Editor’s
note: Thomas Terraz is a fourth year LL.B.
candidate at the International and European Law programme at The Hague
University of Applied Sciences with a specialisation in European Law. Currently
he is pursuing an internship at the T.M.C. Asser Institute with a focus on
International and European Sports Law.
1. Introduction
As we begin plunging into a new decade, it can be helpful to look
back and reflect on some of the most influential developments and trends from
2019 that may continue to shape international sports law in 2020 and beyond. Hence,
this piece will not attempt to recount every single sports law news item but
rather identify a few key sports law stories of 2019 that may have a continued
impact in the 2020s. The following sections are not in a particular order.
2. Court of Justice of the
European Union’s TopFit Decision
The Court
of Justice of the European Union’s decision in TopFit in June sent shockwaves in the EU sports law world by finally
providing some answers to a long untouched issue of purely amateur sport. The
case concerned an Italian amateur athlete, living in Germany for several years
who had been precluded from participating in a German national championship in
the senior category due to no longer fulfilling the nationality requirements because
of a change of the Deutscher Leichtathletikverband’s (DLV) regulations governing
this issue. Daniele Biffi, the athlete in the case, argued that this violated
his European citizenship rights under Articles 18 and 21 TFEU. Leading up to
the final decision, the Advocate
General’s opinion in the case, analyzed in an earlier blog,
had sidelined this argument in favor of embracing a more familiar economic
argument based on the freedom of establishment. AG Tanchev contended that an
analysis based on Article 18 and 21 TFEU may open a pandora’s box by giving
horizontal direct effect to Article 21 TFEU. In the end, the CJEU took the
issue of European citizenship rights head on. The CJEU’s decision, also
analyzed in our blog,
focused on three themes: the general applicability of EU law to amateur sport,
the horizontal applicability of European citizenship rights, and the
justifications and accompanied proportionality requirements to nationality restrictions
in national championships. It found that Mr. Biffi could rely on Articles 18
and 21 TFEU and ruled that the DLV’s justifications for the rule change were
disproportionate.
All things considered, there are a variety of ways TopFit may have a lasting impact. For
example, the ‘golden rule’ of EU sports law had once been that an economic
dimension was always needed to trigger the applicability of EU law. This is clearly
no longer the case as the CJEU in TopFit expressly
confirmed that European citizenship rights, which do not require an economic
dimension to be invoked, could be relied upon in a sports related case, meaning
that all sport activity is subject to EU law. Additionally, TopFit may have unlocked the true
potential behind European citizenship rights by giving them horizontal direct
effect, which may have ramifications far beyond sports law.[1] In the years ahead, it will be interesting to
see whether this will trigger a flood of new cases based on European
citizenship rights.
3. Decision of the
Bundeskartellamt (German Competition Authority) Concerning Rule 40 of the
Olympic Charter
As has become tradition in the lead up to an Olympic year, athletes have
once more been pushing back
against bye-law 3 of rule 40 of the Olympic Charter (OC), which restricts advertisements
from athletes participating in the Olympic Games. While rule 40’s intent is to
combat ambush marketing at the Games to protect the value of the Olympic
Partner Programme (TOP), athletes have argued that it severely restricts their
ability to financially exploit their sport achievements during the Olympic
Games, which for many is a once in a lifetime opportunity for greater exposure.[2]
This is compounded by the fact that many athletes struggle to make a living
from their sport. This situation most recently culminated in a
decision of the Bundeskartellamt (the German competition law authority) that
focused on this issue. In its preliminary assessment of the case, the Bundeskartellamt
took a restrictive view of when limitations on athlete advertisements could be
justified by narrowly interpreting ambush marketing and finding that restrictions
on advertisement must aim to protect specific intellectual property rights. In
the end, the Deutscher Olympischer Sportbund (Germany’s national Olympic
committee) made several commitments to resolve the case.[3]
The decision is likely to (and has already to a certain extent[4])
help spark a shift in the IOC’s position on this issue. Furthermore, the British
Olympic Association has just recently faced a
new complaint on behalf of some of its athletes. Regardless, it is clear
the European Commission is closely
following the situation and given the Bundeskartellamt’s decision is only
enforceable within Germany, there is a continued possibility that the
Commission and ultimately the CJEU may eventually have a final say on this
issue. Rule 40 undoubtedly is an issue that deserves attention, especially with
Tokyo 2020 around the corner.
4. Sun Yang’s Public Hearing
at the CAS
2019 also proved to be quite the historic year for sport arbitration
since for the second time in its 35-year history, the Court of Arbitration for
Sport (CAS) conducted a public hearing. It signals that the European Court of
Human Rights’ (ECtHR) Pechstein
decision is starting to have a transformative effect at the CAS. To quickly recap,
the ECtHR had found in Pechstein that
clauses that impose CAS arbitration as a condition to participate in sport activity
amount to forced arbitration, meaning that in cases resulting from such
circumstances (especially disciplinary cases) the CAS must observe Article 6§1
of the European Convention of Human Rights (ECHR), which sets out the right to
a fair trial.[5]
This includes that ‘in principle, litigants have a right to a public hearing’.[6] Consequently,
parties have greater room to request a public hearing at the CAS, especially
when the dispute is of a disciplinary nature.[7] Hence,
Sun Yang’s public hearing may be heralding a new era where public hearings at
the CAS become a common display.
