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

12th round of Caster Semenya’s legal fight: too close to call? - By Jeremy Abel

Editor's note: Jeremy Abel is a recent graduate of the LL.M in International Business Law and Sports of the University of Lausanne.

 

1.     Introduction

The famous South African athlete Caster Semenya is in the last lap of her long legal battle for her right to run without changing the natural testosterone in her body. After losing her cases before the Court of Arbitration for Sport (CAS) and the Swiss Federal Tribunal, she filed an application before the European Court of Human Rights (Court). In the meantime, the Court has released a summary of her complaint and a series of questions addressed to the parties of the case.

As is well known, she is challenging the World Athletics’ Eligibility Regulations for the Female Classification (Regulations) defining the conditions under which female and intersex athletes with certain types of differences of sex development (DSDs) can compete in international athletics events. Despite the Regulations emanating from World Athletics, the last round of her legal battle is against a new opponent: Switzerland.

The purpose of this article is to revisit the Semenya case from a European Convention on Human Rights (ECHR) perspective while considering certain excellent points made by previous contributors (see here, here and here) to this blog. Therefore, the blog will follow the basic structure of an ECHR case. The following issues raised by Semenya shall be analysed: the applicability of the ECHR, Semenya’s right to private life (Article 8 ECHR) and to non discrimination (Article 14 ECHR), as well as the proportionality of the Regulations. More...


[Conference] Towards a European Social Charter for Sport Events - 1 December - 13:00-17:00 - Asser Institute

Sport events, especially when they are of a global scale, have been facing more and more questions about their impact on local communities, the environment, and human rights. 

It has become clear that their social legitimacy is not a given, but must be earned by showing that sport events can positively contribute to society. During this half-day conference, we will debate the proposal of a European Social Charter for Sport Events in order to achieve this goal. 

In January 2021, a consortium of eight partners launched a three-year project, supported by the European Commission under the Erasmus+ scheme, aimed at devising a European Social Charter for Sport Events (ESCSE). The project ambitions to develop a Charter which will contribute to ensuring that sport events taking place in the European Union are socially beneficial to the local communities concerned and, more generally, to those affected by them. The project is directly inspired by the decision of the Paris 2024 bid to commit to a social charter enforced throughout the preparation and the course of the 2024 Olympics.

This first public event in the framework of the ESCSE project, will be introducing the project to a wider public. During the event we will review the current state of the implementation of the Paris 2024 Social Charter, discuss the expectations of stakeholders and academics for a European Social Charter and present for feedback the first draft of the ESCSE (and its implementing guidelines) developed by the project members. It will be a participatory event; we welcome input from the participants.

The Asser International Sports Law Centre, powered by the Asser Institute, is contributing to the project through the drafting of a background study, which we will introduce during the conference.

Please note that we can provide some financial support (up to 100 euros)  towards travel and/or accommodation costs for a limited number of participants coming from other EU Member States or the UK. To apply for this financial support please reach out to ConferenceManager@asser.nl.  `

Register HERE

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New Event! Diversity at the Court of Arbitration for Sport: Time for a Changing of the Guard? - Zoom In Webinar - 14 October - 4pm

On Thursday 14 October 2021 from 16.00-17.30 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret (University of Lausanne), will be launching the second season of the Zoom-In webinar series, with a first episode on Diversity at the Court of Arbitration for Sport: Time for a Changing of the Guard?

The Court of Arbitration for Sport (CAS) is a well-known mainstay of global sport. It has the exclusive competence over challenges against decisions taken by most international sports governing bodies and its jurisprudence covers a wide range of issues (doping, corruption, match-fixing, financial fair play, transfer or selection disputes) including disciplinary sanctions and governance disputes. In recent years, the CAS has rendered numerous awards which triggered world-wide public interest, such as in the Semenya v World Athletics case or the case between WADA and RUSADA resulting from the Russian doping scandal (we discussed both cases in previous Zoom-In discussion available here and here). In short, the CAS has tremendous influence on the shape of global sport and its governance.

