Mohamed Dahmane is a professional football player of French-Algerian origin, who has played for a variety of European clubs, including French club US Mauberge, Belgian club RAEC Mons and Turkish club Bucaspor. However, he will mostly be remembered as the player whose legal dispute with his former club (Belgian club KRC Genk) revived the debate on football players’ labour rights.  

Journalists wasted no time in comparing it to the Bosman case.[1] Fair enough, Dahmane and Bosman do show some striking similarities: the two cases concerned players employed by mediocre Belgian football clubs claiming their right to be treated as normal workers. Furthermore, in both cases the respective Courts met (to a large extend) the players’ demands. The Bosman case not only changed labour conditions for all footballers, it shook the whole transfer system. In Dahmane, the case is essentially about whether it is justifiable to have a special law that obliges professional football players who unilaterally break their players’ contract to compensate their club for up to 36 months of salary. After all, “normal” workers are only obliged to pay a 12 months of salary compensation in an identical situation. Whether the Dahmane case will have the same weight as Bosman depends on the effects of the judgment on footballers in Belgium, but also on the European football sector in general. Therefore, a close look at the ruling is needed to understand its potential consequences.

Dahmane signed a four-year contract with KRC Genk on 1 July 2007, he then unilaterally terminated the contract in January 2008 following a row with his coach. Due to the contract termination, KRC Genk demanded a compensation amounting to EUR 878.888,88. The demand was based on Articles 4 § 4 and 5 § 2 of the Law for Professional Athletes and the Royal Decree of 13 July 2004. Indeed, according to the Royal Decree, the compensation had to be equal to 36 months of salary. Dahmane disagreed with KRC Genk’s demands and argued that the compensation should be calculated in accordance with Article 40 § 1 of the general Labour Agreements Law. Pursuant to this Article the severance pay can only amount to a maximum of 12 months of salary.

In a judgment of 25 May 2009, the Labour Court (Court of first instance) concurred with the demands of KRC Genk and ordered Dahmane to compensate KRC Genk for EUR 878.888,88.

Dahmane placed an appeal with The Court of Labour arguing that Article 4 § 4 of the Law for Professional Athletes and the Royal Decree breached Articles 10 and 11 of the Belgian Constitution on equal treatment and non-discrimination.[2] KRC Genk, for its part, argued that the difference between labour agreements of professional footballers on the one hand and “normal” labour agreements on the other is based on the ‘specific character of labour agreements of professional footballers and the specific character of sport in general’. Thus, the ‘specificity of sport’ would imply a special status for sport, whereby ‘normal’ law (i.e. the general Labour Agreements Law) cannot be applied unabridged. KRC Genk highlighted that to achieve the objectives inherent to football, which include avoiding competition distortions and the preservation of the stability of participating sport clubs, certain specific measures, such as the Royal Decree of 2004, can be taken in order to safeguard the legal certainty of labour relationships in the sport sector.[3]

The Court of Labour dismissed the arguments raised by KRC Genk, and held that the Royal Decree applies to all professional sports, not only to football, thereby denying validity to RKC Genk’s claims on the specificity of football.[4]

The Court agreed with KRC Genk that sport exhibits certain characteristics that can deviate from other labour relationships between employer and employee. However, the Royal Decree in question did not mention the specificity of sport in its text, nor does it provide any objective justifications as to why separate rules regarding compensation after a unilateral termination of a labour contract is necessary for the sport sector. Furthermore, the pursuit of financial profits, and the importance of preserving a fair competition have to be taken into account. Those economic objectives are not specific to the sport sector. Therefore, the Court saw no valid reason justifying a separate Royal Decree, when sport’s economic dimension can be equally covered by existing legislation. In other words, the same laws should be used to achieve the same objectives.[5]

As regards KRC Genk’s view that some rules preventing richer clubs from buying all the good players from smaller clubs, thereby distorting competition, are justifiable, the Court found that to be incorrect. Even though it is true that football’s transfer system is different from “normal” movement of workers, a distinction needs to be made between buying and selling of players on the one hand, and the unilateral termination of a player’s contract on the other hand. Here again the Court found the breach of the Constitutional Articles on equal treatment and non-discrimination based on the specificity of the football transfer system was not objectively justified in the Royal Decree.

