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New Event! The Court of Arbitration for Sport at the European Court of Human Rights - Prof. Helen Keller - 26 May - 16:00

25. May 2021 Antoine Duval Blog, International Sports Law Events (0)

On Wednesday 26 May 2021 from 16.00-17.00 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret (University of Lausanne), is organising its fifth Zoom In webinar on the Court of Arbitration for Sport (CAS) from the perspective of the European Court of Human Rights (ECtHR).

We have the pleasure to be joined by Prof. Helen Keller, former Judge at the ECtHR and a prominent dissenter to the majority’s ruling in the Mutu and Pechstein case.

The ECtHR decision in the Mutu and Pechstein case rendered on 2 October 2018 is widely seen as one of the most important European sports law rulings. It was also the first decision of the Strasbourg court dealing with a case in which the CAS had issued an award. The applicants, Adrian Mutu and Claudia Pechstein, were both challenging the compatibility of CAS proceedings with the procedural rights enshrined in Article 6(1) of the European Convention on Human Rights (ECHR). The court famously declined to conclude that the CAS lacked independence or impartiality, but did find that, insofar as Claudia Pechstein was concerned, she was forced to undergo CAS arbitration and, therefore, that CAS proceedings had to fully comply with the procedural rights guaranteed in the ECHR. In particular, the court held that the refusal by CAS to hold a public hearing, in spite of Claudia Pechstein’s express request, was contrary to Article 6(1) ECHR. Beyond this case, as highlighted by the recent decision of Caster Semenya to submit an application to the ECtHR, the decision opens the way for a more systematic intervention of the Strasbourg court in assessing the human rights compatibility of CAS awards and more broadly of the transnational sports regulations imposed by international sports governing bodies.

Prof. Helen Keller will discuss with us the implications of the ECtHR’s Mutu and Pechstein decision and the potential for future interventions by the court in the realm of the lex sportiva.

The webinar will take the form of an interview followed by a short Q&A open to the digital public. 

Please note the discussion will NOT be recorded and posted on our Youtube channel. 

Register HERE!


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Asser International Sports Law Blog | International and European Sports Law – Monthly Report – June and July 2019 - 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

International and European Sports Law – Monthly Report – June and July 2019 - By Tomáš Grell

19. September 2019 Antoine Duval (0)

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 European Court of Justice finds that rule of a sports association excluding nationals of other Member States from domestic amateur athletics championships may be contrary to EU law

On 13 June 2019, the European Court of Justice (ECJ) delivered a preliminary ruling at the request of the Amtsgericht Darmstadt (Local Court Darmstadt, Germany) filed in the course of the proceedings involving Mr Daniele Biffi, an Italian amateur athlete residing in Germany, and his athletics club TopFit based in Berlin, on the one hand, and the German athletics association Deutscher Leichtathletikverband, on the other. The case concerned a rule adopted by the German athletics association under which nationals of other Member States are not allowed to be awarded the title of national champion in senior amateur athletics events as they may only participate in such events outside/without classification. The ECJ’s task was to decide whether or not the rule in question adheres to EU law.

The ECJ took the view that the two justifications for the rule in question put forward by the German athletics association did not appear to be founded on objective considerations and called upon the Amtsgericht Darmstadt to look for other considerations that would pursue a legitimate objective. In its judgment, the ECJ analysed several important legal questions, including amongst others the applicability of EU law to amateur sport or the horizontal applicability of European citizenship rights (for detailed analysis of the judgment, please see our blog written by Thomas Terraz).

Milan not featuring in this season’s edition of Europa League following a settlement with UEFA

On 28 June 2019, the Court of Arbitration for Sport (CAS) rendered a consent award giving effect to a settlement agreement between UEFA and the Milan Football Club, under which the Italian club agreed to serve a one-year ban from participation in UEFA club competitions as a result of its breaches of UEFA’s financial fair play regulations over the 2015/2016/2017 and the 2016/2017/2018 monitoring periods, while the European football’s governing body agreed to set aside previous decisions of the Investigatory and Adjudicatory Chamber of its Club Financial Control Body which had found Milan guilty of the respective breaches.   

