is well with these systems and that all that needs to be remedied is the gap between what is owed and what is actually paid, is to ignore much of what I have raised in this blog series.

The following excerpt from a relevant FIFA webpage captures the organisations’ position.

“The original objectives and principles of the transfer rules remain sound: the protection of contractual stability; encouragement of training; solidarity between the elite and grassroots; protection of minors; competitive balance; and ensuring the regularity of sporting competitions”. 

To expand, this kind of sentiment highlights FIFA’s intention to proceed without answering the fundamental questions, as though it is the position held by all that these systems are targeted at legitimate objectives and adequate to attain them. This is clearly not just a case of once the Clearing House is in operation, the systems will simply work perfectly. To put the practical critique aside momentarily, the establishment of the Clearing House is no response to a fundamental critique, the philosophical flaws in justification for the redistributive mechanisms and it appears the hindrance cause by the systems to players’ free movement will continue to be ignored. 

Additionally, and returning to a practical perspective, with the Clearing House relying on a Players Passport, the compliance or non-compliance of national associations to provide and maintain the correct information seems to be what the project hinges on. Historically, some national federations have not been so reliable in this sense, so this is likely to be another aspect that will need significant attention. There may be less disputes given the supposed streamlining of the payment process, but might this quickly be forgotten given the introduction of the Clearing House seems to simultaneously mean an increased administrative burden on FIFA and the national associations? Then let us not proceed as though there will be no disputes at all. We are yet to be made aware what the process will be in the case of a dispute over the amounts calculated, a dispute over the Preliminary Passport, or the expiry dates of outstanding payments, to point to a few issues that may arise. Afterall, the dynamics of a transfer will change with the introduction of the intermediary Clearing House and will take some getting used to. Furthermore, it looks as though the training clubs owed money will not be involved directly in the process of disputes, which is to be dealt with by the member associations. This is questionable, as not all clubs have good relationships with their national associations, nor are national associations necessarily more trustworthy or better positioned to handle a dispute. On occasions it has been found that the reason a training club has not received their training compensation or solidarity payment, was because it was being held by a national federation (see section 4. of Blog 2 for a personal anecdote of an instance as such).

4. Concluding remarks

This account of questions and concerns is not exhaustive, and yet I would emphasise the issues with training compensation and solidarity mechanism more generally. Could the establishment of the Clearing House in fact raise more questions and cause more problems than it solves, given it may just semi-solve one problem, that of the gap between what is owed and what is paid? It is reasonable to ponder whether the commencement of the Clearing House in fact houses, protects and reinforces FIFA’s commitment to systems that are ultimately flawed, when time and energy could be better spent completely overhauling them. As it stands, and if one finds themselves sympathetic to the issues I have identified throughout this series, one can be reasonably concerned that the establishment of the Clearing House prolongs the arrival of a preferable alternative system.

In my next and final blog of this series, I intend to consider alternative systems of redistribution. I will also take the opportunity to address the idea that football clubs are incentivised by training compensation and solidarity payments.

Dear readers,

If you missed it (or wish to re-watch it), the video of our third Zoom In webinar from 25 February on the CAS award in the World Anti-Doping Agency v. Russian Anti-Doping Agency case is available on the YouTube channel of the Asser Institute:

Stay tuned and watch this space, the announcement for the next Zoom In webinar, which will take place on 24 March, is coming soon!

Editor’s note: Thomas Terraz is a fourth year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.

1.     Introduction

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

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

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

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

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

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

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

4.     Sun Yang’s Public Hearing at the CAS

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

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

5.     New FIFA Legal Portal

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

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

6.     Caster Semenya Case

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

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

7.     Russian Doping Scandal Continues

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

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

8.     Conclusion

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

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

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

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

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

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

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

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

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

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

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

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