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.

Major International Sports Law Decisions

European Court of Human Rights - Judgment Ali Riza and Others v. Turkey - system for settling football disputes must be reformed

Official Documents and Press Releases

FIFA

• FIFA - Infantino elected to International Olympic Committee
• FIFA - FIFA develops new and enhanced integrity resources for member associations and confederations
• FIFA - FIFA and hosts Qatar present joint FIFA World Cup™ Sustainability Strategy
• FIFA - FIFA reports show further upward trend in both men’s and women’s transfer markets
•   FIFA - Reform proposals concerning football agents’ regulations

IOC

• IOC – IOC Session Receives Updates on Anti-Doping Activities
• IOC – IOC Statement on Notice of Intervention in the CAS Case of WADA and RUSADA
• IOC – The IOC and the Olympic Games – Addressing Climate Change
• IOC – President Bach Re-Emphasises Importance of Solidarity Model and Political Neutrality at IOC Session
• IOC – IOC Executive Board and IOC Athletes’ Commission Discuss Major Topics at Annual Joint Meeting
• IOC – Statement by the IOC Regarding the Situation of the IWF

WADA

• WADA - WADA files official request with Court of Arbitration for Sport to resolve RUSADA dispute
• WADA - WADA launches its new ‘Testing Center’ – a ‘Next Gen’ ADAMS module that will help strengthen testing programs worldwide
• WADA - WADA provisionally suspends approved status of Moscow Laboratory
• WADA - WADA Executive Committee appoints new Standing Committee Chairs, receives update regarding RUSADA compliance case
• WADA - WADA statement on German documentary concerning the International Weightlifting Federation

Other

• Athletics Integrity Unit - Athletics Integrity Unit Board refers RusAF charges to the World Athletics Council and recommends considering expulsion of the federation.
• Athletics Integrity Unit - World Athletics v Michelle-Lee Ahye
• Athletics Integrity Unit – Decision of the Athletics Integrity Unite in the case of Ms Kateryna Tabashnyk
• EU Athletes - Statement on Bye-law 3 to Rule 40 of the Olympic Charter
• Fédération Equestre Internationale (FEI) – Prohibited substance cases under FEI human anti-doping rules
• Fédération Internationale de Volleyball (FIVB) – FIVB Commits to Further Investments in its Athletes
• FIFPRO – FIFPro Underlines Commitment to Player Activism
• Global Athlete – Global Athlete Statement in Response to IOC President Thomas Bach’s New Year’s Message
• Global Athlete – Statement based on the new ARD Documentary “Secret Doping – the Lord of the Lifters”
• Global Athlete – Global Athlete Calls on UK Anti-Doping to Provide More Transparency in its Refusal to Allow WADA to Retest Anti-Doping Samples
• Global Athlete – Athletes Call for IWF President to Stand Down and Submit to Full Investigation
• International Canoe Federation - ICF decision on Laurence Vincent Lapointe
• International Tennis Federation – Provisional suspension imposed on Nicolas Jarry
• International Tennis Federation – ITF President David Haggerty Elected IOC Member
• International Weightlifting Federation – IWF rejects ARD allegations
• International Weightlifting Federation – IWF Acts Decisively to Restore Reputation
• International Weightlifting Federation – IWF Executive Board Appoints Richard H. McLaren to Lead Investigation into ARD Allegations
• Tennis Integrity Unit – Lifetime Ban and $200,000 Fine for Joao Olavo Soares de Souza After Conviction on Match-Fixing Charges
• Tennis Integrity Unit – Tennis Integrity Unit Publishes Annual Review for 2019
• Tennis Integrity Unit – Jonathan Kanar Suspended and Fined After Admitting to Corruption Offence
• UCI - The UCI commits to developing cyclo-cross and reinforcing the fight against doping
• UKAD – UKAD Statement regarding the reanalysis of athlete samples and WADA
• UNI Global Union - ILO affirms: athletes must be protected by fundamental principles and rights at work
• UNI Global Union - ILO finds professional athletes face widespread workplace challenges
• World Archery – Beginners’ Guide to Rule 50 for Archery at the Tokyo 2020 Olympic Games
• World Athletics - World Athletics modifies rules governing competition shoes for elite athletes
• World Athletics - World Athletics to postpone World Athletics Indoor Championships Nanjing 2020
• World Athletics - Charges brought by the AIU against RusAF for breach of the anti-doping rules

