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

[Call for Papers] - International Sports Law Journal - Annual Conference - Asser Institute, The Hague - 24-25 October 2024 - Reminder!

The Editors of the International Sports Law Journal (ISLJ) invite you to submit abstracts for the next edition of the ISLJ Conference on International Sports Law, which will take place on 24 and 25 October 2024 at the Asser Institute in The Hague. The ISLJ, published by Springer and TMC Asser Press, is the leading academic publication in the field of international sports law and the conference is a unique occasion to discuss the main legal issues affecting international sports and its governance with renowned academic experts.

We welcome abstracts from academics and practitioners on all issues related to international and transnational sports law and their impact on the governance of sport. We also welcome panel proposals (including a minimum of three presenters) on specific issues of interest to the Journal and its readers. For this year’s edition, we specifically invite submissions on the following themes and subthemes:


Reformism in transnational sports governance: Drivers and impacts

  • Legal and social drivers of reforms in transnational sports governance   
  • The role of strategic litigation (before the EU/ECtHR/National courts) as a driver of reform;
  • The role of public/fan pressure groups on clubs, competition organisers and governments as a driver of change.
  • The impact of internal reforms in transnational sports governance: Cosmetic or real change? (e.g. IOC Agenda 2020+5, FIFA governance reforms, CAS post-Pechstein changes, WADA sfter the Russian doping scandal)
  • Emerging alternatives to private sports governance – the UK’s Independent Football Regulator.


The organization and regulation of mega sporting events: Current and future challenges 

  • Mega-sporting events as legalized sites of digital surveillance 
  • Greening mega-sporting events (e.g. carbon neutral pledges, environmental footprints of events, the impact of multiple hosting sites)
  • Mega-sporting events and the protection of human rights and labour rights (e.g. Paris 2024 Social Charter, Euro 2024 human rights commitments)
  • The Olympic Games and athletes’ economic rights (remuneration/advertisement)
  • Reviews of the legal issues raised at Euro 2024 in Germany and the Paris 2024 Olympic Games
  • Previews of the legal issues likely to have an impact on the FIFA 2026 World Cup and the Milano-Cortina 2026 Winter Olympic Games


Please send your abstract of 300 words and CV no later than 15 July 2024 to a.duval@asser.nl. Selected speakers will be informed by 30 July.

The selected participants will be expected to submit a draft of their paper by 1 October 2024. Papers accepted and presented at the conference are eligible for publication in a special issue of the ISLJ, subject to peer-review. 

The Asser Institute will provide a limited number of travel & accommodation grants (max. 300€). If you wish to be considered for a grant, please explain why in your submission.


[New Event] Feminist theory and sport governance: exploring sports as sites of cultural transformation - 9 July -15:00-17:00 - Asser Institute


This seminar is part of the Asser International Sports Law Centre's event series on the intersection between transnational sports law and governance and gender. Dr Pavlidis will present her take on feminist theories and sport governance by exploring sports and in particular Australian rules football and roller derby as sites of cultural transformation.

Register HERE

Australian rules football is Australia's most popular spectator sport and for most of its history it has been a men's-only sport, including in its governance and leadership. This is slowly changing. Roller derby on the other hand has been reinvented with an explicitly DIY (Do It Yourself) governance structure that resists formal incorporation by 'outsiders'. This paper provides an overview of sport governance in the Australian context before focusing in on these two seemingly disparate sport contexts to explore the challenges of gender inclusive governance in sport.

Dr Adele Pavlidis is an Associate Professor in Sociology with the School of Humanities, Languages and Social Science at Griffith University in Australia. She has published widely on a range of sociocultural issues in sport and leisure, with a focus on gender and power relations. Theoretically her work traverses contemporary scholarship on affect, power and organisations, and she is deeply interested in social, cultural and personal transformation and the entanglements between people, organisations, and wellbeing.

We look forward to hearing Dr Pavlidis present on this topic, followed by reflections and comments by Dr Åsa Ekvall from the Erasmus Center for Sport Integrity & Transition, and Dr Antoine Duval from the T.M.C. Asser Institute. There will also be a Q&A with the audience.

Download the latest programme here 

Register HERE


[Call for papers] - International Sports Law Journal - Annual Conference - Asser Institute, The Hague - 24-25 October 2024

The Editors of the International Sports Law Journal (ISLJ) invite you to submit abstracts for the next edition of the ISLJ Conference on International Sports Law, which will take place on 24 and 25 October 2024 at the Asser Institute in The Hague. The ISLJ, published by Springer and TMC Asser Press, is the leading academic publication in the field of international sports law and the conference is a unique occasion to discuss the main legal issues affecting international sports and its governance with renowned academic experts.

We welcome abstracts from academics and practitioners on all issues related to international and transnational sports law and their impact on the governance of sport. We also welcome panel proposals (including a minimum of three presenters) on specific issues of interest to the Journal and its readers. For this year’s edition, we specifically invite submissions on the following themes and subthemes:


Reformism in transnational sports governance: Drivers and impacts

  • Legal and social drivers of reforms in transnational sports governance   
  • The role of strategic litigation (before the EU/ECtHR/National courts) as a driver of reform;
  • The role of public/fan pressure groups on clubs, competition organisers and governments as a driver of change.
  • The impact of internal reforms in transnational sports governance: Cosmetic or real change? (e.g. IOC Agenda 2020+5, FIFA governance reforms, CAS post-Pechstein changes, WADA sfter the Russian doping scandal)
  • Emerging alternatives to private sports governance – the UK’s Independent Football Regulator.


