Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Sports Politics before the CAS: Early signs of a ‘constitutional’ role for CAS? By Thalia Diathesopoulou

It took almost six months, a record of 26 witnesses and a 68 pages final award for the CAS to put an end to a long-delayed, continuously acrimonious and highly controversial presidential election for the Football Association of Thailand (FAT). Worawi Makudi can sit easy and safe on the throne of the FAT for his fourth consecutive term, since the CAS has dismissed the appeal filed by the other contender, Virach Chanpanich.[1]

Interestingly enough, it is one of the rare times that the CAS Appeal Division has been called to adjudicate on the fairness and regularity of the electoral process of a sports governing body. Having been established as the supreme judge of sports disputes, by reviewing the electoral process of international and national sports federations the CAS adds to its functions a role akin to the one played by a constitutional court in national legal systems. It seems that members of international and national federations increasingly see the CAS as an ultimate guardian of fairness and validity of internal electoral proceedings. Are these features - without prejudice to the CAS role as an arbitral body- the early sign of the emergence of a Constitutional Court for Sport? More...

Olympic Agenda 2020: To bid, or not to bid, that is the question!

This post is an extended version of an article published in August on hostcity.net.

The recent debacle among the candidate cities for the 2022 Winter Games has unveiled the depth of the bidding crisis faced by the Olympic Games. The reform process initiated in the guise of the Olympic Agenda 2020 must take this disenchantment seriously. The Olympic Agenda 2020 took off with a wide public consultation ending in April and is now at the end of the working groups phase. One of the working groups was specifically dedicated to the bidding process and was headed by IOC vice-president John Coates.  More...

The CAS jurisprudence on match-fixing in football: What can we learn from the Turkish cases? - Part 2: The procedural aspects. By Thalia Diathesopoulou

With this blog post, we continue the blog series on Turkish match-fixing cases and our attempt to map the still unchartered waters of the CAS’s match-fixing jurisprudence.

The first blog post addressed two issues related to the substance of match-fixing disputes, namely the legal characterization of the match-fixing related measure of ineligibility under Article 2.08 of the UEL Regulations as administrative or disciplinary measure and the scope of application of Article 2.08. In addition, The Turkish cases have raised procedural and evidentiary issues that need to be dealt with in the framework of match-fixing disputes.

The CAS panels have drawn a clear line between substantial and procedural matters. In this light, the Eskişehirspor panel declared the nature of Article 2.08 UEL Regulations to be administrative and rejected the application of UEFA Disciplinary Regulations to the substance. Nonetheless, it upheld that disciplinary rules and standards still apply to the procedure. This conclusion, however, can be considered puzzling in that disciplinary rules apply to the procedural matters arising by a pure administrative measure. To this extent, and despite the bifurcation of different applicable rules into substantial and procedural matters, the credibility of the qualification of Article 2.08 as administrative seems to be undermined. And here a question arises: How can the application of rules of different nature to substantial and procedural matters in an identical match-fixing dispute be explained?More...

The EU State aid and Sport Saga – A blockade to Florentino Perez’ latest “galactic” ambitions (part 2)

This is the second part of a blog series on the Real Madrid State aid case. In the previous blog on this case, an outline of all the relevant facts was provided and I analysed the first criterion of Article 107(1) TFEU, namely the criterion that an advantage must be conferred upon the recipient for the measure to be considered State aid. Having determined that Real Madrid has indeed benefited from the land transactions, the alleged aid measure has to be scrutinized under the other criteria of Article 107(1): the measure must be granted by a Member State or through State resources; the aid granted must be selective; and it must distorts or threatens to distort competition. In continuation, this blog will also analyze whether the alleged aid measure could be justified and declared compatible with EU law under Article 107(3) TFEU.More...

The CAS jurisprudence on match-fixing in football: What can we learn from the Turkish cases? - Part 1 - By Thalia Diathesopoulou

The editor’s note:

Two weeks ago we received the unpublished CAS award rendered in the Eskişehirspor case and decided to comment on it. In this post Thalia Diathesopoulou (Intern at the ASSER International Sports Law Centre) analyses the legal steps followed and interpretations adopted by CAS panels in this case and in a series of other Turkish match-fixing cases. The first part of the post will deal with the question of the legal nature of the ineligibility decision opposed by UEFA to clubs involved in one way or another into match-fixing and with the personal and material scope of UEFA’s rule on which this ineligibility is based. The second part is dedicated to the procedural rules applied in match-fixing cases.