However, as we will discuss during this webinar, recent work has shown that the arbitrators active at the CAS are hardly reflective of the diversity of people its decisions ultimately affect. This in our view warrants raising the question of the (urgent) need to change the (arbitral) guard at the CAS. To address these issues with us, we have invited two speakers who have played an instrumental role in putting numbers on impressions widely shared by those in contact with the CAS: Prof. Johan Lindholm (Umea University) and attorney-at-law Lisa Lazarus (Morgan Sports Law). Johan recently published a ground-breaking monograph on The Court of Arbitration for Sport and Its Jurisprudence in which he applies empirical and quantitative methods to analyse the work of the CAS. This included studying the sociological characteristics of CAS arbitrators. Lisa and her colleagues at Morgan Sports Law very recently released a blog post on Arbitrator Diversity at the Court of Arbitration for Sport, which reveals a stunning lack of diversity (based on their calculations, 4,5% of appointed CAS arbitrators are female and 0,2% are black) at the institution ruling over global sport.


Guest speakers:


Moderators:


Register for free HERE.


Zoom In webinar series

In December 2020, The Asser International Sports Law Centre in collaboration with Dr Marjolaine Viret launched a new series of zoom webinars on transnational sports law: Zoom In. You can watch the video recordings of our past Zoom In webinars on the Asser Institute’s Youtube Channel.

Investment in Football as a Means to a Particular End – Part 2: The Multiple Layers of Multi-Club Ownership Regulation in Football - By Rhys Lenarduzzi

Editor's note: Rhys was an intern at the T.M.C. Asser Institute. He now advises on investments and Notre acquisitions in sport (mainly football) via Lovelle Street Advisory. Following a career as a professional athlete, Rhys has spent much of his professional life as an international sports agent, predominantly operating in football. Rhys has a Bachelor of Laws (LL.B) and a Bachelor of Philosophy (B.Phil.) from the University of Dame, Sydney, Australia. He is currently completing an LL.M at the University of Zurich in International Business Law / International Sports Law.


Having looked at the different types of investors in football in part one of this two-part blog series, “A non-exhaustive Typology”, it is fitting to now consider the regulations that apply to investors who seek to build a portfolio of football clubs.

One way to measure the momentum of a particular practice and how serious it ought to be taken, might be when that practice earns its own initialism. Multi-club ownership or MCO as it is increasingly known today, is the name given to those entities that have an ownership stake in multiple clubs. Within the little research and writing that has been undertaken on the topic, some authors submit that investors with minority stakes in multiple clubs ought not to be captured by the MCO definition.  This position appears problematic given some of the regulations draw the line at influence rather than stake.

There are now approximately 50 MCO’s across the football world that own approximately 150 clubs.[1] Given the way MCO is trending, one might consider it important that the regulations keep up with the developing MCO practice, so as to ensure the integrity of football competitions, and to regulate any other potentially questionable benefit an MCO might derive that would be contrary to football’s best interests.

In this blog, I focus on the variety of ways (and levels at which) this practice is being regulated.  I will move through the football pyramid from member associations (MA’s) to FIFA, laying the foundations to support a proposition that FIFA and only FIFA is positioned to regulate MCO. More...


New Event! Rule 50 of the Olympic Charter and the Right to Free Speech of Athletes - Zoom In Webinar - 14 July - 16:00 (CET)

On Wednesday 14 July 2021 from 16.00-17.30 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret, is organizing a Zoom In webinar on Rule 50 of the Olympic Charter and the right to free speech of athletes.

As the Tokyo Olympics are drawing closer, the International Olympic Committee just released new Guidelines on the implementation of Rule 50 of the Olympic Charter. The latter Rule provides that ‘no kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas’. The latest IOC Guidelines did open up some space for athletes to express their political views, but at the same time continue to ban any manifestation from the Olympic Village or the Podium. In effect, Rule 50 imposes private restrictions on the freedom of expression of athletes in the name of the political neutrality of international sport. This limitation on the rights of athletes is far from uncontroversial and raises intricate questions regarding its legitimacy, proportionality and ultimately compatibility with human rights standards (such as with Article 10 of the European Convention on Human Rights).

