Asser International Sports Law Blog

I have the pleasure to inform you that our (with Prof. Johan Lindholm and Alexander Kruger from Umeå University) edited volume entitled 'The European Roots of the Lex Sportiva: How Europe Rules Global Sport' has been published Open Access by Hart Publishing. 

You can freely access the volume at: https://www.bloomsburycollections.com/monograph?docid=b-9781509971473

Abstract: 

This open access book explores the complexity of the lex sportiva, the transnational legal regime governing international sports. Pioneering in its approach, it maps out the many entanglements of the transnational governance of sports with European legal processes and norms. The contributors trace the embeddedness of the lex sportiva within national law, European Union law and the European Convention on Human Rights. While the volume emphasizes the capacity of sports governing bodies to leverage the resources of national law to spread the lex sportiva globally, it also points at the fact that European legal processes are central when challenging the status quo as illustrated recently in the Semenya and Superleague cases. Ultimately, the book is also a vantage point to start critically investigating the Eurocentricity and the complex materiality underpinning the lex sportiva.

Table of contents: 

1. Made in Europe: Lex Sportiva as Embedded Transnational Law - 1–14 - Antoine Duval , Alexander Krüger and Johan Lindholm

I. The European Roots of Lex Sportiva

2. Embedded Lex Sportiva: The Swiss Roots of Transnational Sports Law and Governance - 17–40 - Antoine Duval

3. Putting the Lex into Lex Sportiva: The Principle of Legality in Sports - 41–68 - Johan Lindholm

4. Europeanisation of the Olympic Host (City) Contracts - 69–92 - Yuliya Chernykh

5. The Influence of European Legal Culture on the Evolution of Lex Olympica and Olympic Law - 93–118 - Mark James and Guy Osborn

6. Who Regulates the Regulators? How European Union Regulation and Regulatory Institutions May Shape the Regulation of the Football Industry Globally - 119–152 - Christopher A Flanagan

7. The Europeanisation of Clean Sport: How the Council of Europe and the European Union Shape the Proportionality of Ineligibility in the World Anti-Doping Code - 153–188 - Jan Exner

II. The Integration of European Checks into the Lex Sportiva

8. False Friends: Proportionality and Good Governance in Sports Regulation - 191–210 - Mislav Mataija

9. Sport Beyond the Market? Sport, Law and Society in the European Union - 211–228 - Aurélie Villanueva

10. EU Competition Law and Sport: Checks and Balances ‘à l’européenne’ - 229–256 - Rusa Agafonova

11. Is the Lex Sportiva on Track for Intersex Person’s Rights? The World Athletics’ Regulations Concerning Female Athletes with Differences of Sex Development in the Light of the ECHR - 257–282 - Audrey Boisgontier

III. Engaging Critically with a Eurocentric Lex Sportiva 

12. Lex Sportiva and New Materialism: Towards Investigations into Sports Law’s Dark Materials? 285–308 - Alexander Krüger

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 31 March, is coming soon!

On Thursday 25 February 2021 from 16.00-17.30 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret (University of Lausanne), organizes a Zoom In webinar on the recent award of the Court of Arbitration for Sport (CAS) in the case World Anti-Doping Agency (WADA) v. Russian Anti-Doping Agency (RUSADA), delivered on 17 December 2020.

Background
In its 186 pages decision the CAS concluded that RUSADA was non-compliant with the World Anti-Doping Code (WADC) in connection with its failure to procure the delivery of the authentic LIMS data (Laboratory Information Management System) and underlying analytical data of the former Moscow Laboratory to WADA. However, the CAS panel did not endorse the entire range of measures sought by WADA to sanction this non-compliance. It also reduced the time frame of their application from four to two years. The award has been subjected to a lot of public attention and criticisms, and some have expressed the view that Russia benefited from a lenient treatment.   

This edition of our Zoom in webinars will focus on assessing the impact of the award on the world anti-doping system. More specifically, we will touch upon the decision’s effect on the capacity of WADA to police institutionalized doping systems put in place by certain states, the ruling’s regard for the rights of athletes (Russian or not), and its effect on the credibility of the world anti-doping system in the eyes of the general public.

To discuss the case with us, we are very happy to welcome the following speakers:

• Michele Verroken (Sporting Integrity Limited, Independent Anti-Doping Expert)
• Herman Ram (CEO of the Dutch NADO/Dopingautoriteit)
• Prof. Jean-Loup Chappelet (University of Lausanne)

Participation is free, register HERE.