Introduction

The unpredictability of the outcome is a sine qua non feature of sports. It is this inherent uncertainty that draws the line between sports and entertainment and triggers the interest of spectators, broadcasters and sponsors. Thus, match-fixing by jeopardising the integrity and unpredictability of sporting outcomes has been described, along with doping, as one of the major threats to modern sport.[1] More...


Sport and EU Competition Law: uncharted territories - (I) The Swedish Bodybuilding case. By Ben Van Rompuy

The European Commission’s competition decisions in the area of sport, which set out broad principles regarding the interface between sports-related activities and EU competition law, are widely publicized. As a result of the decentralization of EU competition law enforcement, however, enforcement activity has largely shifted to the national level. Since 2004, national competition authorities (NCAs) and national courts are empowered to fully apply the EU competition rules on anti-competitive agreements (Article 101 TFEU) and abuse of a dominant position (Article 102 TFEU).

Even though NCAs have addressed a series of interesting competition cases (notably dealing with the regulatory aspects of sport) during the last ten years, the academic literature has largely overlooked these developments. This is unfortunate since all stakeholders (sports organisations, clubs, practitioners, etc.) increasingly need to learn from pressing issues arising in national cases and enforcement decisions. In a series of blog posts we will explore these unknown territories of the application of EU competition law to sport.More...

The Legia Warszawa case: The ‘Draconian’ effect of the forfeiture sanction in the light of the proportionality principle. By Thalia Diathesopoulou

The CAS denial of the urgent request for provisional measures filed by the Legia Warszawa SA in the course of its appeal against the UEFA Appeals Body Decision of 13 August 2014 put a premature end to Legia’s participation in the play-offs of the UEFA Champion’s League (CL) 2014/2015. Legia’s fans- and fans of Polish football - will now have to wait at least one more year to watch a Polish team playing in the CL group stage for the first time since 1996. More...

The EU State aid and Sport Saga – A blockade to Florentino Perez’ latest “galactic” ambitions (part 1)

This is the first part of a blog series involving the Real Madrid State aid case.

Apart from being favoured by many of Spain’s most important politicians, there have always been suspicions surrounding the world’s richest football club regarding possible financial aid by the Madrid City Council. Indeed, in the late 90’s a terrain qualification change by the Madrid City Council proved to be tremendously favourable to the king’s club. The change allowed Real Madrid to sell its old training grounds for a huge sum. Though the exact price for the grounds remains unknown, Real Madrid was suddenly capable of buying players like Figo and Zidane for record fees. However, the European Commission, even though agreeing that an advantage was conferred to the club, simply stated that the new qualification of the terrain in question does not appear to involve any transfer of resources by the State and could therefore not be regarded as State aid within the meaning of article 107 TFEU.

Agreements between the club and the Council have been a regularity for the last 25 years.  A more recent example concerns an agreement signed on 29 July 2011 (Convenio29-07-2011.pdf (8MB). More...

UEFA Financial Fair Play Regulations Put PSG and Manchester City on a Transfer Diet

The main lesson of this year’s transfer window is that UEFA’s Financial Fair Play (FFP) rules have a true bite (no pun intended). Surely, the transfer fees have reached usual highs with Suarez’s move to FC Barcelona and Rodriguez’s transfer from AS Monaco to Real Madrid and overall spending are roughly equal to 2013 (or go beyond as in the UK). But clubs sanctioned under the FFP rules (prominently PSG and Manchester City) have seemingly complied with the settlements reached with UEFA capping their transfer spending and wages. More...

Right to Privacy 1:0 Whereabouts Requirement - A Case Note on a Recent Decision by the Spanish Audiencia Nacional

On the 24th June 2014 the Spanish Audiencia Nacional issued its ruling on a hotly debated sports law topic: The whereabouts requirements imposed to athletes in the fight against doping. This blog aims to go beyond the existing commentaries (here and here) of the case, by putting it in the wider context of a discussion on the legality of the whereabouts requirements. More...

Asser International Sports Law Blog | Fear and Loathing in Rio de Janeiro – Displacement and the Olympics by Ryan Gauthier (Thompson Rivers University)

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Fear and Loathing in Rio de Janeiro – Displacement and the Olympics by Ryan Gauthier (Thompson Rivers University)

‎Editor's Note: Ryan is Assistant Professor at Thompson Rivers University, he defended his PhD at Erasmus University Rotterdam in December 2015. His dissertation examined human rights violations caused by international sporting events, and how international sporting organisations may be held accountable for these violations.

