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

New training - University of Amsterdam Masterclass on Sports Law and Governance - October 2025-January 2026

Dear readers,

The University of Amsterdam is organising a Masterclass on 'Sports Law and Governance' between October 2025–January 2026.


The hybrid training is structured around 6 modules dealing with key legal issues related to athlete representation. With my colleague, Dr Daniela Heerdt, we are hosting one module at the T.M.C. Asser Instituut, which will be focused on the human rights of athletes.

You'll find more information about the training at https://www.uva.nl/en/programmes/professionals/sports-law-and-governance/sports-law-and-governance.html?origin=7k8gIZTOQA211FZ1DnDUow

Join us to discover what human rights can (and cannot) do for athletes!

Call for contributions - Sporting Succession in Selected Jurisdictions - Edited by Jacob Kornbeck and Laura Donnellan - Deadline 1 October 2025

  

Expressions of interest are invited from colleagues who would like to contribute to an edited book on Sporting Succession in Selected Jurisdictions. Interested colleagues are invited to send their abstracts jointly to laura.donnellan@ul.ie and klausjacob.kornbeck@gmail.com. If you are unsure about how your research would fit in, please feel free to reach out to us via email before writing your abstract. Abstracts received will be included into a book proposal to be submitted to a major English-speaking publisher. Colleagues will be notified by us once we have received the reaction of the publisher, at which point we shall decide about further steps to be taken in the process. 

 

The book will be edited by Jacob Kornbeck, BSc, MA, LLM, PhD, DrPhil, Programme Manager in the European Commission (but acting strictly in a private capacity) and external lecturer at the University of Lille, inter alia, and Laura Donnellan, LLB, LLM, PhD, Associate Professor in the School of Law, University of Limerick.

 

The following incorporates the most salient ideas from a presentation made by Jacob Kornbeck at the Sport&EU Conference in Angers (June 2023). 

 

The concept of sporting succession permits making claims against sporting entities which can be considered as sporting successors to previously existing sporting entities, even where the previous entities have been wound up and have been dissolved under normal bankruptcy and succession rules. No fault is required for sporting succession to be invoked and considered, and the concept may even apply in certain cases where the previous entity has not even been dissolved legally (CAS 2023/A/9809 Karpaty FC v. FIFA, Cristóbal Márquez Crespo & FC Karpaty Halych. 18 July 2024). While the implementation of the relevant FIFA rules by national FAs has been documented comprehensively in a recent edited book (Cambreleng Contreras, Samarath & Vandellós Alamilla (eds), Sporting Succession in Football. Salerno, SLPC, 2022), no known book or article addresses the overlap, interplay and potential conflict of norms between the lex sportiva of sporting succession and the public law or successions, etc. 

 

Provisions on sporting succession were first inserted into the FIFA Disciplinary Code 2019 with the effect that, whenever a sporting entity declares bankruptcy or is otherwise wound up, the notion of sporting succession applies to its unpaid financial liabilities and may be imputed to a so-called sporting successor, even if that successor is an entity legally distinct, according to the usual rules under public law, from the previous entity. Article 14 of the FIFA Disciplinary Code 2023 governs ‘failure to respect decisions,’ understood as failure to ‘pay another person (such as a player, a coach or a club) or FIFA a sum of money in full or part, even though instructed to do so by a body, a committee, a subsidiary or an instance of FIFA or a CAS decision (financial decision), or anyone who fails to comply with another final decision (non-financial decision) passed by a body, a committee, a subsidiary or an instance of FIFA, or by CAS.’ Article 21(4) extends the scope of the provision to the ‘sporting successor of a non-compliant party’ who ‘shall also be considered a non-compliant party and thus subject to the obligations under this provision. Criteria to assess whether an entity is to be considered as the sporting successor of another entity are, among others, its headquarters, name, legal form, team colours, players, shareholders or stakeholders or ownership and the category of competition concerned.’ Further provision is made in Article 21(7). In practice, this means that a club which carries on the legacy on a previous club, drawing on its cultural capital, fan base, etc., may be liable to paid unpaid debts of that previous club. These arrangements seem unusual prima facie.

 

Organs of FIFA have power to enforce these rules and to hear appeals against such decisions, while their decisions may be appealed to the Court of Arbitration for Sport (CAS) and/or to the Swiss judiciary (see Victor Piţurcă v Romanian Football Federation & U Craiova 1948 SA (CAS 2021/A/8331) (2023) as well as well as the rulings of the Federal Tribunal in the cases Youness Bengelloun (2022) and Júlio César da Silva et Souza (2022) based on Article 190 LDIP (Federal Act on Private International Law). 

