Asser International Sports Law Blog

Editor's note: This report compiles the most relevant legal news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. 

The Headlines

Coronavirus Pandemic Takes Over Sports

Since the last monthly report, the coronavirus pandemic has completely taken over the headlines and has had enormous impacts on the sports field. The most significant of these impacts so far was the rather slow (see here and here) decision by the IOC to move the Tokyo 2020 Olympic Games to 2021 after a widespread push among athlete stakeholders to do so. Concerns were raised that besides the wellbeing of the participants, athletes under lockdowns would not have the access to the training facilities, meaning preparations for the Games would suffer. The IOC has already started its new planning for Tokyo 2021 and sees this new opportunity to be ‘an Olympic flame’ at the end of a ‘dark tunnel’ for the entire world.

Besides the Olympics, football has also experienced colossal effects as this crisis landed right as leagues were approaching the end of their season. In this context, FIFA has released specific guidelines on player contracts and transfer windows, which has included extending player contracts to the new postponed end of season dates. It has also organized a working group on COVID-19, which has already made recommendations to postpone all men and women’s international matches that were to be played during the June 2020 window. Earlier in March, UEFA had already announced that the EURO 2020 was also postponed by 12 months and has also recently approved guidelines on domestic competitions. These guidelines place emphasis on ‘sporting merit’ and urge ‘National Associations and Leagues to explore all possible options to play all top domestic competitions giving access to UEFA club competitions to their natural conclusion’. Nevertheless, UEFA also emphasizes that the health of all stakeholders must remain the top priority.

In the end, numerous sport federations have also had to amend their calendars due to the pandemic (see UCI and FIBA) and a variety of sport stakeholders have been confronted with immense financial strain (e.g. football, tennis and cycling). For example, UEFA has acted preemptively in releasing club benefit payments to try to alleviate the economic pressure faced by clubs. There have also been efforts to support athletes directly (e.g. FIG and ITF). All in all, the social and economic impacts of the coronavirus pandemic on sport have been unprecedented and will require creative solutions while continuing to place public health as the top priority.

Platini’s ECtHR Appeal Falls Flat

There have also been a few other stories that have (understandably) been overshadowed by the pandemic. One of these include Michel Platini’s unsuccessful appeal to the ECtHR challenging his 2015 football ban. The ECtHR’s decision concerned the admissibility of his appeal and in the end found it to be ‘manifestly ill-founded’. This is because he failed to raise his procedural rights concerns under Article 6 (1) ECHR in his proceedings at the Swiss Federal Tribunal. Besides rejecting his other claims based on Article 7 and 8 ECHR, the ECtHR decision also touched upon the issue of CAS’ procedural and institutional independence. In doing so, it referred to its Pechstein decision and once more affirmed that the CAS is sufficiently independent and impartial (see para 65), further giving credence to this notion from its case law. However, there are still concerns on this matter as was highlighted in the Pechstein dissent. Overall, the decision indicates that the ECtHR is willing to give the CAS the benefit of the doubt so long as it sufficiently takes into account the ECHR in its awards.

Mark Dry – UKAD Dispute

In February, Mark Dry was suspended by UKAD after a decision of the National Anti-Doping Panel (NADP) Appeal Tribunal  for four years after having given a ‘false account’ in order to ‘subvert the Doping Control process’. Specifically, Dry had told anti-doping authorities that he had been out fishing after he had missed a test at his residence. After further investigation, Dry admitted that he had forgotten to update his whereabouts while he was actually visiting his parents in Scotland and in panic, had told anti-doping authorities that he had been out fishing. Following the decision of the NADP Appeal Tribunal, athlete stakeholders have argued the four-year ban was disproportionate in this case. In particular, Global Athlete contended that Whereabouts Anti-Doping Rule Violations only occur in cases where an athlete misses three tests or filing failures within a year. Furthermore, even if Dry had ‘tampered or attempted to tamper’, a four-year sanction is too harsh. Subsequently, UKAD responded with a statement, arguing that ‘deliberately providing false information’ is ‘a serious breach of the rules’ and that the UKAD NADP Appeal Tribunal ‘operates independently’. In light of the mounting pressure, Witold Bańka, WADA President, also responded on Twitter that he is ‘committed to ensuring that athletes’ rights are upheld under the World Anti-Doping Code’. More...

