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

Goodbye 2015! The Highlights of our International Sports Law Year

2015 was a good year for international sports law. It started early in January with the Pechstein ruling, THE defining sports law case of the year (and probably in years to come) and ended in an apotheosis with the decisions rendered by the FIFA Ethics Committee against Blatter and Platini. This blog will walk you through the important sports law developments of the year and make sure that you did not miss any.


The Court of Arbitration for Sport challenged by German Courts 

The more discrete SV Wilhelmshaven ruling came first. It was not even decided in 2015, as the ruling was handed out on 30 December 2014. Yet, unless you are a sports law freak, you will not have taken notice of this case before 2015 (and our blog). It is not as well known as the Pechstein ruling, but it is challenging the whole private enforcement system put in place by FIFA (and similar systems existing in other SGBs). Indeed, the ruling foresees that before enforcing a sanction rendered by FIFA, the national (or in that case regional) federation must verify that the award underlying the sanction is compatible with EU law. The decision has been appealed to the Bundesgerichtshof (BGH) and a final ruling is expected in 2016.

Later on, in January, the Oberlandesgericht München dropped its legal bomb in the Pechstein case. The court refused to recognize the CAS award sanctioning Claudia Pechstein with a doping ban, as it was deemed contrary to German antitrust rules. The reasoning used in the ruling was indirectly challenging the independence of the CAS and, if confirmed by the BGH, will trigger a necessary reform of the functioning and institutional structure of the CAS. Paradoxically, this is a giant step forward for international sports law and the CAS. The court acknowledges the need for CAS arbitration in global sport. However, justice must be delivered in a fair fashion and the legitimacy of the CAS (which relies on its independence from the Sports Governing Bodies) must be ensured (see our long article on the case here).

We will see how the BGH will deal with these cases in 2016. In any event, they constitute an important warning shot for the CAS. In short, the CAS needs to take EU law and itself seriously. If it truly addresses these challenges, it will come out way stronger.

 

The new World Anti-Doping Code and the Russian Doping Scandal

On the doping front, 2015 is the year in which the new World Anti-Doping Code (WADC) came into force (see our Blog Symposium). The Code introduces substantial changes in the way the anti-doping fight is led and modifies the sanction regime applicable in case of an adverse analytical finding. It is too early to predict with certainty its effects on doping prevalence in international sports. For international sports lawyers, however, it is in any event a fundamental change to the rules applicable to anti-doping disputes, which they need to get closely acquainted with.

The new World Anti-Doping Code was largely overshadowed by the massive doping scandal involving Russian sports, which was unleashed by an ARD documentary (first released in 2014) and revived by the crushing report of the Independent Commission mandated by the World Anti-Doping Agency to investigate the matter. This scandal has shaken the legitimacy of both the anti-doping system and the International Association of Athletics Federations (IAAF). It has highlighted the systematic shortcomings of the anti-doping institutions in Russia, and, the weakness of the control exercised on these institutions at a transnational level, be it by IAAF or WADA.

In 2015 again, doping proved to be a scourge intimately linked with international sports. The confidence and the trust of the public, and of clean athletes, in fair sports competitions is anew put to the test. WADA, which was created in the wake of another massive doping scandal in the nineties, has shown its limits. In practice, the decentralization of the enforcement of the WADC empowers local actors, who are very difficult to control for WADA. Some decide to crackdown on Doping with criminal sanctions (see the new German law adopted in December 2015), others prefer to collaborate with their national athletes to improve their performances. The recent proposals at the IOC level aiming at shifting the testing to WADA can be perceived as a preliminary response to this problem. Yet, doing so would entail huge practical difficulties and financial costs.

 

EU law and sport: 20 years of Bosman and beyond

2015 was also the year in which the twentieth anniversary of Bosman was commemorated through multiple conferences and other sports law events. The ASSER International Sports Law Centre edited a special edition of the Maastricht Journal of European and Comparative Law and a book celebrating the legacy of the ruling is forthcoming with the publisher Springer. The ruling did not have the dramatic effects predicted at the time of the decision, since football is still alive and kicking. Surely, it has given way to new challenges and sharply accelerated the transnationalization of football (and sport in general). A key legacy of Bosman is that this transnationalization, which goes hand in hand with the commercialization of sport, cannot side-line an essential category of stakeholders: the athletes.

It is with this spirit in mind, and a little push of the ASSER International Sports Law Centre, that the European Commission decided to open an investigation into the rules of the International Skating Union (ISU) barring, under the threat of a life ban, speed skaters (and any other affiliate) from joining speed skating competitions which are not condoned by the ISU. Though the case is rather low profile outside of the Netherlands, this is an important step forward for the EU Commission, as it had not opened an EU competition law investigation in sporting matters in almost 15 years. Many other competition law complaints (e.g. TPO or Formula 1) involving sport are currently pending in front of the EU Commission, but it is still to decide whether it will open a formal investigation. 2015 is also the year in which we have desperately expected the release of the EU State aid decisions regarding football clubs, and amongst them Real Madrid, but in the end this will be a matter for 2016.

