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

Book Review: Questioning the (in)dependence of the Court of Arbitration for Sport

Book Review: Vaitiekunas A (2014) The Court of Arbitration for Sport : Law-Making and the Question of Independence, Stämpfli Verlag, Berne, CHF 89,00

The book under review is the published version of a PhD thesis defended in 2013 by Andrew Vaitiekunas at Melbourne Law School. A PhD is often taking stock of legal developments rather than anticipating or triggering them. This was definitely not the case of this book. Its core subject of interest is the study of the independence of the Court of Arbitration for Sport (CAS) – an issue that has risen to prominence with the recent Pechstein ruling of January 2015 of the Oberlandesgericht München. It is difficult to be timelier indeed. More...



The Court of Arbitration for Sport after Pechstein: Reform or Revolution?

The Pechstein ruling of the Oberlandesgericht (OLG) München rocked the sports arbitration world earlier this year (see our initial commentary of the decision here and a longer version here). The decision has been appealed to the German Bundesgerichtshof (BGH), the highest German civil court, and the final word on the matter is not expected before 2016. In any event, the case has the merit of putting a long-overdue reform of the Court of Arbitration for Sport (CAS) back on the agenda. The last notable reform of the structure and functioning of the CAS dates back to 1994, and was already triggered by a court ruling, namely the famous Gundel case of the Swiss Federal Tribunal (SFT). Since then, the role of the CAS has shifted and its practical significance has radically changed (the growth of CAS’s caseload has been exponential). It has become the most visible arbitration court in Switzerland in terms of the number of awards appealed to the SFT, but more importantly it deals with all the high-profile disputes that arise in global sport: think, for instance, of Pistorius, the recent Dutee Chand decision or the upcoming FIFA elections.More...

Sports governance 20 years after Bosman: Back to the future… or not? By Borja García

Editor's note:

Dr Borja García joined the School of Sport, Health and Exercise Sciences at Loughbourough University in January 2009 as a Lecturer in Sport Management and Policy. He holds a PhD in Politics, International Relations and European Studies from Loughborough University (United Kingdom), where he completed his thesis titled ‘The European Union and the Governance of Football: A game of levels and agendas’.

 

In this leafy and relatively mild autumn, we are celebrating two important anniversaries. Recently, we just passed ‘Back to the Future day’, marking the arrival of Marty McFly to 2015. In a few weeks, we will be commemorating the 20th anniversary of the Bosman ruling. Difficult to decide which one of the two is more important. As we move well into the 21st century’s second decade, these two dates should mark a moment to consider innovation. They are perhaps occasions to take stock and reflect how much sport has evolved to reach this new future… or not. More...


The 2006 World Cup Tax Evasion Affair in Germany: A short guide. By Gesa Kuebek

Editor's note:

Gesa Kuebek holds an LLM and graduated from the University of Bologna, Gent and Hamburg as part of the Erasmus Mundus Master Programme in Law and Economics and now work as an intern for the Asser Instituut.


On Monday, 9 November, the German Football Association (DFB) announced in a Press Release the resignation of its head, Wolfgang Niersbach, over the 2006 World Cup Affair. In his statement, Niersbach argued that he had “no knowledge whatsoever” about any “payments flows” and is now being confronted with proceedings in which he was “never involved”. However, he is now forced to draw the “political consequences” from the situation. His resignation occurred against the backdrop of last week’s raid of the DFB’s Frankfurt headquarters and the private homes Niersbach, his predecessor Theo Zwanziger and long-standing DFB general secretary Horst R. Schmidt. The public prosecutor’s office investigates a particularly severe act of tax evasion linked to awarding the 2006 World Cup. The 2006 German “summer fairy-tale” came under pressure in mid-October 2015, after the German magazine “Der Spiegel” shocked Fußballdeutschland by claiming that it had seen concrete evidence proving that a €6.7 million loan, designated by the FIFA for a “cultural programme”, ended up on the account of Adidas CEO Robert-Louis Dreyfuß. The magazine further argued that the money was in fact a secret loan that was paid back to Dreyfuß. Allegedly, the loan was kept off the books intentionally in order to be used as bribes to win the 2006 World Cup bid. The public prosecutor now suspects the DFB of failing to register the payment in tax returns. German FA officials admit that the DFB made a “mistake” but deny all allegations of vote buying. However, the current investigations show that the issues at stakes remain far from clear, leaving many questions regarding the awarding of the 2006 World Cup unanswered.

