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 I: Saved by the Osaka Déjà-Vu
• Act II: On being implicated 
• Act III: On being sufficiently tested
• Act IV: On Bringing a sport into disrepute

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?

A.    The IAAF’s second thoughts over the implication of Klishina

What happened between 9 July, when Klishina was first green lighted by the IAAF Doping Review Board (DRB) and 10 August when the DRB revoked its previous decision to let her compete? Basically, the publication of the McLaren Report, and especially evidence showing “that the Applicant had been directly affected and tainted by the State-organised doping scheme described in the IP Report”.[1] More concretely, according to the Report, Klishina was affected in the following three ways:

      i.   “a sample collected on 26 February 2014, yielding a T/E ratio of 8.5, had been subject to a "SAVE" order by the Ministry of Sport on 3 March 2014;

      ii.   a sample collected on 17 October 2014 and subsequently seized by WADA December 2014 was found to bear marks and scratches consistent with the removal of the cap and contained urine from the Applicant but also from another female athlete; and

      iii.  a sample collected on the occasion of the 2013 IAAF World Championships in Moscow was also found to bear marks and scratches consistent with the removal of the cap.”[2]

In its original decision, the DRB had reserved its right “to reconsider the Applicant’s case should information ever be brought to its attention (including but not limited to as a result of the current investigation being conducted by Professor McLaren on behalf of WADA) that the Doping Review Board considers is such as to undermine the basis upon which the application was accepted”.[3] Thus, unsurprisingly, the CAS acknowledged that the DRB had the competence to reconsider the eligibility granted to the athlete. Nonetheless, surprisingly, it found that such reconsideration was not legitimate in light of the new information gathered.

B.    The surprising decision of CAS to let Klishina jump

Klishina won in front of the CAS. From the outset this is a surprising decision, since she was at least as implicated in the IP Report as numerous other Russian athletes who were barred from entering the Games.[4] Indeed, she had clearly profited from being “saved” by the Russian Ministry of Sport. So why on earth would the CAS decide to let her jump?

This decision is intimately linked with the legal basis of the original decision of the DRB. Despite the repeated view of the IOC that the IAAF policy was stricter than its own,[5] the Klishina case demonstrates that this is not universally true in practice. The main point was that the IAAF’s DRB had recognized that since 1 January 2014, Klishina “had been subject to fully compliant drug testing in- and out-of-competition”[6] and therefore fulfilled the criteria enshrined in the IAAF Competition rule 22.1A(b). This was based on the following factual findings:

• “The fact that she had spent 632 days out of Russia, being 86.6% of her time, in the Relevant Period;
• She had relocated permanently to the United States in March 2014 and had been trained under a US coach since October 2013;
• She regularly competes in competitions on the international circuit;
• A total of 11 samples had been collected from the Applicant outside of Russia in the Relevant Period;
• 1 sample had been collected by the IAAF since June 2016 and sent for analysis by a laboratory outside of Russia.”[7]


The question is then whether the new information, indicating that Klishina was implicated and benefitted from the Russian doping scheme, recognized as valid by the Panel[8], could justify revisiting the first decision. In other words, could this new information lead to reconsidering the eligibility of Klishina under the regime of IAAF Competition rule 22.1A(b) on which the original decision was based? To assess this, the Panel starts by pointing out that the rule “is not the same as the decision of the IOC Executive Board made after the publication of the IP Report. (…) As the parties agreed, the IOC Executive Board decision is not in evidence in this case and decisions of the Ad hoc Panel of the CAS for the Games of the XXXI Olympiad in Rio de Janeiro as to the application of, or the terms of, the IOC Executive Board decision are not applicable”.[9]

The CAS Panel insists that the IAAF’s DRB “was comfortably satisfied that during the Relevant Period the Applicant satisfied each of the criteria set out in the Rule for exceptional eligibility, notwithstanding the suspension of the National Federation”.[10] Furthermore, “in making its findings, the DRB was aware of, and took no account of, tests conducted in Russia and that it was cognisant of inadequacies in the system of testing in Russia, for which RusAF had been suspended”.[11] Those are decisive conclusions that will lead to the second decision being set aside. The CAS Panel was of the view “that the conclusion reached in the Second Decision, and the basis for that decision, are not in accordance with the Rule which was purportedly invoked”.[12] It is so, because “the further evidence considered by the DRB for the purposes of the Second Decision did not undermine its finding in the First Decision that the Applicant was eligible to compete by reason of her compliance with the Rule”.[13] This analysis leads to an unfair solution as the undisputed evidence points at Klishina profiting not once but on three occasions from the Russian doping scheme and still this evidence is not considered as relevant to reconsider the IAAF’s original decision to let her jump.