The Court reminded the parties that the transfer system, which only allows two periods a year for clubs to buy and sell players, would limit the possibility for professional footballers to change clubs. Moreover, it highlighted that compensation equal to 12 months of salary comprises two transfer periods, and should therefore not be seen as unreasonable. Lastly, the Court took into account that the average career of a professional sportsman is relatively short (12 years according to KRC Genk and six to eight years according to Dahmane). A compensation amounting to 36 months of salary would, for many professional players, amount to 1/3 of the player’s revenue during his career and should therefore be deemed unjustifiable.[6]

Hence, the Court considered that a Royal Decree imposing a compensation of 36 months of salary on a player breaching his contract is disproportionate. Furthermore, the Court found the Royal Decree unjustifiable under the Constitutional principle of equal treatment and non-discrimination.

Dahmane revives a debate that has occupied academics in the fields of sports law, labour law and other fields of law for many decades. Is sport special and do its specificities oblige the European and national legislators to make laws that answer the specificities of sport? Should professional athletes be treated different from normal workers because sport is “special”? After Bosman, no transfer fees needed to be paid for players whose contract had ended and no limitations on the number of EU nationals were allowed to be imposed by the football clubs. In other words, the European Court of Justice (ECJ) found professional footballers to be very much like normal workers. Similarly, the Dahmane case lead the Belgian Court of Labour to deny any difference between professional athletes and normal workers regarding compensation after a unilateral termination of the labour contract. Even though Dahmane, as appellant, had asked the Court to raise a preliminary question to the ECJ on the compatibility of the law with the free movement of workers[7], the Court decided the case under Belgian law only.[8] It is therefore highly unlikely that Dahmane will have the same transnational effect as Bosman and mass unilateral contract terminations by professional athletes across the EU are not to be expected. 

Dahmane could set a precedent and encourage professional players in Belgium to simply break their contract, move to another club and pay compensation equal to 12 months of salary. This would be the worst-case scenario for Belgian clubs, since a compensation equal to 12 months of salary will nearly always be inferior to a transfer fee. On the other hand, mass unilateral contract terminations by footballers in Belgium would vindicate the need for specific regulation for football clubs.

In many ways the Belgian Court of Labour has “passed the ball” back to the Belgian legislator. Should the Belgian legislator feel that professional athletes, or footballers for that matter, have to be treated differently compared to normal workers then it could always decide to adopt specific laws or Royal Decrees for professional athletes. However, Dahmane will serve as a warning that these separate laws or Royal Decrees will need proper objective justifications as to why professional athletes are to be treated differently.

[1] See for example: Zaak-Dahmane krijgt allure van zaak-Bosman

[2] Arrest A.R. 2009/AH/199 (6 may 2014) Sub II, §1

[3] Ibid, Sub III §6

[4] Ibid, §7

[5] Ibid, §6

[6] Ibid, §7

[7] Ibid, Sub II, §1

[8] Ibid, Sub III §12

Introduction: The new WADA Code 2015
Day 1: The impact of the revised World Anti-Doping Code on the work of National Anti-Doping Agencies
Day 2: The “Athlete Patient” and the 2015 World Anti-Doping Code: Competing Under Medical Treatment
Day 3: Proof of intent (or lack thereof) under the 2015 World Anti-Doping Code

Editor's note
Mike Morgan is the founding partner of Morgan Sports Law LLP. His practice is focused exclusively on the sports sector. He advises on regulatory and disciplinary issues and has particular experience advising on doping and corruption disputes.

Mike acted on behalf of National Olympic Committees at three of the last four Olympic Games and has represented other sports bodies, clubs and high profile athletes in proceedings before the High Court, the FIFA Dispute Resolution Chamber, the American Arbitration Association and the Court of Arbitration for Sport.

I. Introduction

According to the World Anti-Doping Agency (“WADA”), the 2015 World Anti-Doping Agency Code (the “2015 Code”), which came into effect on 1 January 2015,  is a “stronger, more robust tool that will protect the rights of the clean athletes”[1]. Among the key themes of the revised Code, is the promise of “longer periods of Ineligibility for real cheats, and more flexibility in sanctioning in other specific circumstances”[2].

