Join us for a round table co-organized by GLawNet and the Asser Institute at the Campus Brussels of the Maastricht University (Avenue de Tervueren 153, 1150 Brussels) just one day after the publication of the Opinion of Advocate General Rantos in the European Super League (ESL) case. The discussion between academics and stakeholders will focus on the role played by the EU, as well as the role it ought to play, in determining the way football is organised and governed.

In 2021, the announcement of the creation of a breakaway European Super League (ESL), as well as the drama of its early demise, stunned the world.  Since then, the company behind the ESL and UEFA (as well as FIFA) are locked into a legal battle that will soon come to an end at the Court of Justice of the European Union (CJEU). Following the preliminary questions raised by a Spanish court, the CJEU will weigh in on whether UEFA and FIFA breached EU competition law with their attempts to thwart the emergence of the ESL. It will not be the first time that the governing bodies of football, both Swiss associations, face scrutiny before the EU courts - many will remember the 1995 Bosman ruling. However, this time around various stakeholders and observers are calling for the EU to not only referee this particular dispute, but to as well start playing a stronger governance role by regulating European football.

Programme:

15:00 – 15:05 Opening: Mariolina Eliantonio (Maastricht University)

15:05 – 16:30 - Roundtable: Governing European Football: What role for the European Union?
Moderator: Carlo Colombo (Maastricht University)

•        Antoine Duval (Senior Researcher at the Asser Institute)
•        Benoit Keane (Keane Legal)
•        Alexander Bielefeld (Director Global Policy and Strategic Relations at FIFPro)
•        Arnout Geeraert (Assistant Professor, Utrecht university)

16:30 Reception

This is an In-Person event only and will take place at the Campus Brussels of the Maastricht University (Avenue de Tervueren 153, 1150 Brussels). If you wish to attend, please register HERE.

Supported by

The Headlines

Aguero and Massey-Ellis incident: An Opportunity for Change and Education?

In mid-October a clip went viral of Argentinian star Sergio Aguero putting his hands on sideline referee, Sian Massey-Ellis. A heated debate ensued in many circles, some claiming that Aguero’s conduct was commonplace, others taking aim at the appropriateness of the action, around players touching official and a male touching a female with an unsolicited arm around the back, the squeeze and pull in. Putting the normative arguments aside for a moment, the irony of the debate was that all sides had a point. Football, almost exclusively, has grown a culture of acceptance for touching officials despite the regulations. Male officials who have let such conduct slide, have arguably let their female colleague down in this instance.

Whilst a partial defence of Aguero might be that this kind of conduct takes place regularly, the incident could serve as a learning experience. If Massey-Ellis’ reaction was not enough, the backlash from some of the public might provide Aguero and other players the lesson, that touching a woman in this way is not acceptable.

Returning to football, the respect and protection of officials in sport, the key here appears to be cracking down on touching officials entirely. This is not a foreign concept and football need only look at the rugby codes. Under no circumstances does the regulations or the culture permit that a player from the rugby codes touch a referee. It is likely the case that the obvious extra level of respect for officials in these sports derives from a firm culture of no touching, no crowding officials, communicating with officials through the team captain only, with harsh sanctions if one does not comply.

The Football Association of England has decided no action was necessary, raising questions of how seriously they take the safety of officials, and gender issues. This is ultimately a global football issue though, so the confederations or international bodies may need step in to ensure the protections that appear at best fragile.  

Rugby Trans issue

The World Rugby Transgender guideline has been released and contains a comprehensive unpacking of the science behind much of the regulatory framework. Despite many experts applauding World Rugby on the guidelines and the extensive project to reach them, the England Rugby Football Union is the first to defy the World Rugby ruling and transgender women will still be allowed to play women’s rugby at all non-international levels of the game in England for the foreseeable future. This clash between national bodies and the international body on an important issue is concerning and will undoubtedly be one to keep an eye on.

CAS rejects the appeal of Munir El Haddadi and the Fédération Royale Marocaine de Football (FRMF)

The refusal to authorise a footballer to change national federation is in the headlines with the CAS dismissing the appeal of the player and Moroccan federation, confirming the original determination of the FIFA Players’ Status Committee.

This has been given considerable recent attention and seemingly worth following, perhaps best summed up by FIFA Director of Football Regulatory, James Kitching, where in a tweet he notes: “The new eligibility rules adopted by the FIFA Congress on 18 September 2020 have passed their first test. We will be publishing our commentary on the rules in the next fortnight. Watch this space.”