 

While the concept of sporting succession offers a striking example of a provision for specificity enshrined in a sporting regulation and applied within the sports community, its pertinence under public law remains largely unaccounted for. With the (apparent) exception of one Swiss PhD thesis (Derungs, 2022), the issues which it raises seem so far to have failed to trigger the scholarship which they might deserve, especially in a comparative legal research perspective. The aim of the envisaged edited book is to explore the issue in a comparative perspective, not only across jurisdictions but also across different branches of the law. We hope in particular to receive abstracts on the following:


  • Examples from the most representative European (and possibly extra-European) countries of overlap, interplay and potential conflict of norms between the lex sportiva of sporting succession and the public law or successions, etc. Ideally, the book should include chapters from and about the biggest European countries which are most relevant to the football industry while, at the same time, it would seem crucial that the most important legal traditions (French and German civil law, common law, Nordic law) should be represented. 
  • Perspectives of players and other stakeholders.
  • Examples from other sports than football, if appropriate.
  • Examples of overlap, interplay and potential conflict of norms between the lex sportiva of sporting succession and other branches of lex sportiva, if applicable.
  • Examples of overlap, interplay and potential conflict of norms between the lex sportiva of sporting succession, on the one hand, and new developments in sports such as AI and esports, on the other.
  • If we have overlooked a meaningful nuance, please feel free to flag this in your submission and make corresponding proposals to us. 

Please send us your abstracts jointly to laura.donnellan@ul.ie and klausjacob.kornbeck@gmail.com no later than 1 October 2025. 

Reflecting on Athletes' Rights on the Road to the Olympic Games: The Unfortunate Story of Nayoka Clunis - By Saverio Paolo Spera and Jacques Blondin

Editor's note: Saverio Paolo Spera is an Italian qualified attorney-at-law. He holds an LL.M. in international business law from King’s College London. He is the co-founder of SP.IN Law, a Zurich based international sports law firm. Jacques Blondin is an Italian qualified attorney, who held different roles at FIFA, including Head of FIFA TMS and Head of FIFA Regulatory Enforcement. He is the co-founder of SP.IN Law. The Authors wish to disclaim that they have represented Ms. Nayoka Clunis before the Court of Arbitration for Sport in Lausanne in the context of the proceedings which led to the Award of 31 July 2024.

 

  

Every four years since more than a century,[1] a spectacular display of sportsmanship takes place over the course of a few weeks during the summer: the Olympic Games.[2]

         For thousands of athletes around the globe, the Olympic Games are “the pinnacle of success and the ultimate goal of athletic competition”.[3] In their quest to compete in the most important stage of their sport, they endure demanding and time-consuming efforts (often including considerable financial sacrifices). These endeavours occasionally lead to everlasting glory (the exploits of athletes of the calibre of Carl Lewis, or more recently, Usain Bolt[4] still resonate among sports’ observers), more often to a shorter gratification. Whether their gestures end up going down the sport’s history books or last the span of a few competitions, athletes are always the key actors of a magnificent event that continues to feed the imagination of generations of sports fans. 

And yet, situations may occur when athletes find themselves at the mercy of their respective federations in the selection process for the Olympic Games and, should the federations fail them (for whatever reason), face an insurmountable jurisdictional obstacle to have their voice heard by the only arbitral tribunal appointed to safeguard their rights in a swift and specialised manner: the Court of Arbitration for Sport (the “CAS”).[5]

This is the story of Nayoka Clunis, a Jamaican world class hammer throw athlete who had qualified for the Olympic Games of Paris 2024 and yet, due to no fault of her own, could not participate in the pinnacle of competitions in her sport. Though eligible in light of her world ranking, she was failed by her own federation[6] [AD1] [SPS2] and ultimately found herself in the unfortunate – but legally unescapable – vacuum whereby neither the CAS Ad Hoc Division in Paris nor the ‘regular’ CAS division in Lausanne had jurisdiction to entertain her claim.  

The aim of this paper is not to discuss whether Ms. Clunis would have had a chance to successfully prove her claims and compete in Paris had her case been heard on the merits, nor to debate about the appropriateness of a national federation’s selection process (also because Ms. Clunis never challenged it, having been eligible ‘from day one’).[7] Retracing the story of a sportswoman’s dramatic misfortune, this paper aims at providing an opportunity to reflect on how effective the safeguard of athletes’ rights in the context of the Olympic Games actually is. More...

Call for Papers - Long-term contracts in sport: The private foundations of sports law and governance - University of Inland Norway - Deadline 15 June

The University of Inland Norway and the Asser International Sports Law Centre invite the submission of abstracts for a workshop in Lillehammer on 4 and 5 December exploring the role of long-term contracts in sport and their characteristics through a variety of theoretical and methodological lenses.

Contracts play a crucial role in the world of sport, particularly long-term contracts. Contractual agreements form the foundation of transnational sports governance, SGBs are all formally the product of a specific time of contract (be it in the form of an association or corporation) often justifying the autonomy of sport and its private governance at a (more or less far) distance from the state.