This decision is grounded on the following legal reasoning: the Panel considers that the “implication [of Klishina in the State-doping system] is not relevant to the application of criteria which, if fulfilled, mean that for the purposes of the Rule [22 IAAF], the Applicant is not affected or tainted by the failures of the National Federation”.[14] The CAS Panel is of the view that the IAAF Rule “provides for a mechanism or a basis by which an athlete is granted exceptional eligibility”.[15] And this “mechanism is fulfilment of the two criteria which, for this athlete, was established by the DRB in the First Decision”.[16] Thus, the “fact that the athlete was subjected to or the subject of drug testing that was not fully compliant during the Relevant Period does not derogate from the fact that she was, during the Relevant Period (that is, ‘a sufficiently long period’), subject to fully compliant drug testing in- and out-of- competition by reason of the fact that she was during that time training in and resident in the United States and not in Russia”.[17] Additionally, “there is no evidence to suggest that the testing that she was subject to was other than equivalent in quality to the testing to which her competitors were subject”.[18] In other words, “an athlete may have undergone non-compliant testing while concurrently being subject to fully compliant testing and still fulfil the second criterion”.[19] This is comforted by the fact “that the Rule is addressed to the suspension of any International Federation for failure to put in place an adequate system and the impact on the eligibility of the athlete” and the “criteria are directed to the establishment by an athlete that he or she is outside the country of his or her National Federation during the Relevant Period”.[20] Hence, it “is not addressed to the implication of an athlete in a defective system”.[21] Instead, “it states that an athlete is taken not to be affected or tainted by the action of the National Federation if he or she was subject to other, compliant systems outside of the country”.[22] In a nutshell, for the CAS Panel, the “relevant question is not whether the athlete was affected by the Russian System, or how, or whether she had knowledge of the way in which the system worked”.[23] No, the only question is “whether she fulfilled the criteria of the Rule”.[24] And the answer to that question is: she did early July; and she still does in August!

This case is disconcerting as it contradicts the line of cases regarding the implication of athletes in the IP Report discussed a few days ago. The CAS relied on the ambiguous wording of the IAAF provision to offer an escape route to Klishina. In doing so, it disregarded the spirit and objective of the provision, which was to provide a mechanism for athletes who were not personally tainted by the Russian doping scandal to participate in IAAF competitions. Yet, another aspect of the case is even more bizarre. Why did the IOC not block the eligibility of Klishina on the basis of paragraph 2 of the IOC Decision? She was undoubtedly implicated and benefited from the scheme. In fact, only one of the three sources of implication provided by McLaren should (and would) have been enough for the IOC Review Panel and the CAS arbitrator reviewing her eligibility to discard her from the Olympics. It did not happen, Zeus only knows why…

Epilogue

These five blogs have discussed the awards rendered by the CAS ad hoc Division in Rio involving Russian athletes wishing to compete at the Olympics. In general, the CAS has been willing, with few exceptions (Efimova and Klishina), to approve the ineligibility of Russian athletes. Rightfully, in my view, the CAS has supported the IFs that have opted for a strict approach in dealing with the eligibility of Russian athletes for the Rio Olympics. The CAS has also unsurprisingly rebutted the blunt rule of the IOC excluding Russian athletes who were previously sanctioned for doping. But, it has surprisingly let Klishina jump, in spite of all the factual elements pointing at her being implicated in, and having profited from, the Russian State-doping scheme. Overall, the CAS ad hoc Division has served its purpose as a review instance well, forcing the IFs and the IOC to properly justify their decisions and providing an avenue for the Russian athletes to be heard.

These cases also highlight the variety/plurality of responses to the Russian doping scandal and its impact on the eligibility of Russian athletes for the Rio Olympics. It seems that some IFs have taken WADA’s call for a strong response of the SGBs seriously. Unfortunately, and this is one of the negative consequences of the IOC’s decision to not decide, due to a lack of information, it is impossible to assess the different policies of the IFs which have not faced (due to their reluctance to act or else) a challenge of their eligibility decisions in front of the CAS ad hoc Division. In light of recent revelations concerning the International Swimming Federation (FINA) it is likely that a number of IFs decided to interpret narrowly the IOC criteria and waved through the overwhelming majority of Russian athletes without a proper check.