Major International Sports Law Decisions

CAS Decisions (September)

• CAS 2020/A/6807 Blake Leeper v. International Association of Athletics Federations

• CAS 2020/A/7356 ŠK Slovan Bratislava v. UEFA & KÍ Klaksvík

Official Documents and Press Releases

CAS

• CAS confirms the IBSF Anti-Doping Hearing Panel decision of 16 January 2019 in relation to Aleksander Zubkov, Aleksander Pushkarev, Aleksander Kasyanov & Ilvir Khuzin

• The CAS hearing in the procedure between the World Anti-Doping Agency (WADA) and the Russian Anti-Doping Agency (RUSADA) is maintained

• CAS dismisses the appeal of Andriamirado Aro Hasina Andrianamimanana & Kaizer Chiefs FC

• CAS partially upholds the appeal of Blake Leeper

• Update on the CAS proceedings in the arbitrations Andrea Iannone v/FIM and WADA v/ Andrea Iannone & FIM

FIFA

•  FIFA publishes first annual Players’ Status report
•  FIFA Player Status Department Report web 2019-2020
•  Trinidad and Tobago Court of Appeal rules in favour of FIFA
• Second meeting of Concussion Expert Group recommends trials of additional permanent substitutions
• Investigatory chamber of independent Ethics Committee concludes investigation into Yves Jean-Bart and sanctions another Haitian football official
• Bureau of the FIFA Council approves International Match Protocol and adapts rules on release of players

FIFPro

• FIFPro Issues Warning on Numerous Improper Match-Fixing Bans
• FIFPro Publishes Football Industry Recovery Recommendations
  

IOC

• Statement by the IOC Regarding the Situation of the IWF
• Executive Board (EB) of the International Olympic Committee (IOC) was today provided with interim reports on the situation of athletes in the Republic of Belarus

UEFA

• Temporary suspension of UEFA matches in Armenia and Azerbaijan
• UEFA secures Irish High Court order to halt illegal streaming of matches
• UEFA, Premier League and Canal+ International, welcome decision of Rwandan court in the fight against piracy

WADA

• WADA’s Education Committee focused on strengthening Clean Sport education worldwide
• WADA publishes revised Policy for the Acceptance of New World Anti-Doping Code Signatories
• WADA develops new method of identifying sample tampering as part of weightlifting investigation
• WADA Compliance Review Committee discusses way forward for compliance monitoring in light of COVID-19

World Athletics

• World Athletics’ response to CAS announcement of decision in Leeper case

Other Civil Society Organizations/Unions

• Asian Racing Federation council on anti-illegal betting & related financial crime – Quarterly Bulletin

In the News

Rugby

• International Player Release: the French legal challenge to World Rugby’s authority
• How Rugby Union is Responding to Covid-19: a Legal Update

Doping

• Mamadou Sakho Secures Apology and Damages from WADA
• Dr Richard Freeman admits third data loss after UCI request over bloods
• Entire Cycling Anti-Doping Foundation Board resigns before sport's switch to ITA
• After Doping Scandal, Russia Hacked the Olympics, U.S. and Britain Say
• Spanish court rules biological passport not valid for Salas' doping ban
• Christian Coleman banned for two years for missing drugs test

eSports 

• The difference in a letter: Is eSport “Sport”? The legal complexities of a booming industry
• An $11 Billion Merger, 500 Million Fans: ESports’ Time Is Approaching

Gymnastics

• British Gymnastics chief Jane Allen steps down in wake of abuse scandal
• Michelle Kinneavy: Former gymnast speaks of historical abuse in the sport

Other

• Polish Olympian Wins Fight to Compete in Fencing for Team U.S.A.
• Former FIFA official guilty, PSG head cleared at Swiss trial

Academic Materials

International Sports Law Journal

• Björn Hessert - The protection of minor athletes in sports investigation proceedings

Oxford Human Rights Law Review

• Lena Holzer - What Does it Mean to be a Woman in Sports? An Analysis of the Jurisprudence of the Court of Arbitration for Sport

Blog

Asser International Sports Law Blog

• Invalidity of forced arbitration clauses in organised sport…Germany strikes back! - By Björn Hessert
• The Specificity of Sport - Comparing the Case-Law of the European Court of Justice and of the Court of Arbitration for Sport - Part 1 - By Stefano Bastianon
• The Specificity of Sport - Comparing the Case-Law of the European Court of Justice and of the Court of Arbitration for Sport - Part 2 - By Stefano Bastianon

