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

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

CAS – 22 Russian athletes file appeals
CAS – 3 additional Russian athletes file appeals
CAS – American bobsledder Ryan Bailey sanctioned with a two-year period of ineligibility
CAS – José Enrique Angulo Caicedo sanctioned with four-year period of ineligibility
CAS – The appeals filed by Artur Taimazov and Tatyana Chernova are dismissed
Council of Europe – Good football governance
Council of Europe – Working towards a framework for modern sports governance
European Commission – An evaluation of the anti-doping laws and practices in the EU Member States in light of the General Data Protection Regulation
European Commission – International Skating Union's restrictive penalties on athletes breach EU competition rules
FIFA – Appeal Committee reduces the sanction imposed on Paolo Guerrero to a six-month suspension
FIFA – Circular no. 1603 re amendments to the Rules Governing the Procedures of the Players' Status Committee and the Dispute Resolution Chamber and to the Regulations on the Status and Transfer of Players
FIFA – Circular no. 1605 re 2018 World Cup Russia Media and Marketing Regulations
FIFA – Normalisation committee appointed for the Malian FA
FIFA – Suspension of the Kuwait Football Association lifted
IOC – IOC and international partners establish taskforces to tackle corruption in sport
IOC – IOC sanctions one athlete for failing anti-doping tests at Vancouver 2010
IOC – IOC suspends Russian NOC and creates a path for clean individual athletes to compete in Pyeongchang 2018 under the Olympic flag
IOC – Olympic Athlete from Russia (OAR) Invitation Review Panel discusses objectives and methodology
IOC – Oswald Commission's findings with regard to Russian athletes:

IOC – Schmid Commission's report to the IOC Executive Board
Tennis Integrity Unit – CAS rejects appeal for lifetime ban on Nick Lindahl but upholds existing seven-year sanction
Tennis Integrity Unit – Piotr Gadomski disciplined for breach of seven-year corruption ban
WADA – Statement from WADA Athlete Committee regarding the IOC's decision on Russia
WADA – Statement regarding the IOC's decision concerning Russia
WADA – WADA launches first phase of 2021 World Anti-Doping Code review process
WADA – WADA meets with International Federations and provides intelligence from Moscow's Laboratory Information Management System Database
World Players Association – Universal Declaration of Player Rights

In the news

Doping

Associated Press Suspension lifted on French anti-doping lab

Associated Press UCI bans Italian cyclist Nicola Ruffoni for doping
Rachel Axon Lifetime bans for Russian athletes are unlikely to stands, experts say
Cycling News Chris Froome hires former Bruyneel and Contador lawyer for salbutamol case
Sean Ingle British Olympians back IOC's decision to ban Russia from Pyeongchang 2018
Sean Ingle and Martha Kelner Chris Froome fights to save career after failed drugs test result
Chijioke Jannah Over 100 Nigerian athletes tested positive for doping since 2002
Meduza Russia indicts doping whistleblower Grigory Rodchenkov on trafficking charges
Sky Sports Russia claim whistleblower Grigory Rodchenkov's doping diaries are fake

Football

AS FIFA threaten Spain's place in World Cup 2018 over 'Villar Case'

Associated Press FIFA bribery trial jury set to begin deliberations in New York
David Conn FIFA trial leaves questions over 2022 Qatar World Cup
David Conn FIFA's desperate dependence on Russia exposed in flimsy response to IOC ban
David Conn Trabzonspor challenge puts Gianni Infantino's stint at UEFA under scrutiny
Sean Ingle Vitaly Mutko in spotlight but IOC and FIFA want to escape to shadows
Martha Kelner 2022 World Cup migrant workers 'systematically' exploited, Amnesty says
Martha Kelner Vitaly Mutko steps down as head of Russia World Cup organising committee
Reuters Brazilian football boss Del Nero banned for 90 days
Rebecca R. Ruiz FIFA trial ends: ''They have a theory that everyone in soccer is dirty''

Other

Associated Press Kuwait parliament passes law addressing IOC, FIFA bans

Academic Materials

Antonio Rigozzi, Emily Wisnosky and Brianna Quinn The Proceedings of the 2017 Macolin Anti-Doping Summit: A Fresh Look at the Science, Legal and Policy Aspects of Anti-Doping
Brendan Schwab ''When We Know Better, We Do Better.'' Embedding the Human Rights of Players as a Prerequisite to the Legitimacy of Lex Sportiva and Sport's Justice System

Blog

Asser International Sports Law Blog

Ryan Gauthier A Good Governance Approach to Stadium Subsidies in North America

Tomáš Grell Human Rights as Selection Criteria in Bidding Regulations for Mega-Sporting Events – Part I: IOC and UEFA
Ben Van Rompuy and Antoine Duval Statement on the European Commission's ISU Decision

Law in Sport

Sean Cottrell The evolution of athlete rights with Brendan Schwab of the World Players Association

Henry Goldschmidt Football's greatest threat: Why technology and stakeholder collaboration are key to combating global match-fixing
Chris Hurlston and Neerali Madhvani A review of the current inquiries and investigations into abuse in UK football
Viktoria Tsvetanova Why sports federations are under increasing scrutiny from competition authorities
John Wolohan Sports betting in the United States: Supreme Court begins hearing Christie v. NCAA

Others

Jack Anderson Russia's humiliating ban from the Winter Olympics is the right move to protect integrity in sport
Nick Butler Russian compromises and European Commission precedents in another nice easy week for the IOC
Borja García A historic decision: The European Union curtails the power of international federations
Nicholas McGeehan The men behind Man City: A documentary not coming soon to a cinema near to you
David Owen A trawl through the latest ISU financial report reveals a rich store of assets, while pointing to an uncertain future
Navi Pillay Miguel Maduro and Joseph Weiler Our sin? We appeared to take our task at FIFA too seriously
Rebecca R. Ruiz Why Russia tried to cheat its way to glory
Giles Tremlett Manchester City's plan for global domination

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

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.