While Article 10 of the 2015 Code unquestionably provides for longer periods of ineligibility, the validity of WADA’s claim that the harsher sanctions will be reserved for “real cheats” depends partly on how one defines the term “real cheat”, and partly on how the 2015 Code’s mechanisms for reducing sanctions are to be interpreted.

This blog reflects on the totality of the context from which the current sanctions regime arose.  That is important because Article 10 will have to be applied in a manner consistent with that context in mind if the 2015 Code is to become the tool promised by WADA and if it is to avoid the scrutiny of the courts.

II. Context

A.   Katrin Krabbe

In the lead up to the adoption of the first version of the WADA Code (the “2003 Code”), there was considerable debate as to what length of sanction could lawfully be imposed on an athlete for a first violation[3].

The decision finally to settle on a two-year ban for first offences was heavily influenced by the findings of the Munich Courts in the case of Katrin Krabbe, that a suspension exceeding two years was disproportionate[4]:

(a)           The Regional Court held that a two-year suspension imposed on an athlete for a first offence “represents the highest threshold admissible under fundamental rights and democratic principles”.[5]

(b)           The High Regional Court held that the three-year ban imposed by the IAAF “was excessive in respect of its objective. Such a rigid disciplinary measure as a sanction for a first sports offence is inappropriate and disproportionate”.[6]

And so it came to pass that a first violation under Article 10.2 of the 2003 Code would be punished with a two-year sanction. Various legal opinions procured by WADA between 2003 and 2008 affirmed the position that a two-year sanction for a first violation (1) was a significant incursion on the rights of the individual affected; and (2) was likely the limit of the severity that could be imposed in the absence of aggravating circumstances[7].

B.   Specified Substances

The 2003 Code proved somewhat inflexible, which resulted in two-year bans for unintentional and minor anti-doping rule violations. One of the starkest examples of that inflexibility arose in CAS OG 04/003 Torri Edwards v IAAF & USATF.

Edwards had consumed glucose powder that, unbeknownst to her, contained the stimulant nikethamide. A two-year ban was imposed on her on the basis that she could not meet the thresholds for “No Fault” and “No Significant Fault” and despite the fact that she had, in the words of the CAS panel, “conducted herself with honesty, integrity and character, and that she has not sought to gain any improper advantage or to ‘cheat’ in any way”[8].

Ms Edwards’ case became a cause célèbre, leading the IAAF to lobby WADA to have nikethamide and other similar stimulants reclassified as Specified Substances. The then vice-president of the IAAF, Dr Arne Lungqvist explained as follows:

I asked Torri Edwards whether she would allow me to use her case as an example of the importance of making some sort of differentiation between those weak stimulants that you can get over the counter by accident, carelessness, negligence or whatever.  We are not after those who are negligent.

WADA acceded to the IAAF’s lobbying and downgraded nikethamide to the Specified Substance list in September 2005. The IAAF Council shortly thereafter reinstated Edwards to competition further to the doctrine of lex mitior. Following Edwards’ reinstatement, Dr Lungqvist explained as follows:

The IAAF wishes to see strong penalties for real cheats. This was a different case, […]  I did not feel comfortable when I had to defend the then-existing rules against her at the CAS hearing in Athens.

I judge that Torri has paid a high price for having inadvertently taken a particular substance at the 'wrong' time, shortly before [the reclassification] and from now on such an intake would result in a warning only. (Emphasis added)

Four years later, WADA went one step further and, with the introduction of the 2009 version of the WADA Code (the “2009 Code”), broadened the list of substances that would be categorised as Specified Substances, promising “lessened sanctions….where the athlete can establish that the substance involved was not intended to enhance performance” under Article 10.4[10].  

The aim was to avoid the likes of the Edwards case. Indeed, a number of cases determined under the 2009 Code which involved the same glucose brand that had landed Edwards with a two-year ban in 2004, resulted in periods of ineligibility ranging between 0 – 6 months[11].

C.   The rise and fall of “aggravating circumstances”

The primary themes of the 2009 Code were, according to WADA, “firmness and fairness”. “Fairness” was to be reflected by the broadening of the Specified Substance list, while “firmness” was intended to manifest itself through the concept of “aggravating circumstances” [12].  

The presence of “aggravated circumstances” permitted Anti-Doping Organizations (“ADOs”) to increase periods of ineligibility beyond the standard two-year ban up to a maximum of four years[13].