The organization and regulation of mega sporting events: Current and future challenges 

  • Mega-sporting events as legalized sites of digital surveillance 
  • Greening mega-sporting events (e.g. carbon neutral pledges, environmental footprints of events, the impact of multiple hosting sites)
  • Mega-sporting events and the protection of human rights and labour rights (e.g. Paris 2024 Social Charter, Euro 2024 human rights commitments)
  • The Olympic Games and athletes’ economic rights (remuneration/advertisement)
  • Reviews of the legal issues raised at Euro 2024 in Germany and the Paris 2024 Olympic Games
  • Previews of the legal issues likely to have an impact on the FIFA 2026 World Cup and the Milano-Cortina 2026 Winter Olympic Games


Please send your abstract of 300 words and CV no later than 15 July 2024 to a.duval@asser.nl. Selected speakers will be informed by 30 July.

The selected participants will be expected to submit a draft of their paper by 1 October 2024. Papers accepted and presented at the conference are eligible for publication in a special issue of the ISLJ, subject to peer-review. 

The Asser Institute will provide a limited number of travel & accommodation grants (max. 300€). If you wish to be considered for a grant, please explain why in your submission.


[Online Summer Programme] - International sports and human rights - 22 - 29 May 2024 - Last spots!

Join us for the first online version of our unique training programme on ‘Sport and human rights’ jointly organised by the Centre for Sport and Human Rights and the Asser Institute taking place on May 22-24 & May 27-29.

After the success of the first editions in 2022 and 2023 the programme returns, focusing on the link between the sport and human rights and zooming in on a number of topics, such as the UN Guiding Principles for Business and Human Rights and their application in sports. We will also adopt a human rights lens to sport governance and address freedom of speech, the rights of athletes, and access to remedy.

Tackling contemporary human rights challenges in sport

The programme brings together the latest in academic research with practical experiences from working in the field in an interactive package, fostering productive exchanges between the speakers and participants. Theoretical knowledge will be complemented by exposure to hands-on know-how.

Participants will have the opportunity to learn from experts from the Asser Institute, the Centre for Sport and Human Rights, and high-profile external speakers from both academia and practice.

What will you gain?

  • An extensive introduction to the emergence of the sport and human rights movement
  • A greater understanding of the normative framework for human rights standards in sport
  • A comprehensive overview of the latest developments in the interplay between gender and sports
  • Practical know-how to govern  human rights in the context of sporting organisations
  • Practical know-how to address  human rights risks in the context of day-to-day sports, including safeguarding
  • Practical know-how to access remedy in human rights disputes
  • The opportunity to engage in discussions and network with leading academics and professionals

Topics addressed in this summer programme include:

  • The emergence of the sport and human rights discussion/movement
  • The integration of human rights in the governance of sport
  • The protection of athletes’ rights
  • Access to remedy for sport-related human rights harms


Read the full programme.

Register HERE


In partnership with:

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[Call for Papers] Through Challenges and Disruptions: Evolution of the Lex Olympica - 20 September 2024 - Inland School of Business and Social Sciences

Editor's note: This is a call for papers for a workshop inviting sports lawyers and historians to reflect on how the lex olympica developed within the last 128 years through the prism of challenges and disruptions to the Olympic Games and the sharp and incremental changes they provoked.


Background

The lex olympica are legal rules the International Olympic Committee created to govern the Olympic Movement. Since the revival of the Olympic Games in 1896, the lex olympica, with the Olympic Charter taking its central place, has undergone tremendous changes. It has increased not only in volume but also in complexity and reach.

While some changes were designed to give further detail to the Olympic values, others seem to serve as responses to numerous disruptions and challenges that the Olympic Games experienced on their way. History shows that the Olympic Games faced boycotts, apartheid, armed conflicts, wars, propelled commercialisation, corruption, critique based on human rights and sustainability, pandemics, and many other obstacles.

One can see triggers for changes in specific incidents, broader societal changes, external political interests, long-term internal processes, etc., or further differentiate them according to relevant stakeholders impacting the change, such as IOC, NOCs, IFs, NFs, athletes, commercial partners, television, activist groups, NGOs, governments, host countries, etc. Regardless of their taxonomies, all these challenges met different reactions and affected the Olympic regulation in various ways. The IOC chose to distance the Olympic Games from some challenges and fully embrace others.


Keynote speakers

  • Jörg Krieger, Associate Professor, Department of Public Health and Sport Science, Aarhus University; co-leader of the Lillehammer Olympic and Paralympic Studies Center; Associate Professor II Inland Norway University of Applied Sciences.
  • Mark James,  Professor of Sports Law and Director of Research in the Manchester Law School at Manchester Metropolitan University, Editor-in-Chief of the International Sports Law Journal.