This webinar aims at critically engaging with Rule 50 and its compatibility with the fundamental rights of athletes. We will discuss the content of the latest IOC Guidelines regarding Rule 50, the potential justifications for such a Rule, and the alternatives to its restrictions. To do so, we will be joined by three speakers, Professor Mark James from Manchester Metropolitan University, who has widely published on the Olympic Games and transnational law; Chui Ling Goh, a Doctoral Researcher at Melbourne Law School, who has recently released an (open access) draft of an article on Rule 50 of the Olympic Charter; and David Grevemberg, Chief Innovation and Partnerships Officer at the Centre for Sport and Human Rights, and former Chief Executive of the Commonwealth Games Federation (CGF). 

Guest speakers:

  • Prof. Mark James (Metropolitan Manchester University)
  • Chui Ling Goh (PhD candidate, University of Melbourne)
  • David Grevemberg (Centre for Sport and Human Rights)

Moderators:


Free Registration HERE

Investment in Football as a Means to a Particular End – Part 1: A non-exhaustive Typology - By Rhys Lenarduzzi

Editor's note: Rhys is currently making research and writing contributions under Dr Antoine Duval at the T.M.C. Asser Institute with a focus on Transnational Sports Law. Additionally, Rhys is the ‘Head of Advisory’ of Athlon CIF, a global fund and capital advisory firm specialising in the investment in global sports organisations and sports assets.

Rhys has a Bachelor of Laws (LL.B) and Bachelor of Philosophy (B.Phil.) from the University of Notre Dame, Sydney, Australia. Rhys is an LL.M candidate at the University of Zurich, in International Sports Law. Following a career as a professional athlete, Rhys has spent much of his professional life as an international sports agent, predominantly operating in football.

Rhys is also the host of the podcast “Sportonomic”.


Introduction

In the following two-part blog series, I will start by outlining a short typology of investors in football in recent years, in order to show the emergence of different varieties of investors who seek to use football as a means to a particular end. I will then in a second blog, explore the regulatory landscape across different countries, with a particular focus on the regulatory approach to multi-club ownership. Before moving forward, I must offer a disclaimer of sorts.  In addition to my research and writing contributions with the Asser Institute, I am the ‘Head of Advisory’ for Athlon CIF, a global fund and capital advisory firm specialising in the investment in global sports organisations and sports assets. I appreciate and hence must flag that I will possess a bias when it comes to investment in football.

It might also be noteworthy to point out that this new wave of investment in sport, is not exclusive to football. I have recently written elsewhere about CVC Capital Partners’ US$300 million investment in Volleyball, and perhaps the message that lingers behind such a deal.  CVC has also shown an interest in rugby and recently acquired a 14.3 per cent stake in the ‘Six Nations Championship’, to the tune of £365 million.  New Zealand’s 26 provincial rugby unions recently voted unanimously in favour of a proposal to sell 12.5 per cent of NZ Rugby’s commercial rights to Silver Lake Partners for NZ$387.5 million.  Consider also the apparent partnership between star footballer’s investment group, Gerard Pique’s Kosmos, and the International Tennis Federation.  Kosmos is further backed by Hiroshi Mikitani’s ecommerce institution, Rakuten, and all involved claim to desire an overhaul of the Davis Cup that will apparently transform it into the ‘World Cup of Tennis’. Grassroots projects, prizemoney for tennis players and extra funding for member nations are other areas the partnership claims to be concerned with. As is the case with all investment plays of this flavour, one can be certain that a return on the capital injection is also of interest.

So, what are we to conclude from the trends of investment in sport and more specifically for this blog series, in football? A typology elucidates that a multiplicity of investors have in recent years identified football as a means to achieve different ends. This blog considers three particular objectives pursued; direct financial return, branding in the case of company investment, or the branding and soft power strategies of nations.More...



