Asser International Sports Law Blog

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

Coronavirus Pandemic Takes Over Sports

Since the last monthly report, the coronavirus pandemic has completely taken over the headlines and has had enormous impacts on the sports field. The most significant of these impacts so far was the rather slow (see here and here) decision by the IOC to move the Tokyo 2020 Olympic Games to 2021 after a widespread push among athlete stakeholders to do so. Concerns were raised that besides the wellbeing of the participants, athletes under lockdowns would not have the access to the training facilities, meaning preparations for the Games would suffer. The IOC has already started its new planning for Tokyo 2021 and sees this new opportunity to be ‘an Olympic flame’ at the end of a ‘dark tunnel’ for the entire world.

Besides the Olympics, football has also experienced colossal effects as this crisis landed right as leagues were approaching the end of their season. In this context, FIFA has released specific guidelines on player contracts and transfer windows, which has included extending player contracts to the new postponed end of season dates. It has also organized a working group on COVID-19, which has already made recommendations to postpone all men and women’s international matches that were to be played during the June 2020 window. Earlier in March, UEFA had already announced that the EURO 2020 was also postponed by 12 months and has also recently approved guidelines on domestic competitions. These guidelines place emphasis on ‘sporting merit’ and urge ‘National Associations and Leagues to explore all possible options to play all top domestic competitions giving access to UEFA club competitions to their natural conclusion’. Nevertheless, UEFA also emphasizes that the health of all stakeholders must remain the top priority.

In the end, numerous sport federations have also had to amend their calendars due to the pandemic (see UCI and FIBA) and a variety of sport stakeholders have been confronted with immense financial strain (e.g. football, tennis and cycling). For example, UEFA has acted preemptively in releasing club benefit payments to try to alleviate the economic pressure faced by clubs. There have also been efforts to support athletes directly (e.g. FIG and ITF). All in all, the social and economic impacts of the coronavirus pandemic on sport have been unprecedented and will require creative solutions while continuing to place public health as the top priority.

Platini’s ECtHR Appeal Falls Flat

There have also been a few other stories that have (understandably) been overshadowed by the pandemic. One of these include Michel Platini’s unsuccessful appeal to the ECtHR challenging his 2015 football ban. The ECtHR’s decision concerned the admissibility of his appeal and in the end found it to be ‘manifestly ill-founded’. This is because he failed to raise his procedural rights concerns under Article 6 (1) ECHR in his proceedings at the Swiss Federal Tribunal. Besides rejecting his other claims based on Article 7 and 8 ECHR, the ECtHR decision also touched upon the issue of CAS’ procedural and institutional independence. In doing so, it referred to its Pechstein decision and once more affirmed that the CAS is sufficiently independent and impartial (see para 65), further giving credence to this notion from its case law. However, there are still concerns on this matter as was highlighted in the Pechstein dissent. Overall, the decision indicates that the ECtHR is willing to give the CAS the benefit of the doubt so long as it sufficiently takes into account the ECHR in its awards.

Mark Dry – UKAD Dispute

In February, Mark Dry was suspended by UKAD after a decision of the National Anti-Doping Panel (NADP) Appeal Tribunal for four years after having given a ‘false account’ in order to ‘subvert the Doping Control process’. Specifically, Dry had told anti-doping authorities that he had been out fishing after he had missed a test at his residence. After further investigation, Dry admitted that he had forgotten to update his whereabouts while he was actually visiting his parents in Scotland and in panic, had told anti-doping authorities that he had been out fishing. Following the decision of the NADP Appeal Tribunal, athlete stakeholders have argued the four-year ban was disproportionate in this case. In particular, Global Athlete contended that Whereabouts Anti-Doping Rule Violations only occur in cases where an athlete misses three tests or filing failures within a year. Furthermore, even if Dry had ‘tampered or attempted to tamper’, a four-year sanction is too harsh. Subsequently, UKAD responded with a statement, arguing that ‘deliberately providing false information’ is ‘a serious breach of the rules’ and that the UKAD NADP Appeal Tribunal ‘operates independently’. In light of the mounting pressure, Witold Bańka, WADA President, also responded on Twitter that he is ‘committed to ensuring that athletes’ rights are upheld under the World Anti-Doping Code’. More...

Editor's note: Marjolaine is a researcher and attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences.

I. Introduction

The COVID-19 pandemic has shaken the manner in which we approach human interactions that suppose close and prolonged physical contact. Across the world, authorities are having to design ways to resume essential activities without jeopardising participants’ health, all the while guaranteeing that other fundamental rights are paid due respect. The fight against doping is no exception. Anti-doping organizations – whether public or private – have to be held to the same standards, including respect for physical integrity and privacy, and considerate application of the cornerstone principle of proportionality.

Throughout this global crisis, the World Anti-Doping Agency (‘WADA’) has carefully monitored the situation, providing anti-doping organizations and athletes with updates and advice. On 6 May 2020, WADA issued the document called ‘ADO Guidance for Resuming Testing’ (‘COVID Guidance’). A COVID-19 ‘Q&A’ for athletes (‘Athlete Q&A’) is also available on WADA’s website, and has been last updated on 25 May 2020. This article focuses on these two latest documents, and analyses the solutions proposed therein, and their impact on athletes.

Like many public or private recommendations issued for other societal activities, the WADA COVID Guidance is primarily aimed at conducting doping control while limiting the risk of transmission of the virus and ensuing harm to individuals. More specifically, one can identify two situations of interest for athletes that are notified for testing:

The athlete has or suspects that they may have been infected with COVID-19, or has come in close contact with someone having COVID-19;
The athlete fears to be in touch with doping control personnel that may be infected with COVID-19.

Quite obviously, either situation has the potential to create significant challenges when it comes to balancing the interests of anti-doping, with individual rights and data protection concerns. This article summarises how the latest WADA COVID Guidance and Athlete Q&A address both situations. It explores how the solutions suggested fit in with the WADA regulatory framework and how these might be assessed from a legal perspective.

The focus will be on the hypothesis in which international sports federations – i.e. private entities usually organised as associations or similar structures – are asked to implement the COVID Guidance within their sport. National anti-doping organizations are strongly embedded in their national legal system and their status and obligations as public or semi-public organisations are likely to be much more dependent on the legislative landscape put in place to deal with the COVID-19 pandemic in each country. Nevertheless, the general principles described in this article would apply to all anti-doping organizations alike, whether at international or national level. More...

Editor’s note: Thomas Terraz is a fourth 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.

