Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Report from the first ISLJ Annual International Sports Law Conference - 26-27 October at the T.M.C. Asser Instituut

Close to 100 participants from 37 different countries attended the first ISLJ Annual International Sports Law Conference that took place on 26-27 October 2017 in The Hague. The two-day programme featured panels on the FIFA transfer system, the labour rights and relations in sport, the protection of human rights in sport, EU law and sport, the Court of Arbitration for Sport, and the world anti-doping system. On top of that, a number of keynote speakers presented their views on contemporary topics and challenges in international sports law. This report provides a brief summary of the conference for both those who could not come and those who participated and would like to relive their time spent at the T.M.C. Asser Institute.More...

International and European Sports Law – Monthly Report – October 2017. By Tomáš Grell

Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked. More...

Multi-Club Ownership in European Football – Part II: The Concept of Decisive Influence in the Red Bull Case – By Tomáš Grell

 

Introduction 

The first part of this two-part blog on multi-club ownership in European football outlined the circumstances leading to the adoption of the initial rule(s) aimed at ensuring the integrity of the UEFA club competitions (Original Rule) and retraced the early existence of such rule(s), focusing primarily on the complaints brought before the Court of Arbitration for Sport and the European Commission by the English company ENIC plc. This second part will, in turn, introduce the relevant rule as it is currently enshrined in Article 5 of the UCL Regulations 2015-18 Cycle, 2017/18 Season (Current Rule). It will then explore how the UEFA Club Financial Control Body (CFCB) interpreted and applied the Current Rule in the Red Bull case, before drawing some concluding remarks.  More...

Multi-Club Ownership in European Football – Part I: General Introduction and the ENIC Saga – By Tomáš Grell

Editor’s note: Tomáš Grell holds an LL.M. in Public International Law from Leiden University. He contributes to the work of the ASSER International Sports Law Centre as a research intern.

 

Introduction

On 13 September 2017, more than 40,000 people witnessed the successful debut of the football club RasenBallsport Leipzig (RB Leipzig) in the UEFA Champions League (UCL) against AS Monaco. In the eyes of many supporters of the German club, the mere fact of being able to participate in the UEFA's flagship club competition was probably more important than the result of the game itself. This is because, on the pitch, RB Leipzig secured their place in the 2017/18 UCL group stage already on 6 May 2017 after an away win against Hertha Berlin. However, it was not until 16 June 2017 that the UEFA Club Financial Control Body (CFCB) officially allowed RB Leipzig to participate in the 2017/18 UCL alongside its sister club, Austrian giants FC Red Bull Salzburg (RB Salzburg).[1] As is well known, both clubs have (had) ownership links to the beverage company Red Bull GmbH (Red Bull), and therefore it came as no surprise that the idea of two commonly owned clubs participating in the same UCL season raised concerns with respect to the competition's integrity. More...


International and European Sports Law – Monthly Report – September 2017. By Tomáš Grell

Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

 

The Headlines 

2024 and 2028 Olympic Games to be held in Paris and Los Angeles respectively

On 13 September 2017, the Session of the International Olympic Committee (IOC) held in Lima, Peru, elected Paris and Los Angeles as host cities of the 2024 and 2028 Olympic Games respectively. On this occasion, the IOC President Thomas Bach said that ''this historic double allocation is a 'win-win-win' situation for the city of Paris, the city of Los Angeles and the IOC''. The idea of a tripartite agreement whereby two editions of the Olympic Games would be awarded at the same time was presented by a working group of the IOC Vice-Presidents established in March 2017. Both Paris and Los Angeles have pledged to make the Olympic Games cost-efficient, in particular through the use of a record-breaking number of existing and temporary facilities. In addition to economic aspects, it will be worthwhile to keep an eye on how both cities will address human rights and other similar concerns that may arise in the run-up to the Olympic Games. More...

The limits to multiple representation by football intermediaries under FIFA rules and Swiss Law - By Josep F. Vandellos Alamilla

Editor’s note: Josep F. Vandellos Alamilla is an international sports lawyer and academic based in Valencia (Spain) and a member of the Editorial Board of the publication Football Legal. Since 2017 he is the Director of  the Global Master in Sports Management and Legal Skills FC Barcelona – ISDE.

I think we would all agree that the reputation of players’ agents, nowadays called intermediaries, has never been a good one for plenty of reasons. But the truth is their presence in the football industry is much needed and probably most of the transfers would never take place if these outcast members of the self-proclaimed football family were not there to ensure a fluid and smooth communication between all parties involved.

