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

[Call for Papers] - International Sports Law Journal - Annual Conference - Asser Institute, The Hague - 24-25 October 2024 - Reminder!

The Editors of the International Sports Law Journal (ISLJ) invite you to submit abstracts for the next edition of the ISLJ Conference on International Sports Law, which will take place on 24 and 25 October 2024 at the Asser Institute in The Hague. The ISLJ, published by Springer and TMC Asser Press, is the leading academic publication in the field of international sports law and the conference is a unique occasion to discuss the main legal issues affecting international sports and its governance with renowned academic experts.

We welcome abstracts from academics and practitioners on all issues related to international and transnational sports law and their impact on the governance of sport. We also welcome panel proposals (including a minimum of three presenters) on specific issues of interest to the Journal and its readers. For this year’s edition, we specifically invite submissions on the following themes and subthemes:


Reformism in transnational sports governance: Drivers and impacts

  • Legal and social drivers of reforms in transnational sports governance   
  • The role of strategic litigation (before the EU/ECtHR/National courts) as a driver of reform;
  • The role of public/fan pressure groups on clubs, competition organisers and governments as a driver of change.
  • The impact of internal reforms in transnational sports governance: Cosmetic or real change? (e.g. IOC Agenda 2020+5, FIFA governance reforms, CAS post-Pechstein changes, WADA sfter the Russian doping scandal)
  • Emerging alternatives to private sports governance – the UK’s Independent Football Regulator.


The organization and regulation of mega sporting events: Current and future challenges 

  • Mega-sporting events as legalized sites of digital surveillance 
  • Greening mega-sporting events (e.g. carbon neutral pledges, environmental footprints of events, the impact of multiple hosting sites)
  • Mega-sporting events and the protection of human rights and labour rights (e.g. Paris 2024 Social Charter, Euro 2024 human rights commitments)
  • The Olympic Games and athletes’ economic rights (remuneration/advertisement)
  • Reviews of the legal issues raised at Euro 2024 in Germany and the Paris 2024 Olympic Games
  • Previews of the legal issues likely to have an impact on the FIFA 2026 World Cup and the Milano-Cortina 2026 Winter Olympic Games


Please send your abstract of 300 words and CV no later than 15 July 2024 to a.duval@asser.nl. Selected speakers will be informed by 30 July.

The selected participants will be expected to submit a draft of their paper by 1 October 2024. 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 number of travel & accommodation grants (max. 300€). If you wish to be considered for a grant, please explain why in your submission.


[New Event] Feminist theory and sport governance: exploring sports as sites of cultural transformation - 9 July -15:00-17:00 - Asser Institute


This seminar is part of the Asser International Sports Law Centre's event series on the intersection between transnational sports law and governance and gender. Dr Pavlidis will present her take on feminist theories and sport governance by exploring sports and in particular Australian rules football and roller derby as sites of cultural transformation.

Register HERE

Australian rules football is Australia's most popular spectator sport and for most of its history it has been a men's-only sport, including in its governance and leadership. This is slowly changing. Roller derby on the other hand has been reinvented with an explicitly DIY (Do It Yourself) governance structure that resists formal incorporation by 'outsiders'. This paper provides an overview of sport governance in the Australian context before focusing in on these two seemingly disparate sport contexts to explore the challenges of gender inclusive governance in sport.

Dr Adele Pavlidis is an Associate Professor in Sociology with the School of Humanities, Languages and Social Science at Griffith University in Australia. She has published widely on a range of sociocultural issues in sport and leisure, with a focus on gender and power relations. Theoretically her work traverses contemporary scholarship on affect, power and organisations, and she is deeply interested in social, cultural and personal transformation and the entanglements between people, organisations, and wellbeing.

We look forward to hearing Dr Pavlidis present on this topic, followed by reflections and comments by Dr Åsa Ekvall from the Erasmus Center for Sport Integrity & Transition, and Dr Antoine Duval from the T.M.C. Asser Institute. There will also be a Q&A with the audience.

Download the latest programme here 

Register HERE


[Call for papers] - International Sports Law Journal - Annual Conference - Asser Institute, The Hague - 24-25 October 2024

The Editors of the International Sports Law Journal (ISLJ) invite you to submit abstracts for the next edition of the ISLJ Conference on International Sports Law, which will take place on 24 and 25 October 2024 at the Asser Institute in The Hague. The ISLJ, published by Springer and TMC Asser Press, is the leading academic publication in the field of international sports law and the conference is a unique occasion to discuss the main legal issues affecting international sports and its governance with renowned academic experts.