Introduction

On Sunday, August 21, the 2016 Summer Olympic Games in Rio de Janeiro will end. The spotlight will dim not only on the athletes who return to their home countries to ply their trade in relative obscurity, but also on the country of Brazil.[1] Once the Games have ended, life will go ‘back to normal’, although for many residents of Rio de Janeiro, what is ‘normal’ is anything but.


Watching the opening ceremonies from the favelas – Andrej Isakovic via Getty Images


“A New World” for Favela Residents

While the world has been preoccupied with Zika, the Brazilian corruption crisis, the cesspool that is Guanabara Bay, and the worrying state of some of the sporting venues, the displacement of persons is perhaps the largest problem not only facing the Games, but is the largest one caused (or at least exacerbated) by the Games themselves. Since Rio de Janeiro was selected to be the host of the Olympic Games in 2009, over 77,000 individuals (22,000 families) have been evicted from their homes. Most, if not all, of these individuals were evicted from their homes in the favelas, or slums, communities that began to appear in earnest in the 1970s as Brazil, and Rio de Janeiro in particular, began to urbanize. Currently, favelas are home to 1.4 million people, or about 22% of Rio’s population. It is very likely that not all of these evictions were related to the Games directly. City officials have stated that only Vila Autodromo was directly-affected by the Games, as this particular favela was turned into a parking lot for the Olympic Park and twenty homes for those who refused to leave (Reuters provides a good before/after comparison).


Vila Autodromo (Olympic Park under construction) - Genilson Araújo / Parceiro/O Globo


However, seemingly taking their cue from Rio 2016’s slogan, “Um mundo novo” (“A New World”), city officials have used the Olympic Games as an excuse to ‘re-imagine’ the city on a broader scale. In a 2012 interview, the mayor of Rio stated that “The Olympics pretext is awesome; I need to use it as an excuse for everything…Now all that I need to do, I will do for the Olympics. Some things could be really related to the Games, others have nothing to do with them.” As such, people from favelas that have nothing to do with the Games have been evicted from their homes, with the Games creating the pseudo-state of ‘emergency’ that has, in other cities that have hosted the Games, been used as an excuse to bypass normal procedures and do away with normal protections, in the mold of Naomi Klein’s “shock capitalism”.

The Rio government has claimed to offer financial packages and resettlement options for those who were displaced. These compensation packages were imperfect, as the government offered less than market value for the homes, and those who were relocated may have been relocated anywhere from several to dozens of kilometers away from their former residence, uprooting their businesses or employment, and their social and family lives. However, the relocation policy appears to be the velvet glove concealing the iron fist. For those who resisted relocation, the city cut off their water, and halted garbage pickup and postal service, while violent clashes between residents and police have also been reported. While not directly-related to evictions, but closely related to conditions in the favelas, there has been a reported spike in police killings of street children to “clean the streets” ahead of the Games. While new housing is being built in Rio, much of it is set to be high-end condos, not affordable housing.


International Standards Regarding Housing

The focus of this particular blog post is not the legality of the displacement, per se. That is an issue best addressed by Brazilian lawyers. However, there are international standards that Brazil should live up to. The Universal Declaration of Human Rights recognises a right to own property, and prohibits the arbitrary deprivation of property. Another international instrument of wide application, the International Covenant on Economic, Social, and Cultural Rights (ICESCR), recognises a right to an adequate standard of living. The ICESCR Committee, in its General Comments in 1991 and 1997, has interpreted this standard to include a right against forced evictions. If an eviction does occur, rights to information and participation by those who are affected arise. Finally, when an eviction does take place, a right to compensation and adequate resettlement attaches.

The case of Rio seems to suggest that forced evictions have likely occurred, based on the sheer scale of those who were evicted. Given the timeline of preparing for the Games, provisions on notice and information appear to have been curtailed or cancelled altogether, given that the city went to work on evicting persons immediately after Rio was awarded the right to host the Games in 2009. While some residents, particularly of Vila Autodromo, received compensation and alternative housing, in many cases there appears to be disagreement as to whether compensation has been offered at all with locals saying they have not received compensation, while city authorities deny evicting families without compensation. Actions such as police raids, and cutting off public services also suggest the evictions approach the threshold of ‘forced’ rather than voluntary/negotiated. Regardless of whether the letter of these international standards has been violated, the scope and pace of the evictions is of great concern.


IOC Stance Regarding Displacement

In particular, it should be distressing to readers to see the International Olympic Committee (IOC) seemingly stand by while these evictions occur in the name of the Games. And it is not as if the IOC has no clue that evictions take place due to the Games. For many Games, at least some displacement occurs to make way for infrastructure, while the 2008 Beijing Games saw an estimated 1.25 million people evicted due to Olympic-related projects.

