On 21 January 2015, the Court of
arbitration for sport (CAS) rendered its award in the latest avatar of the Mutu case, aka THE sports law case that
keeps on giving (this decision might still be appealed to the Swiss Federal
tribunal and a complaint by Mutu is still pending in front of the European
Court of Human Right). The decision was finally published on the CAS website on
Tuesday. Basically, the core question focuses on the interpretation of Article
14. 3 of the FIFA Regulations on the Status and
Transfer of Players in its 2001 version. More precisely, whether, in case of a dismissal of a player
(Mutu) due to a breach of the contract without just cause by the
player, the new club (Juventus and/or Livorno) bears the duty to pay the
compensation due by the player to his former club (Chelsea). Despite winning maybe
the most high profile case in the history of the CAS, Chelsea has been desperately
hunting for its money since the rendering of the award (as far as the US), but
it is a daunting task. Thus, the English football club had the idea to turn
against Mutu’s first employers after his dismissal in 2005, Juventus and
Livorno, with success in front of the FIFA Dispute Resolution Chamber (DRC),
but as we will see the CAS decided otherwise[1]. More...
The world of professional cycling and doping have been closely intertwined
for many years. Cycling’s International governing Body, Union Cycliste
Internationale (UCI), is currently trying to clean up the image of the sport
and strengthen its credibility. In order to achieve this goal, in January 2014
the UCI established the Cycling Independent Reform Commission (CIRC) “to conduct a wide ranging independent investigation
into the causes of the pattern of doping that developed within cycling and allegations
which implicate the UCI and other governing bodies and officials over
ineffective investigation of such doping practices.”[1] The final report was submitted to the
UCI President on 26 February 2015 and published on the UCI website on 9 March 2015. The report
outlines the history of the relationship between cycling and doping throughout
the years. Furthermore, it scrutinizes the role of the UCI during the years in
which doping usage was at its maximum and addresses the allegations made
against the UCI, including allegations of corruption, bad governance, as well
as failure to apply or enforce its own anti-doping rules. Finally, the report turns
to the state of doping in cycling today, before listing some of the key practical
recommendations.[2]
Since the day of publication, articles and commentaries (here and here) on the report have been burgeoning and many
of the stakeholders have expressed their views (here and here). However, given the fact that the report is
over 200 pages long, commentators could only focus on a limited number of
aspects of the report, or only take into account the position of a few
stakeholders. In the following two blogs we will try to give a comprehensive
overview of the report in a synthetic fashion.
This first blogpost will focus on the relevant findings and
recommendations of the report. In continuation, a second blogpost will address
the reforms engaged by the UCI and other long and short term consequences the
report could have on professional cycling. Will the recommendations lead to a
different governing structure within the UCI, or will the report fundamentally
change the way the UCI and other sport governing bodies deal with the doping
problem? More...
It took only days for the de facto immunity of the Court of
Arbitration for Sport (CAS) awards from State court interference to collapse
like a house of cards on the grounds
of the public policy exception mandated under Article V(2)(b) of the New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards . On 15 January 2015, the
Munich Court of Appeals signalled an unprecedented turn in the
longstanding legal dispute between the German speed skater, Claudia Pechstein,
and the International Skating Union (ISU). It refused to recognise a CAS
arbitral award, confirming the validity of a doping ban, on the grounds that it
violated a core principle of German cartel law which forms part of the German public
policy. A few weeks before, namely on 30 December 2014, the Court of Appeal of Bremen held a CAS award, which ordered the German Club, SV Wilhelmshaven, to
pay ‘training compensation’, unenforceable for non-compliance with mandatory
European Union law and, thereby, for violation of German ordre public. More...
'Can't fight corruption with con tricks
They use the law to commit crime
And I dread, dread to think what the future
will bring
When we're living in gangster time'
The Specials - Gangsters
The pressing need for change
The
Parliamentary Assembly (PACE) of the Council of Europe (CoE), which is composed
of 318 MPs chosen from the national parliaments of the 47 CoE member states,
unanimously adopted a report entitled ‘the reform of
football’
on January 27, 2015. A draft resolution on the report will be debated during the
PACE April 2015 session and, interestingly, (only?) FIFA’s president Sepp
Blatter has been sent an invitation.