We welcome abstracts from academics and practitioners on all issues related to international and transnational sports law and their impact on the governance of sport. We also welcome panel proposals (including a minimum of three presenters) on specific issues of interest to the Journal and its readers. For this year’s edition, we specifically invite submissions on the following themes and subthemes:


Reformism in transnational sports governance: Drivers and impacts

  • Legal and social drivers of reforms in transnational sports governance   
  • The role of strategic litigation (before the EU/ECtHR/National courts) as a driver of reform;
  • The role of public/fan pressure groups on clubs, competition organisers and governments as a driver of change.
  • The impact of internal reforms in transnational sports governance: Cosmetic or real change? (e.g. IOC Agenda 2020+5, FIFA governance reforms, CAS post-Pechstein changes, WADA sfter the Russian doping scandal)
  • Emerging alternatives to private sports governance – the UK’s Independent Football Regulator.


The organization and regulation of mega sporting events: Current and future challenges 

  • Mega-sporting events as legalized sites of digital surveillance 
  • Greening mega-sporting events (e.g. carbon neutral pledges, environmental footprints of events, the impact of multiple hosting sites)
  • Mega-sporting events and the protection of human rights and labour rights (e.g. Paris 2024 Social Charter, Euro 2024 human rights commitments)
  • The Olympic Games and athletes’ economic rights (remuneration/advertisement)
  • Reviews of the legal issues raised at Euro 2024 in Germany and the Paris 2024 Olympic Games
  • Previews of the legal issues likely to have an impact on the FIFA 2026 World Cup and the Milano-Cortina 2026 Winter Olympic Games


Please send your abstract of 300 words and CV no later than 15 July 2024 to a.duval@asser.nl. Selected speakers will be informed by 30 July.

The selected participants will be expected to submit a draft of their paper by 1 October 2024. 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 number of travel & accommodation grants (max. 300€). If you wish to be considered for a grant, please explain why in your submission.


[Online Summer Programme] - International sports and human rights - 22 - 29 May 2024 - Last spots!

Join us for the first online version of our unique training programme on ‘Sport and human rights’ jointly organised by the Centre for Sport and Human Rights and the Asser Institute taking place on May 22-24 & May 27-29.

After the success of the first editions in 2022 and 2023 the programme returns, focusing on the link between the sport and human rights and zooming in on a number of topics, such as the UN Guiding Principles for Business and Human Rights and their application in sports. We will also adopt a human rights lens to sport governance and address freedom of speech, the rights of athletes, and access to remedy.

Tackling contemporary human rights challenges in sport

The programme brings together the latest in academic research with practical experiences from working in the field in an interactive package, fostering productive exchanges between the speakers and participants. Theoretical knowledge will be complemented by exposure to hands-on know-how.

Participants will have the opportunity to learn from experts from the Asser Institute, the Centre for Sport and Human Rights, and high-profile external speakers from both academia and practice.

What will you gain?

  • An extensive introduction to the emergence of the sport and human rights movement
  • A greater understanding of the normative framework for human rights standards in sport
  • A comprehensive overview of the latest developments in the interplay between gender and sports
  • Practical know-how to govern  human rights in the context of sporting organisations
  • Practical know-how to address  human rights risks in the context of day-to-day sports, including safeguarding
  • Practical know-how to access remedy in human rights disputes
  • The opportunity to engage in discussions and network with leading academics and professionals

Topics addressed in this summer programme include:

  • The emergence of the sport and human rights discussion/movement
  • The integration of human rights in the governance of sport
  • The protection of athletes’ rights
  • Access to remedy for sport-related human rights harms


Read the full programme.

Register HERE


In partnership with:

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[Call for Papers] Through Challenges and Disruptions: Evolution of the Lex Olympica - 20 September 2024 - Inland School of Business and Social Sciences

Editor's note: This is a call for papers for a workshop inviting sports lawyers and historians to reflect on how the lex olympica developed within the last 128 years through the prism of challenges and disruptions to the Olympic Games and the sharp and incremental changes they provoked.


Background

The lex olympica are legal rules the International Olympic Committee created to govern the Olympic Movement. Since the revival of the Olympic Games in 1896, the lex olympica, with the Olympic Charter taking its central place, has undergone tremendous changes. It has increased not only in volume but also in complexity and reach.

While some changes were designed to give further detail to the Olympic values, others seem to serve as responses to numerous disruptions and challenges that the Olympic Games experienced on their way. History shows that the Olympic Games faced boycotts, apartheid, armed conflicts, wars, propelled commercialisation, corruption, critique based on human rights and sustainability, pandemics, and many other obstacles.

One can see triggers for changes in specific incidents, broader societal changes, external political interests, long-term internal processes, etc., or further differentiate them according to relevant stakeholders impacting the change, such as IOC, NOCs, IFs, NFs, athletes, commercial partners, television, activist groups, NGOs, governments, host countries, etc. Regardless of their taxonomies, all these challenges met different reactions and affected the Olympic regulation in various ways. The IOC chose to distance the Olympic Games from some challenges and fully embrace others.