Since its inception, the Olympic Movement, and in particular the IOC, has tirelessly endeavored to create a clean bubble around sport events, protecting its hallowed grounds from any perceived impurities. Some of these perceived ‘contaminants’ have eventually been accepted as a necessary part of sport over time (e.g. professionalism in sport),[1] while others are still strictly shunned (e.g. political protest and manifestations) and new ones have gained importance over the years (e.g. protection of intellectual property rights). The IOC has adopted a variety of legal mechanisms and measures to defend this sanitized space. For instance, the IOC has led massive efforts to protect its and its partners’ intellectual property rights through campaigns against ambush marketing (e.g. ‘clean venues’ and minimizing the athletes’ ability to represent their personal sponsors[2]). Nowadays, the idea of the clean bubble is further reinforced through the colossal security operations created to protect the Olympic sites.

Nevertheless, politics, and in particular political protest, has long been regarded as one of the greatest threats to this sanitized space. More recently, politics has resurfaced in the context of the IOC Athletes’ Commission Rule 50 Guidelines. Although Rule 50 is nothing new, the Guidelines stirred considerable criticism, to which Richard Pound personally responded, arguing that Rule 50 is a rule encouraging ‘mutual respect’ through ‘restraint’ with the aim of using sport ‘to bring people together’.[3] In this regard, the Olympic Charter aims to avoid ‘vengeance, especially misguided vengeance’. These statements seem to endorse a view that one’s expression of their political beliefs at the Games is something that will inherently divide people and damage ‘mutual respect’. Thus, the question naturally arises: can the world only get along if ‘politics, religion, race and sexual orientation are set aside’?[4] Should one’s politics, personal belief and identity be considered so unholy that they must be left at the doorstep of the Games in the name of depoliticization and of the protection of the Games’ sanitized bubble? Moreover, is it even possible to separate politics and sport?

Even Richard Pound would likely agree that politics and sport are at least to a certain degree bound to be intermingled.[5] However, numerous commentators have gone further and expressed their skepticism to the view that athletes should be limited in their freedom of expression during the Games (see here, here and here). Overall, the arguments made by these commentators have pointed out the hypocrisy that while the Games are bathed in politics, athletes – though without their labor there would be no Games – are severely restrained in expressing their own political beliefs. Additionally, they often bring attention to how some of the most iconic moments in the Games history are those where athletes took a stand on a political issue, often stirring significant controversy at the time. Nevertheless, what has not been fully explored is the relationship between the Olympic Games and politics in terms of the divide between the ideals of international unity enshrined in the Olympic Charter and on the other hand the de facto embrace of country versus country competition in the Olympic Games. While the Olympic Charter frames the Games as ‘competitions between athletes in individual or team events and not between countries’, the reality is far from this ideal.[6] Sport nationalism in this context can be considered as a form of politics because a country’s opportunity to host and perform well at the Games is frequently used to validate its global prowess and stature.

To explore this issue, this first blog will first take a historical approach by investigating the origins of political neutrality in sport followed by an examination of the clash between the ideal of political neutrality and the reality that politics permeate many facets of the Olympic Games. It will be argued that overall there has been a failure to separate politics and the Games but that this failure was inevitable and should not be automatically viewed negatively. The second blog will then dive into the Olympic Charter’s legal mechanisms that attempt to enforce political neutrality and minimize sport nationalism, which also is a form of politics. It will attempt to compare and contrast the IOC’s approach to political expression when exercised by the athletes with its treatment of widespread sport nationalism.More...

1. Introduction

On March 05, the T.M.C. Asser Institute hosted ‘Mega-sporting events and human rights: What role can EU sports diplomacy play?’ a Multiplier Sporting Event organized in the framework of a European research project on ‘Promoting a Strategic Approach to EU Sports Diplomacy’. This project funded by the European Commission through its Erasmus+ program aims to help the EU adopt a strategic approach to sports diplomacy and to provide evidence of instances where sport can help amplify EU diplomatic messages and forge better relations with third countries. In particular, Antoine Duval from the Asser Institute is focusing on the role of EU sports diplomacy to strengthen human rights in the context of mega sporting events (MSE) both in Europe and abroad. To this end, he organized the two panels of the day focusing, on the one hand, on the ability of sport governing bodies (SGB) to leverage their diplomatic power to promote human rights, particularly in the context of MSEs and, on the other, on the EU’s role and capacity to strengthened human rights around MSEs. The following report summarizes the main points raised during the discussions. More...

The Headlines

Manchester City sanctioned by UEFA’s Financial Fair Play

Manchester City has been sanctioned under UEFA’s Financial Fair Play (FFP) regulations for two seasons for ‘overstating its sponsorship revenue in its accounts and in the break-even information’ it had provided UEFA. The February 14 decision of the Adjudicatory Chamber of the Club Financial Control Body (CFCB) likely heralds the start of a long and bitter legal war between Manchester City and UEFA, which may end up settling many of the questions surrounding the legality of FFP rules. Since its introduction in 2010, the compatibility of FFP with EU law, especially in terms of free movement and competition law, has been a continued point of contention amongst the parties concerned and commentators (see discussion here, here and here). It was only a matter of time that a case would arise to test this issue and the present circumstances seem to indicate that this may go all the way.

Regardless, the ban will not be enforced this season and in light of the appeal process, it is hard to predict when the CFCB’s decision will have any effect. Indeed, Manchester City has shown an incredible willingness to fighting this out in the courts and shows no signs of backing down. The next stop will be the CAS and perhaps followed by the Swiss Federal Tribunal. It should also be recalled that the CAS has already examined FFP in its Galatasaray award, where it found FFP compatible with EU law (see commentary here). There is even a decent chance that this emerging saga may end up in front of the European Commission and eventually the Court of Justice of the European Union.

Sun Yang CAS award published

After a much-anticipated public hearing, the Panel’s award in the Sun Yang case has finally been published, sanctioning Sun Yang with an eight-year period of ineligibility (see here for a detailed commentary). The decision does not reveal anything groundbreaking in terms of its legal reasoning and in many ways the case will most likely be remembered for its historical significance: the case that jumpstarted a new era of increased public hearings at the CAS.

Perhaps of some interest is the extent to which the panel took into account Sun Yang’s behavior during the proceedings in order to support its assessment of the case. For example, the panel describes how Sun Yang had ignored the procedural rules of the hearing by inviting ‘an unknown and unannounced person from the public gallery to join him at his table and act as an impromptu interpreter’. The Panel interpreted this as Sun Yang attempting ‘to take matters into his own hands’ which it found resembled the athlete’s behavior in the case (see para 358). The Panel also found it ‘striking’ that Sun Yang did not express any remorse concerning his actions during the proceedings. Since the proceedings were held publicly and have been recorded, it is possible to verify the Panel’s assessment in this regard.

In the end, it is possible that Sun Yang may seek to reduce the period of ineligibility once the 2021 WADA Code comes into force (see para 368). For now, Sung Yang may also try to appeal the award to the Swiss Federal Tribunal on procedural grounds, and has already indicated his wish to do so. More...