The IOC has responded to the problems of displacement, pledging in 2009 to intervene with the Organising Committee for the Olympic Games (the OCOG – the actual body that is responsible for Games’ preparations) in situations where people who were displaced due to Olympic venue construction were ‘mistreated’. However, the IOC has not said anything publicly in regards to the evictions, and there is no public information regarding any IOC intervention.

Following the IOC’s Agenda 2020, and its recommendations on ‘social sustainability’, the IOC now requires cities bidding to host the Olympics to identify projects that may require displacement of existing communities, and to confirm that the procedures used to displace persons will conform to national and/or international standards. However, promises made by host cities are not always lived up to, as can be seen by Rio’s failed promises to treat 80% of the water flowing into Guanabara Bay, and treating only 21% on the eve of the Games. Rio is apparently also able to get away with such failed promises consequence-free, despite the risk of harm to athletes competing in and around the waters.


The Games Cannot Fix All Ills, But They Should Avoid Creating New Ones…

Ultimately, the largest problem with the Olympic Games is a lack of accountability. The IOC, an organisation based in Switzerland, holds the rights to the Games and selects the host city, but does not actually organise the Games. As such, the IOC often appears to act as though what happens ‘on the ground’ is neither its concern nor its responsibility. Those who actually organise the Games, particularly the OCOG and Host City (the National Olympic Committee of the host country also participates, but is not relevant here), often have limited accountability to those who are harmed by the Games. The OCOG disbands shortly after the Games are over, leaving the Host City holding the bag. The Host City’s accountability is entirely dependent on the political and legal structures of the country, and in countries like Russia (Sochi 2014, World Cup 2018), China (Beijing 2008, Beijing 2022), but even in more established democracies, Host City officials may have limited accountability.

Now is the time that commentators jump up-and-down to shout that hosting the Olympic Games in a single site would fix all of the problems. By placing the Games in Athens (no permanent Winter Games host is ever suggested), there wouldn’t be a need to host the Games in countries with questionable human rights records, or to watch as every single Olympic Games goes over-budget. However, rarely are suggestions made as to who will pay for the infrastructure, which will likely need to be periodically updated (it might be a bit hard for the Greek government to afford it at this point), cope with the criticism that the Games would be cemented as a Euro-centric enterprise, or the other problems that would arise with a permanent host. The Olympic Games are going to continue to be held in countries with imperfect human rights records (which would be pretty much all of them), and in countries with poor human rights records.

All of this is to say that the IOC needs to begin to actually enforce its ideals, and its own mandate of ensuring an Olympic Games that is socially sustainable. The IOC and the Olympic Games should not be the solution to human rights problems in a host country, for they cannot be. However, the IOC does have a minimum moral responsibility to ensure that the Olympic Games themselves are prepared for with the utmost consideration for human rights. And the IOC already has the powers to enforce this mandate through the Host City Contract, whether by withholding money from the Host City, or at the most extreme end, by removing the Games altogether. The IOC has also arguably set a precedent of withholding its support for a country to host future sporting events as a result of the Russian doping scandal, and it could do the same for Olympic host cities that engage in practices that violate human rights in the name of the Games. Of course, this is ultimately up to the IOC itself, barring pressure from states or sponsors.

The Olympic Games were never going to fix Brazil’s or Rio’s problems. Many of Rio’s problems, including Zika, ongoing sanitation issues, corruption, and political and economic instability, have little to no connection to the Games, and were certainly not caused by the Games. In that vein, it is naïve to believe that the Games could be anything more than a temporary papering-over of the deep divisions in Brazilian society (for more on this point, I suggest reading Dave Zirin’s book, Brazil’s Dance with the Devil). What the Olympic Games can do is serve as an example of how to carry out a socially-sustainable project in an emerging market economy. This applies not only to the displacement of persons, but also to the treatment of those who work on construction projects related to the Games (as opposed to the forced labour used in Beijing and Sochi), the environmental sustainability of the Games, and governmental policies and procedures that enhance accountability. While the IOC has made tentative steps to address these issues, as I have addressed before in this space, it is insufficient. The IOC cannot solve all the world’s ills, but it can at least ensure that the Games, carried out under its name, live up to its own standards.  The Rio Olympic Games could have served as an example of how to carry out a socially-sustainable project in an emerging market economy.

 



[1] Although the Paralympics will arrive on 7 September, and while London 2012 did an excellent job of promoting those Games it remains to be seen if Rio will follow suit.


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