For us, sports lawyers, intermediaries are also important clients as they often need our advice to structure the deals in which they take part. One of the most recurrent situations faced by intermediaries and agents operating off-the-radar (i.e. not registered in any football association member of FIFA) is the risk of entering in a so-called multiparty or dual representation and the potential risks associated with such a situation.

The representation of the interests of multiple parties in football intermediation can take place for instance when the agent represents the selling club, the buying club and/or the player in the same transfer, or when the agent is remunerated by multiple parties, and in general when the agent incurs the risk of jeopardizing the trust deposited upon him/her by the principal. The situations are multiple and can manifest in different manners.

This article will briefly outline the regulatory framework regarding multiparty representation applicable to registered intermediaries. It will then focus on provisions of Swiss law and the identification of the limits of dual representation in the light of the CAS jurisprudence and some relevant decisions of the Swiss Federal Tribunal.More...



The Evolution of UEFA’s Financial Fair Play Rules – Part 3: Past reforms and uncertain future. By Christopher Flanagan

Part Two of this series looked at the legal challenges FFP has faced in the five years since the controversial ‘break even’ requirements were incorporated. Those challenges to FFP’s legality have been ineffective in defeating the rules altogether; however, there have been iterative changes during FFP’s lifetime. Those changes are marked by greater procedural sophistication, and a move towards the liberalisation of equity input by owners in certain circumstances. In light of recent statements from UEFA President Aleksander Čeferin, it is possible that the financial regulation of European football will be subject to yet further change. More...

The Evolution of UEFA’s Financial Fair Play Rules – Part 2: The Legal Challenges. By Christopher Flanagan

The first part of this series looked at the legal framework in which FFP sits, concluding that FFP occupied a ‘marginal’ legal position – perhaps legal, perhaps not. Given the significant financial interests in European football – UEFA’s figures suggest aggregate revenue of nearly €17 billion as at clubs’ 2015 accounts – and the close correlation between clubs’ spending on wages and their success on the field,[1] a legal challenge to the legality of FFP’s ‘break even’ requirement (the Break Even Requirement), which restricts a particular means of spending, was perhaps inevitable.

And so it followed.

Challenges to the legality of the Break Even Requirement have been brought by football agent Daniel Striani, through various organs of justice of the European Union and through the Belgian courts; and by Galatasaray in the Court of Arbitration for Sport. As an interesting footnote, both Striani and Galatasaray were advised by “avocat superstar” Jean-Louis Dupont, the lawyer who acted in several of sports law’s most famous cases, including the seminal Bosman case. Dupont has been a vocal critic of FFP’s legality since its inception. More...





The Evolution of UEFA’s Financial Fair Play Rules – Part 1: Background and EU Law. By Christopher Flanagan

Editor's Note: Christopher is an editor of the Asser International Sports Law Blog. His research interests cover a spectrum of sports law topics, with a focus on financial regulatory disputes, particularly in professional football, a topic on which he has regularly lectured at the University of the West of England.

 

It is five years since the Union of European Football Associations (UEFA) formally introduced ‘Financial Fair Play’ (FFP) into European football through its Club Licensing and Financial Fair Play Regulations, Edition 2012. With FFP having now been in place for a number of years, we are in a position to analyse its effect, its legality, and how the rules have altered over the last half decade in response to legal challenges and changing policy priorities. This article is split into three parts: The first will look at the background, context and law applicable to FFP; Part Two will look at the legal challenges FFP has faced; and Part Three will look at how FFP has iteratively changed, considering its normative impact, and the future of the rules. More...


International and European Sports Law – Monthly Report – July and August 2017. By Tomáš Grell

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

 

The Headlines

ISLJ Annual Conference on International Sports Law 

On 26 and 27 October 2017, the T.M.C. Asser Institute in The Hague will host the first ever ISLJ Annual International Sports Law Conference. This year's edition will feature panels on the Court of Arbitration for Sport, the world anti-doping system, the FIFA transfer regulations, human rights and sports, the labour rights of athletes, and EU law and sport. We will also welcome the following distinguished keynote speakers:

  • Miguel Maduro, former Advocate General at the European Court of Justice and former head of the FIFA's Governance Committee;
  • Michael Beloff QC, English barrister known as one of the 'Godfathers' of sports law;
  • Stephen Weatherill, Professor at Oxford University and a scholarly authority on EU law and sport;
  • Richard McLaren, CAS Arbitrator, sports law scholar and former head of the World Anti-Doping Agency's investigation into the Russian doping scandal.