Editor's note: Marjolaine is a researcher and attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences.

I.               Introduction

The COVID-19 pandemic has shaken the manner in which we approach human interactions that suppose close and prolonged physical contact. Across the world, authorities are having to design ways to resume essential activities without jeopardising participants’ health, all the while guaranteeing that other fundamental rights are paid due respect. The fight against doping is no exception. Anti-doping organizations – whether public or private – have to be held to the same standards, including respect for physical integrity and privacy, and considerate application of the cornerstone principle of proportionality.

Throughout this global crisis, the World Anti-Doping Agency (‘WADA’) has carefully monitored the situation, providing anti-doping organizations and athletes with updates and advice. On 6 May 2020, WADA issued the document called ‘ADO Guidance for Resuming Testing’ (‘COVID Guidance’). A COVID-19 ‘Q&A’ for athletes (‘Athlete Q&A’) is also available on WADA’s website, and has been last updated on 25 May 2020. This article focuses on these two latest documents, and analyses the solutions proposed therein, and their impact on athletes.

Like many public or private recommendations issued for other societal activities, the WADA COVID Guidance is primarily aimed at conducting doping control while limiting the risk of transmission of the virus and ensuing harm to individuals. More specifically, one can identify two situations of interest for athletes that are notified for testing:

1. The athlete has or suspects that they may have been infected with COVID-19, or has come in close contact with someone having COVID-19;
2. The athlete fears to be in touch with doping control personnel that may be infected with COVID-19.

Quite obviously, either situation has the potential to create significant challenges when it comes to balancing the interests of anti-doping, with individual rights and data protection concerns. This article summarises how the latest WADA COVID Guidance and Athlete Q&A address both situations. It explores how the solutions suggested fit in with the WADA regulatory framework and how these might be assessed from a legal perspective.

The focus will be on the hypothesis in which international sports federations – i.e. private entities usually organised as associations or similar structures – are asked to implement the COVID Guidance within their sport. National anti-doping organizations are strongly embedded in their national legal system and their status and obligations as public or semi-public organisations are likely to be much more dependent on the legislative landscape put in place to deal with the COVID-19 pandemic in each country. Nevertheless, the general principles described in this article would apply to all anti-doping organizations alike, whether at international or national level. More...

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...

Close to 100 participants from 37 different countries attended the first ISLJ Annual International Sports Law Conference that took place on 26-27 October 2017 in The Hague. The two-day programme featured panels on the FIFA transfer system, the labour rights and relations in sport, the protection of human rights in sport, EU law and sport, the Court of Arbitration for Sport, and the world anti-doping system. On top of that, a number of keynote speakers presented their views on contemporary topics and challenges in international sports law. This report provides a brief summary of the conference for both those who could not come and those who participated and would like to relive their time spent at the T.M.C. Asser Institute.More...

Editor's note: This blog is part of a special blog series on the Russian doping scandal at the CAS. Last year I analysed the numerous decisions rendered by the CAS ad hoc Division in Rio and earlier this year I reviewed the CAS award in the IAAF case.

Unlike the International Association of Athletics Federations (IAAF), the International Paralympic Committee (IPC) was very much unaffected by the Russian doping scandal until the publication of the first McLaren report in July 2016. The report highlighted that Russia’s doping scheme was way more comprehensive than what was previously thought. It extended beyond athletics to other disciplines, including Paralympic sports. Furthermore, unlike the International Olympic Committee (IOC) the IPC had a bit more time to deal with the matter, as the Rio Paralympic Games were due to start “only” in September.

After the release of the McLaren Report, the IPC president Sir Philip Craven was “truly shocked, appalled and deeply saddened at the extent of the state sponsored doping programme implemented in Russia”. He immediately announced the IPC’s intention to review the report’s findings and to act strongly upon them. Shortly thereafter, on 22 July, the IPC decided to open suspension proceedings against the National Paralympic Committee of Russia (NPC Russia) in light of its apparent inability to fulfil its IPC membership responsibilities and obligations. In particular, due to “the prevailing doping culture endemic within Russian sport, at the very highest levels, NPC Russia appears unable or unwilling to ensure compliance with and the enforcement of the IPC’s Anti-Doping Code within its own national jurisdiction”. A few weeks later, on 7 August, the IPC Governing Board decided to suspend the Russian Paralympic Committee with immediate effect “due to its inability to fulfil its IPC membership responsibilities and obligations, in particular its obligation to comply with the IPC Anti-Doping Code and the World Anti-Doping Code (to which it is also a signatory)”. Indeed, these “obligations are a fundamental constitutional requirement for all National Paralympic Committees (NPCs), and are vital to the IPC’s ability to ensure fair competition and to provide a level playing field for all Para athletes around the world”. Consequently, the Russian Paralympic Committee lost all rights and privileges of IPC membership. Specifically, it was not entitled to enter athletes in competitions sanctioned by the IPC, and/or to participate in IPC activities. Thus, “the Russian Paralympic Committee will not be able to enter its athletes in the Rio 2016 Paralympic Games”. More...