In the News

Football

• Rob Harris - One deal agents can’t reach in transfer window is with FIFA
• David Conn - Revealed: the scale of Manchester City’s FFP breaches before 2014 Uefa deal
• Tim Wigmore - Exclusive: Doubts raised over whether Premier League clubs can sign young Europeans after January Brexit deadline
• Tariq Panja - La Liga Chief Claims Saudi Arabia Is Using Sports to ‘Whitewash’ Reputation

Doping

• Sean Ingle - Claims of Russian doping deal as trial begins of former IAAF president Diack
• Sean Ingle - IOC concerned by ‘very serious’ doping allegations in weightlifting

Other

• Sean Ingle - World Athletics gives seal of approval for controversial Nike Vaporfly shoes
• Graham Dunbar - IOC details rules on political protests at Olympics
• Tariq Panja - Olympic Protest Rules: Tweets Are Fine, Kneeling Is Not
• Richard Hinds - The Olympics is a politically potent event, and it is an absurd pretence that 'politics and sport don't mix'
• Dave Zirin - John Carlos Responds to the New Olympics Ban on Political Protest
• Jules Boykoff - The Olympics are political. The IOC ban denies reality — and athletes their voice.

Academic Materials

ASSER International Sports Law Series

• Bart van der Sloot, Mara Paun and Ronald Leenes - Athletes’ Human Rights and the Fight against Doping: A Study of the European Legal Framework    

Other

• Mariusz Motyka-Mojkowski and Dennis Cukurov - Restrictions of Sport Sponsorship from a Competition Law Perspective—Recent Example from Germany

Blog

Asser International Sports Law Blog

• Thomas Terraz - Balancing Athletes’ Interests and The Olympic Partner Programme: the Bundeskartellamt’s Rule 40 Decision

Law in Sport

• Ben Koh and Tracey Holmes - Are you being heard? How the Sun Yang public hearing exposes a gap in athletes’ rights
• Toni Roca and Xavi Fernández - Tackling bridge transfers in football: An important ruling from the Royal Spanish Football Federation
• Jonathan Bellamy - An overview of FIFA’s new data protection regulations
• Jonathan Collins - Switching nations: why FIFA’s definition of ‘nationality’ is causing confusion

Sports Integrity Initiative

• Andy Brown - Strict liability in anti-doping is punishing the innocent*
• Andy Brown - Pressure builds on IWF as corruption claims are corroborated

SportLegis

• Despina Mavromati - Ali Riza et al. v. Turkey – European Court of Human Rights Judgment of 28 January 2020

Podcasts

• France Culture - Dakar saoudien, Mondial qatari : un cap pour la péninsule

Upcoming Events

• 05 March 2020 - Mega-sporting events and human rights: What role can EU sports diplomacy play?, Asser Institute, The Hague, The Netherlands
• 17-18 March 2020 – WADA Annual Symposium, SwissTech Convention Center, Lausanne, Switzerland
• 26-27 March 2020 – 14^th Conference of the PSA Sport & Politics Group, Etihad Stadium, Manchester, UK
• 18-19 June 2020 – Sport & EU 2020 Annual Conference, Rijeka and Opatija, Croatia

Editor's note: Jack Anderson is Professor and Director of Sports Law Studies at the University of Melbourne

1.     Caster Semenya appealed to the Swiss Federal Court (SFT) arguing that World Athletics’ regulations violated human rights principles relating to gender discrimination and human dignity. The Swiss Federal Tribunal (as at CAS) held that World Athletics’ regulations may prima facie breach such human rights principles but were “necessary, reasonable and proportionate” to maintain fairness in women's athletics;

2.     Although in part addressed at the SFT, expect further legal argument on this in the domestic courts of South Africa or at the ECtHR, and in the following ways:

• Necessity - is the athletic advantage that Caster Semenya has of such a scientifically-measurable extent that it is necessary for World Athletics to intervene in such an invasive manner? In a broader ethical sense, is the incidence of what the World Athletics’ regulations call “difference of sex development” of such prevalence in the general population, and specifically in middle-distance athletics, that, by way of the principle of “sporting beneficence”, intervention is justified. Or, in contrast, is the incidence of DSD not at a level which justifies a departure from the ethical principle of primum non nocere – first, do no harm?

• Reasonableness - if World Athletics’ regulations are necessary, is the manner of implementation reasonable and in line with the principle of human and bodily integrity? In answering such a question, the focus must be on the fact that in order to continue to compete in her favourite events (such as the 800 metres) Caster Semenya will have to lower her testosterone level through medication;

• Proportionate - if World Athletics’ regulations are necessary and reasonable is the manner of implementation proportionate? In answering such a question, the focus must be on whether the regulations disproportionately discriminate against a certain, limited group of athletes in a certain, limited number of events and in a certain, limited manner.