This was not the first intervention of the CAS related to Milan’s (non-)compliance with UEFA’s financial fair play regulations. In July 2018, the CAS annulled the decision of the Adjudicatory Chamber of the UEFA Club Financial Control Body of 19 June 2018 which was supposed to lead to the exclusion of the Italian club from UEFA club competitions for which it would otherwise qualify in the next two seasons (i.e. 2018/2019 and 2019/2020 seasons). Following such intervention of the CAS – which concerned the 2015/2016/2017 monitoring period – it may have appeared that Milan would eventually manage to escape a ban from participation in UEFA club competitions for breaches of UEFA’s financial fair play regulations. However, Milan’s case was again referred to the Adjudicatory Chamber of the UEFA Club Financial Control Body in April 2019 – this time its alleged breaches of UEFA’s financial fair play regulations concerned the 2016/2017/2018 monitoring period – and such referral apparently forced Milan into negotiations with UEFA which led to the settlement agreement ratified by the CAS.      

Swiss Federal Tribunal gives Caster Semenya a glimmer of hope at first but then stops her from running at the IAAF World Championships in Doha

Caster Semenya’s legal team brought an appeal to the Swiss Federal Tribunal in late May against the landmark ruling of the CAS which gave the IAAF the green light to apply its highly contentious Eligibility Regulations for Female Classification (Athlete with Difference of Sexual Development) preventing female athletes with naturally elevated levels of testosterone from participating in certain athletic events unless they take medication to supress such levels of testosterone below the threshold of five nmol/L for a continuous period of at least six months. The appeal yielded some positive partial results for Caster Semenya early on as the Swiss Federal Tribunal ordered the IAAF on 3 June 2019 to suspend the implementation of the contested regulations. However, the Swiss Federal Tribunal overturned its decision at the end of July which means that Caster Semenya is no longer able to run medication-free and this will most likely be the case also when the 2019 IAAF World Athletics Championships kick off in Doha in less than one month’s time. The procedural decisions adopted by the Swiss Federal Tribunal thus far have no impact on the merits of Caster Semenya’s appeal.

 

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Asser International Sports Law Blog | Sports governance 20 years after Bosman: Back to the future… or not? By Borja García

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

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

13. November 2015 Antoine Duval Blog, International Sports Law Commentaries (0)

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.

When Marty McFly ‘landed’ on October 21st 2015, at 4.29 PM, he found a whole new world. Flying skateboards, holograms, massive jumbo screens… There was not much reference to sport governance in Back to the Future, although in the vein of the rest of the film, one would anticipate a modern, innovative and decidedly better sporting world. However, if Marty McFly, coming from the 1980s or 1990s, had arrived into the real October 21st 2015 and looked at the present state of sport governance, he may have thought his De Lorean was not working properly! Twenty years on from Bosman, and more than a decade since major scandals that were supposed to change the landscape of sport (so we were told back then), a familiar feeling of déjà-vu emerges when reading the sport news nowadays.

The late 1980s and 1990s were characterised by legal insecurity, scandals and transformation in the governance of sport. There were legal challenges to the legitimacy of governing bodies. Bosman was just one of them, but on the back of the ruling the European Commission was inundated with questions related to the application of EU law to the rules of sport governing bodies. Those were also days of major public opinion upheaval against the institutionalised doping or the mismanagement of the IOC.

Fast forward to 2015 and we find ourselves in a very similar situation! After a period of relative calm, legal challenges from stakeholders against rules and regulations of governing bodies have flourished everywhere. Dutch skaters against ISU, Mr. Striani against UEFA, FIFPro against the international transfer system, the Spanish and Portuguese leagues against FIFA... just to name a few. Moreover, it seems as if doping and corruption never left us. It was cycling back then, and Russian athletics now. It was the Olympics and Salt Lake City in the 1990s, football, Russia and Qatar now. It seems not much progress has been achieved in 20 years.

Why is that? One of the reasons is that, despite some changes and mild modernisation, the governance structures are still very similar. No flying skateboards around FIFA or the IOC, I am afraid. Sport continues to be regulated by international federations trying to keep their place at the top of a pyramid that, however, is no longer there because it has given place to a much more complex network. The transformation from vertical governance to horizontal structures, that caused many problems in the public sector as described by Rod Rhodes[1] (among others), has not been correctly addressed in sport.

