Editor's Note: Marjolaine is a researcher and attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences. Her interests focus on interdisciplinary approaches as a way of designing effective solutions in the field of anti-doping and other science-based domains. Her book “Evidence in Anti-Doping at the Intersection of Science & Law” was published through T.M.C Asser Press / Springer in late 2015. She participates as a co-author on a project hosted by the University of Neuchâtel to produce the first article-by-article legal commentary of the 2021 World Anti-Doping Code. In her practice, she regularly advises international federations and other sports organisations on doping and other regulatory matters, in particular on aspects of scientific evidence, privacy or research regulation. She also has experience assisting clients in arbitration proceedings before the Court of Arbitration for Sport or other sport tribunals.
Since the spectre of the EU General Data
Protection Regulation (‘GDPR’) has loomed over the sports sector,[1]
a new wind seems to be blowing on anti-doping, with a palpable growing interest
for stakes involved in data processing. Nothing that would quite qualify as a
wind of change yet, but a gentle breeze of awareness at the very least.
Though the GDPR does mention the fight
against doping in sport as a potential matter of public health in its recitals,[2]
EU authorities have not gone so far as to create a standalone ground on which
anti-doping organisations could rely to legitimise their data processing.
Whether or not anti-doping organisations have a basis to process personal data –
and specifically sensitive data – as part of their anti-doping activities, thus
remains dependent on the peculiarities of each national law. Even anti-doping
organisations that are incorporated outside the EU are affected to the extent
they process data about athletes in the EU.[3]
This includes international sports federations, many of which are organised as private
associations under Swiss law. Moreover, the Swiss
Data Protection Act (‘DPA’) is currently
under review, and the revised legal
framework should largely mirror the GDPR, subject to a few Swiss peculiarities.
All anti-doping organisations undertake at a minimum to abide by the WADA International
Standard for Privacy and the Protection of Personal Information (‘ISPPPI’),
which has been adapted with effect to 1 June 2018 and enshrines requirements
similar to those of the GDPR. However, the ISPPPI stops short of actually
referring to the GDPR and leaves discretion for anti-doping organisations to
adapt to other legislative environments.
The purpose of this blog is not to offer a
detailed analysis of the requirements that anti-doping organisations must abide
by under data protection laws, but to highlight how issues around data
processing have come to crystallise key challenges that anti-doping
organisations face globally. Some of these challenges have been on the table since
the adoption of the first edition of the World Anti-Doping Code (‘WADC’) but
are now exposed in the unforgiving light of data protection requirements. More...
In the last five years, the Striani
case has been the main sword of Damocles hanging over UEFA’s Financial Fair
Play Regulations. At the very least, the only real judicial threat they have
faced (apart from the relatively harmless challenge mounted in the Galatasaray case at the CAS). Indeed, a Belgian
player agent, Daniele Striani, represented by Bosman’s former lawyer Jean-Louis
Dupont, attempted, in various fora, to challenge the compatibility of UEFA’s
CL&FFP Regulations with EU law. Striani lodged a complaint with the
European Commission (which was quickly rejected in October 2014) and initiated a private
action for damages before the Brussels Court of First Instance. The latter
deemed itself not competent to decide on the matter, but nevertheless accepted to
order a provisory stay of the enforcement of the UEFA FFP Regulations pending a
preliminary reference to the Court of Justice of the EU (see Ben van Rompuy’s
blog on the case here). The CJEU unsurprisingly rejected to enter into the matter, but UEFA and Striani
decided to appeal the first instance ruling to the Court of Appeal, which
rendered its decision on 11 April. It is unclear at this stage whether Striani
will attempt to challenge it at the Belgian Cour de Cassation (Highest Civil
Court), however this would entail considerable risks and costs and his lawyers
to date have not indicated that they would do so (see here).