The International Sports Law Journal (ISLJ) invites submissions to a special issue focusing on legal aspects of fantasy sports. For some time, fantasy sports has been a major phenomena in North America and this has been reflected in the sports law literature. Fantasy sports have more recently grown in popularity in the rest of world, raising a number of novel legal questions. The ISLJ wants to support fruitful global discussions about these questions through a special issue. We welcome contributions from different jurisdictions analyzing fantasy sports from the perspective of various areas of law including, but not limited to, intellectual property law, gambling law, and competition law.

Please submit proposed papers through the ISLJ submission system (http://islj.edmgr.com/) no later than November 15, 2020. Submissions should have a reccomended length of 8,000–12,000 words and be prepared in accordance with the ISLJ's house style guidelines (https://www.springer.com/journal/40318/submission-guidelines). All submissions will be subject to double-blind peer review.

Question about the special issue can be directed to the Editor–in-Chief, Johan Lindholm (johan.lindholm@umu.se).

The upcoming 2022 FIFA World Cup in Qatar and its links to human rights violations has been the subject of many debates in the media and beyond. In particular, the respect of migrant workers’ labour rights was at the forefront of much public criticisms directed against FIFA. Similarly, past Olympics in Rio, Sochi or Beijing have also been in the limelight for various human rights issues, such as the lack of freedom of the press, systematic discrimination on the basis of sexual orientation or forced evictions. These controversies have led sports governing bodies (SGBs) to slowly embrace human rights as an integral part of their core values and policies. Leading to an increased expectation for SGBs to put their (private) diplomatic capital at the service of human rights by using their leverage vis-à-vis host countries of their mega-sporting events (MSEs). In turn, this also raises the question of the need for the EU to accompany this change by putting human rights at the heart of its own sports diplomacy.

Research collective
This Multiplier Sporting Event, organised in the framework of the transnational project on ‘Promoting a Strategic Approach to EU Sports Diplomacy’ funded by the Erasmus + Programme, aims to trigger discussions on the role of an EU sports diplomacy in strengthening respect for human rights in the context of MSEs both at home and abroad. It will feature two roundtables focused on the one hand on the diplomatic power and capacity of SGBs to fend for human rights during MSEs and on the other on the EU’s integration of human rights considerations linked to MSEs in its own sports diplomacy.

Programme

13:20 – 14:00 – Welcome and opening speech –Antoine Duval (Asser Institute)
14:00 - 15:30 - Panel 1: Leveraging the Diplomatic Power of the Sports Governing Bodies for Human Rights

Lucy Amis (Unicef UK/Institute for Human Rights and Business)
Guido Battaglia (Centre for Sport and Human Rights)
Florian Kirschner (World Players Association/UNI Global Union)
Claire Jenkin (University of Hertfordshire)

15:30 – 16:00 - Coffee Break

16:00 - 17:30 - Panel 2: A Human Rights Dimension for the EU’s Sports Diplomacy?

Arnout Geeraert (Utrecht University)
Agata Dziarnowska (European Commission)
Alexandre Mestre (Sport and Citizenship)
Ministry of Health, Welfare and Sport (TBC)

17:30 - Reception

1. Introduction

As we begin plunging into a new decade, it can be helpful to look back and reflect on some of the most influential developments and trends from 2019 that may continue to shape international sports law in 2020 and beyond. Hence, this piece will not attempt to recount every single sports law news item but rather identify a few key sports law stories of 2019 that may have a continued impact in the 2020s. The following sections are not in a particular order.More...

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.More...

The Headlines

WADA Conference and the Adoption of 2021 WADA Code Amid Calls for Reform

On November 5-7, WADA held its Fifth World Conference on Doping in Sport where it faced a busy schedule, including the adoption of the revised 2021 World Anti-Doping Code and the election of a new WADA President and Vice-President by the Foundation Board. Concerning the latter, Witold Bańka, Poland’s Minister of Sport and Tourism, was elected as WADA President and Yang Yang, a former Chinese speed skater, elected as Vice-President, replacing Sir Craig Reedie and Linda Helleland respectively. As Helleland leaves her position, she has expressed some strong views on the state of sport governance, particularly that ‘there is an absence of good governance, openness and independence in the highest levels of international sports’. Helleland was not the only one to recently voice governance concerns, as Rob Koehler, Director General of Global Athlete, also called for a ‘wholesale structural change at WADA’, which includes giving ‘independent’ athletes a vote in WADA’s Foundation Board, ensuring a greater ‘separation of powers’ and ensuring greater protection of athletes’ rights.

In the midst of the calls for reform, the amended 2021 WADA Code and the amended International Standards were also adopted after a two year, three stage code review process. Furthermore, a major milestone in athletes’ rights was achieved with the adoption of the Athletes’ Anti-Doping Rights Acts (separate from the WADA Code), which enumerates certain basic rights to help ‘ensure that Athlete rights within anti-doping are clearly set out, accessible, and universally applicable’. On the other hand, the Act ‘is not a legal document’, which clearly circumscribes some of the potential effects the Act may have. Nonetheless, athlete representative groups have ‘cautiously welcomed’ some of the changes brought by the 2021 WADA Code, such as the ‘modified sanctions for substances of abuse violations’.

Sung Yang’s Historical Public Hearing at the CAS

After much anticipation, the second public hearing in CAS history occurred on November 15 in Montreux, Switzerland in the Sun Yang case (details of this case were discussed in August and September’s monthly report), which was livestreamed and can be seen in its totality in four different parts (Part 1, Part 2, Part 3, Part 4). This was an extremely unique opportunity, which hopefully will become a more common occurrence, to see just how CAS hearings are conducted and perhaps get a taste of some of the logistical issues that can emerge during live oral hearings. One of these problems, accurate translations, rapidly became apparent as soon as Sun Yang sat in the witness chair to give his opening statements. The translators in the box seemed to struggle to provide an intelligible English interpretation of Sun Yang and other witnesses’ statements, while Sun Yang also seemingly had trouble understanding the translated questions being posed to him. The situation degenerated to such an extent that ultimately one of WADA’s officials was called to replace the translators. However, the translation drama did not end there, since during Sun Yang’s closing statements an almost seemingly random person from the public appeared next to Sun Yang who claimed to have been requested from Sun Yang’s team to ‘facilitate’ the translation. Franco Frattini, president of the panel, questioned the identity of the ‘facilitator’ and explained that one could not just simply appear before the court without notice. Interestingly, Sun Yang’s legal team also rapidly intervened claiming that it had not been made of aware of the inclusion of the supporting translator, further complicating the matter. In the end, Sun Yang concluded his statements with the translation from the WADA official.

While it was Sun Yang’s legal team that had provided the original translators in the box, it still raises the question as to how translation at CAS could be improved to ensure a certain standard of translators. After all, quality translation is critical to the parties’ right to be heard under Article 6 (e) ECHR. Regardless, in the end, neither parties made an objection that their right to be heard was violated.