Keynote speakers

  • Jörg Krieger, Associate Professor, Department of Public Health and Sport Science, Aarhus University; co-leader of the Lillehammer Olympic and Paralympic Studies Center; Associate Professor II Inland Norway University of Applied Sciences.
  • Mark James,  Professor of Sports Law and Director of Research in the Manchester Law School at Manchester Metropolitan University, Editor-in-Chief of the International Sports Law Journal.


Deadline for abstract submission: 15 June 2024

Confirmation of participation: 30 June 2024

Publication: Selected contributions will be considered for a special issue at International Sports Law Journal


Contact information

Yuliya Chernykh (Associate Professor)

yuliya.chernykh@inn.no


Organizer

Lillehammer Olympic and Paralympic Studies Center (LOSC), Inland School of Business and Social Sciences and Legal development research group at INN University


[New Publication] - The European Roots of the Lex Sportiva: How Europe Rules Global Sport - Antoine Duval , Alexander Krüger and Johan Lindholm (eds) - Open Access

Dear readers, 


I have the pleasure to inform you that our (with Prof. Johan Lindholm and Alexander Kruger from Umeå University) edited volume entitled 'The European Roots of the Lex Sportiva: How Europe Rules Global Sport' has been published Open Access by Hart Publishing. 



You can freely access the volume at: https://www.bloomsburycollections.com/monograph?docid=b-9781509971473


Abstract

This open access book explores the complexity of the lex sportiva, the transnational legal regime governing international sports. Pioneering in its approach, it maps out the many entanglements of the transnational governance of sports with European legal processes and norms. The contributors trace the embeddedness of the lex sportiva within national law, European Union law and the European Convention on Human Rights. While the volume emphasizes the capacity of sports governing bodies to leverage the resources of national law to spread the lex sportiva globally, it also points at the fact that European legal processes are central when challenging the status quo as illustrated recently in the Semenya and Superleague cases. Ultimately, the book is also a vantage point to start critically investigating the Eurocentricity and the complex materiality underpinning the lex sportiva.


Table of contents

1. Made in Europe: Lex Sportiva as Embedded Transnational Law - 1–14 - Antoine Duval , Alexander Krüger and Johan Lindholm

I. The European Roots of Lex Sportiva

2. Embedded Lex Sportiva: The Swiss Roots of Transnational Sports Law and Governance - 17–40 - Antoine Duval

3. Putting the Lex into Lex Sportiva: The Principle of Legality in Sports - 41–68 - Johan Lindholm

4. Europeanisation of the Olympic Host (City) Contracts - 69–92 - Yuliya Chernykh

5. The Influence of European Legal Culture on the Evolution of Lex Olympica and Olympic Law - 93–118 - Mark James and Guy Osborn

6. Who Regulates the Regulators? How European Union Regulation and Regulatory Institutions May Shape the Regulation of the Football Industry Globally - 119–152 - Christopher A Flanagan

7. The Europeanisation of Clean Sport: How the Council of Europe and the European Union Shape the Proportionality of Ineligibility in the World Anti-Doping Code - 153–188 - Jan Exner

II. The Integration of European Checks into the Lex Sportiva

8. False Friends: Proportionality and Good Governance in Sports Regulation - 191–210 - Mislav Mataija

9. Sport Beyond the Market? Sport, Law and Society in the European Union - 211–228 - Aurélie Villanueva

10. EU Competition Law and Sport: Checks and Balances ‘à l’européenne’ - 229–256 - Rusa Agafonova

11. Is the Lex Sportiva on Track for Intersex Person’s Rights? The World Athletics’ Regulations Concerning Female Athletes with Differences of Sex Development in the Light of the ECHR - 257–282 - Audrey Boisgontier

III. Engaging Critically with a Eurocentric Lex Sportiva 

12. Lex Sportiva and New Materialism: Towards Investigations into Sports Law’s Dark Materials? 285–308 - Alexander Krüger


[Advanced professional training] Responding to human rights abuse in sport: Safe, effective & appropriate investigation - 5-6 March

Register now for the second edition of our advanced professional training and learn how to respond in a safe, appropriate, and effective way to cases of human rights abuse in sport. 

In recent years, the world of sport has seen a rise in reports of cases of emotional, psychological, physical, and sexual abuse. Sport has often struggled to respond in a safe, effective and appropriate way to these cases.  This has, at best, led to missed opportunities to improve and strengthen prevention mechanisms.  At worst, it has caused retraumatisation and additional harm to those affected. 