While the ruling of the Court of
Appeal does not touch upon the much-discussed question of the compatibility of
UEFA’s FFP Regulations with EU law (see our many blogs on the question here, here and here), it remains an interesting decision to
discuss broader questions related to the procedural ease in challenging
regulatory decisions passed by sports governing bodies (SGBs) based in
Switzerland. Competition law constitutes the main legal tool available to
sports stakeholders looking to challenge existing regulatory arrangements from
the outside (e.g. not going through the internal political systems of the SGBs
or the CAS route). Recent cases, such as the ISU decision of the European Commission, the Pechstein case in front of the German courts or
the Rule 40 decision of the German competition
authority, have demonstrated the potency of competition law to question the
legality of the rules and decisions of the SGBs.[1]
In this regard, the decision of the Brussels Court of Appeal narrows the range
of parties allowed to challenge in European courts the SGBs’ rules and
decisions on the basis of competition law. More...
Editor’s note: Thomas Terraz is a third
year LL.B. candidate at the International and European Law programme at The
Hague University of Applied Sciences with a specialisation in European Law.
Currently he is pursuing an internship at the T.M.C. Asser Institute with a
focus on International and European Sports Law.
1. Introduction
To many it may seem obvious that athletes in a national
championship should only be able to participate if they have the nationality of
the relevant state. The Dutch Road Cycling National Championships should have
Dutch cyclists, and the German Athletics Championships should have German athletes
and so forth. However, in reality, foreign competitors are allowed to
participate in many national championships in the EU, and there is a wide
discrepancy between the rules of national sport governing bodies on this issue.
There is no unified practice when investigating this point by country or by
sport, and rules on participation range from a complete ban on foreign
competitors to absolutely no mention of foreign athletes.[1]
Thus, the question arises: should foreign athletes be able to participate in
national sport championships?
The Court of Justice of the European Union (CJEU) will soon
be required to provide an, at least partial, answer to this dilemma as a result
of an application for a preliminary
ruling. A German Court has
referred three questions to the CJEU on the case TopFit e.V. Daniele Biffi v
Deutscher Leichtathletikverband e.V. (DLV) which in essence ask whether EU
citizenship rights and in particular, the requirement of non-discrimination on
the basis of nationality, should be applied to non-nationals wishing to
participate in an athletics national championship in Germany. In the meantime,
the Advocate General (AG), who provides a non-binding opinion to the Court
before a decision is delivered, Evgeni Tanchev has delivered an interesting opinion on the case. It addresses the claims from the applicants
based on EU citizenship rights and urges the CJEU to instead review the case on
the basis of the freedom of establishment.
This blog will dissect the AG’s opinion to assess the main
arguments put forward in relation to freedom of establishment and EU
citizenship. Furthermore, it will weigh the ramifications this case may have on
the boundaries of EU law in relation to sport. To fully appreciate the AG’s
opinion, it is necessary to first discuss the intriguing factual and legal
background colouring this case. After all, this will not be the first time the CJEU
faces thorny issues concerning discrimination on the basis of nationality and sport. More...
Editor's note: This report compiles all relevant news, events and
materials on International and European Sports Law based on the daily coverage
provided on our twitter feed @Sportslaw_asser. You
are invited to complete this survey via the comments section below, feel free
to add links to important cases, documents and articles we might have
overlooked.
The Headlines
The Court of Arbitration for Sport bans 12 Russian
track and field athletes
On 1 February 2019,
the Court of Arbitration for Sport (CAS) communicated that it had rendered another 12 decisions in the
seemingly endless saga concerning the state-sponsored doping programme in
Russia. These first-instance decisions of the CAS involve 12 Russian track and
field athletes who were all found guilty of anti-doping rule violations based on
the evidence underlying the reports published by professor Richard McLaren and
suspended from participating in sports competitions for periods ranging from
two to eight years. Arguably the most prominent name that appears on the list
of banned athletes is Ivan Ukhov, the 32-year-old high jump champion from the
2012 Olympic Games in London.
The case was
brought by the International Association of Athletics Federation (IAAF) that
sought to convince the arbitrators that the athletes in question had
participated in and/or benefited from anabolic steroid doping programmes and
benefited from specific protective methods (washout schedules) in the period
between the 2012 Olympic Games in London and the 2013 IAAF World Championships
in Moscow. The CAS was acting in lieau of the Russian Athletics Federation that
remains suspended and thus unable to conduct any disciplinary procedures. The
athletes have had the opportunity to appeal the decisions to the CAS Appeals
Arbitration Division.