Deadline for abstract submission: 15 June 2024

Confirmation of participation: 30 June 2024

Publication: Selected contributions will be considered for a special issue at International Sports Law Journal


Contact information

Yuliya Chernykh (Associate Professor)

yuliya.chernykh@inn.no


Organizer

Lillehammer Olympic and Paralympic Studies Center (LOSC), Inland School of Business and Social Sciences and Legal development research group at INN University


[New Publication] - The European Roots of the Lex Sportiva: How Europe Rules Global Sport - Antoine Duval , Alexander Krüger and Johan Lindholm (eds) - Open Access

Dear readers, 


I have the pleasure to inform you that our (with Prof. Johan Lindholm and Alexander Kruger from Umeå University) edited volume entitled 'The European Roots of the Lex Sportiva: How Europe Rules Global Sport' has been published Open Access by Hart Publishing. 



You can freely access the volume at: https://www.bloomsburycollections.com/monograph?docid=b-9781509971473


Abstract

This open access book explores the complexity of the lex sportiva, the transnational legal regime governing international sports. Pioneering in its approach, it maps out the many entanglements of the transnational governance of sports with European legal processes and norms. The contributors trace the embeddedness of the lex sportiva within national law, European Union law and the European Convention on Human Rights. While the volume emphasizes the capacity of sports governing bodies to leverage the resources of national law to spread the lex sportiva globally, it also points at the fact that European legal processes are central when challenging the status quo as illustrated recently in the Semenya and Superleague cases. Ultimately, the book is also a vantage point to start critically investigating the Eurocentricity and the complex materiality underpinning the lex sportiva.


Table of contents

1. Made in Europe: Lex Sportiva as Embedded Transnational Law - 1–14 - Antoine Duval , Alexander Krüger and Johan Lindholm

I. The European Roots of Lex Sportiva

2. Embedded Lex Sportiva: The Swiss Roots of Transnational Sports Law and Governance - 17–40 - Antoine Duval

3. Putting the Lex into Lex Sportiva: The Principle of Legality in Sports - 41–68 - Johan Lindholm

4. Europeanisation of the Olympic Host (City) Contracts - 69–92 - Yuliya Chernykh

5. The Influence of European Legal Culture on the Evolution of Lex Olympica and Olympic Law - 93–118 - Mark James and Guy Osborn

6. Who Regulates the Regulators? How European Union Regulation and Regulatory Institutions May Shape the Regulation of the Football Industry Globally - 119–152 - Christopher A Flanagan

7. The Europeanisation of Clean Sport: How the Council of Europe and the European Union Shape the Proportionality of Ineligibility in the World Anti-Doping Code - 153–188 - Jan Exner

II. The Integration of European Checks into the Lex Sportiva

8. False Friends: Proportionality and Good Governance in Sports Regulation - 191–210 - Mislav Mataija

9. Sport Beyond the Market? Sport, Law and Society in the European Union - 211–228 - Aurélie Villanueva

10. EU Competition Law and Sport: Checks and Balances ‘à l’européenne’ - 229–256 - Rusa Agafonova

11. Is the Lex Sportiva on Track for Intersex Person’s Rights? The World Athletics’ Regulations Concerning Female Athletes with Differences of Sex Development in the Light of the ECHR - 257–282 - Audrey Boisgontier

III. Engaging Critically with a Eurocentric Lex Sportiva 

12. Lex Sportiva and New Materialism: Towards Investigations into Sports Law’s Dark Materials? 285–308 - Alexander Krüger


[Advanced professional training] Responding to human rights abuse in sport: Safe, effective & appropriate investigation - 5-6 March

Register now for the second edition of our advanced professional training and learn how to respond in a safe, appropriate, and effective way to cases of human rights abuse in sport. 

In recent years, the world of sport has seen a rise in reports of cases of emotional, psychological, physical, and sexual abuse. Sport has often struggled to respond in a safe, effective and appropriate way to these cases.  This has, at best, led to missed opportunities to improve and strengthen prevention mechanisms.  At worst, it has caused retraumatisation and additional harm to those affected. 

This professional training uses real life challenges from past investigations to provide insight into how (not) to respond to reports and allegations of sport-related cases of abuse. It will provide you with tools and knowledge on how to deal with abuse cases while protecting those affected, complying with human rights, and upholding the integrity of sport.

Register HERE

Widespread abuse in sports
The last five years have seen a huge uptick in reports of cases of emotional psychological, physical and sexual abuse in sport. All over the world, across different sports, non-recent and recent cases have come to light: abuse allegations in Dutch gymnastics and US gymnastics, the abuse of female basketball players in Mali, systematic abuse of child athletes in Japan, the abuse of young boys within the English football, or children in other grass-roots sport in Germany, the sexual abuse ofwomen’s football national teams in Afghanistan and Haiti, or the recent sexual assault against a player of the Spanish women’s national football team, to mention but a few.

Ineffective response
Responses from the relevant entities like sport organisations and governments have often fallen short of both the expectations of those impacted, and internationally recognised human rights standards. Some organisations have failed to initiate any investigation whatsoever, while others have commissioned or led inadequate responses. This has resulted in strong  criticism from affected persons, their representatives, and other civil society organisations. However, until now sport has not benefited from  any real  clarity or consistency around good practice on how to respond in a safe, adequate and effective way to allegations of abuse. This course seeks to address that.