The present blog post aims to shed a light on the matter by synthetizing what we do know about the 2006 World Cup Affair and by highlighting the legal grounds on which the German authorities investigate the tax evasion. More...




Blog Symposium: Ensuring proportionate sanctions under the 2015 World Anti-Doping Code. By Mike Morgan

Introduction: The new WADA Code 2015
Day 1: The impact of the revised World Anti-Doping Code on the work of National Anti-Doping Agencies
Day 2: The “Athlete Patient” and the 2015 World Anti-Doping Code: Competing Under Medical Treatment
Day 3: Proof of intent (or lack thereof) under the 2015 World Anti-Doping Code

Editor's note
Mike Morgan is the founding partner of Morgan Sports Law LLP. His practice is focused exclusively on the sports sector. He advises on regulatory and disciplinary issues and has particular experience advising on doping and corruption disputes.

Mike acted on behalf of National Olympic Committees at three of the last four Olympic Games and has represented other sports bodies, clubs and high profile athletes in proceedings before the High Court, the FIFA Dispute Resolution Chamber, the American Arbitration Association and the Court of Arbitration for Sport. More...






Blog Symposium: Proof of intent (or lack thereof) under the 2015 World Anti-Doping Code. By Howard L. Jacobs

Introduction: The new WADA Code 2015
Day 1: The impact of the revised World Anti-Doping Code on the work of National Anti-Doping Agencies
Day 2: The “Athlete Patient” and the 2015 World Anti-Doping Code: Competing Under Medical Treatment
Day 4: Ensuring proportionate sanctions under the 2015 World Anti-Doping Code

Editor's note

Howard Jacobs is solo practitioner in the Los Angeles suburb of Westlake Village, California. Mr. Jacobs has been identified by various national newspapers and publications as one of the leading sports lawyers in the world. His law practice focuses on the representation of athletes in all types of disputes, with a particular focus on the defense of athletes charged with doping offenses.Mr. Jacobs has represented numerous professional athletes, Olympic athletes, world record holders,  and amateur athletes in disputes involving doping, endorsements, unauthorized use of name and likeness, salary issues, team selection issues, and other matters.  He is at the forefront of many cutting edge legal issues that affect athletes, winning cases that have set precedents that have benefited the athlete community. More information is available at www.athleteslawyer.com. More...





Blog Symposium: The “Athlete Patient” and the 2015 World Anti-Doping Code: Competing Under Medical Treatment. By Marjolaine Viret and Emily Wisnosky

Introduction: The new WADA Code 2015
Day 1: The impact of the revised World Anti-Doping Code on the work of National Anti-Doping Agencies
Day 3: Proof of intent (or lack thereof) under the 2015 World Anti-Doping Code
Day 4: Ensuring proportionate sanctions under the 2015 World Anti-Doping Code

Editor's Note
Marjolaine Viret: An attorney-at-law at the Geneva bar, specialising in sports and health law. Her doctoral work in anti-doping was awarded a summa cum laude by the University of Fribourg in early 2015. She gained significant experience in sports arbitration as a senior associate in one of Switzerland’s leading law firms, advising clients, including major sports federations, on all aspects of anti-doping. She also holds positions within committees in sports organisations and has been involved in a variety of roles in the implementation of the 2015 WADC. Her book “Evidence in Anti-Doping at the Intersection of Science & Law” is scheduled for publication in 2015.

Emily Wisnosky: An attorney-at-law admitted to the California bar, she currently participates in the WADC 2015 Commentary research project as a doctoral researcher. She also holds an LLM from the University of Geneva in International Dispute Settlement, with a focus on sports arbitration. Before studying law, she worked as a civil engineer. More...