Federal Cartel Office in Germany finds Rule 40 of the
Olympic Charter disproportionately restrictive
At the end of
February, the German competition authority Bundeskartellamt announced that it had entered into a commitment agreement with
the German Olympic Sports Confederation (DOSB) and the International Olympic
Committee (IOC) in which these two organisations had agreed to considerably
enhance advertising opportunities for German athletes and their sponsors during
the Olympic Games. The respective agreement is a direct consequence of the
Bundeskartellamt’s finding that the IOC and the DOSB had abused their dominant
position on the market for organising and marketing the Olympic Games by
demanding that the athletes refrain from promoting their own sponsors while the
Games are ongoing, as well as shortly before and after the Games. This
restriction stems from Rule 40(3) of the Olympic Charter under which no
competitor who participates in the Games may allow his person, name, picture or
sports performances to be used for advertising purposes, unless the IOC
Executive Board allows him/her to do so.
As part of
fulfilling its obligations under the commitment agreement, the DOSB has relaxed
its guidelines on promotional activities of German athletes during the Olympic
Games. For its part, the IOC has declared that these new guidelines would take
precedence over Rule 40(3) of the Olympic Charter. However, it still remains to
be seen whether in response to the conclusions of the German competition
authority the IOC will finally change the contentious rule.
The Grand Chamber of the European Court of Human Rights
refuses to pronounce itself on Claudia Pechstein’s case
Claudia Pechstein’s
challenge against the CAS brought before the European Court of Human Rights
(ECtHR) has not yielded the desired result for the German athlete. On 5
February 2019, a Panel of the Grand Chamber of the ECtHR decided that the Grand Chamber would not entertain the case. This
means that the judgment handed down by the 3rd Chamber of the ECtHR
on 2 October 2018, in which the ECtHR confirmed that except for the lack of
publicity of oral hearings the procedures of the CAS are compatible with the
right to a fair trial under Article 6(1) of the European Convention on Human
Rights, has now become final and binding. However, the protracted legal battle
between the five-time Olympic champion in speed skating and the CAS is not over
yet since there is one more challenge against the CAS and its independence
pending before the German Constitutional Court. More...
Editor's note: This report compiles all relevant news, events and
materials on International and European Sports Law based on the daily coverage
provided on our twitter feed @Sportslaw_asser. You
are invited to complete this survey via the comments section below, feel free
to add links to important cases, documents and articles we might have
overlooked.
The Headlines
#Save(d)Hakeem
The plight of
Hakeem al-Araibi – the 25-year-old refugee footballer who was arrested last
November in Bangkok upon his arrival from Australia on the basis of a red
notice issued by Interpol in contravention of its own policies which afford
protection to refugees and asylum-seekers – continued throughout the month of
January. Bahrain – the country Hakeem al-Araibi fled in 2014 due to a
(well-founded) fear of persecution stemming from his previous experience when
he was imprisoned and tortured as part of the crackdown on pro-democracy
athletes who had protested against the royal family during the Arab spring –
maintained a firm stance, demanding that Hakeem be extradited to serve a prison
sentence over a conviction for vandalism charges, which was allegedly based on
coerced confessions and ignored evidence.
While international
sports governing bodies were critised from the very beginning for not using
enough leverage with the governments of Bahrain and Thailand to ensure that
Hakeem’s human rights are protected, they have gradually added their voice to
the intense campaign for Hakeem’s release led by civil society groups. FIFA,
for example, has sent a letter directly to the Prime Minister of Thailand, urging
the Thai authorities ‘to take the
necessary steps to ensure that Mr al-Araibi is allowed to return safely to
Australia at the earliest possible moment, in accordance with the relevant
international standards’. Yet many activists have found this action
insufficient and called for sporting sanctions to be imposed on the national
football associations of Bahrain and Thailand.