Register HERE

Good practice based on research and experience
The Centre for Sport and Human Rights (CSHR) has conducted a study, in conjunction with victims, survivors, and whistleblowers of abuse across continents and sporting disciplines, and based on the learnings developed and published a guidance on how to conduct safe, appropriate and effective investigations into abuse cases in sport.  In this professional training, the Asser Institute partners with CSHR to connect practical research-based guidelines with relevant legal norms and procedures to address human rights abuses in sport. 

What will you learn? 

  •   How (not) to respond to reports and allegations of sport-related cases of abuse 

  •   Knowledge and experience in responding to such cases in a way that protects the affected person from further harm and complies with human rights 

  •    The role that investigations play in access to remedy more broadly 

Download the full programme

Speakers:

  • Kat Craig (CSHR)
  • Dr Daniela Heerdt (Asser Institute)
  • Joanna Maranhão (4x Olympians and Survivor Network Coordinator)
  • Loïc Alves (Senior Legal Counsel at FIFPRO)
  • Peter Nicholson (Head of Investigations and Intelligence Athletics Integrity Unit and Ethics Officer ICC)

Register HERE

Sport is sailing rudderless into geopolitical storms - Russia and Israel responses show how absence of rules makes FIFA and the IOC tools of the global north - By Nick McGeehan

Editor's note: Nicholas McGeehan is co-director of human rights research and advocacy group FairSquare, which works among other things on the nexus between sport and authoritarianism. He is a former senior researcher at Human Rights Watch and holds a PhD in international law from the European University Institute in Florence.


Boycotts, divestments and sanctions are each controversial and contentious in their own right, but when combined under the right conditions, they have explosive potential. BBC football presenter Gary Lineker found this out to his cost when he retweeted a call from Palestine’s BDS movement to suspend Israel from FIFA and the International Olympic Committee (IOC)  until such time the Israeli state ends what they called “the crime of genocide it is perpetrating in Gaza” and its occupation of Palestinian territory. Lineker quickly deleted his retweet but not before the UK’s most popular right-wing tabloid newspaper, The Daily Mail, spotted it and renewed their fulminating campaign against Lineker’s support for political causes that run contrary to the Mail’s editorial positions. The Daily Mail does not oppose sporting boycotts, in fact judging from an article by its football columnist, Martin Samuel, it was an ardent supporter of Russia’s ejection from European football in the aftermath of its invasion of Ukraine. “Why should Russian football get to be part of the continent in which it has murdered innocents?,” asked Samuel  and in that regard he was not alone and was echoing views heard across the political divide in the west at the time. 

The west continues to boycott Russia, its companies have divested from Russia, and its governments are sanctioning Russia. This includes in the sporting arena where nobody batted an eyelid when Russian football teams were excluded from FIFA and UEFA competition, and its athletes excluded from IOC competition.  So it seems obvious that it  is not so much BDS tactics that offend people in certain quarters, but rather their target. Russia can be BDS’d until the cows come home, but BDS’ing Israel is beyond the pale. You can see how it might be hard to explain to a child.

Through an examination of the widely divergent responses to Russia’s actions in Ukraine and Israel’s actions in Gaza, this piece argues that FIFA and the IOC have aligned themselves with the political positions of the countries of the global north. With reference to previous sporting boycotts, it demonstrates how an absence of rules has left FIFA and the IOC sailing rudderless into stormy geopolitical waters and argues that they need to institute rules to guide their responses to events of this gravity and magnitude. Dispensing once and for all with the canard that sport and politics can be kept apart would enable sport’s governing bodies to appropriately leverage their political power and not merely act as puppets of the global north. More...


[Online Event] The aftermath of the Women's World Cup final: FIFA's and UEFA's responsibility in the Jenni Hermoso case

Join us on 14 December at 12:00 CET for an online discussion on FIFA and UEFA’s responsibility in responding to the incident that overshadowed Spains’ victory of the Women's World Cup, when Spanish national team player Jennifer Hermoso experienced a violation of her bodily integrity and physical autonomy due to a forced kiss given to her by Luis Rubiales, then the Spanish FA's president. 


During the 2023/2024 academic year, the Asser International Sports Law Centre dedicates special attention to the intersection between transnational sports law and governance and gender. This online discussion is the second in a series of (online and offline) events, which explore the way in which international sports governing bodies define the gender divide in international sports, police gender-based abuses, and secure gender-specific rights to athletes. You can watch the recording of our first virtual discussion on the Semenya judgment of the ECtHR on our Youtube Channel.  


Just minutes after the Spanish women's national team had won the FIFA Women's World Cup, Rubiales congratulated the players on the podium and grabbed Hermoso's head and kissed her on the lips. This act not only shocked the players and the audience but also caused immediate international uproar and calls for resignation. Rubiales first defended his act, claiming that Hermoso had agreed to it. However, her statements right after it happened, as well as her official statement published just a few days after the event forcefully denied the consensual nature of the kiss. Hermoso felt “vulnerable and a victim of aggression, an impulsive act, sexist, out of place and without any type of consent". Three months later, Rubiales has been suspended by FIFA for three years, resigned as president of the Spanish FA, and is facing criminal prosecution for the crimes of sexual assault and coercion in Spanish national courts. 