As Jack Anderson has correctly pointed out, perhaps one of the problems is that the current political governance structures of sport are not fit for purpose. They lack real separation of powers. For example, when the Spanish athlete (now a senator!) Marta Domínguez is allegedly accused of doping due to irregularities in her blood passport, WADA sends the dossier to the Spanish Athletics Federation, in which Domínguez was a vice-president for a few years, serving under the current president (who has been in charge since 1989, so probably Marty McFly knows him well!). Can the disciplinary committees of such a body be really independent and be expected to pass a clear and decisive judgment? Of course, they cannot and have not done so!

But the questions are perhaps more systemic. Are international sport federations really fit for the purpose of modern sport? The new reality of sport is one where the commercial dimension is increasingly divorcing from the coveted grassroots or sport-for-all Holy Grail. ISFs, and most public sport policies, are still attempting to house these two different realities under one common roof. Questions need to be asked as to whether this confusion des genres is even possible. There was a time in which the European Commission suggested that international federations had to separate their regulatory and commercial roles. But not much has been done in that respect since the Formula 1 case. Perhaps it should be accepted that elite and professional sport needs a new approach. If ISFs are serious, they need to start putting in place much more modern management and governance structures. Executive committees need to stop being ‘representative’ of the stakeholders, turning to be ‘skills based’. They need, of course, to be much more age, race and gender diverse. Independent directors need to be fully incorporated to councils, boards and federations’ EXCOs. Standing committees need to be more independent and need to have targets… This is nothing new, but it reads as a revolution in the world of international sport.

Given the governance failures of sport, it is often questioned whether public authorities could/should/ought to regulate or bring sport to account. Here, it seems fair to say that following the political ‘backlash’ of Bosman, aptly articulated by some sport bodies, politicians have erred on the cautious side. The idea that the EU “was trying to kill club football in Europe”, as put forward by Lennart Johanson on 16 December 1995 was powerful enough to discourage the EU, and other public authorities for that matter, to regulate sport. The reality is that, to date, perhaps the EU is the only public body that has managed to bring to account international sport, even in a limited fashion, as I have argued in a recent article[2]. The mainstreaming of the autonomy and specificity of sport into EU policies, however, has deterred EU institutions from pursuing a much more proactive approach in the control and regulation of sport.

After Bosman, there was a period in which both sport and EU law found each other. There were negotiations and some changes in both sides. There were even positive noises coming from different social dialogue committees. The calm, however, has been broken abruptly. And we have woken up back to the future, as if 1995 had never passed. ASSER’s very own Antoine Duval, and some authors such as Arnout Geeraert have recently argued that the EU should be much stronger in its application of EU law to sport. The problem is: can they really do it? In an increasingly Eurosceptic environment amongst the peoples of Europe, can the EU really risk trying to have a go at sport? It can be argued, that sport as an area of ‘soft politics’ and popular culture may give the EU some of its lost legitimacy back. But I am not so sure. In a recent survey, part of the FREE Project, we asked Europeans in nine countries whether they trusted the EU (amongst other bodies) to regulate the governance of football. The answer was clear: No, they do not. Of the nine different organisations offered in the survey, the EU was the third least trusted body, only above the media and national governments. In the survey, only 40% of the Europeans in the nine countries polled trusted the EU in this respect. This goes down to 21% when the survey is restricted to core football fans, not the general public. In other words, Europeans do not trust the EU, nor national governments to improve the governance of football. So, if the EU tries to have a stronger position in the application of European law and policies to sport, it may well backfire.

Normally, I have refrained from such a normative approach to governance. As a political scientist, I prefer to analyse what actors do, rather than to tell them, what to do. However, it is clear to me that what they have done so far is not working. Twenty years on from Bosman, and a visit of Marty McFly after, the ‘future’ of international sport governance looks conspicuously similar to the past. And it is not good. We need a solution that brings us to the future, to a real future where the past is finally put to rest.

[1] Rhodes, RAW. (1997) Understanding governance: policy networks, governance, reflexivity and accountability, Maidenhead: Open University Press.

