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

Challenged membership put a lot of emphasis on football federations in May. The Court of Arbitration for Sport (“CAS”) has rendered an award, on 27 April 2016, ordering the FIFA Council to submit the application of the Gibraltar Football Association (GFA) for FIFA membership to the FIFA Congress (the body authorised to admit new members to FIFA). The GFA has sought since 1999 to become a member of UEFA and FIFA. In May 2013, it became a member of the UEFA and went on to seek membership of FIFA. The latter refused to submit the application to its Congress as the conditions for it were (allegedly) not met. The GFA filed an appeal to this decision to CAS which also ordered that the FIFA Congress take all necessary measures to admit the GFA as a full member of FIFA as soon as possible and within the limits of the FIFA Statutes, as it does not have the power to directly award it with FIFA membership. FIFA discussed the matter during its 66^th Congress on 12&13 May and finally granted it with membership, along with Kosovo. Gibraltar had to face an opposition from Spain due to its long-standing dispute over the status of its territory. On another front, following the decision of the UEFA Congress on May 3 to integrate the football federation of Kosovo, the Football Association of Serbia (FSS) has filed an appeal with CAS against the Kosovar membership. UEFA is already looking to integrate Gibraltar and Kosovo to its 2018 World Cup qualification tournament. Kosovo is a self-proclaimed state and not a member of the United Nations. Its national Olympic committee became a full member of the International Olympic Committee in 2014 and is recognized by a number of international sports federations.

The ongoing legal battle between FIBA/FIBA Europe and Euroleague Commercial Assets (“ECA”) is firing around Europe. This time, the Spanish Higher Council for Sports (“Consejo Superior de Deportes” – “CSD”) annulled the agreement between the Spanish basketball league (“ACB”) and the Euroleague because it breaches the rules of the Spanish national basketball federation (“FEB”). Such an agreement is an infringement of the federation jurisdiction to decide on the participation of Spanish basketball clubs to international competitions. The Spanish national team was under the threat of being withdrawing of the 2016 Rio Olympic Games and the 2017 EuroBasket by the international federation (“FIBA”) and the European federation (“FIBA Europe”) because of the participation of Spanish professional basketball clubs to the Euroleague. FIBA is battling with Euroleague to impose its own European competition, the Basketball Champions League (recent update on the ongoing disagreements between the two can be found here).

The Spanish competition authority (“CNMC”) published its report on the audiovisual rights’ selling conditions for the Spanish football first and second leagues (“La Liga” and “Segunda División”) and national cup (“Copa del Rey”) until 2019. In April 2015, joint selling of the national football media rights has been imposed in Spain. The Spanish National League has to seek the advice of the competition authority previous to its tender. The main observations of the CNMC is that the penultimate and ultimate La Liga matches day should be broadcast on free-to-air TV. Also, the possibility for pay-TV broadcasters to buy more Copa del Rey matches could be anti-competitive.

Case law

Michel Platini’s suspension from all football-related activities at both national and international level was lowered by the CAS from six to four years. The former UEFA President was first sentenced with an eight years ban by the Adjudicatory Chamber of the FIFA Ethics Committee for several breaches of the FIFA Ethics Code. This sanction was later reduced to a six years suspension by the FIFA Appeal Committee. Michel Platini filed his appeal at CAS which rendered its decision on May, 9. CAS concluded that the employment contract between FIFA and Michel Platini was valid, however, the alleged unpaid part of his salary (CHF 2 millions) was not legitimate and, as such, was an undue advantage in breach of Article 20 of the FIFA Code of Ethics. The arbitral panel also concluded on a conflict of interest in breach of article 19 of the same code. However, CAS only retained these two breaches and did not found him guilty of the others, as a consequence, its six-year suspension was reduced to four years. In particular, CAS highlighted the fact that FIFA knew about this payment in 2011 and only started its investigations in 2015. Michel Platini resigned from the UEFA presidency and announced his intention to appeal the award in front of the Swiss Federal Tribunal.

CAS released its award on the appeal brought by the Croatian international water polo player Niksa Dobud against FINA Doping panel decision which sanctioned him for failure to submit to a doping test. He was previously sanctioned with a four-year period of ineligibility, the disqualification of the results obtained after 21 March 2015, the date of the attempt to test him and the forfeit of any medals, points and prizes achieved from that date. The panel found him guilty of evading a doping test and confirmed FINA decision.