Blog Symposium: The impact of the revised World Anti-Doping Code on the work of National Anti-Doping Agencies. By Herman Ram

Introduction: The new WADA Code 2015
Day 2: The “Athlete Patient” and the 2015 World Anti-Doping Code: Competing Under Medical Treatment
Day 3: Proof of intent (or lack thereof) under the 2015 World Anti-Doping Code
Day 4: Ensuring proportionate sanctions under the 2015 World Anti-Doping Code

Editor's note
Herman Ram is the Chief Executive Officer of the Anti-Doping Authority the Netherlands, which is the National Anti-Doping Organization of the country. He has held this position since 2006. After working twelve years as a librarian, Herman Ram started his career in sport management in 1992, when he became Secretary general of the Royal Netherlands Chess Federation. In 1994, he moved on to the same position at the Netherlands Badminton Federation. He was founder and first secretary of the Foundation for the Promotion of Elite Badminton that was instrumental in the advancement of Dutch badminton. In 2000 he was appointed Secretary general of the Netherlands Ski Federation, where he focused, among other things, on the organization of large snowsports events in the Netherlands. Since his appointment as CEO of the Anti-Doping Authority, he has developed a special interest in legal, ethical and managerial aspects of anti-doping policies, on which he has delivered numerous presentations and lectures. On top of that, he acts as Spokesperson for the Doping Authority. Herman Ram holds two Master’s degrees, in Law and in Sport Management. More...




Blog Symposium: The new WADA Code 2015 - Introduction

Day 1: The impact of the revised World Anti-Doping Code on the work of National Anti-Doping Agencies
Day 2: The “Athlete Patient” and the 2015 World Anti-Doping Code: Competing Under Medical Treatment
Day 3: Proof of intent (or lack thereof) under the 2015 World Anti-Doping Code
Day 4: Ensuring proportionate sanctions under the 2015 World Anti-Doping Code

On 1 January, a new version of the World Anti-Doping Code (WADC or Code) entered into force. This blog symposium aims at taking stock of this development and at offering a preliminary analysis of the key legal changes introduced. The present blog will put the WADC into a more general historical and political context. It aims to briefly retrace the emergence of the World Anti-Doping Agency (WADA) and its Code. It will also reconstruct the legislative process that led to the adoption of the WADC 2015 and introduce the various contributions to the blog symposium.More...






To pay or not to pay? That is the question. The case of O’Bannon v. NCAA and the struggle of student athletes in the US. By Zlatka Koleva

Editor's note
Zlatka Koleva is a graduate from the Erasmus University Rotterdam and is currently an Intern at the ASSER International Sports Law Centre.

The decision on appeal in the case of O’Bannon v. NCAA seems, at first sight, to deliver answers right on time regarding the unpaid use of names, images and likenesses (NILs) of amateur college athletes, which has been an ongoing debate in the US after last year’s district court decision that amateur players in the college games deserve to receive compensation for their NILs.[1] The ongoing struggle for compensation in exchange for NILs used in TV broadcasts and video games in the US has reached a turning point and many have waited impatiently for the final say of the Court of Appeal for the 9th circuit. The court’s ruling on appeal for the 9th circuit, however, raises more legitimate concerns for amateur sports in general than it offers consolation to unprofessional college sportsmen. While the appellate court agreed with the district court that NCAA should provide scholarships amounting to the full cost of college attendance to student athletes, the former rejected deferred payment to students of up to 5,000 dollars for NILs rights. The conclusions reached in the case relate to the central antitrust concerns raised by NCAA, namely the preservation of consumer demand for amateur sports and how these interests can be best protected under antitrust law. More...



Asser International Sports Law Blog | Human Rights as Selection Criteria in Bidding Regulations for Mega-Sporting Events – Part II: FIFA and Comparative Overview – By Tomáš Grell

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

Human Rights as Selection Criteria in Bidding Regulations for Mega-Sporting Events – Part II: FIFA and Comparative Overview – By Tomáš Grell

The first part of this two-part blog examined the new bidding regulations adopted by the IOC and UEFA, and concluded that it is the latter who gives more weight to human rights in its host selection process. This second part completes the picture by looking at FIFA's bidding regulations for the 2026 World Cup. It goes on to discuss whether human rights now constitute a material factor in evaluating bids to host the mega-sporting events organised by these three sports governing bodies.

 