Moreover, contracts establish long-term commitments between the parties involved, raising a variety of questions regarding the asymmetry in their positions, the scope of party autonomy, contractual mechanisms for addressing uncertainty, and their interaction with domestic and international mandatory regulations, among others. In short, it is impossible to fully understand the operation and limitations of transnational sports law and governance without investigating the many ways in which it is embedded in long-term contracts ruled by a variety of contract laws.

This workshop proposes to explore the role of long-term contracts in sport and their characteristics through a variety of theoretical and methodological lenses.

We welcome proposals touching on the following issues/case studies:

  • The concept of time in sport and the definition of ‘long-term’ in sport-related contracts;
  • The function of long-term contracts in transnational sports governance;
  • The function of long-term contracts in the operation of private dispute resolution mechanisms (CAS, BAT, FIFA DRC);
  • The transactional nature of long-term contracts in sport;
  • The relational nature of long-term contracts in sport;
  • The conflict between private autonomy and long-term contracts in sport;
  • The intersection between private and public in the operation of long-term contracts in sport;
  • Specific contractual arrangements, including:
    • Contracts of association and SGBs
    • Long-term (labour) contracts with athletes and coaches;
    • Contracts related to the organization of mega-sporting events, including host city contracts;
    • TV and media long-term contracts;
    • Sponsorship agreements;
    • and more.

Abstracts must be sent to Yuliya Chernykh (yuliya.chernykh@inn.no) by 15 June. 

New Training - Summer Programme on International sport and human rights - Online - 21-28 May

Since 2022, the T.M.C. Asser Instituut, in collaboration with the Centre for Sport and Human Rights, is organising the first yearly summer course on the intersection of sport and human rights. This 4th edition brings together scholars specialised in the intersection between sport and human rights with professionals working in international sport to ensure respect for human rights. We will explore contemporary human rights challenges in sports, such as the protections of human rights at mega-sporting events, access to remedy in human rights cases within the world of sport, the intersection between human rights and gender rights in international sporting competitions, and many more. 


The programme is designed to provide both deep background knowledge and actionnable insights, which will be relevant to a range of participants committed to defending human rights in international sport, including students, junior researchers, representatives of CSOs, sporting organisations, and athletes. It is structured around half days taking place online meant to accommodate as many participants as possible throughout the world. 


Check out the latest draft programme below and register HERE


Call for Papers - 20 Years of the World Anti-Doping Code in Action - ISLJ Conference 2025 - 6 & 7 November 2025


 


Call for papers

20 years of the World Anti-Doping Code in Action

International Sports Law Journal Conference 2025

Asser Institute, The Hague

6 and 7 November 2025

 

The Editors of the International Sports Law Journal (ISLJ), the Asser Institute and the Research Chair on Responsible Sport of the University of Sherbrooke invite you to submit abstracts for the ISLJ Conference on International Sports Law, which will take place on 6 and 7 November 2025 at the Asser Institute in The Hague. The ISLJ, published by Springer and T.M.C. Asser Press, is the leading academic publication in the field of international sports law and governance. The conference is a unique occasion to discuss the main legal issues affecting international sports with academics and practitioners from all around the world. 

 

The 2025 ISLJ Conference will focus on assessing the first 20 years (2004-2024) of operation of the World Anti-Doping Code (WADC) since its entry into force in 2004, while also discussing its future prospects, in light of the new version of the Code due to be adopted at the Busan Conference in December 2025 and the 10th Conference of the Parties to the International Convention against Doping in Sport, to be held in Paris from 20 to 22 October. The aim of the conference will be to take a comprehensive stock of the operation of the private-public transnational regulatory regime which emerged in the wake of the WADC.  This regime is structured around a complex network of national and global institutions engaged in anti-doping work (WADA, NADAs, IFs, accredited laboratories) and guided by an equally complex assemblage of norms located at the global (WADC and the WADA Standards), international (UNESCO Convention against Doping in Sport), regional (Council of Europe Anti-Doping Convention), and national (various national anti-doping legislations) level. This makes for a fascinating and convoluted transnational legal construct in need of being studied, analysed and criticised by scholars. 

 

Reviewing 20 years of implementation of the WADC warrants a special edition of the ISLJ Conference and of the journal, which invites scholars of all disciplines to reflect on the many questions and issues linked with it. We welcome proposals touching on the following subjects (and more): 