Marine Montejo is a graduate from the College of Europe in Bruges and is currently an Intern at the ASSER International Sports Law Centre.

The Headlines

The Belgian Court of Appeal released its judgment this month regarding Doyen’s legal battle against the FIFA TPO ban. The Appeal Court confirmed the first instance decision and ruled out any provisional measures to block the ban’s implementation (for an in depth review, see our blog post). More importantly, the Court reaffirmed that Swiss based sport federations are liable in front of EU Members’ States courts when EU competition law is involved. That means the next important step for this legal battle is whether or not the European Commission is going to open a formal proceeding (Doyen already lodged a complaint) to assess the compatibility, and more importantly, the proportionality of the TPO ban with EU law. Only a preliminary ruling by the CJEU could hasten the decision if one of the European national courts, hearing a case brought by Doyen (France or Belgium), decided to refer a preliminary question.

Alongside these legal debates, FIFA continues to pursue breaches of the ban on third-party influence and/or third-party ownership of players’ economic rights. Its Disciplinary Committee sanctioned several clubs in that regard but one in particular is having a hard time. The Dutch club, FC Twente, was fined CHF185 000, but decided not to appeal the decision. That sanction is the latest to plague the club, which is struggling with the fallout from its ties with Doyen. Four members of the Board of Directors were forced to resign after the publication of a critical governance report and are now facing charges in relation to their liability for the financial situation.

The newly elected president of FIFA, Gianni Infantino, announced his intention to reform and rebuild FIFA in his first speech after the presidential bid. Since several FIFA officials were arrested on corruption charges in Zurich before its Extraordinary Congress back in May 2015, the FIFA defence has remained the same, focusing on clearing the institution of any wrongdoing and blaming the confederations involved (CONMEBOL and CONCACAF). Suffice to say that the request for restitution FIFA has filed with US authorities after US prosecutors seized millions of dollars during corruption probes surprised everyone. For the first time, FIFA acknowledged bribes were paid to members of the Executive Committee in the selection of the 1998 and 2010 World Cups. In its bid to reclaim the money paid to its corrupt officials and subsequently seized, FIFA has also stated that the actions of these officials have deeply tarnished the FIFA brand and its reputation. This change of strategy from FIFA is likewise apparent in the Investigatory chamber of the independent Ethics Committee’s decision to open formal proceedings regarding the awarding of the 2006 FIFA World Cup to Germany.

That decision resonated with the German football federation which released the long awaited Freshfield report on the scandal surrounding alleged votes buying for the 2006 World Cup bid awarded to Germany. The law firm has found no evidence of wrongdoing, but because files and information are still missing, it cannot completely rule out any vote buying. On another note, the pressure on the DFB is still very high as the German competition authority decided to open formal proceedings on the ticket sales for the Euro 2016. The cartel office is looking into the DFB’s decision to make the purchase of Euro 2016 tickets for German nationals dependent on each individual first being a (paid) member of the national team’s fan club.

Michel Platini and Joseph S. Blatter have filed their appeals at CAS against their six year bans from taking part in any football-related activities at both the national and international level. They both were first sentenced with an eight year ban by the Adjudicatory Chamber of the FIFA Ethics Committee for several breaches of the FIFA ethics code. This sanction was later reduced by the FIFA Appeal Committee (you can read the first decision here, and the appeal one here).

As per usual these days, doping scandals continue to make headlines. After Maria Sharapova’s confession that she tested positive to the banned substance meldonium (see this article by the Guardian on this particular substance), the Russian Sports Minister said that a total of 27 sportsman and sportswomen had tested positive to date. The Times, for its part, revealed a systemic doping program in Russian swimming, forcing WADA to issue a statement clarifying that it was looking into it along with FINA. All of these revelations probably led the Russian parliament to try to introduce criminal liability for inciting individuals to use banned substances, while WADA reaffirmed that it was against such a criminal offence.

Case law

Advocate general Whatelet released an opinion calling for stricter EU competition law control of arbitral awards. The decision of the Court on this particular case could be important for CAS award. The AG stated that the task of arbitrators in international commercial arbitration is to interpret and apply the contract binding the parties correctly. In the performance of this task, arbitrators may naturally find it necessary to apply EU law, if it forms part of the law applicable to the contract or the law applicable to the arbitration. However, the responsibility for reviewing compliance with European public policy rules lies with the courts of the Member States and not with arbitrators. As a consequence, one or more parties to agreements which might be regarded as anticompetitive cannot put these agreements beyond the reach of review under Articles 101 TFEU and 102 TFEU by resorting to arbitration (pt.61 and 72).

Official Documents and Press Releases