FIFA: 2026 World Cup

About the host selection process

The United States, Mexico, and Canada together on the one side and Morocco on the other are bidding to host the 2026 World Cup. The bidders must now prepare and submit their Bid Books to FIFA by no later than 16 March 2018, providing the world's governing body of football with information regarding their hosting vision and strategy, the country's political system and economic situation, technical matters, other event-related matters, or human rights and environmental protection.[1] FIFA will then commission a Bid Evaluation Task Force,[2] composed of the chairman of the Audit and Compliance Committee, the chairman of the Governance Committee, one member of the Organising Committee for FIFA Competitions, and certain members of the General Secretariat with relevant expertise, to prepare a written report evaluating each bid. This report will be split into three sections, namely (i) compliance assessment; (ii) an assessment of the risks and benefits of each bid, including the risks of adverse impacts on human rights; and (iii) an assessment of key infrastructural and commercial aspects of each bid, including stadiums, transport infrastructure, organising costs, or estimated media and marketing revenues.[3] The Bid Evaluation Task Force will apply a scoring system that might eventually lead to the exclusion of a bid from the host selection process in the event of its failure to reach a required minimum score.[4] It is critical to note, however, that this scoring system will only be used to evaluate infrastructural and commercial aspects of each bid.[5] In other words, human rights or environmental protection are not subject to this scoring system.

The Bid Evaluation Task Force will forward its report to the members of the FIFA Council who will determine whether or not each bid qualifies to be voted on by the FIFA Congress.[6] While until now the decision on the venue for the FIFA's flagship event has been taken by the Council (formerly the Executive Committee), the host of the 2026 World Cup will be elected for the first time by the members of the Congress.[7] The Congress will meet for this purpose in June 2018 and it may either award the right to host the tournament to one of the candidates or reject all bids designated by the Council.[8] In the latter case, FIFA will launch a new procedure that will culminate with a final decision in May 2020.[9] It is also worthwhile noting that the entire host selection process will be overseen by an independent audit company.[10]

Human rights as selection criteria

A number of human rights requirements could be found across different bidding documents relating to the host selection process for the 2026 World Cup. This section takes a closer look at the content of these requirements. 

First, each member association bidding to host the tournament must undertake to respect all internationally recognised human rights in line with the United Nations Guiding Principles on Business and Human Rights (UN Guiding Principles).[11] Importantly, this commitment covers not only the member association's own activities, but also the activities of other entities that are in a business relationship with the member association, be it for the production of goods or provision of services. In this respect, FIFA acknowledges that ''a significant part of human rights risk may be associated with the activities of third parties''.[12]

Second, FIFA requires that each bidder provide a human rights strategy outlining how it is going to honour its commitment mentioned above.[13] While a similar requirement also appears in the UEFA's bidding documentation for the Euro 2024, FIFA is much more specific in defining the essential elements of this strategy. Accordingly, the strategy shall include a comprehensive report ''identifying and assessing any risks of adverse human rights impacts […] with which the member association may be involved either through its own activities or as a result of its business relationships''.[14] Perhaps the most remarkable aspect of the entire host selection process is the follow-up requirement that this report be complemented by an independent study carried out by an organisation with recognised expertise in the field of human rights.[15] This independent expert organisation will examine to what extent does the national context, including the national legislation, influence the member association's capacity to respect all internationally recognised human rights.[16] As part of their strategy, the bidders should further explain what measures they intend to take in order to mitigate any human rights risks identified in the comprehensive report.[17] Moreover, the strategy should contain information about the implementation of an ongoing due diligence process, the plans for meaningful community and/or stakeholder dialogue and engagement,[18] the protection of human rights defenders' and journalists' rights, or grievance mechanisms.[19]

Third, each bidder must provide a report summarising its ''stakeholder engagement process implemented as part of the development of the […] human rights strategy''.[20] Fourth and last, the government of each country bidding to host the 2026 World Cup shall express its commitment to: (i) respecting, protecting, and fulfilling human rights in connection with the hosting and staging of the tournament; and (ii) ensuring that victims of human rights abuses will have access to effective remedies.[21] To this effect, each of the involved governments is required to sign a separate declaration.


A comparative overview

It remains to be seen whether the new bidding regulations will help reduce the number and severity of adverse human rights impacts linked to mega-sporting events. For the time being, it is essential to identify the strong and weak points of these regulations.

When discussing strengths, FIFA and UEFA come to mind. Both organisations should be applauded for demanding that the bidders pledge to respect and protect internationally recognised human rights independently of the locally recognised human rights.[22] FIFA moreover extends this obligation to the activities of third parties that are in a business relationship with the bidding member association. Both FIFA and UEFA also ask for a human rights strategy that should include some crucial information such as evidence of meaningful consultation with potentially affected communities. Again, FIFA goes one step further by requiring that this strategy be accompanied by an independent expert study.