Russian Doping Saga Continues: WADA Compliance Review Committee Recommends Strong Sanctions

As was already discussed in August and September’s monthly report, WADA uncovered numerous inconsistencies concerning data taken from the Moscow Laboratory. After further investigation, WADA’s Compliance Review Committee has recommended that the Russian Anti-Doping Agency (RUSADA) be found non-compliant with the WADA Code. Accompanying the recommendation, the Compliance Review Committee also suggested several sanctions, which include prohibiting Russian athletes from participating in major events like the Olympic Games and ‘any World Championships organized or sanctioned by any Signatory’ for the next four years unless they may ‘dmonstrate that they are not implicated in any way by the non-compliance’. It would also see an embargo on events hosted in Russia during the same period. However, these sanctions did not go far enough for some, like Travis Tygart, chief executive of USADA, who wishes to prevent a repeat of Rio 2016 and PyeongChang 2018 ‘in which a secretly-managed process permitting Russians to compete – did not work’. On the other hand, the IOC has advocated for a softer, individual based approach that pursues ‘the rules of natural justice and respect human rights’. In the midst of these developments, the Athletics Integrity Unit also decided to charge several members of the Russian Athletics Federation (RusAF), including its President Dmitry Shlyakhtin, after a 15 month investigation for ‘tampering and complicity’ concerning a Russian athlete’s whereabouts violations.

Following many calls for strong consequences, the WADA Executive Committee met on December 9^th and adopted the recommendations of the Compliance Review Committee. Athlete representatives have expressed their disappointment with the sanctions, calling the decision ‘spineless’ since it did not pursue a complete ban on Russian participation at events such as Euro 2020 and the 2020 Olympics. At this point, RUSADA has sent notice to WADA that it will be disputing the decision of WADA’s Executive Committee’s decision at the CAS.More...

Editor's note: Yuri Yagi is a sports lawyer involved in Sports Federations and Japanese Sports Organizations including the Japan Equestrian Federation (JEF), the International Equestrian Federation (FEI), the Japanese Olympic Committee (JOC), the Japan Sports Council (JSC) and the All-Japan High School Equestrian Federation.

1. Introduction

Japan has held three Olympic Games since the inception of the modern Olympics;Tokyo Summer Olympic Games in 1964, Sapporo Winter Olympic Games in 1972, and Nagano Winter Olympic Games in 1998. Therefore, the Tokyo 2020 Olympic Games (Tokyo 2020) are supposed to be the fourth to be held in Japan, the second for Tokyo. Tokyo 2020 were originally scheduled for 24 July 2020 to 9 August 2020. Interestingly, the word ‘postpone’ or ‘postponement’ does not appear in the Host City Contract (HCC).

However, the International Olympic Committee (IOC), the Tokyo Metropolitan Government (TMG), the Japanese Olympic Committee (JOC), and the Tokyo Organising Committee of the Olympic and Paralympic Games (TOCOG) decided on 24 March 2020 that Tokyo 2020 would be postponed because of the pandemic of COVID-19. Later on, the exact dates were fixed ‘from 23 July 2021 (date of the Opening Ceremony) to 8 August 2021 (date of the Closing Ceremony).

The process of the decision is stipulated in the ‘ADDENDUM N° 4’ signed by IOC, TMG, JOC and TOCOG.

This paper provides an overview of the current situation, along with legal and other issues in Japan that have arisen due to the postponement of Tokyo 2020 due to COVID-19. The overview is offered from the perspective of a citizen of the host city and includes a consideration of national polls, the torch relay, vaccination, training camps, ever increasing costs, and the related provisions in the Candidature File and the Host City Contract.

2. The Situation of COVID-19 in Japan

According to the Government, the first COVID-19 case in Japan was confirmed on 16 January 2020. On 24 March 2020, when the postponement of Tokyo 2020 was decided, the reported number of new COVID-19 positive cases in Japan was 64 (Japanese population is around 126 million). As a comparison, reported cases in Japan on 28 May 2021 was 3,706.

3. National State of Emergency

Since the start of the pandemic, National states of emergency have been issued three times in Tokyo, the first time was from 7 April 2020 (the reported number of positive cases on that day in Tokyo was 87) to 25 May 2020 (8 cases), the second time was from 8 January 2021 (2,459 cases) to 21 March 2021 (256 cases), and the third began on 25 April 2021 (635 cases) and is still in effect (539 cases as of 29 May 2021). A national state of emergency is not similar to the lockdowns issued in several other countries. It is basically the government’s request that people stay at home. Under National states of emergency, the Government asked businesses, especially restaurants and bars, to close earlier than usual or completely.

4. National Poll as to Olympic Games

According to a national poll carried out by Japan Broadcasting Corporation (NHK, which is Japan's only public media organization) and published on 10 March 2020, 14 days prior to the decision of the postponement, 40% of respondents answered that they believe the Olympics will be held as scheduled. Conversely, 45% answered that they do not.

The telephone survey of 1,300 Japanese residents carried out by NHK and published on 23 July 2020 showed that 35% said that Tokyo 2020 should be postponed further, 31% said that they should be cancelled, and 26% said that they should be held as scheduled.

In the national poll published by NHK in May 2021, 49% answered Tokyo 2020 should be cancelled, 23% answered they should be held without spectators, 2% answered they should be held as usual.

In addition, people who demanded the cancellation of Tokyo 2020 collected more than 350,000 signatures in an online petition.

5. Torch Relay

The Olympic Flame was lit in Greece on 12 March 2020 and arrived in Japan on 20 March 2020, just prior to the decision to postpone. However, most related ceremonies were cancelled or downsized and there was less excitement among Japanese citizens than originally expected.

The postponed torch relay started on 26 March 2021 in Fukushima Prefecture, which was severely damaged by a tsunami following The Great East Japan Earthquake in 2011. The torch relay is still ongoing and is live streaming every day on the internet. However in many places, the torch relay has been replaced with stage events instead of running on public roads. Japanese citizens have been asked to not attend the torch relay or the events. As a result, the torch relay has turned out to be totally different from what was expected.

6. Slow Rollout of Vaccine

COVID-19 vaccination started in Japan on 17 February 2021, first for frontline workers, and at the time of this article (31 May 2021), they are mainly being administered for elderly people over 65 years old. It is a relatively late start and a slow rollout compared to other developed countries (for example vaccination started in December 2020 in the US, the UK, Itally, France, Germaney, and other countries). As of 30 May 2021, only 0.25% of residents in Japan have been fully vaccinated (twice) and 3.67% have be vaccinated once.

Japanese Prime Minister Yoshihide Suga announced that IOC had struck a deal with Pfizer to provide vaccines for all Tokyo 2020 participants. Accordingly, JOC announced that about 1,600 athletes and other members of Japan's potential delegation to Tokyo 2020 will be vaccinated from 1 June 2021.