WISLaw Blog Symposium - Rule 40 of the Olympic Charter: the wind of changes or a new commercial race - By Rusa Agafonova

Editor's note: Rusa Agafonova is a PhD Candidate at the University of Zurich, Switzerland   

The Olympic Games are the cornerstone event of the Olympic Movement as a socio-cultural phenomenon as well as the engine of its economic model. Having worldwide exposure,[1] the Olympic Games guarantee the International Olympic Committee (IOC) exclusive nine-digit sponsorship deals. The revenue generated by the Games is later redistributed by the IOC down the sports pyramid to the International Federations (IFs), National Olympic Committees (NOCs) and other participants of the Olympic Movement through a so-called "solidarity mechanism". In other words, the Games constitute a vital source of financing for the Olympic Movement.

Because of the money involved, the IOC is protective when it comes to staging the Olympics. This is notably so with respect to ambush marketing which can have detrimental economic impact for sports governing bodies (SGBs) running mega-events. The IOC's definition of ambush marketing covers any intentional and non-intentional use of intellectual property associated with the Olympic Games as well as the misappropriation of images associated with them without authorisation from the IOC and the organising committee.[2] This definition is broad as are the IOC's anti-ambush rules.More...

WISLaw Blog Symposium - Freedom of Expression in Article 10 of the ECHR and Rule 50 of the IOC Charter: Are these polar opposites? - By Nuray Ekşi

Editor's note: Prof. Dr. Ekşi is a full-time lecturer and chair of Department of Private International Law at Özyeğin University Faculty of Law. Prof. Ekşi is the founder and also editor in chief of the Istanbul Journal of Sports Law which has been in publication since 2019.


While Article 10 of the European Convention on Human Rights (‘ECHR’) secures the right to freedom of expression, Rule 50 of the Olympic Charter of 17 July 2020 (‘Olympic Charter’) restricts this freedom. Following the judgments of the European Court of Human Rights (‘ECtHR’) relating to sports, national and international sports federations have incorporated human rights-related provisions into their statutes and regulations. They also emphasized respect for human rights. For example, Article 3 of the Fédération Internationale de Football Association (‘FIFA’) Statutes, September 2020 edition, provides that “FIFA is committed to respecting all internationally recognised human rights and shall strive to promote the protection of these rights”. Likewise, the Fundamental Principles of Olympism which are listed after the Preamble of the of the Olympic Charter 2020 also contains human rights related provisions. Paragraph 4 of Fundamental Principles of Olympism provides that the practice of sport is a human right. Paragraph 6 forbids discrimination of any kind, such as race, colour, sex, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth or other status. In addition, the International Olympic Committee (‘IOC’) inserted human rights obligations in the 2024 and 2028 Host City Contract.[1] The IOC Athletes’ Rights and Responsibilities Declaration even goes further and aspires to promote the ability and opportunity of athletes to practise sport and compete without being subject to discrimination. Fair and equal gender representation, privacy including protection of personal information, freedom of expression, due process including the right to a fair hearing within a reasonable time by an independent and impartial panel, the right to request a public hearing and the right to an effective remedy are the other human rights and principles stated in the IOC Athletes’ Rights and Responsibilities Declaration. Despite sports federations’ clear commitment to the protection of human rights, it is arguable that their statutes and regulations contain restrictions on athletes and sports governing bodies exercising their human rights during competitions or in the field. In this regard, particular attention should be given to the right to freedom of expression on which certain restrictions are imposed by the federations even if it done with good intentions and with the aim of raising awareness. More...


Asser International Sports Law Blog | Is UCI the new ISU? Analysing Velon’s Competition Law Complaint to the European Commission - By Thomas Terraz

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

Is UCI the new ISU? Analysing Velon’s Competition Law Complaint to the European Commission - By Thomas Terraz

Editor’s note: Thomas Terraz is a fourth year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.

 

1.     Introduction

The UCI may soon have to navigate treacherous legal waters after being the subject of two competition law based complaints (see here and here) to the European Commission in less than a month over rule changes and decisions made over the past year. One of these complaints stems from Velon, a private limited company owned by 11 out of the 18 World Tour Teams,[1] and the other comes from the Lega del Ciclismo Professionistico, an entity based in Italy representing an amalgamation of stakeholders in Italian professional cycling. While each of the complaints differ on the actual substance, the essence is the same: both are challenging the way the UCI exercises its regulatory power over cycling because of a growing sense that the UCI is impeding the development of cycling as a sport. Albeit in different ways: Velon sees the UCI infringing on its ability to introduce new race structures and technologies; the Lega del Ciclismo Professionistico believes the UCI is cutting opportunities for semi-professional cycling teams, the middle ground between the World Tour Teams and the amateur teams.