Finally, the awards show that CAS arbitrators would have been ready to condone a general exclusion of Russian athletes, with a narrow exception for those not tainted by the scandal or who could not benefit from the scheme because they were residing outside of the Russian Federation (this is very much the position adopted in the recent decision of the CAS in the dispute between the Russian Paralympic Committee and the International Paralympic Committee). The CAS recognized the seriousness of the situation and the collective responsibility of Russian sports organizations. It seemed also ready to follow up on this collective responsibility by endorsing collective sanctions that would most likely have been found compatible with the Russian athletes ‘natural rights’. Hence, ultimately, the IOC’s decision to let the Russian athletes compete at the Rio Olympics may have been politically unavoidable, but was certainly not legally mandated. I leave you to appreciate whether this decision is compatible with the IOC’s proclaimed fundamental values and its commitment to enforcing the World Anti-Doping Code. What is certain, however, is that the World Anti-Doping System needs an overhaul (for some reform proposals/directions see here) sooner rather than later.

[1] CAS OG 16/24 Darya Klishina v. IAAF, para. 2.12.

[2] Ibid.

[3] Ibid., para. 2.8.

[4] See Act II of this blog series.

[5] See CAS OG 16/13 Anastasia Karabelshikova and
Ivan Podshivalov v. 
World Rowing Federation (FISA)
and
International Olympic Committee (IOC), para. 7.14 and CAS OG 16/12 Ivan Balandin v. FISA & IOC, para. 7.22.

[6] CAS OG 16/24 Darya Klishina v. IAAF, para. 7.3.

[7] Ibid., para. 7.14.

[8] Ibid., paras 7.40-45.

[9] Ibid., para. 7.24.

[10] Ibid., para. 7.34.

[11] Ibid., para. 7.35.

[12] Ibid., para. 7.46.

[13] Ibid.

[14] Ibid., para. 7.56.

[15] Ibid.

[16] Ibid.

[17] Ibid., para. 7.57.

[18] Ibid.

[19] Ibid., para. 7.58.

[20] Ibid., para. 7.60.

[21] Ibid.

[22] Ibid.

[23] Ibid.

[24] Ibid.

Editor’s note: Thomas Terraz is a third year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.

1.     Introduction

To many it may seem obvious that athletes in a national championship should only be able to participate if they have the nationality of the relevant state. The Dutch Road Cycling National Championships should have Dutch cyclists, and the German Athletics Championships should have German athletes and so forth. However, in reality, foreign competitors are allowed to participate in many national championships in the EU, and there is a wide discrepancy between the rules of national sport governing bodies on this issue. There is no unified practice when investigating this point by country or by sport, and rules on participation range from a complete ban on foreign competitors to absolutely no mention of foreign athletes.[1] Thus, the question arises: should foreign athletes be able to participate in national sport championships?

The Court of Justice of the European Union (CJEU) will soon be required to provide an, at least partial, answer to this dilemma as a result of an application for a preliminary ruling.  A German Court has referred three questions to the CJEU on the case TopFit e.V. Daniele Biffi v Deutscher Leichtathletikverband e.V. (DLV) which in essence ask whether EU citizenship rights and in particular, the requirement of non-discrimination on the basis of nationality, should be applied to non-nationals wishing to participate in an athletics national championship in Germany. In the meantime, the Advocate General (AG), who provides a non-binding opinion to the Court before a decision is delivered, Evgeni Tanchev has delivered an interesting opinion on the case. It addresses the claims from the applicants based on EU citizenship rights and urges the CJEU to instead review the case on the basis of the freedom of establishment.

This blog will dissect the AG’s opinion to assess the main arguments put forward in relation to freedom of establishment and EU citizenship. Furthermore, it will weigh the ramifications this case may have on the boundaries of EU law in relation to sport. To fully appreciate the AG’s opinion, it is necessary to first discuss the intriguing factual and legal background colouring this case. After all, this will not be the first time the CJEU faces thorny issues concerning discrimination on the basis of nationality and sport.

2.     Factual Background of TopFit e.V. Daniele Biffi v Deutscher Leichtathletikverband e.V. (DLV)

The second applicant in this case, Mr. Biffi, is an Italian resident in Germany since 2003. He works professionally as a personal trainer and coach and has a website which advertises his services. He has been a member of the Berlin-based athletics club TopFit (the first applicant) and has competed in athletics competitions including German national championships within the senior category of athletes above the age of 35. In these national competitions, he had his placings recorded and published his results on his website. In 2016, the DLV changed its rules on non-nationals participating in national championships across all age categories without notice or transitional period. The rules were changed to only allow German nationals to compete for the national title while non-nationals could only participate outside classification with the permission of the organisers. As a result, Mr. Biffi was even denied the ability to participate in one of the championships in which he previously participated without raising a brow. The applicants challenged the DLV rule on the basis that it is in contravention to the prohibition of discrimination on the basis of nationality under EU citizenship. 