  • The governance of the world anti-doping regime
    • The public-private nature of this governance
    • The transparency of this governance
    • The legitimacy of this governance
    • The participatory nature of this governance
    • The role of scientific experts in this governance
  •  The normative content of the WADC and the international standards
    • The strict liability principle 
    • The privacy rights of athletes under the WADC
    • The sanctioning policy under the WADC
    • The role of the international standards in implementing the WADC
    • The compatibility of the WADC with human rights
  • The glocal implementation of the WADC
    • The role of local institutions (NADOs/Labs/NOCs) in the implementation of the WADC
    • The tension between global (WADA) and local (NADOs/Labs/NOCs) in the implementation of the WADC
    • The role of the IFs in the implementation of the WADC
    • The role of the ITA in the implementation of the WADC
    • The role of judicial bodies (national courts, disciplinary committees of IFs, CAS) and their jurisprudence in the implementation of the WADC 
  • The effectiveness of the world anti-doping regime
    • The evaluation and evolution of the effectiveness of the world anti-doping regime in preventing doping
    • The role of the media in unveiling the ineffectiveness of the world anti-doping regime
    • The role of states in hindering the effectiveness of the world anti-doping regime
    • The world anti-doping regime as a regime with a variable geometry of effectiveness
  •  The future of the world anti-doping regime: Revolution, reform or more of the same?
    • Do we need a world anti-doping regime? 
    • If we do, should it be reformed? How? 


Abstracts of 300 words and CVs should be sent no later than 1 June 2025 to a.duval@asser.nl. Selected speakers will be informed by 30 June 2025. The selected participants will be expected to submit a draft paper by 15 October 2025. Papers accepted and presented at the conference are eligible for publication in a special issue of the ISLJ subject to peer-review. The Asser Institute will provide a limited amount of travel and accommodation grants (max. 350€) to early career researchers (doctoral and post-doctoral) in need of financial support. If you wish to be considered for a grant, please indicate it in your submission.  


Zoom-In Webinar - The Aftermath of the Diarra Judgement: Towards a New FIFA Transfer System? - 20 November - 16:00-18:00 CET

On 4 October, the Court of Justice of the European Union shook the world of football with its Diarra ruling. The decision questions the compatibility of a key provision of the FIFA Regulations on the Status and Transfer of Players (RSTP) with European Union internal market law. The RSTP, and in particular its article 17, are the bedrock of football’s transfer ‘market’ and regulate the conditions for the transnational movement of players between clubs. In 2023, based on FIFA’s numbers, 21 801 players were transferred internationally (of which 3279 with a fee) for transfer fees amounting to USD 9.63 bn. In short, this is a market that affects a considerable number of players and is linked with the movement of large sums of money between clubs and other actors (such as intermediaries).

Register HERE

Join us on 20 November from 16:00 to 18:00 CET to take stock of the ruling's impact and discuss the steps ahead in a free Zoom-In webinar in which there will be time for a Q&A session with the speakers. The ruling has already been much commented on (see hereherehere, and here), and this zoom-in webinar will be an opportunity for participants to engage with two experts on the economic and legal intricacies of the regulation of labour relations in football. We will mostly focus on the aftermath of the judgment and the question, 'what comes next?'

Moderator: Marjolaine Viret (Université de Lausanne)

Speakers: 


Register HERE

Free Webinar - The impact of the Diarra case on the football transfer system - 18 October 2024 - 15:00 CET

The Court of Justice of the European Union has recently handed down its judgement in the Lassana Diarra case (C-650/22 FIFA v. BZ).

Given the importance of this case to the sports industry, LawInSport, the Asser Instituut and the Association for the Study of Sport and the EU (Sport & EU) are hosting a joint webinar to bring together experts to unpack and provide clarity on the complex legal, regulatory & commercial issues stemming from this case. This free webinar will be hosted from 14:00 UK time (15:00 CET) on 18 October 2024.


Register HERE 


Speakers

Our expert speakers come from academia, law and sport. Our confirmed speakers are:


Register HERE 

Conference - ISLJ Annual Conference 2024 - 24-25 October - Asser Institute - The Hague

On 24 and 25 October 2024, the Asser Institute in The Hague will host the 2024 edition of the  International Sports Law Journal (ISLJ)  Conference. The ISLJ is the leading academic journal in transnational sports law and governance and is proud to provide a platform for transnational debates on the state of the field. The conference will address a number of issues of interest to the ISLJ and its readers. 

Register HERE

Drivers and effects of reform in transnational sports governance 

Transnational sports governance seems to be in a permanently unstable state of crisis and reform. At regular interval, international sports governing bodies face scandals triggered by corruption investigations or human rights violations, as well as adverse judidicial decisions. These are often followed by waves of institutional reforms, such as the creation of new bodies (E.g. the Athletics Integrity Unit), the adoption of new codes and regulation (such as Codes of Ethics) or human rights commitments (e.g. FIFA and the IOC’s Human Rights Policy/Strategy). This dynamic of crisis and reform will be at the heart of this year’s ISLJ conference, as a number of panels will critically investigate the triggers, transformative effects and limited impacts of reforms in transnational sports governance.  

Football in the midst of international law and relations 
As the war in Gaza and Russia’s invasion of Ukraine continue to rage, it has become even clearer that the football world can hardly be entirely abstracted from international relations. Yet, FIFA and UEFA continue to insist on their neutrality and to deny that their governance is (or should be) affected by the world’s political affairs. During the conference, we will engage with case studies in which football is entangled with international politics and law. In particular, the speakers will delve into the role of FIFA and UEFA in such situations and on the legal standards and processes that should be applied throughout their decision-making.  