As extreme as this case sounds, it is not. In fact, it is a reflection of structural issues that exist in the world of women's football and women's sport more generally. Furthermore, this incident raises the question of the rights of the players subjected to such behaviour and the responsibility of sports governing bodies, and FIFA and UEFA in particular, insanctioning those who are engaging in such actions. How should SGBs respond to such incidents? What type of rules and procedures should they have in place? What are the measures that should be introduced to prevent similar actions in the future? What is the role of states (the Spanish state in the present instance) in investigating and prosecuting these cases?  


We look forward to discussing these issues (and many others) with our three speakers, who have followed the case closely: 

  • Kat Craig, human rights lawyer, founder and CEO of Athlead, Senior Adviser to the Centre for Sport and Human Rights; 

  • Alexandra Gómez Bruinewoud, is a Senior Legal Counsel at FIFPRO and a judge at the FIFA Dispute Resolution Chamber; 

  • Borja Garcia is Reader in Sport Policy and Governance at School of Sport, Exercise and Health Sciences in Loughborough University


The online discussion will be introduced and moderated by Dr Antoine Duval and Dr Daniela Heerdt, and will include short presentations by the speakers and a Q&A with the audience. 


This is a free event, you can register for it HERE

[Conference] International Sports Law Journal Annual Conference - Asser Institute - 26-27 October

On 26 and 27 October 2023, the Asser Institute in The Hague will host the 2023 edition of the International Sports Law Journal (ISLJ) Conference. The ISLJ is the leading academic journal in transnational sports law and governance and is proud to provide a platform for transnational scholarly exchanges on the state of the field. The conference will address a number of complex issues and disputes at the top of the transnational sports law agenda. In particular, we will zoom in on three main topics:

 

How football governance is (re)shaped by EU law

Since the Bosman ruling of the European Court of Justice (CJEU) in 1995, it has been obvious to football fans around the world that the European Union (EU) has a considerable influence on the governance and regulation of professional football. This year, 2023, provides us a striking reminder of this fact with (at least) two fundamental judgments of the Grand Chamber of the CJEU expected in the Superleague case and the UEFA’s home-grown players rule. Additionally, two further cases, which are challenging FIFA’s transfer system and its agent regulations, remain pending before the Luxembourg court. We will be looking closely at this relationship between EU law and the governance football through two panels (featuring senior and junior researchers) and a keynote lecture delivered by one of the finest observers of this encounter: Prof. Stephen Weatherill (Oxford University).

 

Autonomy and neutrality in the transnational governance of sports 

The invasion of Ukraine by Russia has postponed (once again) the end of history and revived within the Olympic Movement fundamental debates dating back to the Cold War and South-African Apartheid. Can the Olympic Movement stay neutral in the face of a clear violation of international law by Russia and of war crimes being committed by its armed forces? What should the consequences be in terms of the participation of Russian athletes and teams in international sporting competitions? If they are allowed to participate, under what conditions should they be competing? All these questions are ultimately connected to the definition and practice of the autonomy and neutrality of sport vis-a-vis international law and politics and will be at the heart of the another set of presentations at the ISLJ conference and a digital bridge with the Symposium on Sport & Neutrality organised in Lillehammer by the Inland Norway University of Applied Sciences.

 

The transnational regulation of gender by sports governing bodies

Our third focus area for this year’s conference will be the regulation and governance of gender boundaries by SGBs. The recent and ground-breaking decision of the European Court of Human Rights in the Semenya case crystallises the contemporary importance of questions related to the division between genders in the context of international sports. Furthermore, the ongoing and heated debates on the participation of transgender athletes in female competitions are also highlighting the importance of the decisions taken by SGBs in this regard. We will be hosting a specific Panel tackling these issues and will be welcoming Prof. Silvia Camporesi (University of Vienna and King’s College London) for a keynote lecture connecting the legal debates with ethical and philosophical considerations.

 

More information and registration HERE

 

Download the full programme

 

Online participation available

Following the success of last year's webinar option, we are once again allowing online participation to the conference at an affordable price. Thus, we hope to internationalise and diversify our audience and to reach people who are not in a position to travel to The Hague.

We look forward to welcoming you in person in The Hague or digitally to this new iteration of the ISLJ conference.

Asser International Sports Law Blog | Invalidity of forced arbitration clauses in organised sport…Germany strikes back! - By Björn Hessert

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

Invalidity of forced arbitration clauses in organised sport…Germany strikes back! - By Björn Hessert

Editor's note: Björn Hessert is a research assistant at the University of Zurich and a lawyer admitted to the German bar.

 

The discussion revolving around the invalidity of arbitration clauses in organised sport in favour of national and international sports arbitral tribunals has been at the centre of the discussion in German courtrooms.[1] After the decisions of the German Federal Tribunal[2] (“BGH”) and the European Court of Human Rights[3] (“ECtHR”) in the infamous Pechstein case, this discussion seemed to have finally come to an end. Well…not according to the District Court (LG) of Frankfurt.[4] On 7 October 2020, the District Court rendered a press release in which the court confirmed its jurisdiction due to the invalidity of the arbitration clause contained in the contracts between two beach volleyball players and the German Volleyball Federation[5] (“DVV”) – but one step at a time.

