Editor's note: Marjolaine is a researcher and attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences.
On 25 August 2020, the Swiss Supreme Court
(Swiss Federal Tribunal, SFT) rendered
one of its most eagerly awaited decisions of 2020, in the matter of Caster
Semenya versus World Athletics (formerly and as referenced in the decision:
IAAF) following an award of the Court of Arbitration for Sport (CAS). In short,
the issue at stake before the CAS was the validity of the World
Athletics eligibility rules for Athletes with Differences of Sex Development
(DSD Regulation). After the CAS upheld their validity in an award
of 30 April 2019, Caster Semenya and the South African Athletics Federation
(jointly: the appellants) filed an application to set aside the award before
the Swiss Supreme Court.[1]
The SFT decision, which rejects the application, was made public along with a
press release on 8 September 2020.
There is no doubt that we can expect contrasted
reactions to the decision. Whatever one’s opinion, however, the official
press release in English does not do justice to the 28-page long decision
in French and the judges’ reasoning. The goal of this short article is
therefore primarily to highlight some key extracts of the SFT decision and some
features of the case that will be relevant in its further assessment by
scholars and the media.[2]
It is apparent from the decision that the
SFT was very aware that its decision was going to be scrutinised by an
international audience, part of whom may not be familiar with the mechanics of
the legal regime applicable to setting aside an international arbitration award
in Switzerland.
Thus, the decision includes long
introductory statements regarding the status of the Court of Arbitration for
Sport, and the role of the Swiss Federal Tribunal in reviewing award issued by
panels in international arbitration proceedings. The SFT also referred
extensively throughout its decision to jurisprudence of the European Court of
Human Rights (ECtHR), rendered in cases related to international sport and the
CAS. 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
Christmas has come very early
this year for the EU sports law world in the form of the Court of Justice of
the European Union’s (CJEU) judgment in
TopFit eV, Daniele Biffi v Deutscher Leichtathletikverband eV by exclusively analyzing the case on the
basis of European citizenship rights and its application to rules of sports
governing bodies that limit their exercise. The case concerned an Italian
national, Daniele Biffi, who has been residing in Germany for over 15 years and
participates in athletic competitions in the senior category, including the
German national championships. In 2016, the Deutscher Leichtathletikverband
(DLV), the German Athletics Federation, decided to omit a paragraph in its
rules that allowed the participation of EU nationals in national championships
on the same footing as German citizens. As a result, participation in the
national championship was subject to prior authorization of the organizers of
the event, and even if participation was granted, the athlete may only compete
outside of classification and may not participate in the final heat of the
competition. After having been required to compete out of classification for
one national championship and even dismissed from participating in another, Mr.
Biffi and TopFit, his athletics club based in Berlin, brought proceedings to a German
national court. The national court submitted a request for a preliminary ruling
to the CJEU in which it asked essentially whether the rules of the DLV, which
may preclude or at least require a non-national to compete outside
classification and the final heat, are contrary to Articles 18, 21 and 165
TFEU. Articles 18 and 21 TFEU, read together, preclude discrimination on the
basis of nationality against European citizens exercising their free movement.
The underlying (massive) question here is whether these provisions can be
relied on by an amateur athlete against a private body, the DLV.
Covered in a previous blog, the Advocate General’s (AG) opinion addressed the case from an
entirely different angle. Instead of tackling the potentially sensitive
questions attached with interpreting the scope of European citizenship rights,
the opinion focused on the application of the freedom of establishment because
the AG found that participation in the national championships was sufficiently
connected to the fact Mr. Biffi was a professional trainer who advertised his
achievements in those competitions on his website. Thus, according to the AG,
there was a sufficient economic factor to review the case under a market freedom.
The CJEU, in its decision, sidelined this approach and took the application of
European citizenship rights head on.
