Asser International Sports Law Blog

Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

The Headlines

Anti-doping whereabouts requirements declared compatible with the athletes' right to privacy and family life

On 18 January 2018, the European Court of Human Rights rendered a judgment with important consequences for the world of sport in general and the anti-doping regime in particular. The Strasbourg-based court was called upon to decide whether the anti-doping whereabouts system – which requires that a limited number of top elite athletes provide their National Anti-Doping Organisation or International Federation with regular information about their location, including identifying for each day one specific 60-minute time slot where the athlete will be available for testing at a pre-determined location – is compatible with the athletes' right to private and family life under Article 8 of the European Convention on Human Rights and their freedom of movement pursuant to Article 2 Protocol No. 4 of the Convention. The case was brought by the French cyclist Jeannie Longo and five French athlete unions that had filed their application on behalf of 99 professional handball, football, rugby, and basketball players.

While acknowledging that the whereabouts requirements clash with the athletes' right to private and family life, the judges took the view that such a restriction is necessary in order to protect the health of athletes and ensure a level playing field in sports competitions. They held that ''the reduction or removal of the relevant obligations would lead to an increase in the dangers of doping for the health of sports professionals and of all those who practise sports, and would be at odds with the European and international consensus on the need for unannounced testing as part of doping control''. Accordingly, the judges found no violation of Article 8 of the Convention and, in a similar vein, ruled that Article 2 Protocol No. 4 of the Convention was not applicable to the case.

Football stakeholders preparing to crack down on agents' excessive fees

It has been a record-breaking January transfer window with Premier League clubs having spent an eye-watering £430 million on signing new acquisitions. These spiralling transfer fees enable football agents, nowadays also called intermediaries, to charge impressive sums for their services. However, this might soon no longer be the case as the main stakeholders in European football are preparing to take action. UEFA, FIFPro, the European Club Association and the European Professional Football Leagues acknowledge in their joint resolution that the 2015 FIFA Regulations on Working with Intermediaries failed to address serious concerns in relation to the activities of intermediaries/agents. They recognise in broad terms that a more effective regulatory framework is needed and call among other things for a reasonable and proportionate cap on fees for intermediaries/agents, enhanced transparency and accountability, or stronger provisions to protect minors.

The CAS award in Joseph Odartei Lamptey v. FIFA

On 15 January 2018, FIFA published on its website an arbitral award delivered on 4 August 2017 by the Court of Arbitration for Sport (CAS) in the dispute between the Ghanian football referee Joseph Odartei Lamptey and FIFA. The CAS sided with FIFA and dismissed the appeal filed by Mr Lamptey against an earlier decision of the FIFA Appeal Committee which (i) found him to have violated Article 69(1) of the FIFA Disciplinary Code as he unlawfully influenced the 2018 World Cup qualifying match between South Africa and Senegal that took place on 12 November 2016; (ii) as a consequence, banned him for life from taking part in any football-related activity; and (iii) ordered the match in question to be replayed. In reaching its conclusion, the CAS relied heavily on multiple reports of irregular betting activities that significantly deviated from usual market developments.

Sports Law Related Decisions

Official Documents and Press Releases

In the news

Doping

Andrew Aloia Ryan Bailey: Ex-England and Great Britain prop avoids ban after 'landmark' drugs case
Nick Butler European Court dismisses claim anti-doping whereabouts system violates human rights
Nick Butler NADOs criticise IOC for not revealing criteria for Russian eligibility at Pyeongchang 2018
Nick Butler Russian sliders still eligible to compete in IBSF events after CAS decide against ruling
Daniel Etchells Russia work on sanctions against WADA officials in response to Pyeongchang 2018 ban
Martha Kelner and Sean Ingle Chris Froome says report of plea bargain over failed drug test 'completely untrue'
Victor Mather and Rebecca R. Ruiz Russia is barred from Winter Olympics. Russia is sending 169 athletes to Winter Olympics
Reuters IOC 'concerned' about potential integrity issues with testing bottles
Rebecca R. Ruiz American sprinter used 'passionate kissing' defence in doping case. And it worked
Rebecca R. Ruiz IOC clears nearly 400 Russians to compete in Winter Games
Rebecca R. Ruiz Russia is banned from Paralympics, again, for doping

Football

Global Legal Post Mainz 05 obtains landmark ruling on temporary contracts
Martha Kelner Chelsea racism allegations: Four more players to take legal action against club
Thomas Klein Training in Qatar: 'Bayern Munich cannot remain silent'
Tariq Panja Critics say FIFA is stalling a doping inquiry as World Cup nears
Sky Sports Michel Platini takes FIFA ban appeal to European Court of Human Rights
Sky Sports Prosecutors investigating FIFA payment to head of Austrian Football Federation

Other

David Conn The Lawn Tennis Association launches review into procedural failings over jailed tennis coach
Mike Dunne Show jumping awaits competition body ruling
SportBusiness International Force India, Sauber witdraw EU complaint against Formula One

Blog

Asser International Sports Law Blog

Law in Sport

Nick Fitzpatrick and Ruth Hoy The major global challenges in managing data to protect sporting integrity
Graham Gilbert Athlete cocaine use: The cases of Dale Swift, Graham Gibbons and Dan Evans
Alex Haffner Why the International Skating Union was found in breach of EU competition law
Manali Kulkarni and Sean Cottrell Key sports law cases and developments to watch in 2018: Europe, Middle East, Africa, Asia and Australia
Manali Kulkarni and Sean Cottrell Key sports law cases of 2017: Europe, Middle East, Africa, Asia and Australia
Nick Tsatsas Will the FA score with its adoption of the Rooney Rule?
Sophie Wilkinson and Adam Leadercramer Key information on the General Data Protection Regulation for the sports industry