This professional training uses real life challenges from past investigations to provide insight into how (not) to respond to reports and allegations of sport-related cases of abuse. It will provide you with tools and knowledge on how to deal with abuse cases while protecting those affected, complying with human rights, and upholding the integrity of sport.

Register HERE

Widespread abuse in sports
The last five years have seen a huge uptick in reports of cases of emotional psychological, physical and sexual abuse in sport. All over the world, across different sports, non-recent and recent cases have come to light: abuse allegations in Dutch gymnastics and US gymnastics, the abuse of female basketball players in Mali, systematic abuse of child athletes in Japan, the abuse of young boys within the English football, or children in other grass-roots sport in Germany, the sexual abuse ofwomen’s football national teams in Afghanistan and Haiti, or the recent sexual assault against a player of the Spanish women’s national football team, to mention but a few.

Ineffective response
Responses from the relevant entities like sport organisations and governments have often fallen short of both the expectations of those impacted, and internationally recognised human rights standards. Some organisations have failed to initiate any investigation whatsoever, while others have commissioned or led inadequate responses. This has resulted in strong  criticism from affected persons, their representatives, and other civil society organisations. However, until now sport has not benefited from  any real  clarity or consistency around good practice on how to respond in a safe, adequate and effective way to allegations of abuse. This course seeks to address that.

Register HERE

Good practice based on research and experience
The Centre for Sport and Human Rights (CSHR) has conducted a study, in conjunction with victims, survivors, and whistleblowers of abuse across continents and sporting disciplines, and based on the learnings developed and published a guidance on how to conduct safe, appropriate and effective investigations into abuse cases in sport.  In this professional training, the Asser Institute partners with CSHR to connect practical research-based guidelines with relevant legal norms and procedures to address human rights abuses in sport. 

What will you learn? 

  •   How (not) to respond to reports and allegations of sport-related cases of abuse 

  •   Knowledge and experience in responding to such cases in a way that protects the affected person from further harm and complies with human rights 

  •    The role that investigations play in access to remedy more broadly 

Download the full programme

Speakers:

  • Kat Craig (CSHR)
  • Dr Daniela Heerdt (Asser Institute)
  • Joanna Maranhão (4x Olympians and Survivor Network Coordinator)
  • Loïc Alves (Senior Legal Counsel at FIFPRO)
  • Peter Nicholson (Head of Investigations and Intelligence Athletics Integrity Unit and Ethics Officer ICC)

Register HERE

Sport is sailing rudderless into geopolitical storms - Russia and Israel responses show how absence of rules makes FIFA and the IOC tools of the global north - By Nick McGeehan

Editor's note: Nicholas McGeehan is co-director of human rights research and advocacy group FairSquare, which works among other things on the nexus between sport and authoritarianism. He is a former senior researcher at Human Rights Watch and holds a PhD in international law from the European University Institute in Florence.


Boycotts, divestments and sanctions are each controversial and contentious in their own right, but when combined under the right conditions, they have explosive potential. BBC football presenter Gary Lineker found this out to his cost when he retweeted a call from Palestine’s BDS movement to suspend Israel from FIFA and the International Olympic Committee (IOC)  until such time the Israeli state ends what they called “the crime of genocide it is perpetrating in Gaza” and its occupation of Palestinian territory. Lineker quickly deleted his retweet but not before the UK’s most popular right-wing tabloid newspaper, The Daily Mail, spotted it and renewed their fulminating campaign against Lineker’s support for political causes that run contrary to the Mail’s editorial positions. The Daily Mail does not oppose sporting boycotts, in fact judging from an article by its football columnist, Martin Samuel, it was an ardent supporter of Russia’s ejection from European football in the aftermath of its invasion of Ukraine. “Why should Russian football get to be part of the continent in which it has murdered innocents?,” asked Samuel  and in that regard he was not alone and was echoing views heard across the political divide in the west at the time. 

The west continues to boycott Russia, its companies have divested from Russia, and its governments are sanctioning Russia. This includes in the sporting arena where nobody batted an eyelid when Russian football teams were excluded from FIFA and UEFA competition, and its athletes excluded from IOC competition.  So it seems obvious that it  is not so much BDS tactics that offend people in certain quarters, but rather their target. Russia can be BDS’d until the cows come home, but BDS’ing Israel is beyond the pale. You can see how it might be hard to explain to a child.

Through an examination of the widely divergent responses to Russia’s actions in Ukraine and Israel’s actions in Gaza, this piece argues that FIFA and the IOC have aligned themselves with the political positions of the countries of the global north. With reference to previous sporting boycotts, it demonstrates how an absence of rules has left FIFA and the IOC sailing rudderless into stormy geopolitical waters and argues that they need to institute rules to guide their responses to events of this gravity and magnitude. Dispensing once and for all with the canard that sport and politics can be kept apart would enable sport’s governing bodies to appropriately leverage their political power and not merely act as puppets of the global north. More...