A legal opinion commissioned by WADA in relation to the “aggravated circumstances” provisions (the “Third WADA Legal Opinion”) noted as follows[14]:

91. […] it is clear that the intention to enhance performance is not in and-of-itself an aggravating circumstance.

92. […] This provision makes it clear that cheating is an important element of the notion of aggravating circumstances. However, the mere fact of cheating alone is not sufficient. Additional elements are required.

93. The essence of the concept of aggravating circumstances is thus a qualified kind of cheating, which involves an additional element. (Emphasis added)

Not only, therefore, was actual cheating required to invoke the provision but there needed to be something more than the mere fact of cheating. Examples provided by the 2009 Code included being part of a doping scheme or using multiple prohibited substances[15]. 

The “aggravated circumstances” provision was rarely invoked and, when it was, it rarely resulted in the maximum increase[16]. That ultimately led to the removal of the “aggravated circumstances” provision from the 2015 Code and the introduction of standard four-year sanctions, explained as follows by WADA[17]:

There was a strong consensus among stakeholders, and in particular, Athletes, that intentional cheaters should be Ineligible for a period of four years.  Under the current Code, there is the opportunity for a four-year period of Ineligibility for an Adverse Analytical Finding if the Anti-Doping Organization can show “Aggravating Circumstances.” However, in the more than four years since that provision has been part of the Code, it has been rarely used. (Emphasis added)

The decision to double the standard two-year sanctions to four years may have surprised anyone who had ever read the Third WADA Legal Opinion, since that opinion had expressly cautioned as follows:

138. […] one should bear in mind that a four-year ban would most often put an end to an athlete’s (high level) career and thus be tantamount to a life ban. Therefore, an aggravated first offence could de facto be punished as harshly as numerous second offences (Article 10.7.1) and almost all third offences (Article 10.7.3).

139. This could raise problems if the ineligibility period were automatically of four years in the presence of aggravating circumstances. In reality, Art. 10.6 provides for an increased suspension of up to four years, which means that the adjudicating body is afforded sufficient flexibility to take into account all the circumstances to ensure that aggravating circumstances do not systematically result in a four-year period of ineligibility. (Emphasis added)

D.   Proportionality

The principle of proportionality plays an important role in the determination of sanctions applicable in doping matters. The principle pervades Swiss law[18], EU law[19] and general principles of (sports) law[20].  

The CAS itself has consistently measured sanctions imposed on athletes against the principle of proportionality both before the inception of the WADA Code and since.

(a)           Pre-WADA Code: the anti-doping rules of many sports prior to the creation of the WADA Code mandated fixed sanctions without the possibility of reductions. The CAS nevertheless sometimes reduced these sanctions on the basis they were not proportionate.[21]

(b)           Post-WADA Code: The WADA Code introduced mechanisms by which sanctions could be reduced or eliminated.  However, the CAS has made clear that the introduction of these mechanisms does not remove the obligation of disciplinary panels to measure the sanctions applied in any particular case against the principle of proportionality. In CAS 2005/A/830 Squizzato v. FINA, the CAS held that:

10.24 […] the Panel holds that the mere adoption of the WADA Code […] by a respective Federation does not force the conclusion that there is no other possibility for greater or less reduction a sanction than allowed by DC 10.5. The mere fact that regulations of a sport federation derive from the World Anti-Doping Code does not change the nature of these rules. They are still – like before – regulations of an association which cannot (directly or indirectly) replace fundamental and general legal principles like the doctrine of proportionality a priori for every thinkable case.

Though the 2015 Code asserts that it “has been drafted giving consideration to the principles of proportionality and human rights”[22], that obviously does not mean that proportionality no longer plays a part in the assessment of sanctions for the same reasons propounded by the CAS in Squizzato. Indeed, the 2015 Code itself recognises that it “is intended to be applied in a manner which respects the principles of proportionality and human rights”[23]. Moreover, the most recent CAS decisions in which the principle of proportionality was applied concerned the sanctioning regimes of the 2003 and 2009 Code, both of which mandated default sanctions of two years, not four years[24].  The principle of proportionality is, therefore, arguably even more relevant now than it previously was.