 

1.     Arbitration clauses in organised sport

Over the past few decades, the Olympic movement has created its own judicial system in its endeavour to create and maintain a uniform judicial level playing field outside national courts. This is important, because athletes participating in international sports competitions need to be subject to the same sanctioning regime in the light of fairness and equality in sport.[6] In this regard, the jurisdiction of national courts threatens the uniform application of rules and regulations of international sports federations insofar as they could apply them differently. This could lead to the unsatisfying result that, for example, an athlete from Germany is punished for an anti-doping rule violation with a 2-year ineligibility sanction while a Swedish athlete is subject to a lifetime ban for the same misconduct.

In order to preserve the uniform application of sporting rules and – ultimately – a legal level playing field, the rules and regulations of the respective sports federation or individual contracts, including employment contracts or athlete agreements and licence agreements (“entry forms”), generally contain arbitration clauses in favour of private sports arbitral tribunals, e.g. the Court of Arbitration for Sport (“CAS”). As a result, the arbitration agreement between the parties to membership contracts or entry forms ousts the jurisdiction of national courts.[7] Due to the fact that athletes are not generally direct members of national and international sports federations, contractual clauses in their employment contracts or entry forms make reference to arbitration clauses set out in the rules and regulations of said sports federations. For example, international football players are generally bound by the regulations of the Fédération Internationale the Football Association (“FIFA”), including its statutes. Article 58(1) of the FIFA Statutes (2020 edition) provides that “[a]ppeals against final decisions passed by FIFA’s legal bodies against decisions passed by confederations, member associations or leagues shall be lodged with CAS […]”. References in individual contracts of sportspersons contained in the rules and regulations of sports federations, so-called “arbitration agreements by reference”, have been considered to be valid. In this respect, the Swiss Federal Tribunal (“SFT”) held that

in sporting matters the Swiss Federal Tribunal examines arbitration agreements between parties with a certain goodwill in order to promote the fast resolution of disputes by specialised courts, which as the CAS, offer comprehensive guarantees of independence and neutrality.[8]

Athletes are generally forced to accept such arbitration agreements in favour of sports arbitral tribunals due to the monopolistic structure in organised sport, meaning that only one national and international sports federation governs each sport on the basis of the pyramidal European Model of Sport (so-called Ein-Platz-Prinzip).[9] In other words, athletes can only choose between accepting such arbitration agreements (by reference) or renouncing their calling as professional athletes.[10] Against this background, it appears to be questionable whether mandatory arbitration agreements in organised sport concluded between monopolistic sports federations and athletes are valid, taking into account that arbitration as a mechanism of alternative dispute resolution generally finds its basis in the free and voluntary will of the parties to the dispute concerned. The validity of mandatory arbitration agreements was at the heart of the Pechstein[11] case and has now been addressed in the recent decision rendered by the District Court of Frankfurt[12].

 

2.     The decisions of the BGH and the ECtHR in the Pechstein case

Claudia Pechstein is a professional speed-skater. Prior to the speed-skating world championships, organised by the International Skating Union (“ISU”), she signed an entry form, including an arbitration agreement in favour of the CAS.[13] During her proceedings before German courts and the ECtHR, Pechstein argued that the arbitration agreement concluded between her and the ISU had not been accepted freely and voluntarily, because otherwise she would not have been eligible to participate in professional speed-skating competitions.

After the Higher Regional Court (OLG) of Munich had decided that the arbitration agreement signed by Ms Pechstein was invalid under German competition law as a result of ISU’s abuse of a dominant position[14], the BGH overruled this decision.[15] In the view of the BGH, the ISU is a monopoly within the meaning of sec. 19(1) of the German Competition Act (“GWB”).[16] However, the BGH took the view that the dominant position of a party to the arbitration agreement does not automatically revoke the voluntary nature of the consent to an arbitration agreement in favour of private sports arbitral tribunals.[17] Instead, the examination of the validity of the arbitration agreement is subject to a balancing process in consideration of the interests of both parties, i.e. sports federations and individual athletes.[18] In consideration of the legal protection of athletes and the specificity of sport, particularly in ensuring fair competitions and uniform case law in organised sport, which “would be seriously jeopardised”[19] by the invalidity of the arbitration agreement, the court came to the conclusion that the interests of the ISU prevail in this regard.[20] The CAS is a genuine arbitration court and guarantees legal protections for athletes equivalent to national courts.[21] Furthermore, the consistent application of the rules and regulations of sports federations by a specialised arbitration institution is not only in the interest of sports federations, but also in the interest of athletes.[22] 

The ECtHR indirectly confirmed the validity of the arbitration agreement concluded between Ms Pechstein and the ISU. However, in determining the free will of athletes when entering into an arbitration agreement with a monopolistic sports federation, the court held that the arbitration clause is generally not based on the free consent of the athlete and thus has a forced nature.[23] In case the athlete is compelled to accept an arbitration agreement, Article 6(1) of the ECHR is applicable to the sports arbitration proceedings in protection of the procedural rights of the athlete.[24]  

However, arbitration agreements in organised sport are not compulsory per se if the applicable sports rules and regulations leave it to the sports federation and the athlete to freely and voluntarily agree on an arbitration agreement. In this case, athletes are not in the same predicament and may therefore choose between different clubs before signing an arbitration agreement.[25]Furthermore, the complaining athlete must provide evidence that “other professional football clubs, which perhaps have more modest financial means, would have refused to hire him on the basis of a contract providing for dispute settlement in ordinary courts.”[26]

According to the BGH, the validity of arbitration agreements in organised sport is subject to a balancing process between the competing interests of the parties to it. However, if an athlete was compelled to accept arbitration clauses of monopolistic sports federations, the ECtHR concluded that Article 6(1) of the ECHR is applicable to the arbitration proceedings concerned. Both courts therefore set the benchmark against which the validity of arbitration agreements and proceedings in organised sport is measured. 