Others

Jens Sejer Andersen European politicians demand radical change of sports governance
Andy Brown ECHR judgment fails to consider alternatives to 'whereabouts'
Braham Dabscheck Why Djokovic is right to say tennis players need a union
European Professional Football Leagues Legal Newsletter January 2018
Nick De Marco Italian parliament enacts new regulation of football agents
Despina Mavromati SFT Judgment 4A_312/2017: Compatibility of an agent's commission fee with public policy
David Owen European football: A cash magnet, but is the pyramid's base starting to erode?
Tariq Panja At African soccer event, games of cat and mouse
Daisuke Takahashi Tokyo Olympic Sustainable Sourcing Code and its grievance mechanism in a Japanese legal context

Upcoming Events

16 March – Sports Law & Business Conference, Etihad Stadium, Manchester, England
3-4 July – 13^th Sport & EU Annual Conference, Edge Hill University, England

The Headlines

The International Skating Union's eligibility rules declared incompatible with EU competition law

On 8 December 2017, the European Commission announced that it had rendered a decision in the case against the International Skating Union (ISU). The Commission upheld the complaint lodged in October 2015 by two Dutch professional speed skaters Mark Tuitert and Niels Kerstholt, represented in this case by Ben Van Rompuy and Antoine Duval (you can read their joint statement here), and ruled that the ISU's eligibility rules preventing athletes from participating in speed skating competitions not approved by the ISU under the threat of severe penalties are in violation of EU competition law. In particular, the Commission held that these rules restrict the commercial freedom of (i) athletes who may be deprived of additional source of income as they are not allowed to participate in speed skating competitions other than those authorised by the ISU; and (ii) independent organisers who are unable to attract top athletes. And while the Commission recognised that sporting rules with restrictive effects might be compatible with EU law if they pursue a legitimate objective such as the protection of athletes' health and safety or the protection of the integrity and proper conduct of sport, it found that the ISU's eligibility rules pursue only its own commercial interests to the detriment of athletes and independent organisers of speed skating competitions. The ISU eventually escaped financial sanctions, but it must modify or abolish its eligibility rules within 90 days; otherwise it would be liable for non-compliance payments of up to 5% of its average daily turnover. For more information on this topic, we invite you to read our recent blog written by Professor Stefano Bastianon.

The International Olympic Committee bans Russia from the upcoming Winter Olympic Games

The world has been waiting impatiently for the International Olympic Committee's (IOC) decision on the participation of Russian athletes in the upcoming 2018 Winter Olympic Games in Pyeongchang. This was finally communicated on 5 December 2017. Having deliberated on the findings of the Schmid Commission, the IOC Executive Board decided to suspend the Russian Olympic Committee with immediate effect, meaning that only those Russian athletes who demonstrate that they had not benefited from the state-sponsored doping programme will be able to participate in the Games. Such clean athletes will be allowed to compete under the Olympic Flag, bearing the name 'Olympic Athlete from Russia (OAR)' on their uniforms. Further to this, the IOC Executive Board sanctioned several officials implicated in the manipulation of the anti-doping system in Russia, including Mr Vitaly Mutko, currently the Deputy Prime Minister of Russia and formerly the Minister of Sport. Mounting public pressure subsequently forced Mr Mutko to step down as head of the Local Organising Committee for the 2018 FIFA World Cup.

Meanwhile, 21 individual Russian athletes were sanctioned (see here, here, here, and here) in December (in addition to 22 athletes in November) by the IOC Oswald Commission that is tasked with investigating the alleged doping violations by Russian athletes at the 2014 Winter Olympic Games in Sochi. The Oswald Commission also published two full decisions in the cases against Evgeny Belov and Aleksandr Tretiakov who were both banned from all future editions of the Games. It is now clear that the Court of Arbitration for Sport will have quite some work in the coming weeks as the banned athletes are turning to this Swiss-based arbitral tribunal to have their sanctions reviewed (see here and here).

Universal Declaration of Player Rights

14 December 2017 was a great day for athletes all over the globe. On this day, representatives of the world's leading player associations met in Washington D.C. to unveil the Universal Declaration of Player Rights, a landmark document developed under the aegis of the World Players Association that strives to protect athletes from ongoing and systemic human rights violations in global sport. The World Players Association's Executive Director Brendan Schwab emphasised that the current system of sports governance ''lacks legitimacy and fails to protect the very people who sit at the heart of sport'' and stated that ''athlete rights can no longer be ignored''. Among other rights, the Declaration recognises the right of athletes to equality of opportunity, fair and just working conditions, privacy and the protection of personal data, due process, or effective remedy.

Chris Froome failed a doping test during the last year's Vuelta a España

The world of cycling suffered yet another blow when it transpired that one of its superstars Chris Froome had failed a doping test during the last year's Vuelta a España, a race he had eventually emerged victorious from for the first time in his career. His urine sample collected on 7 September 2017 contained twice the amount of salbutamol, a medication used to treat asthma, than permissible under the World Anti-Doping Agency's 2017 Prohibited List. Kenyan-born Froome has now hired a team of medical and legal experts to put forward a convincing explanation for the abnormal levels of salbutamol in his urine and thus to avoid sanctions being imposed on him.

Sports Law Related Decisions

Official Documents and Press Releases