Olympic challenges of today and tomorrow 
While the Paris 2024 Olympics have come to a close, the legal questions they have raised are far from exhausted. Instead, the Olympics have highlighted new issues (such as the question of the legality of the hijab ban imposed by the French Federation on its athletes) or old ones (such as the question whether Olympians should be remunerated by the IOC or the international federations), which will be discussed by our speakers. Finally, with the help of our keynote speaker, Prof. Jules Boykoff, a longstanding critique of the current Olympic regime, we will explore the IOC’s capacity to adapt to challenges while resisting radical change to the current model of olympism.   

Download the full programme 

Online participation available 
Following the success of our webinar option in the past years, we are once again allowing online participation to the conference at an affordable price. Thus, we hope to internationalise and diversify our audience and to reach people who are not in a position to travel to The Hague.  

We look forward to welcoming you in person in The Hague or digitally to this new iteration of the ISLJ conference. 

Register HERE

Speakers 


Register HERE


Asser International Sports Law Blog | In blood we trust? The Kreuziger Biological Passport Case. By Thalia Diathesopoulou

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

In blood we trust? The Kreuziger Biological Passport Case. By Thalia Diathesopoulou

Over the last twenty years, professional cycling has developed the reputation of one of the “most drug soaked sports in the world”.[1] This should not come as a surprise. The sport’s integrity has plummeted down due to an unprecedented succession of doping scandals. La crème de la crème of professional cyclists has been involved in doping incidents including Tyler Hamilton, Floyd Landis, Alejandro Valverde and Lance Armstrong. The once prestigious Tour de France has been stigmatized as a race of “pharmacological feat, not a physical one”.[2]

In view of these overwhelming shadows, in 2008, the International Cycling Union (UCI), in cooperation with the World Anti-Doping Agency (WADA) took a leap in the fight against doping. It became the first International Sports Federation to implement a radical new anti-doping program known as the Athlete Biological Passport (ABP).[3] The ABP signalled a paradigm shift in drug testing with its reliance upon tracking biological variables in a cyclist’s blood and urine which are considered to indirectly reveal the effects of doping and particularly of the so called blood doping rather than directly detecting a prohibited substance or method in a cyclist’s system.[4] It constitutes an indirect method for the detection of an anti-doping rule violation[5] which triggers the imposition of doping sanctions under Article 2.2 World Anti-doping Code (WADC) based solely on the longitudinal profiling of the athlete’s sample.

Albeit a “monumental step for cycling”[6], the seven years of application of ABP have sparked a vigorous debate in the cycling community from a legal and scientific standpoint. The Kreuziger case is the most recent incarnation of the legal uncertainty surrounding the legitimacy of finding cyclists guilty of doping based on the ABP alone. In August 2014, Roman Kreuziger, a professional Czech cyclist and member of the Tinkoff Saxo professional cycling team, was provisionally suspended after anomalies detected in his ABP dating back to 2011 and 2012. The UCI’s decision was confirmed by the CAS who dismissed the athlete’s appeal against his provisional suspension. In September 2014, he was cleared of doping by the Czech Olympic Committee’s arbitral panel which decided on the merits of the case pursuant to Chapter IX UCI ADR. With the appeal of the UCI and WADA  pending before the CAS and Kreuziger, if found guilty, being under the sword of Damocles of a four-year ban, we grasp the opportunity to offer a thorough reading of the Czech Olympic Committee’s arbitral award which seems to distil the most pertinent legal issues dealing with the ABP: (1) the ABP’s reliability as indirect means of evidence in proving a doping violation and (2) the latent tension between the national federations, which on one side, clear the cyclists from doping violations  and the UCI and WADA, on other side, appealing these awards before the CAS, based on its readiness to accept indirect biological-passport evidence in finding cyclists guilty of doping, adding thereby to the legal uncertainty. 


The starting point: Kreuziger’s ABP abnormalities in a nutshell

While this blogpost does not intend to delve into the obvious complexities of the blood profiling methods, the assessment of the factual background of the Kreuziger case requires an elementary examination of how the ABP functions.