 Law in Sport

• Claiming commission on football sponsorship deals: lessons for agencies & clubs from Winlink v Liverpool FC
• Key trends in sports broadcasting: does the model really need to change?
• Trinidad and Tobago Football Association v. FIFA – the validity of normalisation committees and exclusive jurisdiction of CAS
• Name, image & likeness rights in the NCAA: the evolving legal landscape for college athletes
• Why football’s new handball rule is proving so controversial
• Indian sports law update: BCCI conflict of interest cases and IPL’s Covid-19 rules
• Cyber threats to sports organisations (and key steps to reduce exposure)
• Discrimination in football: a guide to The FA’s new charging policies and sanctioning guidelines

Play the Game

• Belarusian athletes take lead in battle for democracy
• Time to look beyond organised crime to stop match-fixing

Sport Integrity Initiative 

• UKAD retested just 120 samples in nine years
• Football: Restitution of over CHF 36 million

Podcasts

LawInSport

• The Premier League COVID-19 testing - legal & logistical with Prenetics
• Launch of Sports Law News Roundtable E1

Play On the Morgan Sports Law Podcast

• EP6: World Rugby’s Governance Review | Dan Leo, Matt Toomua, Ben Cisneros
• EP5: (Spanish Audio) FIFA’s rules on TPO & TPI | Gema Barrasa, Patricia Rodríguez, Marco Amezcua 

The International Association of Athletics Federations (IAAF), the monitoring body of track and field athletics, regularly submitted South African middle distance runner and Olympic gold medalist Mokgadi Caster Semenya to sex verification tests when it began questioning her sexual characteristics and speculating whether her body belonged on the Disorder of Sex Development (DSD) spectrum. DSD Syndrome is often defined as an “intersex condition” which affects the clear development of either/or genitalia, gonads and chromosomes into one distinctive sex or another. The spectrum of the intersex condition is particularly wide, and the disorder can sometimes be minimal - some cases of female infertility can actually be explained by an intersex condition.

The IAAF deemed the controversial sex verification tests necessary on the grounds that it was required to prove Semenya did not have a “medical condition” which could give her an “unfair advantage”. It was eventually found that, because of an intersex trait, Semenya did have abnormally high levels of testosterone for a woman, which, in the IAAF’s opinion, justified a need for regulatory hormonal adjustments in order for her to keep competing in the women’s category. The IAAF also funded research to determine how ‘hyperandrogenism’ affects athletic performance. In 2018, it issued Eligibility Regulations on Female Classification (“Athlete with Differences of Sexual Development”) for events from 400m to the mile, including 400m, hurdles races, 800m and 1’500m. The IAAF rules indicated that in case of an existing high level of testosterone, suppression or regulation by chemotherapy, hormonal castration, and/or iatrogenic irradiation was mandatory in order to take part in these events.

Semenya and her lawyers challenged the IAAF Regulations in front of the CAS, who, in a very controversial decision, deemed the Regulations a necessary, reasonable and proportionate mean “of achieving the aim of what is described as the integrity of female athletics and for the upholding of the ‘protected class’ of female athletes in certain events” (§626).

The CAS Ruling

Semenya and her attorneys claimed that forcing her to get unwanted medication represented a violation of human rights. On the 1^st May 2019, the Swiss-based Court of Arbitration of Sport (CAS) ruled in favor of the restrictions placed on female athletes with high levels of testosterone by the IAAF. The direct consequence of this decision for Semenya was the obligation for her to take testosterone suppressants in order to continue competing in her category of IAAF events.

In March 2019, the United Nations Human Rights Council issued a resolution indicating the IAAF Regulations were “not compatible with international human rights norms and standards, including the rights of women with differences of sex development” and that there was “no clear relationship of proportionality between the aim of the regulations and the proposed measures and their impact.”

Because the Regulations established conditions and restrictions which were targeted at the female (or intersex) athlete population exclusively and did not impose any equivalent conditions or restrictions on male athletes, the CAS Panel considered that the Regulations were, prima facie discriminatory on grounds of legal sex. After reminding that “it is common ground that a rule that imposes differential treatment on the basis of a particular protected characteristic is valid and lawful if it is a necessary, reasonable and a proportionate means of attaining a legitimate objective” (§548), the Panel considered that its sole responsibility was to determine whether the DSD Regulations were necessary, reasonable and proportionate. As such, the Panel said it was “not required to (…) appraise the adequacy of the IAAF’s policy-making process”.