You will find all the necessary information related to the conference here. Do not forget to register as soon as possible if you want to secure a place on the international sports law pitch! [Please note that we have a limited amount of seats available, which will be attributed on a 'first come, first served' basis.] More...

Asser International Sports Law Blog | Chess and Doping: Two ships passing in the Night? By Salomeja Zaksaite, Postdoctoral researcher at Mykolas Romeris University (Lithuania), and Woman International Chess Master (WIM)

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Chess and Doping: Two ships passing in the Night? By Salomeja Zaksaite, Postdoctoral researcher at Mykolas Romeris University (Lithuania), and Woman International Chess Master (WIM)

It may come as a surprise to laymen, but chess players are subjected to doping testing. Naturally, then, the questions follow as to why they are tested, and if they are really tested (at least, with a level of scrutiny comparable to that which physically-oriented athletes are regularly subjected).


The answer to the first question is two-fold. There is an “official” answer and a “pragmatic” answer. Regarding the ostensible one, rather typical doping terminology is employed: certain substances might enhance performance in chess, and thus, they are prohibited. A layperson might ask: “what substances are these?” One fair guess could be beta-blockers – those medications which help reduce heart rates in times of anxiety and thus contribute to clearer thinking, and which are prohibited inter alia in shooting. That sounds pretty sensible; however (mainly due of the lack of scientific evidence on the actual performance enhancing), beta-blockers are not prohibited in chess.[1] As far as I know, chess players do not use beta-blockers, and I cannot imagine that they ever actually will use them to enhance their performance. Nor do chess players use anabolics, EPO, growth hormones – or any other of the “classical” doping substances. What might be an issue is caffeine because of its stimulant properties, but it was excluded from the list of prohibited substances in 2004.[2]


So what are the substances chess players do use? The reigning world champion Magnus Carlsen drinks freshly squeezed orange juice and many top players drink either water or coffee, or both… This is “doping” for chess players. The aforementioned champion was tested several times and said that “there is not so much point of drugs testing in chess, I must admit. However, if I must, then I must.”[3] In 2008 Dresden Chess Olympiad, Vassily Ivanchuk refused to participate in a doping control and actually no penalties were applied as the whole chess community defended him. The official FIDE (World Chess Federation) statement was that he “apparently failed to understand the instructions, especially since English is not Mr. Ivanchuk’s first language.”[4] Such a “flexible” formulation employed by FIDE suggests that the anti-doping system hardly has a real deterrent effect on elite chess players.


Returning to the legal discourse, we should pose some fundamental questions originally coming from the jurisprudence of European Court of Human Rights. These questions read as follows: Is the anti-doping system restrictive, and is the restrictiveness proportionate to the aim that is being sought to achieve? The answer to the first question is positive: the doping system is undoubtedly restrictive. Testing might not only be unpleasant, but also, some accidental factors must be taken into account, and additional time is needed to grasp the medical instructions in order not to trigger a positive test because of some inadvertently taken substances. Most people might not know it, but ephedrine and its form pseudoephedrine[5] (used to treat nasal and sinus congestion and available as the well-known medicine Theraflu) are prohibited, as is heptaminol [6] which falls into Ginkorfort and/or other herbal products. These medicines are sold in pharmacy without a prescription. So, all the athletes – including chess players – should avoid such substances in-competition and some period before the competition. For instance, although the swimmer Frédérick Bousquet stated that he bought the incriminated medicine from a pharmacy, he was tested positive for the heptaminol in 2010, and handed a two month doping ban. Last but not least, each doping test costs about $400 USD. Therefore, some proportionality test should also be applied, weighing the costs and benefits of the anti-doping fight. Thus, to my mind the anti-doping system within the context of chess is not proportionate to achieve its aim – which is to create a level playing field and a clean game.


Perhaps, leaving the legal discourse aside is necessary to unveil the real (not postulated) aims lying behind the adoption of an anti-doping policy in chess. Indeed, political considerations overruled the proportionality test, and all the more interesting is that the chess community, in turn, “silently” accepted those pragmatic considerations. Guess what? Chess officials as well as players really want to get into the Olympic Games. In other words, the chess community would love being an Olympic sport, and hence, if we must, we would silently accept those unnecessary tests. To my knowledge, only a few players have ever been caught and punished. For instance, the games of two players were forfeited, since they refused to provide a sample to doping control at the Calvia Olympiad 2004.[7] It is quite a telling indicator of the potential gap between anti-doping rules and the practical implementation of those rules. And it is not because chess players are absolutely clean (who knows – perhaps they use cannabis or cocaine not less frequently than other athletes caught). It is because everyone understands that the system is designed not for chess, and therefore, “sensibly” does not strictly implement it.