The following will dissect the
Court’s decision by examining the three central legal moves of the ruling: the
general applicability of EU law to amateur sport, the horizontal applicability
of European citizenship rights, and justifications and proportionality
requirements of access restrictions to national competitions. 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
Caster Semenya learns that it is not always easy for
victims of discrimination to prevail in court
The world of sport
held its breath as the Secretary General of the Court of Arbitration for Sport
(CAS) Matthieu Reeb stood before
the microphones on 1
May 2019 to announce the verdict reached by three arbitrators (one of them dissenting)
in the landmark case involving the South African Olympic and world champion
Caster Semenya. Somewhat surprisingly, the panel of arbitrators came to the
conclusion that the IAAF’s regulations requiring female athletes with
differences of sexual development to reduce their natural testosterone level
below the limit of 5 nmol/L and maintain that reduced level for a continuous
period of at least six months in order to be eligible to compete
internationally at events between 400 metres and a mile, were necessary,
reasonable and proportionate to attain the legitimate aim of ensuring fair competition
in female athletics, even though the panel recognised that the regulations were
clearly discriminatory. Ms Semenya’s legal team decided to file an appeal against the ruling at the Swiss Federal Tribunal. For
the time being, this appears to be a good move since the tribunal ordered the
IAAF at the beginning of June to suspend the application
of the challenged regulations to Ms Semenya with immediate effect, which means that Ms Semenya for now continues to run
medication-free.
Champions League ban looms on Manchester City
On 18 May 2019,
Manchester City completed a historic domestic treble after defeating Watford
6-0 in the FA Cup Final. And yet there is a good reason to believe that the
club’s executives did not celebrate as much as they would under normal
circumstances. This is because only two days before the FA Cup Final the news broke that the chief investigator of the UEFA Club
Financial Control Body (CFCB) had decided to refer
Manchester City’s case
concerning allegations of financial fair play irregularities to the CFCB
adjudicatory chamber for a final decision. Thus, the chief investigator most
likely found that Manchester City had indeed misled UEFA over the real value of
its sponsorship income from the state-owned airline Etihad and other companies
based in Abu Dhabi, as the leaked internal emails and other documents published
by the German magazine Der Spiegel suggested. The chief investigator is also
thought to have recommended that a ban on participation in the Champions League
for at least one season be imposed on the English club. The club’s
representatives responded to the news with fury and disbelief, insisting that
the CFCB investigatory chamber had failed to take into account a comprehensive
body of irrefutable evidence it had been provided with. They eventually decided
not to wait for the decision of the CFCB adjudicatory chamber, which is yet to
be adopted, and meanwhile took the case to the CAS, filing an appeal against the chief investigator’s referral.
The Brussels Court of Appeal dismisses Striani’s
appeal on jurisdictional grounds
The player agent
Daniele Striani failed to convince the Brussels Court of Appeal that it had jurisdiction
to entertain his case targeting UEFA’s financial fair play regulations. On 11
April 2019, the respective court dismissed his appeal against the judgment of
the first-instance court without pronouncing itself on the question of
compatibility of UEFA’s financial fair play regulations with EU law. The court
held that it was not competent to hear the case because the link between the
regulations and their effect on Mr Striani as a player agent, as well as the
link between the regulations and the role of the Royal Belgian Football
Association in their adoption and enforcement, was too remote (for a more
detailed analysis of the decision, see Antoine’s blog here). The Brussels Court of Appeal thus joined the
European Court of Justice and the European Commission as both these
institutions had likewise rejected to assess the case on its merits in the
past.