The ABP is an individual electronic record for professional athletes, where biological markers of doping have been profiled and results collated over a period of time.[7] Its novelty lies in the development of an individualized baseline for each athlete, whose individual longitudinal profile becomes the point of reference itself.[8] In fact, the individual blood sample is compared to the athlete’s historical parameters with the application of a statistical model that uses Bayesian inference techniques. The current operational component of the ABP is the haematological profile, which monitors blood markers and aims to detect blood manipulation by either transfusion or erythropoiesis stimulating agents like recombinant erythropoietin (rhEPO). Among the blood markers used in the haematological profile are haemoglobin and reticulocytes. Haemoglobin is a protein located on red blood cells that is responsible for binding oxygen so it can be transported through the bloodstream.[9] During a stage race, athletes are expected to show a consistent decrease in the haemoglobin concentration due to plasma volume expansion.[10] Reticulocytes are immature red blood cells. When blood is withdrawn from the body or in case of rhEPO injections, the bone marrow is stimulated to produce these immature blood cells. As a result, rhEPO injections can be a possible explanation for high reticulocyte levels.[11] On the other hand, when the blood is re-infused into the body, the body recognizes the subsequent increase in red blood cells and decreases the production of reticulocytes. In this sense, decreased reticulocyte levels can be indicators of a recent blood transfusion or previous treatment of erythropoiesis stimulating agents.[12]

In the case at hand, the Kreuziger ABP abnormalities consisted of the detection of raised haemoglobin level during the 2012 Giro d’Italia and raised reticulocyte level in the period from March to August 2011 and from April 2012 to the end of the 2012 Giro d’Italia, according to the UCI Expert Panel report dated 14 June 2012. It is noticeable that the mentioned indicators did not go beyond the baseline values. However, as the UCI Expert panel remarked, it was not the haemoglobin values themselves but the actual trend of increasing haemoglobin levels during a race that was problematic.[13] As a result, the UCI concluded that it is very likely that these abnormalities were a result of blood doping and consequently initiated disciplinary proceedings against Kreuziger on the grounds of violating Article 21.2 of the UCI ADR for using a prohibited substance or a prohibited method. 


The Czech Olympic Committee’s arbitral panel decision on the Kreuziger case

- Questioning the fair trial guarantees under the UCI ADR

The first issue raised by Kreuziger is the breach of his right to fair trial due to the short deadlines in the proceedings provided under the UCI ADR. In fact, the athlete claims that he did not have sufficient time to properly prepare and respond to the statements submitted by the UCI and requests that this evidence is not taken into consideration. On the other hand, the UCI claims it did not have enough time to reply to the additional statements submitted by the Athlete and asks the panel not to take into account the new evidence. [14]

In view of these objections, the panel decides to accept all evidence adduced by the parties in order to assess the case in the fairest manner possible. The panel also seized the opportunity to voice a strong criticism with regard to the short duration of the proceedings provided under the UCI ADR. The panel does not only express its concerns that the UCI procedural terms cannot guarantee a fair trial due to the “excessively short deadlines for rendering the decision, entirely absent basic procedures and unilateral preference for UCI’s procedural position” but it goes a step further by characterizing the process of the UCI ADR as “a caricature of fair trial”.[15] In the same vein, the panel notes that UCI’s concern to conduct disciplinary proceedings according to the principles of fair trial “appeared rather hypocritical”.

-Reconciling conflicting evidence

Before evaluating the evidence, the panel acknowledges that it is faced with a conflict of expert evidence and that, due to its lack of expertise in the area under examination, it has to be cautious. Indeed, the reports of the UCI expert panel suggest that it is highly likely that the Athlete had used a prohibited substance or method, while the three expert reports presented by the Athlete question the UCI’s expert panel conclusions and provide various explanations of the detected ABP abnormalities.[16] By reference to the Roman law principle iudex peritus peritorun (‘the judge is the expert of the experts’), the panel assumes its role to determine whether the experts’ reports are plausible based on the factual elements available.[17] However, coming back to its severe criticism towards the short deadlines of the UCI ADR proceedings, the panel remarks that it would normally appoint an impartial, and unprejudiced by the course of the dispute, expert to provide a “review expert report” evaluating the conflicting conclusions drawn from the evidence available.

In cases related to the application of the ABP the federation which aims to establish an ADR violation committed by the athlete should bring the violation to the comfortable satisfaction of the arbitral panel.[18] As a first step, the panel notes that Kreuziger’s ABP haemoglobin and reticulocytes indicators did not go beyond the baseline values and, as a result, the assumption that the likelihood of violation of an anti-doping rule by Kreuziger is 99,9% cannot be considered as proven to the panel’s “comfortable satisfaction”. Therefore, the panel concludes that it cannot find an anti-doping rule violation based solely on Kreuziger’s ABP, but that it rather needs to further examine the expert reports and statements.[19]

With regard to the raised haemoglobin levels, the panel finds guidance in Dr Hampton’s expert statement. Although he acknowledges the general trend of decreased haemoglobin levels for riders during long stage races supported by the UCI expert panel he provides evidence, i.e. the Corsetti paper, that individual deviations are possible and particularly that the haemoglobin levels rose in some riders during the second half of the race. Furthermore, he remarks that increased haemoglobin levels during races were detected in the athlete’s ABP not only during the alleged period (i.e., 2012 Giro d’ Italia) but also during the 2011 Tour de France. This reinforces his argument that Kreuziger’s ABP should be considered as falling within the possible deviations from the general trend in haemoglobin levels. In view of this evidence, the panel considers that it was not proven to its “comfortable satisfaction” that the increased haemoglobin levels had been a consequence of the use of a prohibited substance or method.[20]