When it looked like
Hakeem will continue to be detained in Thailand at least until April this year,
the news broke that the Thai authorities agreed to release
Hakeem due to the fact that for now the Bahraini government had given up on the
idea of bringing Hakeem ‘home’ – a moment that
was praised as historic for the sport and human rights movement.
Russia avoids further sanctions from WADA despite
missing the deadline for handing over doping data from the Moscow laboratory
WADA has been back
in turmoil ever since the new year began as the Russian authorities failed to
provide it with access to crucial doping data from the former Moscow laboratory
within the required deadline
which expired on 31 December 2018, insisting that the equipment WADA intended to use
for the data extraction was not certified under Russian law. The Russian
Anti-Doping Agency thus failed to meet one of the two conditions under which
its three-year suspension was controversially
lifted in September 2018.
The missed deadline sparked outrage among many athletes and national
anti-doping organisations, who blamed WADA for not applying enough muscle
against the Russian authorities.
Following the
expiry of the respective deadline, it appeared that further sanctions could be
imposed on the Russian Anti-Doping Agency, but such an option was on the table
only until WADA finally managed to access the Moscow laboratory and retrieve the
doping data on 17
January 2019. Shortly thereafter, WADA President Sir Craig Reedie hailed the
progress as a major breakthrough for clean sport and members of the WADA
Executive Committee agreed that no further
sanctions were needed
despite the missed deadline. However, doubts remain as to whether the data have
not been manipulated. Before WADA delivers on its promise and builds strong
cases against the athletes who doped – to be handled by international sports
federations – it first needs to do its homework and verify whether the
retrieved data are indeed genuine.
British track cyclist Jessica Varnish not an employee
according to UK employment tribunal
On 16 January 2019,
an employment tribunal in Manchester rendered a judgment with wider implications for athletes and sports
governing bodies in the United Kingdom, ruling that the female track cyclist
Jessica Varnish was neither an employee nor a worker of the national governing
body British Cycling and the funding agency UK Sport. The 28-year-old multiple
medal winner from the world and European championships takes part in
professional sport as an independent contractor but sought to establish before
the tribunal that she was in fact an employee of the two organisations. This
would enable her to sue either organisation for unfair dismissal as she was
dropped from the British cycling squad for the 2016 Olympic Games in Rio de
Janeiro and her funding agreement was not renewed, allegedly in response to her
critical remarks about some of the previous coaching decisions.
The tribunal
eventually dismissed her challenge, concluding that ‘she was not personally performing work provided by the respondent –
rather she was personally performing a commitment to train in accordance with
the individual rider agreement in the hope of achieving success at
international competitions’. Despite the outcome of the dispute, Jessica
Varnish has insisted that her legal challenge contributed to a positive change
in the structure, policies and personnel of British Cycling and UK Sport, while
both organisations have communicated they had already taken action to
strengthen the duty of care and welfare provided to athletes.
Sports Law Related Decisions
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Upcoming Events
- 8 May –
FIFA and
Human Rights: Impacts, Policies and Responsibilities, T.M.C. Asser Institute, The Hague, Netherlands
- 22-23
May – Football Law
2019: Player Transfers, Agents, Politics and the Business of Football, London, UK
- 27-28
June – 14th
Sport&EU Annual Conference, Valleta, Malta
- 12-13
September – Understand
the Rules of the Game 2019: LawInSport Annual Conference, London, UK
- 24-25
October – Third Annual
International Sports Law Conference of the International Sports Law Journal, T.M.C. Asser Institute, The Hague, Netherlands
The Editors of the International Sports Law Journal
(ISLJ) invite you to submit abstracts for the third ISLJ Annual Conference on
International Sports Law, which will take place on 24 and 25 October 2019 at
the Asser Institute in The Hague. The ISLJ, published by Springer and Asser
Press, is the leading academic publication in the field of international sports
law. The conference is a unique occasion to discuss the main legal issues
affecting international sports with renowned academic experts and practitioners.