Regarding the title of the blog post: chess players hardly could be associated with doping, but they are! Chess and doping could be compared to the two ships in the darkness that are just saying “hello” to each other, but not really communicating. Hence, we carry the little burden of some inconvenience related to doping testing, but the sweetness of such burden (that is the utopian hopes for inclusion in the Olympics, which probably will not come into effect in the upcoming decade or so) somehow compensates for such discomfort.


By Salomeja Zaksaite, Postdoctoral researcher[8] at Mykolas Romeris University (Lithuania), and Woman International Chess Master (WIM)



[1] Beta-blockers are prohibited in Archery (WA) (also prohibited Out-of-Competition), Automobile (FIA), Billiards (all disciplines) (WCBS), Darts (WDF), Golf (IGF), Shooting (ISSF, IPC) (also prohibited Out-of-Competition), Skiing/Snowboarding (FIS) in ski jumping, freestyle aerials/halfpipe and snowboard halfpipe/big air, http://list.wada-ama.org/prohibited-in-particular-sports/prohibited-substances/.      

[2] In 2004, WADA took all caffeine products out of the prohibited list, in spite of the fact that some caffeine products, such as Animine, can induce serious heart problems and even death if taken in high dosages (de Mondenard, 2004). Quoted from: Paoli L., Donati A. (2014), The Sports Doping Market. Understanding Supply and Demand, and the Challenges of Their Control. Springer New York Heidelberg Dordrecht London, pp. 8.

[3] Venkata Krishna “Now, even Chess players subjected to dope testing”, 20 November 2013, http://www.newindianexpress.com/sport/Now-even-Chess-players-subjected-to-dope-testing/2013/11/20/article1899989.ece .

[4]Decision of the FIDE Doping Hearing Panel, Wijk aan Zee (NED), 21 January 2009, http://www.fide.com/component/content/article/1-fide-news/3704-decision-of-the-fide-doping-hearing-panel

[5] Ephedrine is classified as a specified stimulant (S6) and is prohibited in-competition in all sports, http://list.wada-ama.org/prohibited-in-competition/prohibited-substances/.

[6] Heptaminol is classified as a specified stimulant (S6) and is prohibited in-competition in all sports, http://list.wada-ama.org/prohibited-in-competition/prohibited-substances/.

[7] Actually, the events at Calvia Olympiad are the most known to the chess community. One of those players wrote a blog post accusing FIDE of somewhat “highly flawed” disciplinary hearing.  Shaun Press “FIDE gets it right on drug testing”, 29 November 2008, http://chessexpress.blogspot.nl/2008/11/fide-gets-it-right-on-drug-testing.html. Yet, of course, there were more attempts to test and sanction chess players for anti-doping violations. For example, 2013 WADA report indicates that there were 3 adverse analytical findings (AAF) within those tested (80 samples were taken), however, to my knowledge, the outcomes of these AAF are not publicly available. 2013 Anti‐Doping Testing Figures Samples Analyzed and Reported by Accredited Laboratories in ADAMS, http://www.wada-ama.org/Documents/Resources/Testing-Figures/WADA-2013-Anti-Doping-Testing-Figures-SPORT-REPORT.pdf, pp. 6.

[8] Postdoctoral fellowship is being funded by European Union Structural Funds project ”Postdoctoral Fellowship Implementation in Lithuania”, www.postdoc.lt.

Comments (2) -

  • Clifford

    7/24/2015 9:37:43 AM |

    You fail to consider that abiding by the testing regime may actually be damaging for the health of, particularly older, chessplayers.
    Hans Ree reported that one GM retired after health problems made worse by  abiding by the doping code and avoiding the best drugs for the illness.

  • CLEM REYNOLDS

    12/12/2015 10:02:38 AM |

    "certain substances might enhance performance in chess, and thus, they are prohibited"

    This is not really the case. The general WADA list of banned substances is used (though w/o the beta-blocker appendix), independent of whether such substances might actually enhance chess performance. WADA has repeatedly rejected arguments (in all sports) when a competitor tries to plead that a banned substance isn't really performance enhancing. The Anti-Doping Code is specific about this.

    FIDE had two people refuse tests in 2004 largely for political reasons (and a large number of grandmasters not compete in the first place), and the 2008 Ivanchuk incident, with a related refusal case in a national championship. Back then they might have been able to skirt it, but 10 years down the road, WADA will slap them as being non-compliant if they don't follow the protocol.

Comments are closed