As far as the raised reticulocyte levels are concerned, the panel once again notes that it has to evaluate conflicting expert reports, whose assessment should “preferably the subject of a review expert report”. On one hand, the expert report presented by the athlete suggests that there is clear evidence –i.e. the report of Kim et al.- that the athlete’s overt hypothyroidism and the treatment by thyroxin justifies the substantial increase in the value of reticulocytes, while the UCI expert panel states that this evidence should not be taken into consideration, since the said study did not examine athletes. Furthermore, in evaluating the witness examination, the panel remarks that the UCI expert panel was not aware of Kreuziger’s proven severe overt hypothyroidism and, as a result, it did not take into consideration this factor when evaluating his raised reticulocyte levels. In view of this evidence, the panel concludes that it was not proven to its “comfortable satisfaction” that the elevated reticulocyte levels are the result of the use of a prohibited substance or method, since the athlete’s overt hypothyroidism was a crucial element in explaining this increase. In view of these findings, the panel cleared Kreuziger to race. 


The ABP’s controversial aspects through the lens of the Kreuziger case

The Czech Olympic Committee’s arbitral award on the Kreuziger case, although not questioning the ABP as a method capable of proving doping as such, adds to the concerns raised with regard to the validity of using biological-passport evidence as the sole basis for doping violations. It suggests that the evaluation of the ABP results requires that many factors pertaining both to the given sport and to the specific functioning of the athlete’s body should be taken into consideration. Two interesting remarks can be derived from this award: 

1)        The role of the panel in evaluating expert evidence in ABP cases

The use of the ABP as a reliable means of evidence to establish a doping violation requires that the analysis and results management of the ABP be thoroughly understood and evaluated.[21] The procedure is more technical and complicated than in other doping-detection techniques since the ABP results have to be analysed by a panel of experts.[22] This is further complicated by the fact that it is very likely that contradictory expert reports and testimonies are brought before the arbitral panel. The role of panels, therefore, in evaluating expert evidence is crucial.

The Kreuziger case is illustrative of the arbitral panel’s daunting task of understanding, evaluating and legally enforcing complex scientific issues. In this respect, following the well-established CAS jurisprudence[23], the Kreuziger panel assumed its duty to weigh differing expert opinions on Kreuziger’s ABP abnormalities and assess the plausibility of their conclusions, while keeping in mind the limits of its own scientific knowledge and the “comfortable satisfaction” standard of proof. More importantly, the Kreuziger panel pointed out the need for an unprejudiced review expert report which would evaluate the validity of the different conclusions reached. In ABP cases, therefore, where experts and arbitral panels go hand in hand, it is crucial that ABP results be made more comprehensible, and that scientists get more involved in evaluating ABP evidence rather than obtaining it.[24]

2)        The inherent tension between national federations and the UCI

It is remarkable that the Kreuziger award reflects the furious debate between national federations and the UCI with regard to the legitimacy of finding cyclists guilty of doping based on the ABP evidence. As noted above, the panel strongly criticized the UCI ADR proceedings, which due to their short deadlines are far from guaranteeing a fair trial to the parties. Considering the critically important rights at stake for cyclists, the panel’s remark on the short and expedited proceedings of UCI ADR in assessing ABP evidence sets an important threshold: the crucial need for sufficient safeguards of due process for cyclists accused of doping on the basis of indirect evidence alone. This criticism on the excessively short UCI ADR proceedings becomes even more controversial in view of recent developments. The UCI, obviously worried about the delays in ABP cases, recently announced that it will treat incidents of ABP abnormalities as if a rider had failed an A-sample drug test. This rather aggressive approach of the UCI, however, seems to further undermine the cyclists’ right to due process, raising the inevitable question whether the quest to eliminate doping from cycling outweighs the fundamental rights of cyclists.[25]

Furthermore, considering that the appeal before the CAS is pending, it is noteworthy that the tension between national federations and the UCI has resulted in creating two competing lines of jurisprudence. The Kreuziger award comes in line with a series of national governing bodies’ arbitral panels which have cleared the suspected athletes in view of insufficient proof to establish an anti-doping violation on the basis of the ABP evidence alone. The Slovenia National Anti-Doping Commission panel in the Valjavec case as well as the Italian National Olympic Committee (CONI) Anti-Doping Tribunal in the Pellizotti case did not hesitate to exonerate the cyclists of a doping infraction. However, the CAS has been consistent in overturning such decisions[26], showing its broad willingness to accept the indirect ABP evidence in finding cyclists guilty of ADR violations[27] and it seems highly unlikely that the CAS will deviate from this approach in the Kreuziger case. Remarkably, the wake of Kreuziger’s case and the outlined jurisprudential inconsistency led the UCI to announce the creation of an international anti-doping tribunal. The new tribunal, which will be made up of judges specialized in anti-doping and independent of the UCI, will disempower the national anti-doping organisations and aims to guarantee uniform, consistent and timely decisions. In view of this development, it is expected that a jurisprudential middle way in ABP cases will be followed. However, the question remains whether the criticisms expressed by the national federations undermining ABP’s legitimacy will be fully addressed.