We are delighted to announce the following confirmed
keynote speakers:
- Beckie Scott (Chair of
the World Anti-Doping Agency (WADA) Athlete Committee, Olympic Champion, former
member of the WADA Executive Committee and the International
Olympic Committee (IOC)),
- Ulrich Haas (Professor of Law at Univerzität Zürich, CAS arbitrator),
and
- Kimberly Morris (Head of FIFA Transfer Matching System (TMS) Integrity
and Compliance).
We welcome abstracts from academics and practitioners
on any question related to international sports law. We also welcome panel
proposals (including a minimum of three presenters) on a specific issue. For
this year’s edition, we specifically invite submissions on the following themes:
- The role of athletes in the governance of international sports
- The evolution of sports arbitration, including the Court of Arbitration
for Sport
- The role and functioning of the FIFA transfer system, including the FIFA
TMS
- The intersection between criminal law and international sports (in
particular issues of corruption, match-fixing, human trafficking, tax evasion)
- Hooliganism
- Protection of minor athletes
- Civil and criminal liability relating to injuries in sports
Please send your abstract of 300 words and CV no later
than 30 April 2019 to a.duval@asser.nl. Selected speakers will be informed by 15 May.
The selected participants will be expected to submit a
draft paper by 1 September 2019. All papers presented at the conference are
eligible (subjected to peer-review) for publication in a special issue of the
ISLJ. To be considered for inclusion in the conference issue of the
journal, the final draft must be submitted for review by 15 December
2019. Submissions after this date will be considered for publication in
later editions of the Journal.
The Asser Institute will cover one night accommodation
for the speakers and will provide a limited amount of travel grants (max. 250€).
If you wish to be considered for a grant please indicate it in your
submission.
Editor's note: Daniela Heerdt is a PhD candidate at Tilburg
Law School in the Netherlands and works as Research Officer for the Centre for Sports and
Human Rights. Her PhD research deals with the
establishment of responsibility and accountability for adverse human rights
impacts of mega-sporting events, with a focus on FIFA World Cups and Olympic
Games. She published an article in the International Sports Law Journal that discusses to what extent the revised bidding and hosting
regulations by FIFA, the IOC and UEFA strengthen access to remedy for
mega-sporting events-related human rights violations.
On November
26th, the Human Rights Advisory Board[1]
of the Fédération Internationale de Football Association (FIFA) published its second report. This blog provides a summary and brief
evaluation of the report, by drawing a comparison to the previous report issued by the Human Rights Advisory
Board (hereinafter: the Board) based on the content of the recommendations and
FIFA’s efforts to implement the Board’s recommendations. The third part of this
blog briefly reflects on the broader implications of some of the new
recommendations issued for FIFA’s internal policies. The conclusion provides
five more general points of observation on the report. More...
Editor’s note: Sven Demeulemeester and Niels Verborgh
are sports lawyers at the Belgium law firm, Altius.
Introduction
In its
16 November 2018 judgment, the Court of Justice of the
European Free Trade Association States (the EFTA Court) delivered its eagerly
awaited ruling in the case involving Henrik Kristoffersen and the Norwegian Ski
Federation (NSF).
On 17 October
2016, Kristoffersen had taken the NSF to the Oslo District Court over the
latter’s refusal to let the renowned alpine skier enter into a sponsorship with
Red Bull. At stake were the commercial markings on his helmet and headgear in
races organised under the NSF’s umbrella. The NSF refused this sponsorship because
it had already granted the advertising on helmet and headgear to its own main
sponsor, Telenor. Kristoffersen claimed before the Oslo District Court, that the
NSF should be ordered to permit him to enter into an individual marketing
contract with Red Bull. In the alternative, Kristoffersen claimed damages up to
a maximum of NOK 15 million. By a letter of 25
September 2017, the Oslo District Court referred several legal questions to the
EFTA Court in view of shedding light on the compatibility of the rules that the
NSF had invoked with EEA law.
If rules do not relate to the conduct of the
sport itself, but concern sponsorship rights and hence an economic activity,
these rules are subject to EEA law. The EFTA Court ruling is important in that
it sets out the framework for dealing with - ever more frequent - cases in
which an individual athlete’s endorsement deals conflict with the interest of
the national or international sports governing bodies (SGBs) that he or she
represents in international competitions.More...