Sun Yang’s hearing also highlighted some of the practical challenges
of conducting live hearings when the proceedings are in a different language as
some of the parties and/or witnesses. As covered in our monthly
report, the interpreters failed to properly translate multiple testimonies
during the Sun Yang hearing. Many wondered whether there would be a need for
greater safeguards in terms of the quality of translation given how it can
affect one’s right to be heard. However, the CAS maintained that it could not
directly hire its own ‘official’ translators because it would potentially
threaten its ‘independence and neutrality’. Yet, one could envision that
the CAS would set certain minimum standards for parties’ interpreters and or
manages a list of accredited interpreters from which the parties could pick. In
any event, this case signals the beginning of a new public era in sports
arbitration that will profoundly shift the way the game is played at the CAS in
the 2020s.
5. New FIFA Legal Portal
FIFA has taken a step towards increasing its transparency through the
launch of a new
legal portal in which it has undertaken to publish all the decisions of the
Disciplinary Committee, Appeal Committee, the Adjudicatory Chamber of the FIFA
Ethics Committee, the Dispute Resolution Chamber, the Player Status Committee,
the CAS where FIFA is a party, and a multitude of other documents with a legal
dimension. According to FIFA, these decisions will be updated every 4 months,
meaning that a new batch of decisions should be expected to be posted soon. The
initiative for the FIFA Legal portal was resulting from a push for greater
transparency in its governance as a cornerstone of its 2016 FIFA
2.0: The Vision for the Future.
Increasing transparency in this manner will give greater room for
stakeholders and the general public to keep FIFA accountable, review the work
of its disciplinary bodies and criticise the legal reasoning they use. However,
only time will tell whether this portal will deliver a reliable and useful
level of transparency enabling a rigorous public scrutiny on FIFA.
6. Caster Semenya Case
Caster Semenya’s struggles with World Athletics (formerly IAAF) continued
in 2019, culminating in a CAS
award followed by an interim decision
of the Swiss Federal Tribunal (SFT), both in favor of World Athletics. The case
revolved around World
Athletics’ DSD Regulations (difference of sex development) that required
athletes competing in the female category in certain events (400m to one mile) at
an international level to keep their testosterone levels below five nmol/L. Caster
Semenya challenged these regulations arguing that they were ‘unfairly’
discriminating against females and especially those with ‘certain physiological
traits’ because they were not scientifically based, they are ‘unnecessary to
ensure fair competition within the female classification’ and would likely
‘cause grave, unjustified and irreparable harm’. The CAS award found that the
DSD Regulations are discriminatory, however, they are also proportionate to World
Athletics’ ‘aim of preserving the integrity of female athletics’. The award was
subsequently appealed to the Swiss Federal Tribunal who in a second interim
decision lifted its provisional suspension of the DSD Regulations. With this
decision, Caster
Semenya was barred from participating in the World Championships in Doha.
Looking at the case as a whole, some have underlined the manner in
which World Athlete’s regulations only target women and argued that it is fundamentally
rooted in gender stereotypes. It also illustrates how certain assumptions
on sex[8]
have shaped World Athletics policies on this issue, while others also contend
that it is unethical to force athletes to have to reduce their testosterone
levels if there is no underlying medical need.[9] To be fair, the issue is not entirely black
and white and nuanced arguments have also been made in support of testosterone
testing.[10]
In any event, this case will necessarily become an important classic of
international sports law and most likely linger in the docket of the ECtHR (or
of the South African constitutional court) for years to come. It will refine
the scope of the autonomy of SGBs and test the reputation of the CAS.
7. Russian Doping Scandal
Continues
The last, and perhaps the news item that received the most media attention,
is the ongoing Russian doping scandal. Worries arose once again earlier this
year after inconsistencies
were uncovered from data retrieved from the Moscow Laboratory. In response,
the WADA Executive Committee decided unanimously on December 9 in favor of a four-year
period of non-compliance, following the recommendation of WADA’s Compliance
Review Committee. RUSADA swiftly appealed the WADA’s decision to the CAS.
The reemergence of the Russian doping scandal has reignited discussions
on whether the original decision to declare Russia compliant in September 2018
was perhaps premature. At the time, that decision had been especially
criticized by athlete representative groups. This round of the Russian doping
scandal may prove to be a greater test on WADA’s ability to keep credibility
with the world’s athletes and the general public. Some, like Richard
Pound have contended that the new sanctions are tough,[11]
but others
have argued that more could be done and that leaving the door open to
certain ‘approved’ Russian athletes puts clean sport at risk. So far, Russia‘s
leadership have mainly characterized the investigation and following
sanctions as a witch-hunt stemming from anti-Russian sentiment. The scandal
will loom large over the Tokyo Olympics and will probably lead to a fresh wave
of Russian cases before the CAS and the SFT.
8. Conclusion
2019 was a rich year for international and European sports law with
many landmark decisions taken, which will have a long-lasting effect on the
field. Changes linked to the transparency of sports justice and governance are
more likely to have unpredictable transformative consequences as they will
enhance the ability of the media to subject sports arbitrators and administrators
to rigorous scrutiny. Furthermore, the Rule 40 case and the TopFit
decision are also strong reminders of the power of EU law (be it competition
law or citizenship rights) as a vehicle to check the decisions of the SGBs.
Finally, the Semenya case is certainly the CAS award of the year. It pushed to
the forefront a fundamental ethical and philosophical question: Should SGBs be
entitled to define the sporting sex of an athlete? What is their legitimacy in
taking such a decision?