The PACE report
highlights the pressing need of reforming the governance
of football by FIFA and UEFA respectively. Accordingly, the report contains
some interesting recommendations to improve FIFA’s (e.g., Qatargate[1]) and
UEFA’s governance (e.g., gender representation). Unfortunately, it remains unclear
how the report’s recommendations will actually be implemented and enforced.
The report is a
welcomed secondary effect of the recent Qatargate directly involving former
FIFA officials such as Jack Warner, Chuck Blazer, and Mohamed Bin Hammam[2] and
highlighting the dramatic failures of FIFA’s governance in putting its house in
order. Thus, it is undeniably time to correct the governance of football by FIFA
and its confederate member UEFA – nolens
volens. The real question is how to do it.
![](http://www.asser.nl/SportsLaw/Blog/FILES%2f2015%2f02%2fUntitled.jpg.axdx)
![](http://www.asser.nl/SportsLaw/Blog/FILES%2f2015%2f02%2fUntitled1.jpg.axdx)
Photograph:
Fabrice Coffrini/AFP/Getty Images Photograph:
Octav Ganea/AP
More...
Due
to the legitimate excitement over the recent Pechstein
ruling, many have overlooked a previous German decision
rendered in the Wilhelmshaven SV case
(the German press did report on the decision here
and here).
The few academic commentaries (see here
and here)
focused on the fact that the German Court had not recognized the res judicata effect of a CAS award.
Thus, it placed Germany at the spearhead of a mounting rebellion against the legitimacy
of the CAS and the validity of its awards. None of the commentators weighed in
on the substance of the decision, however. Contrary to the Court in Pechstein, the judges decided to evaluate
the compatibility of the FIFA rules on training compensations with the EU free
movement rights. To properly report on the decision and assess the threat it
may constitute for the FIFA training compensation system, we will first
summarize the facts of the case (I), briefly explicate the mode of functioning
of the FIFA training compensation system (II), and finally reconstruct the
reasoning of the Court on the compatibility of the FIFA rules with EU law
(III).More...
On 15
April 2014, the Cairo Economic Court (the “Court") issued a seminal
judgment declaring the broadcasting of a football match a sovereign act of State.[1]
Background
In Al-Jazeera
v. the Minister of Culture, Minister of Information, and the Chairman of the
Board of Directors of the Radio and Television Union, a case registered
under 819/5JY, the Al-Jazeera TV Network (the “Plaintiff” or “Al-Jazeera”)
sued the
Egyptian Radio and Television Union (“ERTU” or the “Union”) et
al. (collectively, the “Respondents”) seeking compensation for
material and moral damages amounting to three (3) million USD, in addition to
interest, for their alleged breach of the Plaintiff’s exclusive right to
broadcast a World Cup-qualification match in Egypt. Al-Jazeera obtained such
exclusive right through an agreement it signed with Sportfive, a sports marketing company that had
acquired the
right to broadcast Confederation of African Football (“CAF”) World
Cup-qualification matches.
ERTU
reportedly broadcasted the much-anticipated match between Egypt and Ghana live on
15 October 2013 without obtaining Al-Jazeera’s written approval, in violation
of the Plaintiff’s intellectual property rights.
More...
The selling of media rights is currently a hot
topic in European football. Last week, the English Premier League cashed in
around 7 billion Euros for the sale of its live domestic media rights (2016 to
2019) – once again a 70 percent increase in comparison to the previous tender. This
means that even the bottom club in the Premier League will receive
approximately €130 million while the champions can expect well over €200
million per season.
The Premier League’s new deal has already led
the President of the Spanish National Professional Football League (LNFP),
Javier Tebas, to express his concerns that this could see La Liga lose its position as one of Europe’s leading leagues. He reiterated
that establishing a centralised sales model in Spain is of utmost importance,
if not long overdue.