Official Documents and Press Releases

EU parliamentary question on possible state aid case on the transfer of Gareth Bale to Real Madrid financed by bailed-out banks

EU parliamentary question on monitoring Hungary’s tax benefit scheme under EU state aids rules

Council of Europe Convention on an integrated safety, security and service approach at football matches and other sports events

UK Gambling Commission’s new rules to tackle crime linked to gambling

WADA press release on allegations of systematic Russian Doping in Sochi 2014

WADA Terms of Reference on Independent Investigation into the Sochi Allegations

WADA suspends the accreditation of the Bloemfontein Laboratory

Dutch football federation relegates FC Twente over financial problems linked to TPO

IOC reanalysis reveals banned substances in 23 “a” samples from London 2012

FIFA’s Deputy Secretary General Markus Kattner dismissed with immediate effect

Swiss Federal Tribunal judgment on "pathological" arbitration clauses & waiver of state courts' jurisdiction

In the news

Olympics

Jason Blevins - Steamboat Olympian Justin Reiter abandoning lawsuit against IOC

Nick Butler - Russian athletics ban must remain for Rio 2016 if sport is really serious about ending doping

Competition Policy International - US: Judge dismisses antitrust suit filed by Olympic runner

Lynne Cox - Olympians Shouldn’t Swim Through Sewage

Paul Dimeo - Why Banning Kenya From Rio Presents an Olympian Dilemma

Interfax - ARD to show one more film on doping in Russian sport in early June

Justin McCurry, Owen Gibson - Tokyo Olympics: Japan to 'fully cooperate' with suspicious payments inquiry

Rebecca R. Ruiz - Justice Department Opens Investigation Into Russian Doping Scandal

Rebecca R. Ruiz - Michael Schwirtz, Russian Insider Says State-Run Doping Fueled Olympic Gold

Football

AP - 10 arrests made in Italian match-fixing inquiry on Serie B

AP - Swiss extradite last of FIFA suspects Julio Rocha to U.S. in bribery case

AP - UEFA fines Liverpool, Man United for chants in Europa League

BBC - FIFA's minor transfer restrictions under BBC scrutiny

BeinSport - Lassana Diarra to pay €10million to Lokomotiv after CAS found he breached his contract

Causasport - Swiss politicians trying to put an end to FIFA's favourable tax status

Luke Edwards - Jack Colback under investigation over breach of betting rules

Ians - Concacaf sues ex-FIFA vice president Jack Warner

Borja García, FIFA congress in Mexico a chance to show football world it is cleaning up its act

Bram Logger, Hester den Boer, The scope of state aids to Dutch football clubs

Servan Peca, Adrià Budry Carbó - "Subprime" financing of football after the ban on TPO

Laura Saiz - FIFA’s prohibition to register minor players under fire from the Spanish government

Phil Smith - Swansea City win court battle with FC Utrecht over sale of Michel Vorm to Tottenham Hotspur

Sportcal - Agreement reached in Turkey to transfer control of Süper Lig broadcast rights to clubs

Sporza - Belgian football supporters of FC Bruges file complaint with EU Commission about state aids to KAA Ghent

Voetbal - The refusal to grant Belgian club White Star Brussels a license will be appealed in front of civil court

Academic materials

Elena Atienza Macias, Nutritional Supplements and Doping in Sports – A Controversial Issue

Robert A. Baade and Victor A. Matheson, Going for the Gold: The Economics of the Olympics

Christian Frodl, Neuer, Hummels, Müller, Götze & Co: the legal framework governing industrial relations in German professional football

Dionne L. Koller, Putting Public Law into 'Private' Sport

Larry P. Reimer, New Liability Trends, Potential New Risk for Sports Associations in Canada

Alexander Vantyghem, National Law in International Sports Disputes

Books

Antoine Duval, Ben Van Rompuy (ed.), The Legacy of Bosman, Revisiting the Relationship Between EU Law and Sport

Rosmarijn van Kleef, Liability of Football Clubs for Supporters' Misconduct

Upcoming Events

27 & 28 June - Sport & EU 11th annual conference, Institute for European Studies, CEU-San Pablo University, Madrid, Spain

28 June – LawInSport Networking Drinks, London, UK

6 July - Asser International Sports Law Lecture and Book Launch: Antidoping in the wake of the meldonium cases: How to balance scientific complexity and legal fairness. By Marjolaine Viret, Asser Institute, The Hague, The Netherlands

19 – 21 July - Executive Programme in International Sports Law, Sports Law and Policy Centre, Ravello, Italy

2 & 3 September - International Sport Arbitration 6th Conference CAS & SAV, The Court of Arbitration for Sport (CAS), the Swiss Bar Association (SAV / FSA) and the Swiss Arbitration Association (ASA), Lausanne Switzerland

16 September - The future of the ‘legal autonomy’ of sport, Anglia Ruskin University, Cambridge, UK

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

WADA Conference and the Adoption of 2021 WADA Code Amid Calls for Reform

On November 5-7, WADA held its Fifth World Conference on Doping in Sport where it faced a busy schedule, including the adoption of the revised 2021 World Anti-Doping Code and the election of a new WADA President and Vice-President by the Foundation Board. Concerning the latter, Witold Bańka, Poland’s Minister of Sport and Tourism, was elected as WADA President and Yang Yang, a former Chinese speed skater, elected as Vice-President, replacing Sir Craig Reedie and Linda Helleland respectively. As Helleland leaves her position, she has expressed some strong views on the state of sport governance, particularly that ‘there is an absence of good governance, openness and independence in the highest levels of international sports’. Helleland was not the only one to recently voice governance concerns, as Rob Koehler, Director General of Global Athlete, also called for a ‘wholesale structural change at WADA’, which includes giving ‘independent’ athletes a vote in WADA’s Foundation Board, ensuring a greater ‘separation of powers’ and ensuring greater protection of athletes’ rights.

