Asser International Sports Law Blog

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very happy to finish this series of interviews with Sven Demeulemeester from Altius , a Belgian law firm based in Brussels with a very fine (and academically-minded!) sports law team.

1. Can you explain to our readers the work of Altius in international sports law?

Across different sports’ sectors, Altius’ sports law practice advises and assists some of the world’s most high-profile sports governing bodies, clubs and athletes, at both the national and the international level. The team has 6 fully-dedicated sports lawyers and adopts a multi-disciplinary approach, which guarantees a broad range of legal expertise for handling specific cases or wider issues related to the sports industry. We are proud to be independent but, in cross-border matters, are able to tap into a worldwide network.

2. How is it to be an international sports lawyer? What are the advantages and challenges of the job?

Sports law goes beyond one specific field of law. The multiplicity of legal angles keeps the work interesting, even after years of practising, and ensures that a sports lawyer rarely has a dull moment. The main downside is that the sports industry is fairly conservative and sometimes ‘political’. While the law is one thing, what happens in practice is often another. Bringing about change is not always easy.

3. What are the burning issues in international sports law that you would like to see discussed at the conference?

The much-anticipated overhaul of the football transfer system is eagerly anticipated and is worth a thorough debate, also in terms of possible, viable alternatives. The impact of EU law - both internal market rules, competition law and fundamental rights – can hardly be underestimated. Also, dispute resolution mechanisms within the realm of sports - and an accessible, transparent, independent and impartial sports arbitration in particular - will remain a ‘hot’ topic in the sector for years to come. Furthermore, ethics and integrity issues should remain top of the agenda, as is being demonstrated by the current money-laundering and match-fixing allegations in Belgium. Finally, in a sector in which the use of data is rife, the newly-adopted GDPR’s impact remains somewhat ‘under the radar’.

4. Why did you decide to support the ISLJ Annual International Sports Law Conference?

The ISLJ Annual International Sports Law Conference is refreshing, both in terms of its topics and participants. The academic and content-driven approach is a welcome addition to other sports law conferences in which the networking aspect often predominates.

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