Asser International Sports Law Blog

On 10 April, the ASSER Sports Law Centre had the honour of welcoming Prof. Weatherill (Oxford University) for a thought-provoking lecture.

In his lecture, Prof. Weatherill outlined to what extent the rules of Sports Governing Bodies enjoy legal autonomy (the so-called lex sportiva) and to what extent this autonomy could be limited by other fields of law such as EU Law. The 45 minutes long lecture lays out three main strategies used in different contexts (National, European or International) by the lex sportiva to secure its autonomy. The first strategy, "The contractual solution", relies on arbitration to escape the purview of national and European law. The second strategy, is to have recourse to "The legislative solution", i.e. to use the medium of national legislations to impose lex sportiva's autonomy. The third and last strategy - "The interpretative or adjudicative solution"- relies on the use of interpretation in front of courts to secure an autonomous realm to the lex sportiva.

Enjoy!

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

September hosted the very last bit of the sport summer 2016, most notably in the form of the Rio Paralympic Games. Next to the spectacular achievements displayed during these games, in the realm of sports law similar thrilling developments hit town. The first very much expected #Sportslaw highlight was the decision by the German Bundesgerichtshof in the case concerning SV Wilhelmshaven. The second major (less expected) story was the Statement of Objections issued by the European Commission against the International Skating Union.

The Bundesgerichtshof’s ruling in the SV Wilhelmshaven case

On Tuesday 20 September, Germany’s highest court, the Bundesgerichtshof (BGH), sided with the German (now) amateur football club SV Wilhelmshaven in its fight against a forced relegation at the end of the 2013/2014 season, ordered by FIFA and effectuated by the North German Football Federation. This relegation was the ultimate result of the non-payment of training compensation fees owed by SV Wilhelmshaven to two Argentinian Clubs under the FIFA training compensation system. For the ins and outs of the story leading up to the BGH’s decision, please read our earlier blog post ‘SV Wilhelmshaven: a Rebel with a cause!’.

In short, the current ruling annulled the relegation, because of the unclear nature of the North German Football Federation’s statutes. A disciplinary measure can only be applied when it derives from the federation’s statutes. The BGH found that the penalty in the form of a forced relegation could not be inferred from the statutes. It was not foreseeable for SV Wilhelmshaven that their non-payment of the imposed trainings fees would lead to this dire consequence. Unfortunately, the BGH did not answer the question whether the forced relegation infringed the free movement rights of football players under Article 45 TFEU. Thus ignoring the criticisms raised by the Bremen court in earlier instance. Henceforth, the ruling constitutes an important blow for the German football federations and a relatively harmless defeat for FIFA.

The EU Commission’s Statement of objections to ISU

On the morning of 27 September, for the first time nearly 20 years(!), the European Commission issued a Statement of Objections (SO) in the field of sport. The SO was addressed to the International Skating Union (ISU) in relation to its eligibility rules. The ASSER Institute (via Ben Van Rompuy and Antoine Duval) was at the origin of the complaint and was representing the skaters along the proceedings. The SO concluded the first phase of the Commission’s investigation that was opened in October 2015 following a complaint by two Dutch professional speed skaters, Mark Tuitert and Niels Kerstholt.

The preliminary view of the Commission is that the ISU breaches EU competition law through its rules under which athletes can be severely penalized (i.e. a ban from the Olympic Games or the World Championship, and possibly even life time bans) for their participation in speed skating events not authorised by the ISU. The commercial freedom of athletes is ‘unduly’ restricted by these rules, which ultimately leads to preventing new entrants on the market of speed skating events, as these organizers are not able to attract the top athletes. Commissioner Vestager expressed the concerns that ‘the penalties the ISU imposes on skaters through its eligibility rules are not aimed at preserving high standards in sport but rather serve to maintain the ISU's control over speed skating’. The length of the possible penalties (leading up to a ban for life) are, considered the short time span of a professional athlete’s career, extremely harmful and potentially career ending. The Commission is thus concerned that these ISU eligibility rules are ‘disproportionately punitive’ and, as such, may breach Article 101 TFEU.

In a defensive response, the ISU declared that it believes the European Commission’s allegations are unfounded. The ‘surprised’ ISU stressed that the SO is merely a one of the stages in a Commission antitrust investigation and ‘does not imply that the ISU is responsible or liable for any violation of EU antitrust legislation’. Striking was the claim stating that any such allegations appear ‘to be based on a misplaced understanding of the governance structure of sport and the Olympic movement’ together with the reference to the wore-out life buoy of the ‘autonomous governance structure of sport’.

In any case, the mere fact that the Commission decided to issue an SO is a strong indicator of its grave concerns regarding the (bad) governance of global sport and the tendency of the Sports Governing Bodies (SGBs) to abuse their monopoly position for the sole sake of making more money for themselves. That, or Margrethe Vestager has a secret passion for ice skating.

Other headlines

The month of September also saw the publication of the Spanish Tribunal Supremo’s ruling of 28 July 2016 concerning the legality of the whereabouts requirement imposed on athletes in the fight against doping. The case dates back to 2013 when the Spanish High Council for Sports adopted resolution 1648/2013 providing two forms (Annex I and Annex II) for athletes to complete in order to fulfil their whereabouts requirements. In June 2014, the Adiencia Nacional (an Exceptional High Court) considered that the resolution was contrary to the right to privacy and was going beyond the wording enshrined Spain’s anti-doping laws. It consequently declared the whereabouts requirement null and void. For more information on the Audiencia Nacional’s judgment, see our Blog from July 2014. In cassation, the Supreme Court agreed with the Audiencia Nacional and deemed the whereabouts requirement to be disproportionate and contrary to the right to privacy. According to the Court, the general policy (objective) of a (global) fight against doping cannot be considered a sufficient justification for limiting a person’s freedom too such an extent.

As regards the aftermath of the Rio Olympics, the CAS Ad Hoc Division proved to have a rather busy schedule during and after these games. One of the main reasons for this was the ‘willingness’ of Russian athletes to challenge the ban imposed on them by the IAAF. Even though these decisions have been rendered in August, we published a five-part blog by Antoine Duval this month, which analyses the published CAS awards related to Russian athletes: Act I: Saved by the Osaka déjà-vu, Act II: On being implicated, Act III: On being sufficiently tested, Act IV: On bringing a sport into disrepute and Act V: Saving the Last (Russian) Woman Standing.

Case law

CAS