 

FIFA and the chaotic end of the Blatter reign

FIFA is not the only SGB to have put an abrupt end to the (very) long reign of its great leader (think of the messy downfall of Diack at the IAAF). Yet, when talking about FIFA and football, the resonance of a governance crisis goes well beyond any other. It is truly a global problem, discussed in nearly all news outlets. This illustrates very much how a Swiss association became a global public good, for which an Indian, Brazilian, American or European cares as much as a Swiss, who is in traditional legal terms the only one able to influence FIFA’s structure through legislation. The global outrage triggered by the progressive release by the US authorities of information documenting the corrupt behaviour of FIFA executives has led to two immediate consequences: a change of the guard and a first reform of the institution.

There are now very few FIFA Executive Committee members left who were present in 2010 for the election of Qatar as host city for the 2022 World Cup. The long-time key figures of FIFA, Blatter, Platini and Valcke, are unlikely to make a comeback any time soon. And, the upcoming February election of the new FIFA president is more uncertain than ever with five candidates remaining. Simultaneously, FIFA has announced some governance reforms, which aim at enhancing the transparency of its operation and the legitimacy of its decision-making. We are living through a marvellous time of glasnost and perestroika at FIFA. The final destination of this transformative process remains unknown. There are still some major hurdles to overcome (starting with the one association/one vote system at the FIFA congress) before FIFA is truly able to fulfil its mission in a transparent, accountable and legitimate manner. We hope it will be for 2016!

 

The ASSER International Sports Law Blog in 2015

Finally, a few words on our blog in 2015. In one year we have published 60 posts, our most-read-blog concerned the Pechstein ruling that was read 3054 times.

Our peak day was reached on 4 September with 621 page views (thanks to a great post on the Essendon case by @jrvkfootball).

Our readers are based all around the world, but the majority is based in the EU and the US.


 

  

We hope to be able to keep you interested and busy in 2016 and we wish you a great year!

The ASSER International Sports Law Blog Team


Comments (1) -

  • Paul David QC

    1/8/2016 8:34:31 PM |


    Thanks for your interesting blogs.

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Asser International Sports Law Blog | International and European Sports Law – Monthly Report – February 2016

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

International and European Sports Law – Monthly Report – February 2016

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

The eagerly awaited FIFA Presidential elections of 26 February provided for a “new face” at the pinnacle of international football for the first time since 1998. One could argue whether Infantino is the man capable of bringing about the reform FIFA so desperately needs or whether he is simply a younger version of his predecessor Blatter. Both men are of course Swiss[1], and both were general secretaries of an international football governing body (UEFA and FIFA respectively) before becoming FIFA President. Only time will tell whether Infantino manages to cleanse FIFA from all the corruption and demonstrate that he is the right man for the job. In this regard, Infantino’s portrait by Sam Borden is definitely worth a read.

Though no FIFA official was lifted from his hotel bed by the police in the days before this FIFA Extraordinary Congress, the build-up was not entirely flawless. Two of the four Presidential Candidates, Prince Ali and Jérôme Champagne, turned to CAS prior to the elections with the aim of “incorporating transparent voting booths as well as independent scrutineers, in order to safeguard the integrity of the voting process and to ensure that the vote is conducted in secret. In addition, Prince Ali also asked for the FIFA Presidential Election to be postponed in the event the CAS could not rule on the request for provisional measures before the election.”[2] Unfortunately for the two candidates, on 24 February CAS rejected their requests (press releases are accessible here and here), promising that the “full order with grounds will be communicated in a few days”. Yet, the CAS website remained mute since then.

At that same Extraordinary FIFA Congress of 26 February, several reforms were also approved. The reforms include term limits for the FIFA President, FIFA Council members and members of the Audit and Compliance Committee and of the judicial bodies of max. 12 years, and the disclosure of individual compensation on an annual basis of the FIFA President, all FIFA Council members, the Secretary General and relevant chairpersons of independent standing and judicial committees. A summary of these reforms can be read here.

Another headline involving FIFA was the FIFA’s Appeal Committee’s decision to uphold the sanctions imposed on the Belgian club FC Seraing for infringing the rules on Third Party Ownership (TPO). The sanctions include a fine of CHF 150.000 and a complete transfer ban for four consecutive transfer windows starting in the summer of 2016. TPO (or FIFA’s decision to ban the practice) was once again making headlines in February, in large part thanks to the website of footballleaks (for more on the people behind this website, I recommend this interview published by Der Spiegel). On 1 February footballleaks published the Economic Rights Participation Agreement (ERPA) between Doyen Sport and the Spanish club Sevilla FC regarding the economic rights of the French football player Geoffrey Kondogbia. Another ERPA that was made accessible for the general public also involved Doyen and a Spanish club, namely Sporting de Gijón.