The Swiss Federal Tribunal and ordre public

A decision from the CAS can only be challenged at the Swiss Federal Tribunal (SFT) on a limited number of grounds, enclosed in art. 190 al. 2 of the Federal Act on Private International Law (PILA), which include claiming that the principle of equal treatment of the parties or their right to be heard in an adversarial procedure has not been observed (lit. d) and that the award is incompatible with public policy (lit. e). At the beginning of June 2019, after an ex parte request, the SFT, Switzerland’s highest court, granted Semenya a temporary suspension of the IAAF rules on testosterone limits. She was able to compete over distances of 400 to 1’500m without medication, until the SFT issued a ruling.

Because it was considered that the discrimination was necessary, reasonable and proportionate in comparison with the vast majority of non-DSD women, the only outcome for Semenya’s lawyers was to argue on the violation of the principle of public order. The 30^th July 2019, the SFT reversed the ruling that temporarily lifted the application of the IAAF’s regulations, thus impeding her to defend her 800m title at the World Championships in Doha in September 2019. The SFT concluded that “neither the allegation of an infringement of the principle of non-discrimination, nor the alleged violation of ordre public due to an infringement of their personality and human dignity appeared with high probability to be well founded”. Welcoming the decision, the IAAF stated that, in certain particular cases, “biology trumps identity”.

The elements of comparison

Body Policing

Admitting that “the imperfect alignment between nature, law and identity is what gives rise to the conundrum at the heart of this case” (§559), the CAS stated that:

“On true analysis, (…) the purpose of the male-female divide in competitive athletics is not to protect athletes with a female legal sex from having to compete against athletes with a male legal sex. Nor is it to protect athletes with a female gender identity from having to compete against athletes with a male gender identity. Rather, it is to protect individuals whose bodies have developed in a certain way following puberty from having to compete against individuals who, by virtue of their bodies having developed in a different way following puberty, possess certain physical traits that create such a significant performance advantage that fair competition between the two groups is not possible.”

The public opinion could not help but point the finger at the underlying hypocrisy of the decision, in comparison with similar cases, both inside and outside of the sports world. Firstly, the same type of policy and legal arguments are often held for controlling certain types of bodies exclusively, whilst leaving others out of the line of sight. In the sports world, it is certainly the case: think of the impressive decoration of Olympian swimmer Michael Phelps aligned with the god-like praises he received for his physical strength and capacity; for instance. On the contrary, leaving “abnormally” tall basket-ball players on the bench so as to give naturally shorter players a chance to win, or testing male athletes with poor athletic results in suspicion they might have low levels of testosterone seems absurd. In fact, the latter are only tested as to make sure they do not take anything effectively modifying their capacities in competing. Semenya and her lawyers did point to the fact that “it is illogical and unnecessary to regulate one genetic trait while celebrating all the others” (CAS decision, §53).

Out of the sports world, indications of “naturalness” in pro-life arguments or governments’ refusal to medically cover the suppression of hormones in transgender reassignment cases are also examples of body policing. The case therefore raises the central question of how stereotypes, especially gender ones, give a social meaning to a fact and how legal regulation can confirm it, thus perpetuating it.

The social  meaning of women and gender

Taking a step away from Semenya’s cause célèbre, it must be stressed that, for long, women were not accepted to compete in the Olympics and that their progressive integration was only made possible when a redefinition of the norms of femininity and masculinity, as they relate to sports and competition, occurred. This means that medical tests were carried out and, as a backlash to noticing the instability and fluidity of sex categories, those very categories were reinforced and redefined according to stereotypes. In other words, the sports world went very far to ensure there was a biological difference so that the natural and social order as it was could not be disrupted.

If we try to move away from the (in my opinion, sterile) debate on biological differences (remembering that the latter has also been explained by anthropologists as being a consequence of our gendered social order[1]), we should ask ourselves who has the power to define the norms of femininity and masculinity. “Woman” and “man” have very particular social meanings. Furthermore, commentators often qualify the sex verification tests as being racially flawed. In this sense, the discussion is also of epistemological importance: the bonus corpus is never the female body, and is always the white male one, with “naturally” good athletic abilities. True, scientific results are usually dependent on a certain political order[2], as are any other empirical social-situated findings. The CAS Panel said that an assessment of the likely impact of the DSD Regulations on wider society would require “an analysis of multifaceted sociological issues which are not amenable to judicial resolution by an arbitral tribunal (…)” (§518). And, as such, it is certainly not for an arbitration court to have the power to (re)define gender categories, which are intrinsically political and historical, and are not limited to the sports world.