[Online Event] The aftermath of the Women's World Cup final: FIFA's and UEFA's responsibility in the Jenni Hermoso case

Join us on 14 December at 12:00 CET for an online discussion on FIFA and UEFA’s responsibility in responding to the incident that overshadowed Spains’ victory of the Women's World Cup, when Spanish national team player Jennifer Hermoso experienced a violation of her bodily integrity and physical autonomy due to a forced kiss given to her by Luis Rubiales, then the Spanish FA's president. 


During the 2023/2024 academic year, the Asser International Sports Law Centre dedicates special attention to the intersection between transnational sports law and governance and gender. This online discussion is the second in a series of (online and offline) events, which explore the way in which international sports governing bodies define the gender divide in international sports, police gender-based abuses, and secure gender-specific rights to athletes. You can watch the recording of our first virtual discussion on the Semenya judgment of the ECtHR on our Youtube Channel.  


Just minutes after the Spanish women's national team had won the FIFA Women's World Cup, Rubiales congratulated the players on the podium and grabbed Hermoso's head and kissed her on the lips. This act not only shocked the players and the audience but also caused immediate international uproar and calls for resignation. Rubiales first defended his act, claiming that Hermoso had agreed to it. However, her statements right after it happened, as well as her official statement published just a few days after the event forcefully denied the consensual nature of the kiss. Hermoso felt “vulnerable and a victim of aggression, an impulsive act, sexist, out of place and without any type of consent". Three months later, Rubiales has been suspended by FIFA for three years, resigned as president of the Spanish FA, and is facing criminal prosecution for the crimes of sexual assault and coercion in Spanish national courts. 


As extreme as this case sounds, it is not. In fact, it is a reflection of structural issues that exist in the world of women's football and women's sport more generally. Furthermore, this incident raises the question of the rights of the players subjected to such behaviour and the responsibility of sports governing bodies, and FIFA and UEFA in particular, insanctioning those who are engaging in such actions. How should SGBs respond to such incidents? What type of rules and procedures should they have in place? What are the measures that should be introduced to prevent similar actions in the future? What is the role of states (the Spanish state in the present instance) in investigating and prosecuting these cases?  


We look forward to discussing these issues (and many others) with our three speakers, who have followed the case closely: 

  • Kat Craig, human rights lawyer, founder and CEO of Athlead, Senior Adviser to the Centre for Sport and Human Rights; 

  • Alexandra Gómez Bruinewoud, is a Senior Legal Counsel at FIFPRO and a judge at the FIFA Dispute Resolution Chamber; 

  • Borja Garcia is Reader in Sport Policy and Governance at School of Sport, Exercise and Health Sciences in Loughborough University


The online discussion will be introduced and moderated by Dr Antoine Duval and Dr Daniela Heerdt, and will include short presentations by the speakers and a Q&A with the audience. 


This is a free event, you can register for it HERE

[Conference] International Sports Law Journal Annual Conference - Asser Institute - 26-27 October

On 26 and 27 October 2023, the Asser Institute in The Hague will host the 2023 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 scholarly exchanges on the state of the field. The conference will address a number of complex issues and disputes at the top of the transnational sports law agenda. In particular, we will zoom in on three main topics:

 

How football governance is (re)shaped by EU law

Since the Bosman ruling of the European Court of Justice (CJEU) in 1995, it has been obvious to football fans around the world that the European Union (EU) has a considerable influence on the governance and regulation of professional football. This year, 2023, provides us a striking reminder of this fact with (at least) two fundamental judgments of the Grand Chamber of the CJEU expected in the Superleague case and the UEFA’s home-grown players rule. Additionally, two further cases, which are challenging FIFA’s transfer system and its agent regulations, remain pending before the Luxembourg court. We will be looking closely at this relationship between EU law and the governance football through two panels (featuring senior and junior researchers) and a keynote lecture delivered by one of the finest observers of this encounter: Prof. Stephen Weatherill (Oxford University).

 

Autonomy and neutrality in the transnational governance of sports 

The invasion of Ukraine by Russia has postponed (once again) the end of history and revived within the Olympic Movement fundamental debates dating back to the Cold War and South-African Apartheid. Can the Olympic Movement stay neutral in the face of a clear violation of international law by Russia and of war crimes being committed by its armed forces? What should the consequences be in terms of the participation of Russian athletes and teams in international sporting competitions? If they are allowed to participate, under what conditions should they be competing? All these questions are ultimately connected to the definition and practice of the autonomy and neutrality of sport vis-a-vis international law and politics and will be at the heart of the another set of presentations at the ISLJ conference and a digital bridge with the Symposium on Sport & Neutrality organised in Lillehammer by the Inland Norway University of Applied Sciences.