7. Pre-Event Training Camps and Games-Related Events

COVID-19 has also had an effect on Games-related plans such as pre-event training camps and cultural programs planned by local governments. As of 18 May 2021, training camps and Games-related cultural exchange events have reportedly been cancelled in many local governments (reported number was 54) because of the infection risks and the delays of the qualification process.

However it is also reported that the Australian softball team plans to come to Japan for a training camp on 1 June 2021. If this plan is realized, they will be the first team to arrive.

8. Increasing Cost and Decreasing Revenue

Because of the increasing cost incurred as a result of the postponement, the IOC offered an additional support of reportedly 650 million USD. To reduce costs and support COVID-19 infection prevention measures, TMG and IOC agreed to simplify Tokyo 2020. It has already been decided that spectators from other countries will not be allowed to attend the games. As for domestic spectators, a final decision is expected to be made by the end of June 2021. At any rate, the revenue from the ticket sales will be significantly less than originally estimated.

The postponement of Tokyo 2020 has also resulted in additional costs related to the extension of the employment contracts of the TOCOG staff members, lease contracts of the TOCOG office, and no doubt, countless other contracts. As to domestic sponsorship contracts for Tokyo 2020, they were originally for terms ending December 2020. However, due to the postponement of the Games, all 68 domestic companies agreed to extend the contract until the end of 2021, despite also facing an unprecedented stagnant business situation.

As to the case of deficit or budget shortfall, the Candidature File and Host City Contract (HCC) provides who will bear the loss.

9. Candidature File and Host City Contract (HCC)

IOC elected Tokyo as the host city of the 2020 Summer Olympic Games in the 125th IOC Session took place in Buenos Aires, Argentina, from 7 to 10 September 2013. In the bidding process, Candidate Tokyo submitted a Candidature File to the IOC.

Case of Deficit or Budget Shortfall

As to the case of deficit or budget shortfall, the Candidature File and HCC provide that, if TOCOG incurs a deficit, TMG will guarantee to cover any potential economic shortfall of TOCOG, then if TMG should be unable to compensate in full, the Japanese government will ultimately provide the financial support.

Candidature File (*underline added by author for emphasis)

6.1 An OCOG budget fully guaranteed

6.1.1 TOCOG Budget guarantee

Tokyo 2020 is very confident the TOCOG budget will be balanced. Nevertheless, should TOCOG incur a deficit, the Tokyo Metropolitan Government (TMG) has guaranteed to cover any potential economic shortfall of TOCOG, including refunds to the IOC in advance of payment or for other contributions made by the IOC to TOCOG.

In addition, should TMG be unable to compensate in full, the Government of Japan will ultimately compensate for it in accordance with the relevant laws and regulations of Japan.

6.1.2 Compensation mechanism in the event of a budget shortfall

(…) if necessary, TOCOG will activate the compensation mechanism.

Under the compensation mechanism, TOCOG will consult with TMG and the Government of Japan to ensure that the Tokyo 2020 Olympic and Paralympic Games can take place as planned. Financial support will be primarily provided by TMG. In addition, should TMG be unable to compensate in full, the Government of Japan will ultimately provide the financial support in accordance with the relevant laws and regulations of Japan.

The compensation mechanism will function in a similar fashion in the event of full or partial cancellation of the Tokyo 2020 Olympic and Paralympic Games.

The Candidature File is referred to in the HCC, which was signed by the IOC, TMG and JOC on 7 September 2013. It provides that, the TMG and TOCOG shall be jointly and severally responsible for financial undertakings and the Japanese government shall support them.

Host City Contract (*underline added by author for emphasis)

4. Joint and Several Obligations of the City, the NOC and the OCOG

(…) the City, the NOC (other than with respect to the aforementioned financial undertakings of the City and the OCOG) and the OCOG shall be jointly and severally responsible in respect of all damages, costs and liabilities of any nature, direct and indirect, which may result from a breach of any provision of this Contract. The IOC may in its sole discretion take legal action against the City, the NOC and/or the OCOG, as the IOC deems fit.

The foregoing shall be without prejudice to the liability of any other party, including without limitation, any Government, national, regional or local authorities that provided financial guarantees during the City's application or candidature to host the Games or otherwise.

7. Guarantees, Representations, Statements and Other Commitments

All guarantees, representations, statements, covenants and other commitments contained in the City's application or candidature file (…) shall survive and be binding upon the City, the NOC and the OCOG, jointly and severally, (…).

On top of that, the HCC provides that the TMG, JOC and TOCOG must always protect IOC from all payments and other obligations in respect to any damages, claims, actions, losses, costs, and/or expenses. On the other hand, the TMG, JOC and TOCOG promised to waive any claims against the IOC in the HCC.

9. Indemnification and Waiver of Claims Against the IOC

a) Indemnity by the City, the NOC and the OCOG. The City, the NOC and the OCOG shall at all times indemnify, defend and hold harmless and exempt the IOC, IOC Television and Marketing Services SA, the OBO, as further detailed in Section 54 (a) below, and their respective officers, members, directors, employees, consultants, agents, attorneys, contractors (e.g. Olympic sponsors, suppliers, licensees (of the IOC, the National Olympic Committees and the Organising Committees of the Olympic Games) and broadcasters) and other representatives (each, an "IOC Indemnitee" and collectively, "IOC Indemnitees"), from all payments and other obligations in respect of any damages, claims, actions, losses, costs, expenses (including outside counsel fees and expenses) and/or liabilities of any nature (including injury to persons or property), direct or indirect, suffered by the IOC (or any IOC Indemnitee), including all costs, loss of revenue, and also damages that the IOC (or any IOC Indemnitee) may have to pay to third parties (including but not limited to Olympic sponsors, suppliers, licensees and broadcasters) (collectively, "Claims") resulting from:

i) all acts or omissions of the City, the NOC and/or the OCOG (…), relating to the Games (including in connection with the planning, organising, financing and staging thereof) and/or this Contract;

iii) any claim by a third party arising from, or in connection with, a breach by the City, the NOC or the OCOG of any provision of this Contract.

c) Waiver of Claims against the IOC. Furthermore, the City, the NOC and the OCOG hereby waive any Claims against the IOC and the other IOC Indemnitees, including for all costs resulting from all acts or omissions of the IOC relating to the Games, as well as in the event of any performance, non-performance, violation or termination of this Contract. This indemnification and waiver shall not apply to wilful misconduct or gross negligence by the IOC.

Cancellation

As to the cancellation of Tokyo 2020, only the IOC has the right to make such decision on ‘reasonable grounds’. In the case of cancellation by the IOC for any reason, the TMG, JOC and TOCOG will be considered as waiving any claim or right of indemnity, and promising to indemnify and hold IOC Indemnities harmless from any third party claims.