In the midst of the calls for reform, the amended 2021 WADA Code and the amended International Standards were also adopted after a two year, three stage code review process. Furthermore, a major milestone in athletes’ rights was achieved with the adoption of the Athletes’ Anti-Doping Rights Acts (separate from the WADA Code), which enumerates certain basic rights to help ‘ensure that Athlete rights within anti-doping are clearly set out, accessible, and universally applicable’. On the other hand, the Act ‘is not a legal document’, which clearly circumscribes some of the potential effects the Act may have. Nonetheless, athlete representative groups have ‘cautiously welcomed’ some of the changes brought by the 2021 WADA Code, such as the ‘modified sanctions for substances of abuse violations’.

Sung Yang’s Historical Public Hearing at the CAS

After much anticipation, the second public hearing in CAS history occurred on November 15 in Montreux, Switzerland in the Sun Yang case (details of this case were discussed in August and September’s monthly report), which was livestreamed and can be seen in its totality in four different parts (Part 1, Part 2, Part 3, Part 4). This was an extremely unique opportunity, which hopefully will become a more common occurrence, to see just how CAS hearings are conducted and perhaps get a taste of some of the logistical issues that can emerge during live oral hearings. One of these problems, accurate translations, rapidly became apparent as soon as Sun Yang sat in the witness chair to give his opening statements. The translators in the box seemed to struggle to provide an intelligible English interpretation of Sun Yang and other witnesses’ statements, while Sun Yang also seemingly had trouble understanding the translated questions being posed to him. The situation degenerated to such an extent that ultimately one of WADA’s officials was called to replace the translators. However, the translation drama did not end there, since during Sun Yang’s closing statements an almost seemingly random person from the public appeared next to Sun Yang who claimed to have been requested from Sun Yang’s team to ‘facilitate’ the translation. Franco Frattini, president of the panel, questioned the identity of the ‘facilitator’ and explained that one could not just simply appear before the court without notice. Interestingly, Sun Yang’s legal team also rapidly intervened claiming that it had not been made of aware of the inclusion of the supporting translator, further complicating the matter. In the end, Sun Yang concluded his statements with the translation from the WADA official.

While it was Sun Yang’s legal team that had provided the original translators in the box, it still raises the question as to how translation at CAS could be improved to ensure a certain standard of translators. After all, quality translation is critical to the parties’ right to be heard under Article 6 (e) ECHR. Regardless, in the end, neither parties made an objection that their right to be heard was violated.

Russian Doping Saga Continues: WADA Compliance Review Committee Recommends Strong Sanctions

As was already discussed in August and September’s monthly report, WADA uncovered numerous inconsistencies concerning data taken from the Moscow Laboratory. After further investigation, WADA’s Compliance Review Committee has recommended that the Russian Anti-Doping Agency (RUSADA) be found non-compliant with the WADA Code. Accompanying the recommendation, the Compliance Review Committee also suggested several sanctions, which include prohibiting Russian athletes from participating in major events like the Olympic Games and ‘any World Championships organized or sanctioned by any Signatory’ for the next four years unless they may ‘dmonstrate that they are not implicated in any way by the non-compliance’. It would also see an embargo on events hosted in Russia during the same period. However, these sanctions did not go far enough for some, like Travis Tygart, chief executive of USADA, who wishes to prevent a repeat of Rio 2016 and PyeongChang 2018 ‘in which a secretly-managed process permitting Russians to compete – did not work’. On the other hand, the IOC has advocated for a softer, individual based approach that pursues ‘the rules of natural justice and respect human rights’. In the midst of these developments, the Athletics Integrity Unit also decided to charge several members of the Russian Athletics Federation (RusAF), including its President Dmitry Shlyakhtin, after a 15 month investigation for ‘tampering and complicity’ concerning a Russian athlete’s whereabouts violations.

Following many calls for strong consequences, the WADA Executive Committee met on December 9^th and adopted the recommendations of the Compliance Review Committee. Athlete representatives have expressed their disappointment with the sanctions, calling the decision ‘spineless’ since it did not pursue a complete ban on Russian participation at events such as Euro 2020 and the 2020 Olympics. At this point, RUSADA has sent notice to WADA that it will be disputing the decision of WADA’s Executive Committee’s decision at the CAS.

Major International Sports Law Decisions

Court of Arbitration for Sport – Sun Yang Public Hearing Part 1, Part 2, Part 3, Part 4

Court of Arbitration for Sport – CAS 2019/A/6110 Liam Cameron v. UK Anti-Doping Limited (UKAD)

Court of Arbitration for Sport – CAS 2018/A/5989 IAAF v. Qatar Athletics Federation & Musaeb Abdulrahman Balla

Official Documents and Press Releases

CAS