Sports Law Related Decisions
Official Documents and Press Releases
CAS
FIFA
IOC
UEFA
WADA
Other
In the news
Doping
Football
- Associated
Press FIFA bans
South Sudanese official for taking soccer money
- BBC Sport Mino Raiola:
Paul Pogba’s agent banned for three months by FIFA
- Andy
Brown Bulgaria
relegates FC Vereya on receipt of UEFA match-fixing information
- David
Conn 2022 World
Cup in Qatar to remain as a 32-team tournament, FIFA announces
- David
Conn Manchester
City accuse UEFA of leaks amid Champions League ban threat
- David
Conn Manchester
City furious after UEFA investigation is sent for final judgment
- David
Conn Premier
League clubs’ record £4.8 billion revenues widens gap to rest of Europe
- David
Conn Premier
League finances: The full club-by-club breakdown and verdict
- David
Conn Promotion and
relegation part of explosive Champions League plans
- Marina
Hyde UEFA’s
‘parking ticket’ fines will not rein in football’s maverick clubs
- Sean
Ingle Manchester
City and PSG should be thrown out of Europe, says La Liga president
- Amy
Lawrence and Sean Ingle Arsenal’s
Henrikh Mkhitaryan to miss Europa League final over safety fears
- Liam
Morgan Sierra Leone
could be welcomed back by FIFA after president and secretary general cleared of
corruption
- Tariq
Panja A trove of
FIFA secrets, locked inside a New Jersey storage locker
- Tariq
Panja Bundesliga’s
chief executive isn’t keen to join Premier League
- Tariq
Panja China’s
soccer push takes a new tack: Naturalizing foreign players
- Tariq
Panja FIFA drops
plan for 48-team World Cup in 2022
- Tariq
Panja For Europe’s
soccer chief, the outrage arrives in waves
- Tariq
Panja In Europe, a
bitter battle between clubs and leagues is taking shape
- Tariq
Panja In soccer’s
biggest elections, accusations are common but challengers are not
- Tariq
Panja Powerful
Sheikh linked to bribe scheme is still a soccer power
- Tariq
Panja Proposal to
restructure Champions League leaves out most of Europe
- Tariq
Panja Sepp Blatter,
who departed FIFA in scandal, wants the watches he left at the office
- Tariq
Panja She has
friends at FIFA. At home, it’s mostly critics.
- Tariq
Panja UEFA
investigators set to seek Manchester City’s ban from Champions League
- Martyn
Ziegler Europa League
final: Azerbaijan, the host country where journalist Rasim Aliyev was killed
for criticising Azerbaijan midfielder Javid Huseynov
Other
Academic Materials
Books
International Sports Law Journal
Other
Blog
Asser International Sports Law Blog
Law in Sport
Other
Upcoming Events
- 30 June
-14 July – CLS Summer
School 2019: Global Law of Sport, Patejdlova Bouda, Giant Mountains, Czech Republic
- 30-31
August – Third EU
Sports Law and Policy Summer School, Edge Hill University, UK
- 12-13
September – Understand
the Rules of the Game 2019: LawInSport Annual Conference, London, UK
- 27-28
September – 8th
International Congress on Football Law, Madrid, Spain
- 13-16
October – Play the Game
2019: Athlete Power on the Rise, Colorado Springs, USA
- 24-25
October – Third Annual
International Sports Law Conference of the International Sports Law Journal, T.M.C. Asser Institute, The Hague, Netherlands
Editor's note: Conor
Talbot is a Solicitor at LK Shields Solicitors in Dublin and an
Associate Researcher at Trinity College Dublin. He can be contacted at
ctalbot@tcd.ie, you can follow him on Twitter at @ConorTalbot and his research is available at
www.ssrn.com/author=1369709. This piece was first published on the humanrights.ie blog.
Sport is an integral part of the culture of almost
every nation and its ability to shape perceptions and influence public opinion
should not be underestimated. The United
Nations has highlighted the potential for using sport in reducing
discrimination and inequality, specifically by empowering girls and women. Research indicates that the benefits of sport include enhancing
health and well-being, fostering empowerment, facilitating social inclusion and
challenging gender norms.
In spite of the possible benefits, the successful
implementation of sport-related initiatives aimed at gender equity involves
many challenges and obstacles. Chief
amongst these is the way that existing social constructs of masculinity and
femininity — or socially accepted ways of expressing what it means to be a man
or woman in a particular socio-cultural context — play a key role in
determining access, levels of participation, and benefits from sport. This contribution explores recent
developments in the interaction between transgender and intersex rights and the
multi-billion dollar industry that the modern Olympic Games has become. Recent reports show that transgender people continue to suffer from the glacial pace of change in social attitudes
and, while there has been progress as part of a long and difficult journey to afford transgender people full legal
recognition through the courts, it seems clear that sport could play an increasingly
important role in helping change or better inform social attitudes.More...