III. Comment

While the 2015 Code does have more mechanisms by which to modify the default sanctions than in previous versions of the WADA Code, that is partly because the default sanctions with regards to most of the violations have doubled[25]:

Athletes accused of committing a violation under Articles 2.1, 2.2, 2.3 or 2.6 are now in a position in which they are required to meet the Article 10.2 thresholds regarding “intent” simply to get them back to the two-year default sanctions that would have applied under previous versions of the Code[26].

If the 2015 Code is to become the tool promised by WADA and if it is to avoid or survive legal challenges, tribunals will need to ensure that their interpretations of the reduction mechanisms, such as those contained at Article 10.2, do not result in disproportionate sanctions.

The parameters within which the proportionality of a sanction falls to be measured were described as follows by the panel in CAS 2005/C/976 & 986 FIFA & WADA:

139. A long series of CAS decisions have developed the principle of proportionality in sport cases. This principle provides that the severity of a sanction must be proportionate to the offense committed. To be proportionate, the sanction must not exceed that which is reasonably required in the search of the justifiable aim. (Emphasis added)

The evaluation of whether a sanction is proportionate therefore begins with the identification of the “justifiable aim”. According to WADA, the increased sanctions were intended to target “intentional cheats”. That is echoed by the wording of Article 10.2.3 of the 2015 Code, which provides as follows:  

As used in Articles 10.2 and 10.3, the term “intentional” is meant to identify those Athletes who cheat. The term, therefore, requires that the athlete or other Person engaged in conduct which he or she knew constituted an anti-doping rule violation or knew that there was a significant risk that the conduct might constitute or result in an anti-doping rule violation and manifestly disregarded that risk [….] (Emphasis added)

The final sentence emphasised above is, arguably, open to interpretation.  However, the first line identifies the overarching aim of the provision – i.e. “the term ‘intentional’ is meant to identify those athletes who cheat”.

According to the Oxford Dictionary, a “cheat” is a “person who behaves dishonestly in order to gain an advantage” and the act of “cheating” amounts to “a fraud or deception”.  A reasonable inference, therefore, is that athletes who “cheat” are athletes who have acted knowingly and dishonestly to gain an unfair advantage.

Article 10.2 cannot, therefore, be intended to punish careless athletes.  Bearing in mind the limits pronounced by the courts in Krabbe and bearing in mind the “justifiable aim”, any interpretation of the provision that would result in a four-year ban for nothing more than careless – or even reckless, but otherwise honest - conduct would risk inviting the sort of scrutiny exercised by the German courts in the Pechstein[27] and Krabbe cases.

Likewise, the interpretation of the other reduction mechanisms, such as Article 10.5 (“No Significant Fault or Negligence”), will require the same degree of pragmatism.  If the parameters for “No Significant Fault” were to be applied as strictly today as they were in the Edwards case, anti-doping would end up right back to where it was in 2004, when the Code’s sanctioning regime was perceived to be so inflexible that it had to be overhauled in 2009. Assuming that the aim of the 2015 Code is not to take 11 years’ worth of backward steps, tribunals will have to ensure that “No Significant Fault” is interpreted in a manner that fulfils WADA’s promise of “greater flexibility”, particularly in cases involving Specified Substances and Contaminated Products[28].

IV. Concluding Remark

The 2015 Code has the potential to become the fairest WADA Code to date. However, it also has the potential to be the cruelest. Interpreting it in a manner consistent with the totality of the context from which it was conceived is the surest way to ensure that the right version prevails.

[1] https://www.wada-ama.org/en/what-we-do/the-code

[2] https://wada-main-prod.s3.amazonaws.com/wadc-2015-draft-version-4.0-significant-changes-to-2009-en.pdf

[3] See (1) http://library.la84.org/OlympicInformationCenter/OlympicReview/1999/OREXXVI26/OREXXVI26s.pdf; and (2) http://library.la84.org/OlympicInformationCenter/OlympicReview/1999/OREXXVI26/OREXXVI26t.pdf

[4] See Kaufmann-Kohler, G., Rigozzi, A., and Malinverni, G., “Doping and fundamental rights of athletes: comments in the wake of the adoption of the World Anti-Doping Code”, I.S.L.R. 2003, 3(Aug), 39–67 *61

[5] Krabbe v. IAAF et. al., Decision of the LG Munich of 17 May 1995, SpuRt 1995 p. 161, p. 167