Editor’s note: Thomas Terraz is a fourth 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

 On March 05, the T.M.C. Asser Institute hosted ‘Mega-sporting events and human rights: What role can EU sports diplomacy play?’ a Multiplier Sporting Event organized in the framework of a European research project on ‘Promoting a Strategic Approach to EU Sports Diplomacy’. This project funded by the European Commission through its Erasmus+ program aims to help the EU adopt a strategic approach to sports diplomacy and to provide evidence of instances where sport can help amplify EU diplomatic messages and forge better relations with third countries. In particular, Antoine Duval from the Asser Institute is focusing on the role of EU sports diplomacy to strengthen human rights in the context of mega sporting events (MSE) both in Europe and abroad. To this end, he organized the two panels of the day focusing, on the one hand, on the ability of sport governing bodies (SGB) to leverage their diplomatic power to promote human rights, particularly in the context of MSEs and, on the other, on the EU’s role and capacity to strengthened human rights around MSEs. The following report summarizes the main points raised during the discussions. More...

Editor's note: This report compiles the most relevant legal news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. 

The Headlines

Manchester City sanctioned by UEFA’s Financial Fair Play

Manchester City has been sanctioned under UEFA’s Financial Fair Play (FFP) regulations for two seasons for ‘overstating its sponsorship revenue in its accounts and in the break-even information’ it had provided UEFA. The February 14 decision of the Adjudicatory Chamber of the Club Financial Control Body (CFCB) likely heralds the start of a long and bitter legal war between Manchester City and UEFA, which may end up settling many of the questions surrounding the legality of FFP rules. Since its introduction in 2010, the compatibility of FFP with EU law, especially in terms of free movement and competition law, has been a continued point of contention amongst the parties concerned and commentators (see discussion here, here and here). It was only a matter of time that a case would arise to test this issue and the present circumstances seem to indicate that this may go all the way.                                 

Regardless, the ban will not be enforced this season and in light of the appeal process, it is hard to predict when the CFCB’s decision will have any effect. Indeed, Manchester City has shown an incredible willingness to fighting this out in the courts and shows no signs of backing down. The next stop will be the CAS and perhaps followed by the Swiss Federal Tribunal. It should also be recalled that the CAS has already examined FFP in its Galatasaray award, where it found FFP compatible with EU law (see commentary here). There is even a decent chance that this emerging saga may end up in front of the European Commission and eventually the Court of Justice of the European Union.

Sun Yang CAS award published

After a much-anticipated public hearing, the Panel’s award in the Sun Yang case has finally been published, sanctioning Sun Yang with an eight-year period of ineligibility (see here for a detailed commentary). The decision does not reveal anything groundbreaking in terms of its legal reasoning and in many ways the case will most likely be remembered for its historical significance: the case that jumpstarted a new era of increased public hearings at the CAS.

Perhaps of some interest is the extent to which the panel took into account Sun Yang’s behavior during the proceedings in order to support its assessment of the case. For example, the panel describes how Sun Yang had ignored the procedural rules of the hearing by inviting ‘an unknown and unannounced person from the public gallery to join him at his table and act as an impromptu interpreter’. The Panel interpreted this as Sun Yang attempting ‘to take matters into his own hands’ which it found resembled the athlete’s behavior in the case (see para 358). The Panel also found it ‘striking’ that Sun Yang did not express any remorse concerning his actions during the proceedings. Since the proceedings were held publicly and have been recorded, it is possible to verify the Panel’s assessment in this regard.

In the end, it is possible that Sun Yang may seek to reduce the period of ineligibility once the 2021 WADA Code comes into force (see para 368). For now, Sung Yang may also try to appeal the award to the Swiss Federal Tribunal on procedural grounds, and has already indicated his wish to do so. More...

Editor's note: This report compiles the most relevant legal news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. 

The Headlines

IOC Athlete Commission releases its Rule 50 Guidelines for Tokyo 2020

The IOC Athlete Commission presented its Rule 50 Guidelines for Tokyo 2020 at its annual joint meeting with the IOC Executive Board. It comes as Thomas Bach had recently underlined the importance of political neutrality for the IOC and the Olympic Games in his New Year’s message. Generally, rule 50 of the Olympic Charter prohibits any political and religious expression by athletes and their team during the Games, subject to certain exceptions. The Guidelines clarify that this includes the ‘field of play’, anywhere inside the Olympic Village, ‘during Olympic medal ceremonies’ and ‘during the Opening, Closing and other official ceremonies’. On the other hand, athletes may express their views ‘during press conferences and interview’, ‘at team meetings’ and ‘on digital or traditional media, or on other platforms. While rule 50 is nothing new, the Guidelines have reignited a debate on whether it could be considered as a justified restriction on one’s freedom of expression.