Concrete plans to reintroduce a system of joint
selling for the media rights of the Primera
División, Segunda División A, and la
Copa del Rey by means of a Royal Decree were already announced two years
ago. The road has surely been long and bumpy. The draft Decree is finally on
the table, but now it misses political approval. All the parties involved are
blaming each other for the current failure: the LNFP blames the Sport
Governmental Council for Sport (CSD) for not taking the lead; the Spanish Football
Federation (RFEF) is arguing that the Federation and non-professional
football entities should receive more money and that it should have a stronger
say in the matter in accordance with the FIFA Statutes; and there are widespread rumours that the two big earners, Real Madrid and FC Barcelona, are actively
lobbying to prevent the Royal Decree of actually being adopted.
To keep the soap opera drama flowing, on 30 December 2014, FASFE (an
organisation consisting of groups of fans, club members, and minority
shareholders of several Spanish professional football clubs) and the
International Soccer Centre (a movement that aims to obtain more balanced and
transparent football and basketball competitions in Spain) filed an antitrust complaint with the European Commission against the LNFP. They
argue that the current system of individual selling of LNFP media rights, with
unequal shares of revenue widening the gap between clubs, violates EU
competition law.
![](http://www.asser.nl/SportsLaw/Blog/FILES%2f2015%2f02%2ftelenovela.jpg.axdx)
Source:http://www.gopixpic.com/600/buscar%C3%A1n-el-amor-verdadero-nueva-novela-de-televisa/http:%7C%7Cassets*zocalo*com*mx%7Cuploads%7Carticles%7C5%7C134666912427*jpg/
More...
Class actions are among the most
powerful legal tools available in the US to enforce competition rules. With more
than 75 years of experience, the American system offers valuable lessons about
the benefits and drawbacks of class actions for private enforcement in
competition law. Once believed of
as only a US phenomenon, class actions are slowly becoming reality in the EU. After the
adoption of the Directive on damages
actions in November 2014, the legislative initiative in collective redress
(which could prescribe a form of class actions) is expected in 2017.[1]
Some
pro-active Member States have already taken steps to introduce class actions in
some fashion, like, for example, Germany.
What
is a class action? It is a lawsuit that allows
many similar legal
claims with a common interest to be bundled into a single
court action. Class actions facilitate
access to justice for potential claimants, strengthen the negotiating power and
contribute
to the efficient administration of justice. This legal mechanism
ensures a possibility to claim cessation of
illegal behavior (injunctive relief) or to claim compensation for damage
suffered (compensatory relief). More...
At
the end of December 2015, the CAS decided on a very public contractual
dispute between Sporting Clube de Portugal Futebol SAD (Sporting) and
Doyen Sports Investments Limited (Doyen). The club was claiming that
Doyen’s Economic Rights Participation Agreement
(ERPA) was invalid and refused to pay Doyen’s due share on the transfer
of Marcos Rojo to Manchester United. The dispute made a lot of noise
(see the excellent coverage by Tariq Panja from Bloomberg here, here and here)
as it was the first TPO case heard by the CAS after FIFA’s ban. Yet,
and it has to be clear from the outset, the case does not affect the
legality of FIFA’s TPO ban; it concerned only the compatibility of
Doyen’s ERPA with Swiss civil law. The hearing took place in June 2015,
but the case was put under a new light by the football leaks revelations unveiled at the end of 2015 (see our blog from December 2015). Despite these revelations, the CAS award favoured Doyen, and was luckily for us quickly made available on the old football leaks website.
This blog will provide a commentary of the CAS decision. It will be
followed in the coming days by a commentary by Shervine Nafissi on the
judgment, on appeal, by the Swiss Federal Tribunal. More...
Yesterday the sports law world was
buzzing due to the Diarra decision of
the Tribunal de Commerce du Hainaut (the Tribunal) based in Charleroi, Belgium.
Newspapers were lining up (here, here and here) to spread the
carefully crafted announcement of the new triumph of Jean-Louis Dupont over his
favourite nemesis: the transfer system. Furthermore, I was lucky enough to
receive on this same night a copy of the French text of the judgment. My first
reaction while reading quickly through the ruling, was ‘OMG he did it again’!