[6] Krabbe v. IAAF et. al., Decision of the OLG Munich of 28 March 1996, SpuRt 1996 p. 133, 138

[7] See (1) Legal Opinion on the Conformity of Certain Provisions of the Draft World Anti-Doping Code with Commonly Accepted Principles of International Law, dated 23 February 2003, paragraphs 142 and 143; (2) Legal Opinion on whether Article 10.2 of the World Anti-Doping Code is compatible with the Fundamental Principles of Swiss Domestic Law, dated 25 October 2005, paragraph 3 (b) (aa) at page 26 and paragraph 3. (f) (aa) at page 32; and (3) Legal Opinion on the Conformity of Article 10.6 of the 2007 Draft World Anti-Doping Code with the Fundamental Rights of Athletes, dated 13 November 2007, at paragraphs 33, 114, 138 and 139

[8] See paragraph 5.8 of CAS OG 04/003 Torri Edwards v IAAF & USATF

[9] See IAAF press release dated 22 November 2005

[10] 2009 Code, Article 10.4 (“Elimination or Reduction of the Period of Ineligibility for Specified Substances under Specific Circumstances”)

[11] See (1) CAS 2011/A/2493 Antidoping Switzerland v/ X; (2) CAS 2013/A/3327 Marin Cilic v. International Tennis Federation & CAS 2013/A/3335 International Tennis Federation v. Marin Cilic; (3) AFLD Decision No. 2011-71 dated 7 July 2011; (4) AFLD Decision No. 2009-50 dated 10 December 2009

[12] Article 10.6 of the 2009 WADA Code (Aggravating Circumstances Which May Increase the Period of Ineligibility)

[13] Note that Violations under Articles 2.7 (Trafficking) and 2.8 (Administration) were not subject to the application of Article 10.6 since the sanctions for those violations (four years to life) already allowed discretion for aggravating circumstances

[14] Legal Opinion on the Conformity of Article 10.6 of the 2007 Draft World Anti-Doping Code with the Fundamental Rights of Athletes, dated 13 November 2007

[15] See commentary to Article 10.6 of the 2009 Code

[16] See CAS 2013/A/3080 Alemitu Bekele Degfa v. TAF and lAAF for a detailed assessment by the CAS of the “aggravated circumstances” provision

[17] WADA, Significant Changes between the 2009 Code and the 2015 Code, Version 4.0, 1 September 2013

[18] See paragraph 124 of CAS 2005/C/976 & 986 FIFA & WADA

[19] See paragraphs 47 and 48 of Case C-519/04 P Meca-Medina & Majcen v Commission [2006] ECR I-6991

[20] See paragraph 83 of the First WADA Legal Opinion

[21] See (1) CAS 1996/56 Foschi v. FINA; (2) CAS 2002/A/396 Baxter v. FIS; (3) CAS 2001/A/337 B. / FINA

[22] See page 11 of the 2015 Code - “Purpose, Scope and Organization of the World Anti-Doping Program and the Code”

[23] See the Introduction at page 17 of the 2015 Code

[24] See, for instance (1) CAS 2010/A/2268 I. v. FIA; and (2) TAS 2007/A/1252 FINA c. O. Mellouli & FTN

[25] Note that the table only reflects the default sanctions applicable before consideration of any of the mechanisms intended to increase or decrease those sanctions

[26] Note that article 10.2 only applies to those violations. For a detailed assessment of Article 10.2, see Rigozzi, Antonio and Haas, Ulrich and Wisnosky, Emily and Viret, Marjolaine, Breaking Down the Process for Determining a Basic Sanction Under the 2015 World Anti-Doping Code (June 10, 2015). ISLJ, (2015) 15:3-48

[27] See (1) Landesgericht (LG) München, 26. February 2014, 37 O 28331/12; and (2) Oberlandesgericht (OLG) München, 15 January 2015, Az. U 1110/14 Kart

[28] Notably, the concept of “No Significant Fault or Negligence” in previous versions of the Code was limited to ‘‘exceptional circumstances’’. That limitation has been removed in the context of Specified Substances and Contaminated Products under Article 10.5.1 of the 2015 Code. Thus, it should now be easier for athletes to trigger the application of “No Significant Fault” in those types of cases than it previously was. See Section 6.2 of Rigozzi et al for a detailed discussion of the point