XI. Termination

66.　Termination of Contract

a) The IOC shall be entitled to terminate this Contract and to withdraw the Games from the City if:

i) the Host Country is at any time, whether before the Opening Ceremony or during the Games, in a state of war, civil disorder, boycott, embargo decreed by the international community or in a situation officially recognised as one of belligerence or if the IOC has reasonable grounds to believe, in its sole discretion, that the safety of participants in the Games would be seriously threatened or jeopardised for any reason whatsoever;

(…)

iii) the Games are not celebrated during the year 2020;

iv) there is a violation by the City, the NOC or the OCOG of any material obligation pursuant to this Contract, the Olympic Charter or under any applicable law; or if

(…)

In case of withdrawal of the Games by the IOC, or termination of this Contract by the IOC for any reason whatsoever, the City, the NOC and the OCOG hereby waive any claim and right to any form of indemnity, damages or other compensation or remedy of any kind and hereby undertake to indemnify and hold harmless IOC Indemnitees from any third party claims, actions or judgements in respect of such withdrawal or termination(…).

Dispute Resolution

According to Article 87 of HCC, in the case of dispute among parties, the applicable law is Swiss law, and the dispute is to be decided by Court of Arbitration for Sport (CAS).

87. Governing Law and Resolution of Disputes; Waiver of Immunity

This Contract is governed by Swiss law. Any dispute concerning its validity, interpretation or performance shall be determined conclusively by arbitration, to the exclusion of the ordinary courts of Switzerland or of the Host Country, and be decided by the Court of Arbitration for Sport in accordance with the Code of Sports-Related Arbitration of the said Court. (…)

10. Conclusion

No one expected COVID-19 nor the impact that it would have on the Olympic Games at the time of the bidding process and of the signing of the HCC. As a result, the HCC and Candidature File provisions related to the losses caused by the postponement were not well understood among the Japanese people. Now people are starting to recognize the possibility that the TMG or/and Japanese government will likely incur huge losses as a result of the postponement or, in the worst-case, cancellation of Tokyo 2020.

Many Tokyo citizens and Japanese citizens were looking forward to Tokyo 2020 before COVID-19. However, judging from the national polls, now this excitement seems to turn into anxiety and concern.

While the whole world continues to prepare for the postponed Tokyo 2020, the situation is still uncertain. In fact, the current number of COVID-19 cases in Japan is much larger than at the time when the postponement was decided in March 2020. It is very hard for involved individuals to maintain their motivation in light of this uncertainty. On the other hand, the vaccination push is expected to be a game-changer. Not only the TOCOG, TMG and JOC, but also multimedia outlets, sporting federations, sponsors, travel agencies, and the general public are preparing, believing Tokyo 2020 will be held. It’s natural and understandable that host city citizens have various opinions. However, athletes have been training for the chance to qualify and compete at the Olympic Games their whole life. Therefore, it is hoped the situation will improve and the Tokyo 2021 Olympic Games will be held safely and securely even if they are totally different from what we expected originally.

Editor’s note: Kester Mekenkamp is an LL.M. student in European Law at Leiden University and an intern at the ASSER International Sports Law Centre. This blog is, to a great extent, an excerpt of his forthcoming thesis, which he shall submit in order to complete his master’s degree.

This final blog aims to provide some broader perspective, by sketching first the grander scheme in which Article 19 RSTP – FIFA's provision on the protection of minors – operates. Thereafter, the focus will shift towards testing Article 19 RSTP, thereby keeping in mind the previous blogs (Part 1: The Early Years and Part 2: The 2009 reform and its aftermath), against EU free movement law.

Putting Article 19 RSTP into perspective: The bigger picture

After having investigated the nuts and bolts of FIFA’s provision on the protection of minors in the first two parts of this blog, it might be useful to address its bigger picture.

Article 19 RSTP and its accompanying provisions regulate only a small share of the targeted activity. There is, unfortunately, also an illegal world. Circumvention of the prohibition is allegedly commonplace.[1] Visas and passports can be falsified.[2] Work permits can be obtained on the basis of jobs arranged by clubs.[3]

In any event, a larger dynamic constituted out of a multitude of intertwined forces is at play. Globalization and professionalization are important factors contributing to stardom in football. Football idols, especially those originating from non-European countries, like Messi, Neymar, Suarez, Drogba and Eto’o, symbolised a world of opportunity for millions of children in the developing world eager to follow that same path to global fame.[4] In many parts of South America and Central and West-Africa, where families are driven by the impetus to improve their daily lives and clubs eager to cash FIFA’s training compensation money, an entire training industry emerged with the sole objective of exporting young talents to European clubs.[5] A horrifying example of the (ultimate) consequences this process can generate was seen in 2007: A fishing trawler washed up on a Tenerife beach carrying 130 young African men, of which 15 were made to believe that they would attend trials at Olympique Marseille and Real Madrid.[6] Add to the mix a group of agents focused almost exclusively on harvesting young boys for the international football market, and one can easily understand the extreme difficulty faced by FIFA to rein these practices.[7]

It is evident that the case of minors wanting to transfer internationally is closely related to a broader set of socio-economic difficulties faced by an extremely unequal world. Wars, famine, drought, corruption and the severe economic disparity[8] between the developing and developed world are determinants that can simply not be ignored. National laws applicable to asylum, migration and trade are also part of the equation. The subject of this blog hence opens up a doorway to global complexity. A true protection of minors will therefore undoubtedly require a broader approach than solely measures concerning the world of football. Yet, FIFA’s article 19 could potentially contribute to improving the fate of some minors in the developing world. The question is, does it in practice?

Arguments supporting the prohibition of international transfers of minors

Former FIFA and UEFA presidents, Blatter, Platini, and Johansson, have all promoted an absolute forbiddance of international transfers of minors.[9] Although such a total ban was never introduced, the 2001 “Commission-condoned” FIFA transfer rules for the first time included a section dedicated to the enhancement of the protection of minors.[10] An accompanying FIFA circular stipulated that the new transfer rules imposed strict conditions “in order to provide a stable environment for the training and education of players”.[11] Moreover, it stated that the abuses, which were frequent in the past, had to be curbed. [12] Crucial in this is “protecting the appropriate and stable development of a minor as a whole”, which includes the training and education of these players.[13]

Another argument supporting Article 19 is its objective to tackle human trafficking. By strictly limiting the possibility for international transfers of minors, it takes the wind out of the traffickers’ sails. The significance of this aim was acknowledged by the European Parliament and the Commission.[14]

The thought behind the prohibition, being open to exception only in specific cases, is that minors are vulnerable, especially when moving to foreign countries. It tries to prevent football from breaking up families and “allows [minor football players] to remain within their country of origin and family networks for longer and hence reduces the psychological and cultural problems associated with adjusting to foreign climes”.[15] FIFA hereby acknowledges that “[w]hile international transfers might, in specific cases, be favourable to a young player’s sporting career, they are likely to be contrary to the best interests of the vast majority of players as minors”.[16] Poli came to a similar conclusion (concerning migration of football players in general) by stating that “the few examples of upward career paths mask the many cases of failure and are sufficient to convince young people and their families that it is worth giving oneself body and soul to football, often to the detriment of school training or an apprenticeship”.[17]