 

3.     Decision of the District Court of Frankfurt (based on the press release)

The decision of the District Court of Frankfurt is insofar remarkable as the court was in the position to consider both the decision of the BGH and the ECtHR in its decision-making process. With regard to the validity of the arbitration agreement concluded between two volleyball players and the DVV, the court stated in its press release of 7 October 2020[27] as follows:

Die Streitigkeit habe nicht vorrangig vor einem Schiedsgericht ausgetragen werden müssen. Zwar enthielten die Verträge der Klägerinnen mit dem Beklagten jeweils eine Schiedsvereinbarung. Dieser sei aber unwirksam, «weil die Klägerin sich ihr nicht freiwillig unterworfen habe», so die Richter. Seit der Entscheidung des Europäischen Gerichtshofs für Menschenrechte (EGMR) im Fall Pechstein sei bei professionellen Leistungssportlern von einer unfreiwilligen Unterwerfung unter einer Schiedsgerichtsbarkeit auszugehen, wenn die Profisportler «vor der Wahl stehen, eine Schiedsklausel anzunehmen, um durch die Ausübung ihres Sports ihren Lebensunterhalt bestreiten zu können, oder sie nicht zu akzeptieren und damit vollständig auf ihren Lebensunterhalt durch Ausübung des Sports zu verzichten.» Es sei nicht belegt, dass die Klägerinnen seinerzeit tatsächlich die Wahl hatten, die Schiedsklauseln abzuschliessen oder nicht. Deswegen sei von einer Unfreiwilligkeit auch dann auszugehen, wenn die Volleyballerinnen die Klauseln kritiklos unterzeichnet hätten.”

[free translation: The dispute did not have to be settled primarily before an arbitration tribunal. It is true that the plaintiffs' contracts with the defendant each contained an arbitration agreement. However, this was invalid ‘because the plaintiff did not voluntarily submit to it’, the judges said. Since the decision of the European Court of Human Rights (ECtHR) in the Pechstein case, professional athletes must be presumed to have involuntarily submitted to arbitration if the professional athletes ‘are faced with the choice of accepting an arbitration clause in order to be able to earn their living by practising their sport or not accepting it and thus refrain completely from earning a living from their sport’. There is no evidence that the plaintiffs at the material time actually had the choice of whether or not to accept the arbitration clauses. Therefore, it can be assumed that the arbitration was involuntary even if the volleyball players had signed the clauses without criticism/objection.]

Based on the wording of the press release – and in absence of the full judgement – it appears that the court sided with the findings of the ECtHR insofar as it qualified the arbitration agreement contained in entry forms of athletes as mandatory in nature.

Furthermore, it can only be speculated why the court stated in its press release that the athletes had not objected to the signing of an arbitration clause. The court may have considered that the volleyball players were in a similar position than Ms Pechstein. This approach would be consequent, because beach volleyball players, like the plaintiffs in the proceedings before the District Court Frankfurt, are generally faced with the same dilemma as Ms Pechstein was. They cannot choose between different national federations for the sport of volleyball. In this case, it is not necessary for the athletes to show that they could not conclude a contract with the DVV without an arbitration agreement in favour of a sports arbitral tribunal.

Be it as it may, it is – with the BGH decision in the Pechstein case in mind – difficult to understand how the District Court of Frankfurt came to the conclusion that the arbitration agreement between the beach volleyball players and the DVV is invalid. It appears that the court deduces this invalidity from the compulsory nature of arbitration clauses in organised sport, as highlighted by the ECtHR. This would contradict the BGH’s view that forced arbitration can be justified in the sporting context and that the validity of particular clause must be determined on the basis of a balancing process.[28] If the District Court of Frankfurt applied such a balancing process between the competing interests of the parties to the dispute, it will be interesting to see why the court arrived at the conclusion that the arbitration agreement is invalid. In light of the above, the specificity of sport, particularly the consistent and uniform application of rules and regulations of sports federations, is a strong argument in favour of forced arbitration. Indeed, the legal level playing field and ultimately the sporting level playing field would be jeopardised if national courts would decide on sporting cases instead of national sports arbitral tribunals, such as the German Court of Arbitration for Sport (“DIS”) or the CAS. The interest of sports federations also prevails in domestic disputes. Otherwise, there is a risk that the national courts will interpret the sporting rules of a particular sports federation inconsistently.

On balance, it will be important to carefully analyse how the Frankfurt court substantiated its departure from the BGH decision in the Pechstein case. In my view, the press release indicates that the court was apparently unable to strike a fair balance between the competing interests involved, bearing in mind the specificities of sport.