[2] Meier, HE and García, B. (2015) ‘Protecting private transnational authority against public intervention: The power of FIFA over national governments’. Public Administration, Early view, September 2015, doi: 10.1111/padm.12208.

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Asser International Sports Law Blog | International and European Sports Law – Monthly Report – June - August 2020 by Thomas Terraz

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 – June - August 2020 by Thomas Terraz

4. September 2020 Antoine Duval Blog, International Sports Law Cases, International Sports Law Commentaries, International Sports Law Events, International Sports Law Material, International Sports Law Publications (0)
Editor's note: This report compiles the most relevant legal news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. 

 

 

The Headlines

CAS Decision on Manchester City FC Case

After the UEFA’s Adjudicatory Chamber of the Club Financial Control’s (CFCB) decision earlier this year to ban Manchester City FC for two seasons, observers waited impatiently to see the outcome of this high profile dispute. The CFCB’s decision had found that Manchester City FC overstated sponsorship revenues and in its break-even information given to UEFA. While some feared this showdown could lead to the demise of UEFA’s Financial Fair Play (FFP) regulations, the now publicized CAS panel’s decision is more nuanced. The panel’s decision turned on (see analysis here and here) (a) whether the ‘Leaked Emails’ were authentic and could be admissible evidence, (b) whether the ‘CFCB breached its obligations of due process’, (c) whether the conclusions of the 2014 Settlement Agreement prevents the CFCB from charging Manchester City FC, (d) whether the charges are time-barred, (e) the applicable standard of proof, (f) whether Manchester City FC masked equity funding as sponsorship contributions, and (g) whether Manchester City FC failed to cooperate with CFCB. In the end, among other findings, the Panel held that some of the alleged breaches were time-barred but maintained that Manchester City FC had failed to cooperate with CFCB’s investigation. In light of this, the Panel significantly reduced the sanction placed on Manchester City FC by removing the two-season suspension and reducing the sanction from 30 million euros to 10 million euros.

 

Qatar Labour Law Reforms Effectively Abolishes the Kafala System

Just a few days after Human Rights Watch released a lengthy report on abusive practices suffered by migrant workers in Qatar, Qatar adopted a series of laws that effectively gets rid of the Kafala system by no longer requiring migrant workers to obtain a ‘No Objection Certificate’ from their employer in order to start another job. The International Labour Organization declared that this development along with the elimination of the ‘exit permit requirements’ from earlier this year means that the kafala system has been effectively abolished. In addition to these changes, Qatar has also adopted a minimum wage that covers all workers and requires that employers who do not provide food or housing at least give a minimum allowance for both of these living costs. Lastly, the new laws better define the procedure for the termination of employment contracts.

In reaction to these changes, Amnesty International welcomed the reforms and called for them to be ‘swiftly and properly implemented’. Indeed, while these amendments to Qatar’s labour laws are a step in the right direction, Amnesty International also cautions that the minimum wage may still be too low, and in order to be effective, these new laws will have to be followed with ‘strong inspection and complaint mechanisms’.

 

CAS Decision Concerning Keramuddin Karim Abuse Case

In June of last year, Keramuddin Karim, former president of Afghanistan’s soccer federation, was banned by FIFA for life (see the decision of the adjudicatory Chamber of the FIFA Ethics Committee) after reports of sexual and physical abuse that emerged in late 2018. Following a lengthy and tumultuous investigation in Afghanistan, Afghan officials came forward with an arrest warrant for Mr. Karim. Nevertheless, despite attempts to apprehend Mr. Karim, Mr. Karim has still avoided arrest over a year later. Most recently in August, Afghan Special Operation officers attempted to apprehend him but he was not at the residence when they arrived.

Meanwhile, Mr. Karim had appealed FIFA’s lifetime ban to the CAS and the CAS Panel’s decision has recently been released. In its decision, the Panel upheld both the lifetime ban and the 1,000,000 CHF fine, finding that due to the particular egregious nature of Karim’s acts, ‘they warrant the most severe sanction possible available under the FCE’. Since both Karim and his witnesses were unable to be heard, the case raises questions connected to the respect of fundamental procedural rights at the CAS. 

 

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