 

The transnational regulation of gender by sports governing bodies

Our third focus area for this year’s conference will be the regulation and governance of gender boundaries by SGBs. The recent and ground-breaking decision of the European Court of Human Rights in the Semenya case crystallises the contemporary importance of questions related to the division between genders in the context of international sports. Furthermore, the ongoing and heated debates on the participation of transgender athletes in female competitions are also highlighting the importance of the decisions taken by SGBs in this regard. We will be hosting a specific Panel tackling these issues and will be welcoming Prof. Silvia Camporesi (University of Vienna and King’s College London) for a keynote lecture connecting the legal debates with ethical and philosophical considerations.

 

More information and registration HERE

 

Download the full programme

 

Online participation available

Following the success of last year's webinar option, 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.

Asser International Sports Law Blog | From Lord of the Rings to Lord of the Drinks – A legal take on the downfall of Yuri van Gelder at the Rio Olympics. By Guido Hahn (Erasmus University Rotterdam)

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

From Lord of the Rings to Lord of the Drinks – A legal take on the downfall of Yuri van Gelder at the Rio Olympics. By Guido Hahn (Erasmus University Rotterdam)

Editor’s note: Guido graduated cum laude from the Vrije Universiteit Amsterdam. He teaches law at the Erasmus Universiteit Rotterdam. He specializes in sports law and provides legal advice for the professional sports sector.


Introduction

This blog is a commentary on a recent case that hit like a bombshell in the Netherlands (and beyond) during the recent Olympic Games in Rio. The case concerns a Dutch athlete, Yuri van Gelder, who reached the Olympic finals in his sport, got sent home by ‘his’ NOC (NOC*NSF) after a night out in Rio and launched legal proceedings in front of a Dutch court to claim back his place in the finals. This commentary will attempt to explain the Dutch ruling and evaluate whether a different legal route would have been possible and preferable.

Yuri van Gelder is a Dutch gymnast, who is specialized in the rings. He became internationally known as ‘The Lord of the Rings’ after winning the gold medal at the World Championship in Melbourne in November 2005. After some setbacks in his career, he was not able to qualify for the 2008 Beijing Olympics. In 2009, during the Dutch Championships he was tested positive on the use of cocaine. He admitted that he had a drug problem and had been using cocaine for some years. He was suspended for a year by the Dutch Gymnastics Federation (KNGU), excluded from the 2012 London Olympics under the regulations of the IOC and even lost his job in the military. After winning the gold medal at a World league game in Gent on his comeback in 2010, he was taken off the team for the World Championships by the KNGU, claiming that he had used cocaine again.

In October 2011 the CAS found the IOC-rule that excluded athletes, who had been suspended for six months or longer, from future Olympic Games to be invalid and unenforceable. Van Gelder was therefore allowed to participate at the 2012 London Olympics, but again was not able to qualify, after failing to meet the required score at the World Championship in Tokyo at the end of 2011. From that moment on, the athlete decided to fully focus on the 2016 Rio Olympics, for which he eventually qualified. Like all other Dutch athletes who qualified and had been selected for the 2016 Rio Olympics, Van Gelder had to sign a so called ‘Athlete Agreement’ with NOC*NSF, which encapsulates the period of preparation before as well as the duration of the Games. At 33 years of age, these Olympics were his last chance to finally win that Olympic medal he so anxiously craved for.


Sent home from the Olympics

On Saturday 6 August in Rio, Van Gelder qualified for the individual finals on the rings, which were to take place nine days later, on 15 August. That same Saturday night he left the Olympic village and came back somewhere around 5 am. On Sunday he stayed in bed until approximately 3 pm, thereby missing a scheduled training session with the team. On Monday 8 August, the NOC*NSF, after hearing Van Gelder, disqualified him from further participation in the Games. That same day, an NOC*NSF employee was sent with the athlete to escort him to the airport from where he was flown back to the Netherlands. The NOC*NSF then removed Van Gelder from the finals through the International Gymnastics Federation (FIG), which appointed a replacement. A short press release by NOC*NSF stated that, in consultation with the KNGU, Van Gelder was sent home after the Federation had informed the NOC that he had come back to the village early in the morning, in spite of the team rules. It further stated that the athlete had admitted to the use of alcohol. This fueled speculation in the media, considering Van Gelder’s past. However, there was also criticism regarding the NOC*NSF’s decision, as many felt that it was disproportionate to disqualify an athlete, who had worked so hard to reach the finals, for celebrating one night out with still more than a week to go to those finals.

Van Gelder, now back in the Netherlands, took a lawyer and decided to start proceedings in front of the Dutch interlocutory judge of the Court of Gelderland (the Van Gelder Case). The oral proceedings, broadcasted live on Dutch television, took place on Friday 12 August, three days before the Olympic finals.