The IOC has made the case that it is defending the neutrality of sport and that the Olympics is an international forum that should help bring people together instead of focusing on divisions. Specifically, Richard Pound has recently made the argument that the Guidelines have been formulated by the athletes themselves and are a justified restriction on free expression with its basis in ‘mutual respect’. However, many commentators have expressed their skepticism to this view (see here, here and here) citing that politics and the Olympics are inherently mixed, that the IOC is heavily involved in politics, and that the Olympics has often served as the grounds for some of history’s most iconic political protests. All in all, the Guidelines have certainly been a catalyst for a discussion on the extent to which the Olympics can be considered neutral. It also further highlights a divide between athlete committees from within the Olympic Movement structures and other independent athlete representation groups (see Global Athlete and FIFPro’s statements on rule 50).

Doping and Corruption Allegations in Weightlifting 

The International Weightlifting Federation (IWF) has found itself embroiled in a doping and corruption scandal after an ARD documentary was aired early in January which raised a wide array of allegations, including against the President of the IWF, Tamás Aján. The documentary also included hidden camera interviews from a Thai Olympic medalist who admits having taken anabolic steroids before having won a bronze medal at the 2012 London Olympic Games and from a team doctor from the Moldovan national team who describes paying for clean doping tests. The IWF’s initial reaction to the documentary was hostile, describing the allegations as ‘insinuations, unfounded accusations and distorted information’ and ‘categorically denies the unsubstantiated’ accusations. It further claims that it has ‘immediately acted’ concerning the situation with the Thai athletes, and WADA has stated that it will follow up with the concerned actors. However, as the matter gained further attention in the main stream media and faced increasing criticism, the IWF moved to try to ‘restore’ its reputation. In practice, this means that Tamás Aján has ‘delegated a range of operation responsibilities’ to Ursual Papandrea, IWF Vice President, while ‘independent experts’ will conduct a review of the allegations made in the ARD documentary. Richard McLaren has been announced to lead the investigation and ‘is empowered to take whatever measures he sees fit to ensure each and every allegation is fully investigated and reported’. The IWF has also stated that it will open a whistleblower line to help aid the investigation.More...

Editor's note: This report compiles the most relevant legal news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. 

The Headlines

WADA Conference and the Adoption of 2021 WADA Code Amid Calls for Reform

On November 5-7, WADA held its Fifth World Conference on Doping in Sport where it faced a busy schedule, including the adoption of the revised 2021 World Anti-Doping Code and the election of a new WADA President and Vice-President by the Foundation Board. Concerning the latter, Witold Bańka, Poland’s Minister of Sport and Tourism, was elected as WADA President and Yang Yang, a former Chinese speed skater, elected as Vice-President, replacing Sir Craig Reedie and Linda Helleland respectively.  As Helleland leaves her position, she has expressed some strong views on the state of sport governance, particularly that ‘there is an absence of good governance, openness and independence in the highest levels of international sports’. Helleland was not the only one to recently voice governance concerns, as Rob Koehler, Director General of Global Athlete, also called for a ‘wholesale structural change at WADA’, which includes giving ‘independent’ athletes a vote in WADA’s Foundation Board, ensuring a greater ‘separation of powers’ and ensuring greater protection of athletes’ rights.

In the midst of the calls for reform, the amended 2021 WADA Code and the amended International Standards were also adopted after a two year, three stage code review process. Furthermore, a major milestone in athletes’ rights was achieved with the adoption of the Athletes’ Anti-Doping Rights Acts (separate from the WADA Code), which enumerates certain basic rights to help ‘ensure that Athlete rights within anti-doping are clearly set out, accessible, and universally applicable’. On the other hand, the Act ‘is not a legal document’, which clearly circumscribes some of the potential effects the Act may have. Nonetheless, athlete representative groups have ‘cautiously welcomed’ some of the changes brought by the 2021 WADA Code, such as the ‘modified sanctions for substances of abuse violations’.

Sung Yang’s Historical Public Hearing at the CAS

After much anticipation, the second public hearing in CAS history occurred on November 15 in Montreux, Switzerland in the Sun Yang case (details of this case were discussed in August and September’s monthly report), which was livestreamed and can be seen in its totality in four different parts (Part 1, Part 2, Part 3, Part 4). This was an extremely unique opportunity, which hopefully will become a more common occurrence, to see just how CAS hearings are conducted and perhaps get a taste of some of the logistical issues that can emerge during live oral hearings. One of these problems, accurate translations, rapidly became apparent as soon as Sun Yang sat in the witness chair to give his opening statements. The translators in the box seemed to struggle to provide an intelligible English interpretation of Sun Yang and other witnesses’ statements, while Sun Yang also seemingly had trouble understanding the translated questions being posed to him. The situation degenerated to such an extent that ultimately one of WADA’s officials was called to replace the translators. However, the translation drama did not end there, since during Sun Yang’s closing statements an almost seemingly random person from the public appeared next to Sun Yang who claimed to have been requested from Sun Yang’s team to ‘facilitate’ the translation. Franco Frattini, president of the panel, questioned the identity of the ‘facilitator’ and explained that one could not just simply appear before the court without notice. Interestingly, Sun Yang’s legal team also rapidly intervened claiming that it had not been made of aware of the inclusion of the supporting translator, further complicating the matter. In the end, Sun Yang concluded his statements with the translation from the WADA official.