In addition to new agreement releases by footballleaks, the consequences of earlier releases were slowly being felt in February. For example, the release of the Gareth Bale transfer agreement between Tottenham Hotspur and Real Madrid on 20 January caused quite a few raised eyebrows throughout Europe. Most interestingly, three Members of the European Parliament officially asked the European Commission whether it is planning to “take action under its competition law and state aid responsibilities”, since one of the banks involved in the transfer agreement (Bankia) was previously saved by the European Stability Mechanism (ESM) with public money. The Commission’s answer to this question can be expected shortly.

As regards other issues involving EU law and sport, February was a relatively quiet month. The most interesting new development took place on 22 February with the Euroleague Basketball stating that it submitted a competition complaint before the European Commission against FIBA and FIBA Europe. In a nutshell, Euroleague Basketball is attacking the “unacceptable and illegal threats and pressures that FIBA and its member federations are making against clubs, players and referees to force them to abandon the Euroleague and the Eurocup and only participate in FIBA competitions”. The point of view of FIBA on this issue can be read here. It remains open whether the Commission decides to investigate the matter formally.

This same question can be asked about FIFPro’s complaint against the transfer system. FIFPro has decided to launch #GameChangers campaign to support the complaint and pressure the European Commission into opening an investigation. For an in-depth analysis of the issue, I recommend this piece by Nick de Marco and Alex Mills. 

A report listing the sportslaw headlines would be incomplete these days without references to all the doping related news. It is worth remembering that the two reports by the WADA Independent Commission into doping in international athletics[3] lead to the IAAF banning for life three of its senior officials.[4] This IAAF decision was appealed by the three officials in front of CAS on 1 February. The outcome of this appeal is currently still pending. The Russian Government, meanwhile, heavily criticised the two reports, holding that there is no evidence that it was involved in State-supported doping.  


Case law

The German Appeal Court in Rheinland-Pfalz reached a decision in the Müller case on 17 February.  Contrary to what the Labour Court of Mainz held in March 2015[5], the Appeal Court argued that football players are employed under a fixed-term contract. The judgment has not been made public (yet), so we do not know the full extent of the Appeal Court’s legal argumentation. Further appeal options were available to Müller, but it is unclear whether he exercised them.

On 4 February, another German Appeal Court (the OLG Frankfurt) rendered its decision in the Rogon case (we commented the first ruling on provisory measure in June) involving the German implementation of the new FIFA Regulations on Working with Intermediaries. Here again, the full text of the ruling is still missing and we can only elaborate on press reports (here and here). Yet, it seems that the Court has decided to partially uphold the new Regulations (especially the no-fee for minors provision), while it also stroke down some aspects of the new rules (especially the intermediary’s duty to register with the DFB). 


Official Documents and Press Releases


In the news

Athletics

Australian Football

Baseball

Cycling

Football

Speed skating – Pechstein

Tennis

Other


Academic materials



[1] In fact, Infantino grew up in the town of Brig, less than 10 km from Visp, Blatter’s home town.

[2] Media Release by the Court of Arbitration for Sport of 24 February 2016, “CAS rejects HRH Prince Ali Al Hussein’s request for urgent provisional measures”, http://www.tas-cas.org/fileadmin/user_upload/Media_Release_4459_decision.pdf accessed 23 March 2016.

[3] The Independent Commission Report #1 of 9 November 2015, https://wada-main-prod.s3.amazonaws.com/resources/files/wada_independent_commission_report_1_en.pdf accessed 24 March 2016; and The Independent Commission Report #2 of 14 January 2016, https://wada-main-prod.s3.amazonaws.com/resources/files/wada_independent_commission_report_2_2016_en_rev.pdf accessed 24 March 2016.

[4] I.e. Papa Massata Diack, Valentin Balakhnichev and Alexei Melnikov.

[5] For more information on the Müller case in first instance, read the blogs by Piotr Drabik: “Compatibility of Fixed-Term Contracts in Football with Directive 1999/70/EC. Part.1: The General Framework”, http://www.asser.nl/SportsLaw/Blog/post/part-1-compatibility-of-fixed-term-contracts-in-football-with-directive-1999-70-ec-the-general-framework-by-piotrek-drabik accessed 24 March 2016; and “Compatibility of fixed-term contracts in football with Directive 1999/70/EC. Part 2: The Heinz Müller case”, http://www.asser.nl/SportsLaw/Blog/post/compatibility-of-fixed-term-contracts-in-football-with-directive-1999-70-ec-part-2-the-heinz-muller-case-by-piotr-drabik accessed 24 March 2016.

[6] Prof. Ben Van Rompuy of the Asser Institute contributed tot his report with his piece “The role of the betting industry”, pages 236-241.

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