3.     European Sports Law and Nationality Based Discrimination

Generally, sport governing bodies aim to have the maximum autonomy possible to formulate and apply their rules. In the EU, they have attempted and ultimately failed at securing an absolute autonomy.[2] The current relationship between the sport governing bodies and the EU has been described as a ‘conditional autonomy’ where sport governing bodies may exercise their discretion in formulating and applying their rules so long as they do not conflict with EU law.[3] It should be noted that the CJEU has mainly scrutinized rules from sport governing bodies which affect economic interests of the parties in the context of free movement and competition law. Evidently, this relationship has resulted in a struggle between sport governing bodies and the EU over a number of topics including non-discrimination on the basis of nationality.

Traditionally, the CJEU has addressed issues of non-discrimination on the basis of nationality in sports cases from a free movement perspective in ensuring that sport rules do not disrupt the EU’s internal market. For example, when a rule from the Union Cycliste Internationale (UCI) required that a pacemaker be the same nationality as the cyclist in the UCI Motor-paced World Championships, the CJEU rendered its ruling on the basis of the provisions establishing the free movement of workers and service providers. Moreover, the Union of European Football Associations’ (UEFA) 3 plus 2 rule which allowed football clubs to limit the number of foreign players who could play in a match to three players plus two more players who had been ‘assimilated’ by having played a certain amount of years in the concerned national football association were found in the famous Bosman case to be in contravention of the free movement of workers provisions.

In the present case, the parties have argued the case on the basis of the prohibition on the discrimination of nationality flowing from EU citizenship rights. Based on Article 9 of the Treaty on European Union, all nationals of an EU member state automatically have EU citizenship. However, these rights are only triggered when other more specific rights, such as free movement rights, are not activated first. Put differently, if the facts of a case fall within a free movement right, then the case can only be inspected in light of the relevant free movement provision; hence, EU citizenship rights may only be invoked where free movement rights are not applicable.

Interestingly enough, as the AG points out in his opinion, the facts of this case could also be framed as a restriction to freedom of establishment. In any event, the CJEU has yet to address sport rules which concern non-discrimination on the basis of freedom of establishment or EU citizenship.

So how should the CJEU address this issue? Freedom of establishment or EU citizenship rights?

4.     Analysing AG Tanchev’s Opinion: Freedom of Establishment or EU Citizenship Rights?

4.1.Scope of the Freedom of Establishment

Very early on in the opinion, AG Tanchev unambiguously expresses his preference for analysing the present case through a free movement lens.[4] He explains that Mr. Biffi is self-employed as a personal trainer and coach on a continuous and stable manner in Germany which amounts to an economic activity connected to his sporting pursuits.[5] Therefore, AG Tanchev believes the analysis should be pursued under the freedom of establishment provisions. For this view to be endorsed, it is essential that Mr. Biffi’s economic activity is sufficiently connected to his sporting endeavours.

In this context, AG Tanchev recalls the Deliège case which concerned a Judoka, who argued that a national sport governing body’s refusal to select her for an international competition was a violation of her freedom to provide services. The Court in that case had to determine whether she was engaged in an economic activity in order for the fundamental freedom to apply. In doing so, the Court unequivocally states that simply because a sport governing body labels its athlete an amateur, it does not mean that they are automatically disengaged from economic activity, and economic activities in the context of free movement of services should not be interpreted restrictively.[6] Therefore, the Court in the Deliège case focused on the judoka’s sponsorships deals and grants to conclude that she was engaged in economic activities.[7] AG Tanchev, in examining the Deliège case’s relevance, explains that this demonstrates EU law’s flexibility in finding a link between sporting and economic activities, and that even if the DLV’s rules only have an ‘indirect impact’ on Mr. Biffi’s economic activities, it should fall within the scope of the freedom of establishment.[8]

4.2.Restriction on the Freedom of Establishment and Justifications

The opinion then goes on to find that there has been a restriction of Mr. Biffi’s freedom of establishment because the DLV rule puts Mr. Biffi ‘at a disadvantage when compared with German nationals engaged in the provision of athletic training services’ because he is unable ‘to make reference to his achievements in national sporting championships in order to attract business.’ Furthermore, he states that consumers are ‘more likely to be drawn to an athletics coach advertising on-going excellence … in the national athletics championships.’[9] Given that the DLV rule is directly discriminatory, EU law only allows justification under the express derogations enshrined in the Treaty on the Functioning of the European Union (TFEU). The DLV would have had a larger window to defend their rules if they were indirectly discriminatory since the CJEU accepts both express derogations and justifications which have been developed by its own case law.