While it was Sun Yang’s legal team that had provided the original translators in the box, it still raises the question as to how translation at CAS could be improved to ensure a certain standard of translators. After all, quality translation is critical to the parties’ right to be heard under Article 6 (e) ECHR. Regardless, in the end, neither parties made an objection that their right to be heard was violated.

Russian Doping Saga Continues: WADA Compliance Review Committee Recommends Strong Sanctions

As was already discussed in August and September’s monthly report, WADA uncovered numerous inconsistencies concerning data taken from the Moscow Laboratory. After further investigation, WADA’s Compliance Review Committee has recommended that the Russian Anti-Doping Agency (RUSADA) be found non-compliant with the WADA Code. Accompanying the recommendation, the Compliance Review Committee also suggested several sanctions, which include prohibiting Russian athletes from participating in major events like the Olympic Games and ‘any World Championships organized or sanctioned by any Signatory’ for the next four years unless they may ‘dmonstrate that they are not implicated in any way by the non-compliance’. It would also see an embargo on events hosted in Russia during the same period. However, these sanctions did not go far enough for some, like Travis Tygart, chief executive of USADA, who wishes to prevent a repeat of Rio 2016 and PyeongChang 2018 ‘in which a secretly-managed process permitting Russians to compete – did not work’. On the other hand, the IOC has advocated for a softer, individual based approach that pursues ‘the rules of natural justice and respect human rights’. In the midst of these developments, the Athletics Integrity Unit also decided to charge several members of the Russian Athletics Federation (RusAF), including its President Dmitry Shlyakhtin, after a 15 month investigation for ‘tampering and complicity’ concerning a Russian athlete’s whereabouts violations.

Following many calls for strong consequences, the WADA Executive Committee met on December 9^th and adopted the recommendations of the Compliance Review Committee. Athlete representatives have expressed their disappointment with the sanctions, calling the decision ‘spineless’ since it did not pursue a complete ban on Russian participation at events such as Euro 2020 and the 2020 Olympics. At this point, RUSADA has sent notice to WADA that it will be disputing the decision of WADA’s Executive Committee’s decision at the CAS.More...

Editor's note: This report compiles the most relevant legal news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. 

The Headlines

International Sports Law Journal (ISLJ) Conference 2019

The T.M.C. Asser Institute and the Asser International Sports Law Centre held the third International Sports Law Journal (ISLJ) Conference on October 24-25. The Conference created a forum for academics and practitioners to discuss, debate and share knowledge on the latest developments of sports law. It featured six uniquely themed panels, which included topics such as ‘Transfer systems in international sports’ and ‘Revisiting the (in)dependence and transparency of the CAS’ to ‘The future of sports: sports law of the future’. The ISLJ Conference was also honored to have two exceptional keynote speakers: Moya Dodd and Ulrich Haas. To kick off the conference, Moya Dodd shared her experiences from an athlete’s perspective in the various boardrooms of FIFA. The second day was then launched by Ulrich Haas, who gave an incredibly thorough and insightful lecture on the importance, function and legal basis of association tribunals in international sport. For a detailed overview of this year’s ISLJ Conference, click here for the official conference report.

The Asser International Sports Law Centre was delighted to have been able to host another great edition of the ISLJ Conference and is thankful to all the participants and speakers who made this edition such a success.

Moving towards greater transparency: Launch of FIFA’s Legal Portal

On October 31, FIFA announced that it was introducing a new legal portal on its website that will give greater access to numerous documents that previously were kept private. FIFA explains that this is in order to help increase its transparency, which was one of the key ‘Guiding Principles’ highlighted in FIFA 2.0: The Vision for the Future released in 2016. This development comes as many sport governing bodies face increasing criticism for the opacity of its judicial bodies’ decisions, which can have tremendous economic and societal impacts. The newly available documents will include: ‘decisions rendered on the merits by the FIFA Disciplinary Committee and the FIFA Appeal Committee (notified as of 1 January 2019); decisions rendered on the merits by the FIFA Ethics Committee (notified since 1 January 2019); decisions rendered on the merits by the FIFA Players’ Status Committee and the FIFA Dispute Resolution Chamber; non-confidential CAS awards in proceedings to which FIFA is a party (notified since 1 January 2019); list of CAS arbitrators proposed by FIFA for appointment by ICAS, and the number of times they have been nominated in CAS proceedings’. The list of decisions from all the aforementioned bodies are updated every four months, according to their respective webpages. However, time will ultimately tell how consistently decisions are published. Nevertheless, this move is a major milestone in FIFA’s journey towards increasing its transparency.