The ruling of the interlocutory Judge of Gelderland

Van Gelder’s lawyer requested from the court to order NOC*NSF to do everything in its power to make sure Van Gelder could participate in the individual finals on the rings on 15 August, including starting proceedings before the CAS Ad Hoc Division in Rio, or that NOC*NSF assist Van Gelder in starting proceedings for the CAS Ad Hoc Division and grant him a fee in advance for the costs.[1]

The court had to determine on which grounds the decision(s) to disqualify Van Gelder from participating in the Games had been taken and whether the severity of the measure(s) was proportionate in relation to the noncompliance with the obligations laid down in the Athlete Agreement. In doing so, the interlocutory judge applies a ‘marginal test’, which means he will keep certain deference towards the challenged decision and will consider only whether the decision ‘could reasonably have been made’.

The Athlete Agreement states that the athlete is expected to make every effort to ensure that he is capable of the maximum athletic performance, in preparation for and during the Olympics, and thereto devotes himself to the ‘Program’ completely and with optimal athletic effort.[2] Furthermore, the athlete is expected to behave as a good member of ‘TeamNL Rio 2016’ both during competition and elsewhere, having in mind the rules of the IOC Code of Ethics but not only.[3] If the athlete is not complying with the obligations as laid down in the Agreement, the NOC*NSF can decide to exclude the athlete from participating in the Games and/or impose a loss of (the right to) a medal bonus.[4] Before taking such a decision the athlete always needs to be heard/questioned.[5]

The court held for a fact that Van Gelder was told by his trainer through ‘WhatsApp’ not to stay out too late, that he should not drink and that he had to train the next day with the team.[6] However, the court was not convinced of Van Gelder’s noncompliance with the ‘behavioral rules’ enshrined in article 6, paragraph 4 of the Athlete Agreement. The Athlete Agreement or the IOC Code of Ethics do not define or specify clearly what these ‘behavioral rules’ stand for, even though the measures the NOC can take can severely affect the athlete. The court considers that these kind of behavioral rules should be drafted more precisely and should be communicated more clearly to the athletes. Thus, merely leaving the Olympic village without permission, drinking, and coming back early in the morning cannot be seen as violating article 6, paragraph 4 of the Agreement with the NOC.[7]

However, the fact that Van Gelder was warned and still went out drinking, came home early in the morning and missed a scheduled training, is undoubtedly coming short of the obligation laid down in article 6, paragraph 3 of the Athlete Agreement. This behavior is contrary to his duty to commit to the training and competition schedule.[8] Furthermore, the court continued, the athlete’s behavior undermined the team’s efforts and, considering Van Gelder’s past, this has resulted in a breach of trust with his trainer and with the NOC*NSF. Although it is possible that, based on this behavior, another NOC would have taken a different decision than kicking the athlete out of the Olympics, the court considers this irrelevant as it only applies a marginal test.[9] In addition, Van Gelder was questioned and heard twice before the decision was made. The decision therefore cannot be considered to have been made in haste or without proper deliberation.[10] In the end, the court determined that the NOC*NSF could reasonably decide that Van Gelder has committed a serious breach of his contractual duties under the Athlete Agreement. The same applied to the decision to disqualify Van Gelder from further participation in the Games.


A different legal route: The CAS Ad Hoc Division in Rio

Could Van Gelder, instead of going to the Dutch court, have taken a different strategic approach in this case? In the author’s opinion this would have been possible, as the CAS has (since the 1996 Atlanta Olympics) set up an Ad Hoc Division with the purpose of providing for arbitration of disputes, insofar as they arise during the Games, within 24 hours.[11] In the case of a request for arbitration against a decision by an NOC, the claimant must, before filing such a request, have exhausted all the internal remedies available to him pursuant to the statutes or regulations of the sports body concerned, unless the time needed to exhaust the internal remedies would make the appeal to the CAS Ad Hoc Division ineffective.[12] In this case, the internal remedy can be found in the Athlete Agreement, which states that when a dispute arises between the parties during the Games concerning or related to the compliance of the Agreement, the concerned party informs the so-called ‘Chef de Mission’. If the Chef de Mission is incapable of resolving the dispute, it will be send to a committee of binding advisors.[13] This committee has jurisdiction in case of urgency and where the athlete and NOC*NSF both choose an advisor, both advisors in turn choose an independent chairman, after which the committee gives a binding decision to end the dispute.[14]