“He” meaning Belgian lawyer Jean-Louis Dupont, who after a string of defeats in
his long shot challenge against FIFA’s TPO ban or UEFA’s FFP (see here and here), had [at least
I believed after rushing carelessly through the judgment] manufactured a new
“it”: a Bosman. Yet, after carefully re-reading the judgment, it
became quickly clear to me that this was rather a new Mutu (in the sense of the latest CAS award in the ‘Mutu
saga’, which I have extensively analysed on this blog and in a recent commentary for the new Yearbook of International Sports Arbitration) coupled with some reflections reminding a bit (but
not really as will be explicated below) the Pechstein
case.
In this blog, I will retrace briefly
the story behind the case and then analyse the decision of the Belgium court.
In doing so, I will focus on its reasoning regarding its jurisdiction and the
compatibility of article 17(2) RSTP with EU law.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...
“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...
Editor's Note: Marjolaine is an attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences. She currently participates as a scientific collaborator at the University of Neuchâtel on a research project to produce the first article-by-article legal commentary of the 2015 World Anti-Doping Code. Her latest book Evidence in Anti-Doping at
the Intersection of Science & Law was published in 2016 in the International Sports Law Book Series of T.M.C. ASSER Press.
INTRODUCTION
On 30 September 2016, a panel of the Court
of Arbitration for Sport (“CAS”) rendered its award
in the matter opposing high-profile tennis player Maria Sharapova to the
International Tennis Federation (“ITF”). Maria Sharapova was appealing the
two-year ban imposed on
her by the ITF Tribunal in June 2016 for her use of Meldonium, a substance
newly added to the WADA Prohibited List 2016[1].
Since neither the ITF nor WADA had chosen to challenge the Tribunal’s decision,
the stakes of the case were rather simple: would the player convince the CAS
panel that she should benefit from a finding of “No Significant Fault or
Negligence”[2],
thereby allowing for a reduction of the sanction down to a minimum of one year,
or should the decision of the Tribunal be upheld? In its award, the CAS panel
decided to grant such finding and reduced the sanction to 15 months.
This blog does not purport to be a ‘comment’
on the CAS award. Rather, it seeks to place the Sharapova matter into a broader
context with respect to a specific issue: the expectations on Athletes when it
comes to their awareness of the prohibited character of a substance,
specifically when taking a medication[3].
In July 2016, I presented at the T.M.C Asser Institute in The Hague various current
challenges of anti-doping that the Meldonium cases exposed (see the video here). One of these
challenges concerned the modalities for including new substances onto the
Prohibited List. This blog represents a follow-up on my presentation, in the
light of the findings contained in the CAS award. More...
Football intermediaries, or agents, are again under attack in the news. For some, corrupt behaviour has become endemic in football’s culture. It is always dangerous to scapegoat a whole profession or a group of
people. Many intermediaries are trying their best to lawfully defend the
interests of their clients, but some are not. The key focus should be on
providing an adequate legal and administrative framework to limit the
opportunities for corrupt behaviour in the profession. This is easier said than
done, however. We are dealing with an intrinsically transnationalized business,
often conducted by intermediaries who are not subjected to the disciplinary
power of federations. Sports governing bodies are lacking the police power and
human resources necessary to force the intermediaries to abide by their private
standards. In this context, this blog aims to review a recent case in front of
the regional court of Frankfurt in Germany, which highlights the legal
challenges facing (and leeway available to) national federations when
regulating the profession. More...
Editor's note: This is the (belated) fifth part/act of our blog series on the Russian eligibility cases at the CAS ad hoc Division in Rio. The other acts are available at:
Act V: Saving the
last (Russian) woman standing: The Klishina miracle
Darya Klishina is now an Olympic
celebrity. She will enter the history books not because she won a gold medal or
beat a world record. Instead, her idiosyncrasy lies in her nationality: she was
the sole Russian athlete authorized to stand in the athletics competitions at
the Rio Olympics. And yet, a few days before the start of the long jumping contest
in which she was due to take part, the IAAF surprisingly decided to revoke her eligibility (‘And Then There Were None’). But Klishina
appealed the decision to the CAS ad hoc Division and, as all of you
well-informed sports lawyers will know, she was allowed to compete at the
Olympics and finished at a decent ninth place of the long jump finals.
Two important questions are raised
by this case:
- Why did the IAAF
changed its mind and decide to retract Klishina’s authorization to participate?
- Why did the CAS
overturn this decision? More...