Hong Kong Protests, Human Rights and (e)Sports Law: The Blizzard and NBA controversies

Both Blizzard, a major video game developer, and the NBA received a flurry of criticism for their responses to persons expressing support for the Hong Kong protests over the past month. On October 8, Blizzard sanctioned Blitzchung, a professional Hearthstone player who expressed support of the Hong Kong protest during a post-match interview, by eliminating the prize money he had won and suspending him for one year from any Hearthstone tournament. Additionally, Blizzard will cease to work with the casters who conducted the interview. With mounting disapproval over the sanctions,  J. Allen Brack, the president of Blizzard, restored the prize money and reduced the period of ineligibility to 6 months.

The NBA controversy started when Daryl Morey, the general manager of the Houston Rockets, tweeted his support for the protests in Hong Kong. The tweet garnered much attention, especially in China where it received a lot of backlash, including an announcement from CCTV, the official state broadcaster in China, that it was suspending all broadcasts of the NBA preseason games. In attempts to appease its Chinese audience, which is a highly profitable market for the NBA, Morey deleted the tweet and posted an apology, and the NBA responded by saying that the initial tweet was ‘regrettable’. Many scolded these actions and accused the NBA of censorship to which the NBA Commissioner, Adam Silver, responded that the NBA remains committed to freedom of expression.

Both cases highlighted how (e)sport organizations may be faced with competing interests to either guarantee greater protection of human rights or to pursue interests that perhaps have certain financial motivations. More...

On October 24^th and 25^th 2019, the T.M.C. Asser Institute and the International Sports Law Centre hosted the International Sports Law Journal (ISLJ) Conference for a third year in a row, bringing together a group of academics and practitioners from around the world. This year’s conference celebrated the 20^th year of the International Sports Law Journal, which was originally started by Robert Siekmann. Over the past 20 years, the ISLJ has aimed to be a truly international journal that addresses global topics in sports law while keeping the highest academic standards.

With this background, the conference facilitated discussions and exchanges over six differently themed panels on international sports law’s most pertinent issues and gave participants wide opportunities to engage with one another. Additionally, this year’s edition also had the great honor of hosting two distinguished keynote speakers, Moya Dodd and Ulrich Haas, who were able to share their wealth of experience and knowledge with the conference participants.

The following report aims to give an overview of the ISLJ Conference 2019 to extract and underline the fundamental ideas raised by the different speakers.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

Another Russian Doping Crisis? Inconsistencies Uncovered in the Data from the Moscow Lab

Storm clouds are brewing once more in the Russian Doping Saga, after several inconsistencies were uncovered by WADA from data retrieved from the Moscow Laboratory. More specifically, a certain number of positive tests had been removed from the data WADA retrieved from the Moscow Laboratory compared to the one received from the original whistleblower. WADA launched a formal compliance procedure on 23 September, giving three weeks for Russian authorities to respond and provide their explanations. WADA’s Compliance Review Committee is set to meet on 23 October in order to determine whether to recommend declaring Russia non-compliant.

Russian authorities are not the only ones now facing questions in light of these new revelations. Criticism of WADA’s decision to declare Russia compliant back in September 2018 have been reignited by stakeholders. That original decision had been vehemently criticized (see also Edwin Moses’ response), particularly by athlete representative groups.

The fallout of these data discrepancies may be far reaching if Russian authorities are unable to provide a satisfying response. There are already whispers of another impending Olympic Games ban and the possibility of a ban extending to other sports signed to the WADA Code. In the meantime, the IAAF has already confirmed that the Russian Athletes would compete as ‘authorised neutral athletes’ at the World Athletics Championship in Doha, Qatar.

Legal Challenges Ahead to Changes to the FIFA Football Transfer Market

FIFA is set to make amendments to its player transfer market that take aim at setting new boundaries for football agents. These changes will prohibit individuals from representing both the buying and selling club in the same transaction and set new limits on agent commissions (3 percent for the buying club and player representative and 10 percent for the selling team). FIFA is already in the process of creating a central clearinghouse through which all transfer payments would have to pass through, including agent commissions. FIFA will be making a final decision on these proposed changes at the FIFA Council meeting on 24 October.