AG Tanchev readily finds that the DLV’s rules fall under the public policy derogation by aiming to ensure that the winner of the national title has a ‘sufficiently strong link’ with the country organising the championship and to ensure that the national selection of athletes for international competitions is not disrupted. It could be argued that these aims have been too easily advanced as public policy objectives. The CJEU has never accepted the former as a derogation or a justification, and concerning the latter, the CJEU has accepted objectives which ensure national representation in international competitions only as justifications. Since justifications developed by the CJEU generally are not applicable to cases of direct discrimination, such as the present case, it can be said that the opinion perhaps too quickly embraces these pursued aims as public policy objectives. This being said, sport already enjoyed a special treatment in the past as the CJEU has been open to consider justifications for directly discriminatory measures in the Bosman case.

4.3.Is the DLV’s measure proportionate?

Assuming that these aims are accepted as express derogations, the DLV measures must then pass proportionality requirements which in EU law require a measure to be suitable for the pursued aim and necessary to achieve those aims. In the sporting context, the CJEU has explained that in order for a sporting rule to be proportionate it must be limited to its proper objective and it must be inherent to the organization of the sport event.[10] AG Tanchev affirms that the measure is disproportionate because the rule disallows Mr. Biffi from competing for the national title and precludes classification in such a competition when for many years he had been allowed to compete and be classified as any other German athlete.[11] Furthermore, given he had this pre-existing right, the DLV’s failure to take any transitional measures or give sufficient notice of this change violates the legitimate expectations of Mr. Biffi who exercised his free movement in reliance of this established regime and infringes the general principle of acquired rights.[12] Thus, it can be inferred that in AG Tanchev’s view, the measure could have been proportionate had there been sufficient transitional measures in place. Such a broad interpretation of proportionality by including the non-national's right to compete for the national title, would greatly restrict the options of a sport governing body wanting to change a rule that could negatively affect the participation of non-nationals in their national competitions.

If this broad approach is not accepted, AG Tanchev contends the measure is still disproportionate since the DLV’s rules potentially exclude non-national participants from competing at all in the national championships. Such a measure could only be legitimate in ‘unusual circumstances.’ In this vein, the opinion suggests less restrictive rules which instead limit the number of non-classified athletes.[13]

Other alternative models have been suggested which are much more likely to pass the proportionality test. One commentator has suggested that non-nationals should be allowed to compete in national championships while perhaps only restricting their ability to actually win the title.[14] If applied to this case, this model would allow Mr. Biffi to participate with classification in the national championships, but if he (or other non-national) were to take the first place, the national title would be given to the highest classified German athlete in the competition. Another model put forward in a recent study suggests that a non-national can only compete in the national championship after having been resident or being member of a local club for a certain period of time. All of these suggestions show that there are a multitude of less restrictive ways to protect the organisation of national championships and the selection process of national athletes for international competitions. An outright ban on participation or only allowing participation outside of classification is remarkably restrictive and has very little chance of passing the necessity requirements under proportionality.

Overall, the argument that this case should be analysed from the freedom of establishment perspective is rather convincing because the economic dimension is clearly present. However, there is still a possibility that the CJEU will follow the line of arguments brought by the applicants based on EU citizenship rights addressed at the end of AG Tanchev’s opinion.

4.4.EU Citizenship Rights

AG Tanchev begins by explaining that even if non-discrimination on the basis of nationality deriving from EU citizenship are applied, the result of the case should be the same because the stated aims of the DLV simply do not meet the proportionality requirements.[15]  However, the opinion goes on to firmly oppose the application of EU citizenship rights in this context.