All three sports governing bodies reserve the right to assign a role to independent human rights experts in evaluating or preparing bids.[23] And while this is in itself commendable, it should be noted that such a role is limited because it does not entail decision-making competences. For instance, the expert institution responsible for developing an independent study in the host selection process for the 2026 World Cup will not have the power to exclude a bid if it ascertains that the national context significantly undermines the member association's capacity to respect internationally recognised human rights. This expert institution will certainly put more pressure on FIFA in the sense that any action contrary to the institution's recommendations will have to be publicly justified by compelling reasons, but FIFA may nevertheless decide to consider a bid even if it entails serious human rights risks. Moreover, it is difficult to understand why only infrastructural and commercial aspects of a bid are subject to the scoring system applied by the Bid Evaluation Task Force. If the main reason for this is the fact that the members of the Bid Evaluation Task Force lack expertise in the field of human rights, then the assessment of human rights aspects should perhaps be left to independent experts only. It would be crucial to give these human rights experts some power to decide whether or not a bid qualifies for the next stages of the host selection process. A greater role for independent human rights experts in evaluating bids to host mega-sporting events could come with the establishment of an independent Centre for Sport and Human Rights in 2018. However, this will probably not affect the host selection processes that are currently underway.


Conclusion 

Including human rights within the criteria for evaluating bids to host mega-sporting events may deter many countries, especially those with a negative human rights record, from launching a bid. However, as Professor John Ruggie makes clear, human rights requirements in bidding regulations for mega-sporting events are not aimed at ''peremptorily excluding countries based on their general human rights context''.[24] Indeed, a country where human rights abuses occur can nevertheless deliver an abuse-free event. To do so, it will need to develop an effective strategy and, if selected, guarantee the implementation of this strategy from day one.


[1]    FIFA, Structure, Content, Presentation, Format and Delivery of Bid Book for the 2026 FIFA World Cup.

[2]    FIFA, Bidding Registration regarding the submission of Bids for the hosting and staging of the 2026 FIFA World Cup, pp. 23-28.

[3]    Ibid. pp. 24-25. See also FIFA, Guide to the Bidding Process for the 2026 FIFA World Cup, p. 7.

[4]    FIFA, Bidding Registration, pp. 25-27.

[5]    Ibid.

[6]    Ibid. p. 31. See also FIFA Statutes, Article 69(2)(d).

[7]    FIFA, Bidding Registration, pp. 31-32. See also FIFA Statutes, Article 69(1).

[8]    FIFA, Bidding Registration, p. 31.

[9]    FIFA, Guide to the Bidding Process, p. 13.

[10]   FIFA, Bidding Registration, pp. 22-23.

[11]   FIFA, Structure, Content, Presentation, Format and Delivery of Bid Book, Section 23 – Human Rights and Labour Standards. In addition to international treaties and instruments mentioned in Principle 12 of the UN Guiding Principles, FIFA concedes that ''the scope […] of internationally recognised human rights may be enlarged to include, for instance, the United Nations instruments on the rights of indigenous peoples; women; national or ethnic, religious and linguistic minorities; children; persons with disabilities; and migrant workers and their families''. See FIFA, Bidding Registration, p. 74.

[12]   FIFA, Structure, Content, Presentation, Format and Delivery of Bid Book, Section 23 – Human Rights and Labour Standards.

[13]   Ibid.

[14]   Ibid.

[15]   Ibid.

[16]   Ibid.

[17]   Ibid.

[18]   The community and/or stakeholder dialogue and engagement should be in line with relevant authoritative standards such as the AA1000 Stakeholder Engagement Process.

[19]   FIFA, Structure, Content, Presentation, Format and Delivery of Bid Book, Section 23 – Human Rights and Labour Standards.

[20]   Ibid.

[21]   FIFA, Overview of Government Guarantees and the Government Declaration, pp. 11-12.

[22]   In this regard, FIFA also notes that ''where the national context risks undermining FIFA's ability to ensure respect for internationally recognised human rights, FIFA will constructively engage with the relevant authorities and other stakeholders and make every effort to uphold its international human rights responsibilities''. See FIFA's Human Rights Policy, para. 7.

[23]   IOC, Report of the IOC 2024 Evaluation Commission, p. 7. UEFA, Bid Regulations for the UEFA Euro 2024, Article 14. As mentioned earlier in this blog, FIFA demands that the bidders put forward a human rights strategy complemented by an independent expert study.  

[24]   John G. Ruggie, For the Game. For the World. FIFA and Human Rights, p. 32.

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