If these proposed changes are confirmed, they will almost certainly be challenged in court. The British trade organization representing football agents, Association of Football Agents, has already begun its preparations for a costly legal battle by sending a plea to its members for donations. It claims that it had not been properly consulted by FIFA before this decision had been made. On the other hand, FIFA claims that ‘there has been a consultation process with a representative group of agents’ and that FIFA kept ‘an open dialogue with agents’. Regardless, if these proposed changes go through, FIFA will be on course to a looming legal showdown.

CAS Public Hearing in the Sun Yang Case: One Step Forward for Transparency?

On 20 August, 2019, the Court of Arbitration for Sport (CAS) announced that the hearing in the appeal procedure of the Sun Yang case will be held publicly. It will be only the second time in its history that a public hearing has been held (the last one being in 1999, Michelle Smith De Bruin v. FINA). WADA has appealed the original decision of the FINA Doping Panel which had cleared Sun Yang from an alleged anti-doping rule violation. The decision to make the hearing public was at the request of both parties. The hearing is set to take place November 15^th and is likely to be an important milestone in improving the CAS’ transparency.

Sun Yang, who has already served a doping ban for a previous violation in 2014, has also been at the center of another controversy, where Mack Horton, an Australian swimmer, refused to shake hands and stand on the podium with Sun Yang at the world championships in Gwangju. 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

• Court of Justice of the European Union (General Court) – Judgment in the case Real Madrid Club de Futbol v European Commission

Official Documents and Press Releases

CAS

• CAS – Caster Semenya, Athletics South Africa (ASA) and International Association of Athletics Federation (IAAF): Decision
• CAS – Caster Semenya, Athletics South Africa (ASA) and International Association of Athletics Federation (IAAF): Executive summary
• CAS – Decision in the arbitration procedure between Worawi Makudi and FIFA: Sanction reduced
• CAS – Elections of the Board Members of the International Council of Arbitration for Sport (ICAS)
• CAS – Weighlifters Mikalai Novikau and Ruslan Nurudinov found to have committed anti-doping rule violations at the London 2012 Olympic Games

FIFA

• FIFA – Adjudicatory Chamber of the independent Ethics Committee sanctions Jose Maria Marin
• FIFA – FIFA Appeal Committee confirms ban imposed on Marco Polo Del Nero
• FIFA – FIFA Appeal Committee passes decision on appeal lodged by Chelsea FC
• FIFA – FIFA World Cup Qatar 2022 to be played with 32 teams
• FIFA – Nine individuals sanctioned for match manipulation
• FIFA – RSC Anderlecht and Belgian Football Association sanctioned for international transfers of minors
• FIFA – Worldwide extension of suspension imposed on intermediaries Carmine and Vincenzo Raiola

IOC

• IOC – From food and uniforms to sponsorship deals: IOC guides to help the Olympic Games and the sports sector adopt sustainable sourcing practices
• IOC – Future Olympic Games elections to be more flexible
• IOC – Independent research conducted on behalf of the IOC demonstrates global strength of the Olympic values
• IOC – IOC Evaluation Commission 2026 begins working visit to Milan-Cortina
• IOC – IOC Evaluation Commission confirms passion and expertise of Milan-Cortina project shaped by Olympic Agenda 2020
• IOC – IOC Executive Board proposes 10 new members for election to the IOC Session
• IOC – IOC releases Evaluation Commission 2026 report
• IOC – IOC sanctions one athlete for failing anti-doping tests at London 2012
• IOC – IOC sanctions two athletes for failing anti-doping tests at London 2012
• IOC – Uncovered: The work and value of the IOC Athletes’ Commission

UEFA

• UEFA – AC Milan referred to CFCB Adjudicatory Chamber
• UEFA – CFCB update on 2018/19 monitoring of clubs under FFP settlements
• UEFA – FK Vardar and PFC Levski Sofia avoid potential exclusion from UEFA club competitions
• UEFA – Law changes to apply from 25 June in UEFA competitions
• UEFA – Manchester City referred to CFCB Adjudicatory Chamber
• UEFA – Three clubs exit FFP settlement agreement
• UEFA – Time for Action: First ever UEFA women’s football strategy launched