Arguments against the prohibition of international transfers of minors

There is an opposite narrative that calls Article 19 RSTP’s rationale partially into question.[18] It can be argued that for certain countries (keeping in mind the abovementioned), with respect to the aim of protecting young football players against potential abuse and exploitation through the appropriate and stable development in training and education, minors are in reality not served by staying in their home State.[19] Furthermore, it can be contended that migration by young football players from a developing country to a developed one can be a “viable livelihood strategy to lift an individual and therefore vicariously their family out of poverty”.[20] Paradoxically a measure “with the aim of protecting minors … may, in fact, reduce opportunities for youth living in developing countries”.[21] Moreover, one must beware of an ethnocentric judgement. The argument has been raised that even in cases where third world immigrants had failed with respect to their sporting careers, they considered themselves to have succeeded, “thanks to football”, since they could come to Europe and stay.[22] It becomes a positive “escape”, which stands in contradiction with the whole idea underlying Article 19 RSTP.[23] As we will see in the coming sections, this discussion is key to the evaluation of the compatibility of FIFA’s rule with EU law.

The Compatibility of Article 19 RSTP with EU free movement law

Applicability

For the purpose of this blog it is assumed that EU free movement law is applicable to Article 19 RSTP in relation to minor football players with an EU nationality. EU minors below the age of 16 might be able to rely on the EU citizenship rights and the free movement right of their parents. Furthermore, it can be reasonably argued that, by referring to inter alia Lawrie Blum[24], EU minor football players of 16 and above can be deemed workers in the sense of the free movement of workers.

Free movement law aspects

A few aspects that could be deemed restrictive of EU Free movement rights deserve some attention. These are separated into situations concerning either the rights of the minor football player itself, or the rights of their parents.

Article 19(2)(b), the “EU and EEA-rule”, is explicitly created in order for the provision as a whole to meet the requirements of EU free movement law.[25] Yet, the free movement of minors is restricted by the fact that they can only transfer to a club within another Member State once additional criteria concerning football training, education and living arrangements are complied with.[26] These extra criteria, intrinsically, make it harder for minor football players to move to a foreign club. Furthermore, EU minors below the age of 16 are unable to rely on this exception. As already mentioned at the beginning of the blog, this particular age group is unlikely to perform economic services against remuneration in the sense of a “worker” under Article 45 TFEU. Nonetheless, one could envisage that under-16 EU minors could be able to rely on their citizenship rights enshrined in Article 21 TFEU (together with Art. 34(2) of the EU Charter of Fundamental Rights) as non-economically active EU migrants.

Moreover, under-16 EU minors might be able to rely on the free movement rights of their parents. In short, the reason why an EU national decides to move to another Member State and take up work there is irrelevant under EU free movement law. To the contrary, Article 19 RSTP puts an emphasis on the underlying reason, as the “parents-rule” of Article 19(2)(a) RSTP can only be invoked where the player’s parents move to the country in which the new club is located “for reasons not linked to football”. The CAS has hereby clarified that the family’s move must be entirely disconnected from the transfer of the minor in a new football club. Under the FIFA rule, it is for example insufficient to establish that the move is partially connected to their child’s football activities, although not being the primary aim.[27] Hence, if (a) parent(s) would want to move to another Member State to take up work there for the, sole or partial, reason that their child can play for a club in that country, Article 19 RSTP will deter them from doing so. As such, the contested rule may thus amount to a provision that precludes or deters the parents from leaving their country of origin in order to exercise their right to free movement as workers.

Is Article 19 RSTP a proportionate measure under EU law?

The previous sections demonstrated that there is some room to argue that Article 19 RSTP could run counter EU Internal Market law, which could form a basis for future challenge to the provision. Regardless of whether this will ultimately be the case, the provision might benefit from some amendments. It goes without saying that the aim is on its face value laudable. Protecting minors against abuses connected to the transfer market must remain a priority. The manner in which this objective has been given practical effect has not been without criticism.

By encouraging minor football players to remain in their home country, the measure is certainly likely to contribute to them enjoying an appropriate and stable development in training and education. Furthermore, by introducing a strict regulatory regime, it lessens the chance of human traffickers using international football transfers as a cover for trafficking purposes. Therefore, it can be argued that the measure is suitable to attain its aim of protecting minors.

It then still has to be assessed whether it passes the test of necessity. As concluded at the time of its inception, an absolute ban on international transfers of minors was deemed too pervasive. The exceptions assured the overall appropriateness and reasonableness of the measure. This test raises in particular the question of existence of less intrusive alternatives. I would argue that there is indeed a less intrusive alternative to the current rule available. It involves a slight amendment of the “parents-rule” and would still attain the aim underlying the overall provision. This is achieved by firstly, omitting the requirement for the parents’ move “not to be linked to football”, and secondly, extending the mandatory obligations of clubs regarding the education and wellbeing of foreign minors, laid down in Article 19(2)(b), to the “parents-rule”.

Proposed amendment to the “parents-rule”

Article 19(2)(a) RSTP, the “parents-rule”, has shown to be controversial. It has, to give but an example, been stated that this exemption has “effectively made the [entire] rule worthless”. [28] As discussed in the previous blogs, the case law is marred with disputes arising with respect to this exception, wherein the judicial bodies have advocated a strict application of the rule. In brief, the minor must follow its parents and not vice versa. Yet, circumvention of the rule appears to be quite simple.[29] Without implying that this is a sufficient reason for changing the measure, it nevertheless does show that its current form is rather impractical (or hypocritical).

It can be reasonably argued that permitting an international transfer only if the parents move based on “reasons not linked to football” is too stern. There are examples of outcomes being adverse to the interests of the minors concerned, for instance the Acuña case.[30] Even stronger is the appeal by families who have decided to move together to another country in order for the children to pursue their dream of becoming a professional footballer.[31] In the words of the father of a 15-year-old player who was denied to play for FC Barcelona (after they, as a family, had moved from the US to Spain with that particular aim): “Why should FIFA be able to tell our family where it has to live if we want our kid to play [football]?”[32] Indeed, why should families not be able to move out of their own accord, provided that they meet the general criteria for residence within the new country? If for instance a family has enough financial resources to not become a burden on the social welfare systems or both parents find employment within the new country, they obtain the required residence permits, and as a result their child can play for the club of his choosing, it is hard to argue that this is contradictory to the aim of Article 19 RSTP. The CAS has been receptive to this type of arguments in the previously discussed case concerning Atlético Madrid, in which a minor (USA) was allowed to register with the club amongst others because his family was wealthy and its basic financial maintenance was not dependent on the parents’ work.[33] One could rightly contend that less affluent families should equally have the possibility to move together with their child to the country of a new club. Such a move, in particularly when considering a transfer from a club in a developing country to a European club, could be in line with the aim of Article 19 RSTP. Furthermore, the comparison with other sports, i.e. volleyball, hockey, tennis, rugby and athletics, shows that in those sports minors are not explicitly prohibited from moving, together with their parents, to another country in pursuit of their sporting dream.[34] The same can be said, when the children pursue a career in music or dance and the family moves to the place where he or she can learn from the best mentors.