Since the release of the earth-shattering ARD documentary two years ago, the athletics world has been in a permanent turmoil. The International Athletics Association Federation (IAAF) is faced with both a never-ending corruption scandal (playing out in front of the French police authorities) and the related systematic doping of Russian athletes. The situation escalated in different phases led by the revelations of Russian insiders. First, in December 2014 with the ARD documentary, which demonstrated how widespread (and organized) the recourse to doping was in Russian athletics. It triggered the Pound investigation financed by the World Anti-Doping Agency (WADA), which led to two damaging reports (available here and here) for the Russian anti-doping system and the IAAF itself. Thereafter, in November 2015, the IAAF had no other choice but to provisionally suspend the Russian athletics federation (ARAF then RusAF) and its members from IAAF competitions. Yet, this was only the beginning as shortly after the former head of Moscow’s anti-doping laboratory provided a detailed sketch to the New York Times of the operation of a general state-led doping scheme in Russia. The system was designed to avert any positive doping tests for top-level Russian sportspeople and was going way beyond athletics. These allegations were later largely confirmed and reinforced by the McLaren investigation initiated by WADA in May 2016, and which published its first report in July 2016 shortly before the Rio Olympics. In June 2016, the IAAF anticipated the conclusions of the report (it had received most of McLaren’s evidence beforehand) and decided to maintain the ineligibility of Russian athletes for IAAF competitions, and for the Rio Olympics. It did, however, foresee a narrow exception for Russian athletes able to show that they were properly tested outside of Russia. Nonetheless, the athletes using this exception were to compete under a neutral flag at the Olympics. Unsurprisingly, Russian athletes led by pole superstar (and now IOC member), Yelena Isinbayeva, and the Russian Olympic Committee decided to challenge this decision in front of the Court of Arbitration for Sport (CAS). Interestingly, while the decision was rendered on 21 July 2016, the full text of the award was publically released only on 10 October 2016. In September, I analysed the Rio CAS Ad Hoc Decisions involving Russian athletes aiming to participate to the Olympics. I will now turn to the IAAF decision, which is of great importance to the future of the anti-doping system. Indeed, it lays out the fundamental legal boundaries of the capacity of international federations to impose sanctions on their members (and their members) in order to support the world anti-doping fight. 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 Russian State Doping Scandal and the crisis of the World Anti-Doping System

Russian doping and the state of the Anti-Doping System has been the dominant international sports law story in November and December. This is mainly due to the release of the second report of the McLaren’s investigation on 9 December 2016. The outcome of McLaren’s work showed a “well-oiled systemic cheating scheme” that reached to the highest level of Russian sports and government, involving the striking figure of 30 sports and more than 1000 athletes in doping practices over four years and two Olympic Games. The report detailed tampering with samples to swap out athletes’ dirty urine with clean urine.More...

“One day Alice came to a fork in the road and saw a Cheshire cat in a tree. ‘Which road do I take?’ she asked. ‘Where do you want to go?’ was his response. ‘I don’t know,’ Alice answered. ‘Then,’ said the cat, ‘it doesn’t matter.”

Tomorrow the Foundation Board of the World Anti-Doping Agency (WADA) will gather in Glasgow for its most important meeting since the creation of the Agency. Since the broadcasting of a documentary alleging systematic doping in Russian athletics by the German public broadcaster in December 2014, the anti-doping world has been in disarray. The various independent investigations (the Pound Report and the McLaren Report) ordered by WADA into doping allegations against Russian athletes have confirmed the findings of the documentary and the truth of the accusations brought forward by Russian whistle-blowers. Undeniably, there is something very rotten in the world anti-doping system. The current system failed to register a widespread, and apparently relatively open, state-sponsored scheme aimed at manipulating any doping test conducted in Russian territory. Moreover, it was not WADA that uncovered it, but an independent journalist supported by courageous whistle-blowers. More...