Although promising, the ABP still raises vexing legal and scientific concerns. The Kreuziger case has added to the concerns that anti-doping authorities still need to address. In light of this, the CAS decision is eagerly awaited. It remains to be seen whether the arbitrators will follow the strikingly consistent path of supporting the use of ABP evidence, or whether the Kreuziger case will be a turning point for the CAS to acknowledge the limits of this detection method.


[1] R Rosen, ‘Breaking the Cycle: Balancing the eradication of doping from international sport while holding the rights of the accused athlete’ (2007) 25(3) Entertainment & Sports Law 3

[2] J Macur, ‘As scandals arose, Armstrong just rode on’ (2 January 2010) New York Times

[3] N Hailey, ‘A false start in the race against doping in sport: Concerns with cycling’s biological passport’ (2011) 61 Duke Law Journal, 393.

[4] P-E Sottas, ‘On the evaluation of doping evidence’ (2010) Paper delivered at the Seminar for CAS Jurisprudence and New Developments in International Sports Law, September 17 and 18 2010

[5] http://www.uci.ch/clean-sport/the-athlete-biological-passport-abp/

[6] J Macur, ‘Cycling Union takes leap in fight against doping’ (October 24, 2007) New York Times

[7] TAS 2010/A/2178, Pietro Caucchioli c. CONI & UCI, para 5 and CAS 2010/A/2235, UCI v/ Tadej Valjaveo & Olympic Committee of Slovenia

[8] The World Anti-Doping Agency, ‘The World Anti-doping Code Athlete Biological Passport Operating Guidelines and Compilation of Required Elements’ Article 6.1 Introduction

[9] R McLaren, ‘ Athlete Biological Passport: The juridical viewpoint’ (2012) 4 International Sports Law Review, 81

[10] G Banfi, ‘Limits and pitfalls of Athlete’s Biological Passport’ (2011) 49 (9) Clin Chem Lab med, 1418

[11] R McLaren (n 9), 81

[12] H Findlay, ‘ Athletes’ Biological Passport: Some legal issues’ (May 17, 2012) Lecture delivered at the Conference on Law, Policy and the Olympic Movement at Ithaca College London Centre cited in N Hailey, ‘ A false start in the race against doping in sport: concerns with cycling’s biological passport’ (2011) 61 Duke Law Journal

[13] Arbitration Committee of the Czech Olympic Committee Ref No. 3/2014, Roman Kreuziger v the Czech Cycling Federation (22.09.2014), para 5.2

[14] Roman Kreuziger v the Czech Cycling Federation (n 13), para 4.10

[15] Ibid,  para 4.11

[16] Report of Dr Boer of 25 Auguat 2013, report of Dr Locatelli of 24 June 2014 and report of Dr Hampton

[17]Roman Kreuziger v the Czech Cycling Federation (n 13), para 6.2

[18] Article 3.1 of the World Anti-Doping Code (WADC) 2009

[19] Roman Kreuziger v the Czech Cycling Federation (n 13), para 6.5

[20]Ibid, para 6.7

[21] R McLaren (n 9), 77.

[22] D Mavromati, ‘Indirect detection methods for doping from a legal perspective: the case of the Athlete Biological Passport’ (2014) 6 International Journal of Sport Policy and Politics 2, 255.

[23] CAS 2010/A/2235, UCI v/ Tadej Valjaveo & Olympic Committee of Slovenia

[24] P-E Sottas, ‘On the evaluation of doping evidence’ in A Rigozzi and M Bernasconi (eds) CAS jurisprudence and new developments in international sports law (2010 3rd CAS & SAV/FSA conference Lausanne)

[25] N Hailey, ‘ A false start in the race against doping in sport: concerns with cycling’s biological passport’ (2011) 61 Duke Law Journal, 427

[26] CAS 2010/A/2235, UCI v/ Tadej Valjaveo & Olympic Committee of Slovenia and Press Release, Court of Arbitration for Sport, The Court of Arbitration for Sport (CAS) Imposes a Two Year Ban on the Italian Cyclists Pietro Caucchioli and Franco Pellizotti 1–2 (Mar. 8, 2011)

[27] N Hailey (n 25), 419

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Asser International Sports Law Blog | FIFA’s provision on the protection of minors - Part 3: The compatibility of Article 19 with EU law. By Kester Mekenkamp.

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

FIFA’s provision on the protection of minors - Part 3: The compatibility of Article 19 with EU law. By Kester Mekenkamp.

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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