In its submissions, the Commission had strongly endorsed a view that access to leisure activities should always fall within the scope of EU citizenship rights. AG Tanchev disagrees with such a wide-ranging interpretation because it would be a huge ‘constitutional step’ to give Article 21 TFEU horizontal direct effect, meaning a private party could invoke this provision in a national court against another private party. He maintains that this provision is meant to only have vertical direct effect, where a private party may invoke this provision in a national court against the state. He explains that extending horizontal direct effect to this rather open-ended provision would have a capricious effect that would damage legal certainty because Article 21 TFEU ‘comes into play in the broad and unpredictable range of circumstances’ where applicants are ‘unable to show a link between what is in issue and economic activities’ or ‘fall outside of EU legislation concerning freedom of movement.’[16] On the other hand, one could argue the very purpose of this Article is to provide EU citizens with other means to dispute measures which harm their free movement, and such a restricted interpretation would damage l’effet utile of this provision.   

While it is probably the case that Mr. Biffi’s circumstances fall within the scope of his free movement rights, imagine if he did not have any economic interest, and instead of a coach and personal trainer, he was an accountant or car mechanic. If AG Tanchev’s approach were to be taken in such a case, Mr. Biffi would have absolutely no recourse under EU law to challenge such a discriminatory rule. If Article 18 and 21 TFEU were to be interpreted so restrictively, private monopolistic actors who exercise powers that resemble those of a state (such as many sport governing bodies) could make the exercise of the European citizenship less attractive by limiting the participation of non-nationals in certain leisure activities. The Commission is right in taking a broad approach on this issue, although in the end it found the DLV’s rule to be proportionate, especially since Article 18 and 21 TFEU makes no express reservations against the applicability of these provisions on private parties.[17] A wide interpretation would completely fit the ‘conditional autonomy’ model in which sport rules fall within the scope of EU law, and it is for the sport governing bodies to explain how and why the rule is necessary or ‘inherent’ to the conduct of sports.

5.     Conclusion

If the CJEU finds this case to fall under the scope of the freedom of establishment, it is likely the DLV’s rules will fail to be justified or crumble under the proportionality requirements. Likewise, the outcome is likely to be the same in the improbable case that EU citizenship rights are applied. However, it truly would be a ‘constitutional step’, as AG Tanchev asserted, by greatly widening the possibility of using EU citizenship rights to challenge nationality discrimination in even amateur and leisure sport. Moreover, solidifying horizontal direct effect of the EU citizenship rights would have an impact way beyond sport related cases.

Regardless, even if Mr. Biffi’s case is examined from the freedom of establishment, it will be a momentous occasion for the CJEU to further elucidate the boundaries of the application of EU law to sport. In this respect, AG Tanchev’s opinion provides an excellent analysis of the legal issues arising from the free movement perspective and picks up on the most evident detail that all the parties in the case seemed to have glanced over: Mr. Biffi has an economic interest which is tied to his sporting activities. In the long run, the application of EU citizenship rights to sports seems inevitable, but TopFit e.V. Daniele Biffi most likely does not provide the CJEU with a golden opportunity to express itself on this matter.

[1] T.M.C. Asser Institute Report, ‘Study on the Equal Treatment of Non-Nationals in Individual Sports Competitions’ (2010).

[2] Case 36-74 B.N.O. Walrave and L.J.N. Koch v Association Union cycliste internationale, Koninklijke Nederlandsche Wielren Unie and Federación Española Ciclismo [1974] ECR 1974 –01405; Case C-415/93 Union royale belge des sociétés de football association ASBL v Jean-Marc Bosman, Royal club liégeois SA v Jean-Marc Bosman and others and Union des associations européennes de football (UEFA) v Jean-Marc Bosman [1995] ECR I-04921.

[3] Stephen Weatherill, Principles and Practice in EU Sports Law (1^st edn, Oxford University Press 2017) 71.

[4] Case C-22/18 TopFit e.V. Daniele Biffi v Deutscher Leichtathletikverband e.V. [2019] ECLI:EU:C:2019:181, Opinion of AG Tanchev, para 48.

[5] ibid para 55.

[6] Joined Cases C-51/96 and C-191/97 Christelle Deliège v Ligue francophone de judo et disciplines associées ASBL, Ligue belge de judo ASBL, Union européenne de judo [2000] ECR I-02549 para 46.

[7] ibid paras 51-53.

[8] TopFit, Opinion of AG Tanchev (n 4) para 62.

[9] ibid para 70.

[10] Walrave (n 2) para 9; Deliège (n 6) para 64.

[11] TopFit, Opinion of AG Tanchev (n 4) paras 80, 88.

[12] ibid para 83.

[13] ibid paras 92-93.

[14] Weatherill (n 3) 203.

[15] TopFit, Opinion of AG Tanchev (n 4) para 97.

[16] ibid para 103.

[17] ibid paras 37-40.