[1] See e.g. District Court (LG) Cologne, decision of 13 September 2006, 28 O (Kart) 38/05; District Court (LG) Munich I, decision of 26 February 2014, 37 O 28331/12; Higher Regional Court (OLG) Munich, decision of 15 January 2015 – U 1110/14 Kart.

[2] BGH, decision of 7 June 2016, KZR 6/15; a translation of the decision is published on the CAS website.

[3] Mutu and Pechstein v Switzerland, ECtHR, Application no. 40575/10 and no. 67474/10, 2 October 2018.

[4] District Court Frankfurt, 7 October 2020, 2-06 O 457/19 (unpublished); press release available at https://ordentliche-gerichtsbarkeit.hessen.de/sites/ordentliche-gerichtsbarkeit.hessen.de/files/PM%207_10_2020%20Schadensersatz%20f%C3%BCr%20Profi-Volleyballerinnen_0.pdf.

[5] Press Release, District Court Frankfurt, 7 October 2020 available at https://ordentliche-gerichtsbarkeit.hessen.de/sites/ordentliche-gerichtsbarkeit.hessen.de/files/PM%207_10_2020%20Schadensersatz%20f%C3%BCr%20Profi-Volleyballerinnen_0.pdf.

[6] Mutu and Pechstein v Switzerland, ECtHR, Application no. 40575/10 and no. 67474/10, 2 October 2018, para. 98.

[7] Daniel Girsberger and Nathalie Voser, International Arbitration (3rd edn, Schulthess Juristische Medien AG, 2016) 4; see also Antoine Duval, ‘Not in my Name! Claudia Pechstein and the Post-Consensual Foundations of the Court of Arbitration for Sport’ Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No 2017-01.

[8] SFT, decision of 7 November 2011, 4A_246/2011, para. 2.2.2; see also SFT, decision of 28 May 2018, 4A_314/2017, para. 2.3.1; SFT, decision of 2 February 2018, 4A_490/2017, para. 3.1.2.

[9] Commission of the European Communities, ‘White Paper on Sport’, COM(2007) 391 final, 13. SFT, decision of 22 March 2007, 4P.172/2006, para. 4.3.2.2.; BGH, decision of 7 June 2016, KZR 6/15; Mutu and Pechstein v Switzerland, ECtHR, Application no. 40575/10 and no. 67474/10, 2 October 2018, para. 113.

[10] SFT, decision of 22 March 2007, 4P.172/2006, para. 4.3.2.2.; BGH, decision of 7 June 2016, KZR 6/15; Mutu and Pechstein v Switzerland, ECtHR, Application no. 40575/10 and no. 67474/10, 2 October 2018, para. 113.

[11] BGH, decision of 7 June 2016, KZR 6/15; Mutu and Pechstein v Switzerland, ECtHR, Application no. 40575/10 and no. 67474/10, 2 October 2018.

[12] District Court Frankfurt, 7 October 2020, 2-06 O 457/19 (unpublished)¸ ); press release available at https://ordentliche-gerichtsbarkeit.hessen.de/sites/ordentliche-gerichtsbarkeit.hessen.de/files/PM%207_10_2020%20Schadensersatz%20f%C3%BCr%20Profi-Volleyballerinnen_0.pdf.

[13] BGH, decision of 7 June 2016, KZR 6/15, para. 2.

[14] Higher Regional Court (OLG) Munich, decision of 15 January 2015 – U 1110/14 Kart.

[15] BGH, decision of 7 June 2016, KZR 6/15.

[16] Ibid, para. 9.

[17] Ibid, para. 54; Ulrich Haas, ‘The German Federal Court on Treacherous Ice- A final point in the Pechstein case’ in Christoph Müller, Sébastian Besson and Antonio Rigozzi (eds), New Development in International Commercial Arbitration 2016 (1st edn, Schulthess Juristische Medien AG, 2016) 219, 256 et seq.

[18] Ibid, para. 55.

[19] Ibid, para. 50.

[20] Ibid, para. 59; Ulrich Haas, ‘The German Federal Court on Treacherous Ice- A final point in the Pechstein case’ in Christoph Müller, Sébastian Besson and Antonio Rigozzi (eds), New Development in International Commercial Arbitration 2016 (1st edn, Schulthess Juristische Medien AG, 2016) 219, 263 et seq.

[21] Ibid, para. 62.

[22] Ibid.

[23] Mutu and Pechstein v Switzerland, ECtHR, Application no. 40575/10 and no. 67474/10, 2 October 2018, para. 113.

[24] Mutu and Pechstein v Switzerland, ECtHR, Application no. 40575/10 and no. 67474/10, 2 October 2018, para. 115.

[25] Ibid, para. 120.

[26] Ibid, para. 119.

[27] Press Release, District Court Frankfurt, 7 October 2020, 2.

[28] Ulrich Haas, ‘The German Federal Court on Treacherous Ice- A final point in the Pechstein case’ in Christoph Müller, Sébastian Besson and Antonio Rigozzi (eds), New Development in International Commercial Arbitration 2016 (1st edn, Schulthess Juristische Medien AG, 2016) 219, 250.

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