WADA

• WADA – Timor-Leste becomes 188^th country to ratify UNESCO Anti-Doping Convention
• WADA – WADA announces self-suspension of the Helsinki laboratory
• WADA – WADA congratulates Presidential nominee Witold Banka
• WADA – WADA Foundation Board moves forward with implementation of governance reforms
• WADA – WADA hails 30^th Anniversary of Council of Europe Anti-Doping Convention
• WADA – WADA publishes four new Technical Documents
• WADA – WADA publishes independent report into allegations of improper conduct
• WADA – WADA publishes revised International Standard for Laboratories
• WADA – WADA publishes Stakeholder Notice regarding meat contamination
• WADA – WADA reinstates Bucharest Laboratory
• WADA – WADA statement on refusal of Beckie Scott and Edwin Moses to cooperate with independent investigation
• WADA – WADA successfully retrieves samples from Moscow Laboratory
• WADA – WADA welcomes significant decision by Court of Arbitration for Sport

Other

• AIU (Athletics Integrity Unit) – After Ukraine sprinters’ ban, AIU to extend its blood profiling strategy ahead of the IAAF World Championships Doha 2019
• AIU (Athletics Integrity Unit) – Athletics Integrity Unit and Abbott World Marathon Majors announce new intelligence and testing programme in groundbreaking anti-doping initiative
• Centre for Sport and Human Rights – Mapping accountability and remedy mechanisms for sport
• CIES Football Observatory World football expatriates: Global study 2019
• CIES Sports Intelligence – Governance and financial landscape of top European football clubs
• Council of Europe Ground-breaking international treaty on match-fixing to enter into force in September
• Human Rights Watch – Belarus: Use European games to spur media freedom
• IAAF – IAAF letter to the World Medical Association
• IAAF – IAAF publishes briefing notes and Q&A on female eligibility regulations
• TIU (Tennis Integrity Unit) – Benjamin D’Hoe suspended and fined for betting on tennis
• TIU (Tennis Integrity Unit) – Brazilian tennis player Joao Souza provisionally suspended by independent Anti-corruption Hearing Officer
• TIU (Tennis Integirty Unit) – Independent Anti-corruption Hearing Officer suspends Osman Torski for breach of the Tennis Anti-corruption programme
• TIU (Tennis Integrity Unit) – Independent members appointed to the Supervisory Board for Tennis Integrity
• TIU (Tennis Integrity Unit) – Issam Taweel found guilty of match-fixing offences by independent Anti-corruption Hearing Officer
• TIU (Tennis Integrity Unit) – Lifetime ban and $20,000 fine for Helen Ploskina after being found guilty of match-fixing offences
• TIU (Tennis Integrity Unit) – Nigerian tennis player Henry Atseye provisionally suspended by independent Anti-corruption Hearing Officer
• TIU (Tennis Integrity Unit) – Suspended sentence and fine for Mohamed Safwat after failing to report corrupt approaches to the Tennis Integrity Unit
• TIU (Tennis Integrity Unit) – Tennis coach Miguel Tobon suspended and fined for selling wild cards
• TIU (Tennis Integrity Unit) – Tennis umpire Svetlana Teryaeva facing sanction after failing to report a corrupt approach to the Tennis Integrity Unit
• TIU (Tennis Integrity Unit) – The Tennis Integrity Unit and Marco Trungelliti
• UCI (Union Cycliste Internationale) – UCI declaration concerning E-mountain bike
• UCI (Union Cycliste Internationale) – UCI statement on Operation Aderlass
• UOKiK (Office of Competition and Consumer Protection in Poland) – UOKiK will inspect sports associations
• World Medical Association Physician leaders reaffirm opposition to IAAF rules

In the news

Doping

• ESPN Kenya’s Olympic track coach banned 10 years
• Sean Ingle World’s top marathon runners to face innovative anti-doping programme
• Duncan Mackay Critics of WADA decision to reinstate Russia care more about politics than clean sport, claims President Sir Craig Reedie
• Michael Pavitt Arrests made in France over alleged drug trafficking operation
• Michael Pavitt Biathlon Integrity Unit to be set up by IBU in response to doping, fraud and corruption allegations
• Eddie Pells Polish minister to lead WADA; outspoken candidate sidelined
• Dan Roan US proposes making WADA funding conditional on governance reforms and greater transparency
• Gabrielle Tetrault-Farber Russian anti-doping chief calls for dismissal of athletics federation head