Why Van Gelder had not chosen to apply the internal dispute resolution procedure of article 22, paragraph 3 and 4 of the Athlete Agreement is not clear from the facts of the case. In that regard, the events of 8 August, when Van Gelder was questioned or heard, become (even more) important. The Dutch courts stated that Van Gelder was questioned twice by the NOC*NSF, but did not clarify what was discussed. The only sure thing is that directly after the decision by the NOC*NSF, Van Gelder was escorted to the airport and flew back to the Netherlands. Would he still have left the country if he had been informed that the Agreement provided for an internal procedure within NOC*NSF, aimed at resolving disputes during the Games, in which he had the right to appoint one of the binding advisors? If such a procedure would have taken place and Van Gelder would have lost, an appeal in front of CAS would still have been possible. Furthermore, would he have chosen to fly back, if he had been advised that the CAS Ad Hoc Division had jurisdiction in cases of urgency or if the NOC was unwilling or unable to trigger its internal procedure? Would he have made the same choices had he known that it would help his case before the CAS Ad Hoc Division if he had attended any hearing in person?

What is clear is that Van Gelder got legal representation when he was back in the Netherlands. At that point a flight back to Rio was rather costly for the athlete. An internal procedure with the NOC*NSF might have been impractical to carry out with eight days remaining to the final, but informing the NOC*NSF in writing that there was a dispute and requesting an internal procedure could have (regardless of the NOC’s reaction) helped to establish the jurisdiction of the CAS Ad Hoc Division if needed. This CAS Ad Hoc Division procedure could also have been started from the Netherlands.


Conclusion

The remaining unknown is whether the CAS Ad Hoc Division would have ruled in favor of Van Gelder and/or have granted him access to the finals. As the Dutch court stated, the Athlete Agreement is rather unclear with respect to the obligation of an athlete to act as a good team member. The CAS Ad Hoc Division might have taken this vagueness into consideration. Furthermore, the CAS Ad Hoc Division would not have applied the same level of deference as the Dutch court. It could have also taken into account the fact that the consequences of the decision of the NOC*NSF were very severe for the athlete, especially since this would be his last Games. Against all this, the fact would have remained that the behavior of the athlete did breach article 6, paragraph 3 of the Athlete Agreement and that a replacement for Van Gelder in the finals was already appointed. Yet, even if the CAS had invalidated the decision by the NOC without granting Van Gelder a place in the finals, he would have been in a good position to claim damages.

The conclusion that can be drawn from this episode is that Van Gelder could have followed a different legal route. This might have provided the athlete a better chance at winning his legal challenge and get back into the Olympics. The Dutch court has made it clear that it wants the ‘behavioral rules’ drafted by the NOC*NSF, or other sports bodies for that matter, to be more precise and better communicated to the athletes, especially when the measures at the disposal of the NOC can severely affect the rights of an athlete. Besides not drinking, going to bed on time, and never missing training a week before the most important finals of your life, there is another lesson to be learned from the case. As an athlete, when facing sanctions from a Federation, NOC or other SGBs, it is wise to get legal representation immediately. This might increase your chances of successfully challenging the decision and taking part in the Olympic Games or any other competition.



[1] Van Gelder Case, point 3.1.

[2] Article 6, paragraph 3, Athlete agreement. The Program is defined in the agreement as: The training and competition schedule for the Athlete, approved by the Federation after consultation with NOC*NSF, with the goal of qualifying for and participating in the Olympic Games.

[3] Article 6, paragraph 4, Athlete agreement. TeamNL Rio 2016 is defined in the agreement as: The group of both athletes and their trainers/coaches, that is participating in the Olympic Games (and with whom NOC*NSF has a written agreement for the Olympic Games Rio 2016) and that has asked for accreditation by OCOG through NOC*NSF.

[4] Article 20, paragraph 1, sub a and b, Athlete Agreement.

[5] Article 20, paragraph 2, Athlete Agreement.

[6] Van Gelder Case, point 4.3.

[7] Ibid, point 4.6.

[8] Ibid, point 4.7.

[9] Ibid, point 4.9.

[10] Ibid, point 4.10.

[11] See on the CAS Ad Hoc Division for example: C. Keidel and A. Engelhard,’The Legal Framework of the CAS Ad Hoc Division at the Rio Olympic Games’, LawInSport August 4 2016, via: http://www.lawinsport.com/articles/item/the-legal-framework-of-the-cas-ad-hoc-division-at-the-rio-olympic-games, viewed on the 24th of August 2016. And from the same authors: ‘Key Ad Hoc Division Cases handed down at the Olympic Games, LawInSport August 4 2016, via: http://www.lawinsport.com/articles/item/key-cas-ad-hoc-division-cases-handed-down-at-the-olympic-games, viewed on the 24th of August 2016.

[12] See Article 1 of the Arbitration Rules applicable to the CAS ad hoc division for the Olympic Games.

[13] Athlete agreement, Article 22, paragraph 4.

[14] Ibid, Article 22, paragraph 3.

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