It is no coincidence that the “parents-rule” is the most debated exception of Article 19 RSTP. One can easily agree that it is beneficial (in a vast majority of cases) for minors to keep living with their parents as it enhances their chances of having a stable development. However, does this also have to entail in which country that might be? This author does not believe so and would favour a situation where parents are allowed to move together with their child to another country, whether that is for reasons linked to football or not.

It can be tentatively pleaded that this can be realized, while still reaching the aims of Article 19 RSTP. As abovementioned, this can be achieved by, firstly, omitting the requirement for the parents’ move “not to be linked to football”, and secondly, by extending the mandatory obligations of clubs regarding the education and wellbeing of foreign minors as laid down in the “EU and EEA-rule” (Article 19(2)(b) RSTP), to the “parents-rule”. This alternative measure would warrant the objective of “appropriate and stable development in training and education”, given that the minor and his parents remain a united family and the clubs are additionally made responsible for ensuring that their sporting and academic education is guaranteed. To also attain the anti-human-trafficking aim, this proposed alternative should be safeguarded from abuse by way of legal guardianship (e.g. situations where human traffickers are able to obtain the status of legal guardian of a minor). Therefore the meaning of parents, within the reading of this exception, should constitute solely the biological parents at first. Perhaps it is possible for the PSC subcommittee to devise a suitable test, based on the minor’s best interest, for judging whether anyone other than the biological parents could equally be deemed eligible under this exception.

In an attempt to contribute to the debate on the protection of minors in football, this blog has proposed a modest reform of Article 19 RSTP. It is believed that such a change would tackle some of the problems withnessed in the past years, without loosing sight of the objectives of FIFA's provision on the protection of minors in football.

[1] J. Señík and T. Gábris, Minors in Sport. Position Paper on Legal Aspects of Minors in Sports in the Slovak Republic, (2010) International Sports Law Journal, p. 69.

[2] Ed Hawkins, The Lost Boys. Inside Football’s Slave Trade. Bloomsbury (2015), inter alia pp. 135, 162 and 229.

[3] S. Van den Bogaert, Practical Regulation of the Mobility of Sportsmen in the EU post Bosman, Kluwer (2005), p. 240; Supra at 2, p. 165.

[4] Supra at 2, pp. 115-116.

[5] J. Schokkaert, Football clubs’ recruitment strategies and international player migration: evidence from Senegal and South Africa, 17 Soccer & Society (2016), p. 121; The Guardian, “The scandal of Africa's trafficked players”, 6 January 2008,; Supra at 2, pp. 117-129.

[6] The Telegraph, “The dark side of football transfers”, 31 December 2014; Supra at 2, p. 132.

[7] R. Poli, African migrants in Asian and European football: hopes and realities, 13 Sport in Society (2010), p. 1008. For more on player’s agents, see A. Duval and K. Mekenkamp, “De- or Re-regulating the middlemen? The DFB’s regulation of intermediaries under EU law scrutiny at the OLG Frankfurt”, Asser International Sports Law Blog.

[8] J. Schokaert showed, supra at 5, p. 132, in comparison, that an economically higher developed country, such as South Africa as opposed to Senegal, which attracts more money to domestic football and higher wages for football players, resulting in more players to stay in their home country.

[9] Supra at 1, p. 68.

[10] Art. 12 FIFA RSTP 2001.

[11] FIFA Circular no. 769, 24 August 2001.

[12] N. St. Cyr Clarke, The beauty and the beast: Taming the ugly side of the people’s game, 2011 Columbia Journal of European Law, p. 627.

[13] See Blog 1; Commentary on the Status and Transfer of Players, p. 58.

[14] European Parliament, Report on the future of professional football in Europe (2006/2130(INI)), paras. 33-34; The White Paper on Sport, COM(2007) 391 final, p. 16.

[15] P. Darby, “Out of Africa: The exodus of elite African football talent to Europe”, JLS 2007, p. 453.

[16] FIFA, September 2016, “FAQ Protection of Minors”,

[17] Supra at 7, p. 1008.

[18] J. Esson, Better Off at Home? Rethinking Responses to Trafficked West African Footballers in Europe, Journal of Ethnic and Migration Studies 2015, pp. 526-527.

[19] M. LoPiccolo, You don't have to go home, but you can't stay here: Problems arising when SIJS meets international adoption, Wisconsin International Law Journal 2015, pp. 200-201.

[20] Supra at 18, p. 521.

[21] M. Mauro, Inclusive sport or institutional discrimination? New FIFA regulations, organized football and migrant youth in Italy, Sport in Society 2016, p. 2.

[22] R. Poli, African migrants in Asian and European football: hopes and realities, 13 Sport in Society (2010), p. 1009.

[23] P. Darby and E. Solberg, Differing Trajectories: Football Development and Patterns of Player Migration in South Africa and Ghana, 11 Soccer and Society (2009), pp. 118–130.

[24] Case 66/85, Lawrie Blum v Land Baden-Württemberg, [1986] ECR 2135, para. 17: the crucial elements are that, for a certain period of time, a person performs services for and under the direction of another person in return for which he receives remuneration.

[25] See blog 1.

[26] Art. 19(2)(b) RSTP: Hereby, it is important to indicate that the CAS in Vada II (TAS 2012/A/2862) has established a workable account for the particular case of players with the nationality of a EU or EEA Member State residing in a non-EU/EEA country, by allowing them to invoke this exception.

[27] TAS 2011/A/2494, FC Girondins de Bordeaux c. Fédération Internationale de Football Association (FIFA), sentence du 22 décembre 2011 (Vada I), paras. 31-38; CAS 2013/A/3140, A. v. Club Atlético de Madrid SAD & Real Federación Española de Fútbol (RFEF) & Fédération Internationale de Football Association (FIFA), award of 10 October 2013 (A. v. Club Atlético de Madrid), para. 8.25.

[28] Supra at 2, p. 246.

[29] KEA, CDES and EOSE, Study on Sports Agents in the Eurropean Union, November 2009, p. 128; Supra at 3, p. 240.

[30] See blog 2.

[31] The New York Times, “An American Boy Wonder in Barcelona”, 7 November 2013.

[32] The New York Times, “Strict Enforcement of FIFA Rules Sidelines Young Players Abroad”, 31 Augustus 2015.

[33] See blog 2; A. v. Club Atlético de Madrid, Supra at 28, para. 8.31.

[34] Supra at 30, pp. 127-129.

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