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

• Eyewitness News Kenya drops two female sprinters over testosterone levels
• Nancy Gillen FIVB to refer human rights abuse allegations surrounding Cambodian Volleyball Federation President to ethics panel
• Mark Gleeson South African government instructs athletics body to appeal Semenya decision
• Gerald Imray Defiant Caster Semenya appeals testosterone ruling
• Sean Ingle AIBA threatens to sue IOC if stripped of right to run amateur boxing
• Sean Ingle AIBA stripped of right to run boxing tournament at Tokyo Olympics
• Sean Ingle BeIN Sports chief in World Athletics Championships corruption inquiry
• Sean Ingle Caster Semenya Q&A: The runner’s discrimination case explained
• Sean Ingle Semenya loses landmark legal case against IAAF over testosterone levels
• Sean Ingle Caster Semenya vs. IAAF: The inside story of sporting trial of the century
• Sean Ingle Caster Semenya to run in Doha as Sebastian Coe welcomes CAS ruling
• Duncan Mackay Italian government to sign IOC guarantees for Milan Cortina 2026, including EUR 415 million security budget
• Liam Morgan German athletes group steps up call for increased representation and bigger share of Olympic revenue
• Tariq Panja After Semenya ruling, sports federations ponder what’s next
• Tariq Panja Qatari executive is charged with corruption in IAAF scandal
• Michael Pavitt Bach tells athletes to begin negotiations with NOCs over Rule 40 restrictions
• Michael Pavitt GAISF considers establishing office to lobby European Union and create framework over third-party organisers
• Michael Pavitt UCI President fears ‘serious issue’ after arbitrators asked to choose between working exclusively for CAS or international federations
• Mike Rowbottom Message to the Olympic Movement in the face of new commercial threats – keep the athletes’ eyes on the golden prize
• Mike Rowbottom IOC maintains German athletes’ court decision over Rule 40 is ‘not generally applicable’
• Stephen Wade and Mari Yamaguchi IOC inspectors face report on tough Olympic work conditions
• Martyn Ziegler Sport won’t be overrun by intersex athletes, says Caster Semenya’s expert witness

Academic Materials

Books

•  Johan Lindholm The Court of Arbitration for Sport and its Jurisprudence: An Empirical Inquiry into Lex Sportiva

International Sports Law Journal

• H. Burak Gemalmaz Applicability of Human Rights Standards in Turkish Football Arbitration: The Contribution of the European Court of Human Rights
• Lloyd Freeburn The Fiction of Democracy in FIFA’s Governance of Football and the Case of Football Federation Australia
• Marlaina Lemmon Evening the Playing Field: Women’s Sport as a Vehicle for Human Rights
• Kendra Magraw Separation of Sport and State: Military Salutations at US Major League Soccer Events
• Daniel West Revitalising a Phantom Regime: The Adjudication of Human Rights Complaints in Sport

Other

• April Henning and Paul Dimeo Perceptions of Legitimacy, Attitudes and Buy-in Among Athlete Groups: A Cross-national Qualitative Investigation Providing Practical Solutions
• Seema Patel and Ian Varley Exploring the Regulation of Genetic Testing in Sport

Blog

Asser International Sports Law Blog

• Antoine Duval What Happens in Switzerland Stays in Switzerland: The Striani Judgment of the Brussels Court of Appeals
• Daniela Heerdt Will the World Cup 2022 Expansion Mark the Beginning of the End of FIFA’s Human Rights Journey?
• Thomas Terraz Can European Citizens Participate in National Championships? An Analysis of AG Tanchev’s Opinion in TopFit e.V. Daniele Biffi v Deutscher Leichtathletikverband e.V.
• Thomas Terraz League of Legends European Championships: Challenging the Boundaries of Sport in EU Law
• Marjolaine Viret How Data Protection Crystallises Key Legal Challenges in Anti-Doping

Law in Sport

• Jiri Janak Judicial oversight of sports associations in the Czech Republic – does the new Civil Code strike the right balance between autonomy and intervention?
• Lucio Mazzei The global development of women’s football – a review of the strategies being implemented by FIFA, UEFA and in Italy
• Adam Powell Stadium naming deals: Why clubs and sponsors should always consider their termination rights
• Andrew Reid Football kit supplier deals – lessons for clubs on ‘matching rights’ from the Sports Direct v Rangers FC case
• Celia Rooney Sex on a spectrum in the binary world of sport: The CAS’s decision in the case of Caster Semenya & Ors v the IAAF

Other

• Andy Brown Red herrings, dead cats, apples and oranges: The gender debate
• Steve Cornelius Caster Semenya: The legal and ethical issues that should concern us all
• Sam Knight How Football Leaks is exposing corruption in European soccer
• Steve Magness All of your questions answered on the Caster Semenya controversy
• Despina Mavromati FIM v. KMSC – Arbitration clause in the statutes of a sports federation and Article 75 Swiss Civil Code
• Michael McCann U.S. soccer, Relevent Sports and the legal battle over staging matches on USA soil
• Roger Pielke Jr Caster Semenya ruling: Sports federation is flouting ethics rules
• Roger Pielke Jr. Pielke comments on Semenya/ASA vs. IAAF

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 – 8^th 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