3.     Overall, in assessing whether the qualification of a human right (e.g. freedom of expression) can be justified, the usual issue for a court is that that human right is competing against or in conflict with another human right or issue of public importance (in the instance of free expression, that competing issue might be one of public order or health, for example). The fundamental issue in the Caster Semenya proceedings seems to be whether the qualification of anti-discrimination principles can be justified, not on grounds such as, in the absence of such regulation, other athletes might be endangered in competing against Caster Semenya; but rather and simply that without intervention, it is unfair, in the sporting sense, on other athletes to compete against Caster Semenya. Is a purely sporting right (a level playing field) sufficient of itself to justify a derogation from a fundamental principle of human rights or is that derogation something that can reasonably be reserved to a sporting body on the grounds of fair competition for all?

4.     In sum, both CAS and now the SFT, have said that World Athletics has justified the deviation from human rights law because (a) it is necessary, as premised on a scientifically measurable, sporting disadvantage and (b) the resulting regulations have been drafted/implemented in a reasonable/proportionate manner.

5.     A key legal issue in the future is how the CAS’s award and the SFT’s judgment can be reconciled with the opinion of the United Nations High Commissioner for Human Rights in a report presented recently to the 44th session of the Human Rights Council (15 June to 3 July 2020) on the “Intersection of race and gender discrimination in sport”. In that report, the UN High Commissioner for Human Rights elaborated on relevant international human rights norms and standards and the corresponding obligations of States and the responsibilities of sporting bodies towards women and girl athletes. In doing so, the report identified possible gaps in the protection of the human rights of women and girls in sports and including the manner in which sport resolves disputes with a significant human rights element to them.

6.     At paragraph 53 of the report, the UN High Commission for Human Rights concluded pertinently:

“In addition, regulations regarding female eligibility to compete in sport raise concerns about the ability of all athletes to enjoy their rights. Private sports bodies and their rules and regulations dominate the current global and corporatized structure of sport governance. Concerns have been raised in this context indicating that women and girl athletes may face serious obstacles to accessing effective remedies and seeking full redress for violations of their human rights. In accordance with their obligations under international human rights law, States should ensure that non-State actors, including sport governing bodies, respect human rights in their own regulatory regimes and are accountable for breaches.”

7.     It is also of note that prior to the SFT judgment and with implied reference to the Semenya award at CAS, the UN High Commissioner for Human Rights noted the following two points (at paragraph 47). First, the process under Swiss law of appealing a CAS award to the SFT includes an appeal premised on public policy ground of prohibition from discriminatory measures -  A. v. Z., FIFA and X., Case No. 4A_304/2013, judgment of 3 March 2014, sect. 5.1. Second, the Commissioner noted that:

“Other national courts may also refuse to recognize and enforce an arbitral award if doing so would be contrary to the public policy of that State, which may include certain fundamental human rights.”

8.     In this, the UN High Commissioner relied on article V (2) (b) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The Commission did admit however that such a decision by a state (e.g., if South Africa refused to recognised the CAS award in the Semenya case) would be “jurisdictionally limited, as it would not be capable of suspending the regulations of a sport governing body [World Athletics] worldwide.”

9.     With regard to World Athletics’ regulations, World Athletics itself appear to recognise the dynamic, living nature of the research and policy objectives that underpin the regulations. It follows that where new evidence is presented (on, for example, the scientific foundations of the regulations or their manner of implementation or impact on athletes) the necessity, reasonable and proportionality of the regulations can and ought to be reassessed.

10.  Finally, the proceedings as whole might suggest that where an analogous human rights related case arises again (and not just in athletics) an athlete may resile from having it resolved at CAS, arguing, in the language of human rights law, that CAS does not provide an “effective remedy”.  But the focus on CAS is somewhat misplaced. CAS’s jurisdiction is founded in, granted to it by and largely constricted to the interpretation of the regulations of the referring sports body – in this case World Athletics. Although of little consolation to the athlete herself, the key legal lesson from the Caster Semenya proceedings – which appear far from over -  may be that the campaign to embed human rights principles in the regulations of sports bodies must continue apace and where sport bodies agree to comply with such principles, human rights norms should permeate not just their regulatory activities but should also enable athletes to rely on any and all aspects of human rights law up to and including seeking effective remedy at CAS.