Appealing to the ECtHR

If she does not prevail before the SFT, Semenya could still appeal to the European Court of Human Rights, alleging a breach of Article 14 and/or Article 8[3]. It may give the Strasbourg Court an interesting opportunity to comment on gender opposition and binarity, as well as on the social limitations put on gendered bodies. The gender stereotypes discussion is not a new one; regional and international courts have had the opportunity, on many occasions, to comment on the need to combat harmful gender stereotypes[4]. However, they usually do so in relation to human rights law and to the principles of equality and non-discrimination. Even if, of course, not every unjustified discrimination is rooted in stereotypes[5], they seldom point at the wrong of gender stereotypes per se. Hopefully this may lead the ECtHR to further reflect on the harmfulness of gender stereotypes, beyond the well-established categories in need of protection against unjustified discrimination.

The CAS practically said that it was bound by biology. If anything, the results of the sex verification tests should have proven that Semenya’s body has incredible athletic abilities, with no requirements of medically modifying it whatsoever.

Conclusion

In a letter to the IAAF about their regulations, United Nations experts on health, torture, and women’s rights wrote:

“The assessment for ‘exclusion or treatment’ based on the IAAF regulations relies on suspicion and speculation, based on stereotypes about femininity. This effectively legitimizes widespread surveillance of all women athletes by requesting national federations as well as doctors, doping officials, and other official personnel to scrutinize women athletes’ perceived femininity, which can include appearance, gender expression, and sexuality. Women who are understood to be “suspicious” about their natural physical traits are tied to subjective and cultural expectations regarding which bodies and modes of gender expression are “appropriate,” or even valorised by adherence to traditional or normative aesthetics of femininity. Gender and sex-based stereotyping and stigma have a long history, not only of causing psychological harm to women and gender minorities, but also of increasing the possibility of violence against them.”

The social norms of gender act as a blur on reality, based on the stereotype that “a real woman” should not be that good of an athlete. It provides us with an overview of how public policy decisions are justified by scientific findings, operating in a gender-normative environment. The discrimination was considered “necessary, reasonable and proportionate” in comparison with the vast majority of non-DSD women, but it somehow appears to be a debate on the equality between women and men and on reaffirming the importance of the “fixed duality of sexual difference”[6]. The CAS Panel said that it was “faced with conflicting rights concerning the rights of female athletes who do, and do not, have DSD” (§554).

Interestingly enough, the more women are compared to each other, on the grounds of fairness, the stronger the female gender category is reinforced.

[1] Priscilla Touraille, Hommes grands, femmes petites : une évolution coûteuse. Les régimes de genre comme force sélective de l’évolution biologique, Éditions de la Maison des Sciences de l’Homme: Paris 2008.

[2] Thomas Laqueur, La Fabrique du Sexe: Essai sur le corps et le genre en Occident, Gallimard: Paris 1992.

[3] The ECtHR had considered an application brought following an unsuccessful appeal to the Swiss Federal Tribunal in the October 2018 decision ECtHR, Mutu and Pechstein v Switzerland, applications no. 40575/10 and no. 67474/10, ECLI:CE:ECHR:2018:1002JUD004057510, alleging breaches of Article 6 of the European Convention on Human Rights.

[4] The Office of the High Commissioner for Human Rights has broadly defined the notion of “harmful gender stereotypes”, as sexist beliefs, which include representing women in roles considered traditional; as mothers and household heads, as subordinates of men or as sexual objects. In 2013, the OHCHR prepared a report on sex and gender stereotypes, which outlines the practice of treaty bodies and their reference to gender stereotypes. The obligations of States with regard to stereotypes are those set out in Article 5 lit. a CEDAW, reinforced by Article 2 lit. f. which provides that States must “take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women”. At European level, judgments of the ECtHR have concerned stereotypes related in particular to sexuality (Kalucza v. Hungary), reproduction (A. B. C. v. Ireland; R. R. v. Poland) or domestic violence (Valiuliené v. Lithuania; Opuz v. Turkey). See also Konstantin Markin v. Russia; Carvalho Pinto de Sousa Morais v. Portugal; Khamtokhu and Aksenchick v. Russia.

[5] Sophia Moreau, ‘Equality Rights and Stereotypes’ in Dyzenhaus, D./ Thorburn, M. (eds.), Philosophical Foundations of Constitutional Law, Oxford University Press : Oxford 2019.

[6] Hilary Charlesworth, ‘Foreword’, in Harris Rimmer S./Ogg K., Feminist Engagement with International Law, Edward Elgar: Cheltenham 2019.