While some of the details remain vague, this blog will aim to unpack part of the claims made by Velon in light of previous case law from both the European Commission and the Court of Justice of the European Union (CJEU) to give a preliminary overview of the main legal issues at stake and some of the potential outcomes of the complaint. First, it will be crucial to understand just who/what Velon is before analyzing the substance of Velon’s complaint.

 

2.     Who / What is Velon?

From an outsider’s point of view, the answer to this question is not so obvious as it may seem. Velon itself is owned by 11 World Tour Teams, which is the pinnacle of the UCI’s men’s team classification. In other words, Velon represents more than half of the largest team stakeholders in road cycling.[2] However, Velon does not just simply advocate for these teams’ interests, but it engages in its own economic activities, which can be categorized into two types. First, it has been the organizer of a new series of races called the Hammer Series (or as the UCI would prefer, simply Hammer) where instead of having individual cyclists (competing on behalf of a team) placing individually in a stage of a race, the entire team is classified through a points-based system. The point of this format is ‘crowning the best team in professional cycling’.

Velon also created a ‘digital content and live data platform’ through VelonLive via a partnership with EY, which was first made public in May of this year. VelonLive essentially collects data from road cycling races in order to give spectators more insight into the race. For example, it collects ‘real-time biometric rider data’, including heart rate, power and cadence data from specific riders in a race to on bike cameras and cameras in team cars. The aim is to try to bring the race closer to the spectator by offering more data and new ways to see and understand the race. Major race organizers, like the Giro D’Italia and the Tour of Flanders have jumped on these new race visualization technologies and used VelonLive this year in their respective races.

So not only does Velon act as a representative of a large group of first-rate road cycling teams, but it also organizes races and is working to develop innovative ways for cycling fans to experience road cycling races.

 

3.     The Complaint

Velon, through a press release on their website, announced that it had launched a formal complaint against the UCI to the European Commission on 20 September, 2019 to which it added an ‘Addendum to the Complaint’ on 8 November, 2019. While these press releases and accompanied ‘context notes’ are rather bare in explaining the factual background to the complaint, it is still enough to extract the essence of what is being alleged. At its core, Velon is making a three-pronged complaint against the UCI: first, that the UCI acted in a way that has ‘hampered the development of the Series’ (Hammer Series); secondly, that the UCI is discriminating against women’s cycling by denying the approval of a women’s race that would accompany the already existing men’s race in Hammer Stavanger; lastly, that the amendments to the UCI’s Technical Regulations effectively take away Velon and other race organizers’ control over live race data technologies and were adopted without sufficiently consulting stakeholders.  Concerning the last complaint, Velon seems to be referring to certain amendments from 15 February, 2019 made to the equipment regulations Article 1.3.024ter. The changes essentially introduced a pre-authorization scheme for ‘onboard technology equipment’ in which the UCI or an event organizer with the UCI’s consent must give prior authorization for ‘any intended use by a team or rider’ of such equipment. However, given both the scarce details and length restraints, this blog concentrates on the on the first two elements of the complaint, which are further dissected here.

Velon alleges that the UCI acted to prevent the organization of Hammer races into a series and threatened to not register the men’s Hammer races in the 2020 calendar if Velon proceeded to do so. As of 11 November, 2019, the three men’s Hammer races are still listed in the 2020 calendar, while the women’s Hammer Stavanger race is not listed, since it was rejected by the UCI. Velon also claims that the UCI did not give any reasons for its opposition to the series and that it ‘hampered’ the overall development of the series. Further details are rather murky; however, it is essential to point out that the UCI, like many other SGBs, employs a pre-authorization scheme[3] for cycling events, and it prohibits both teams and individual cyclists (of all levels) in participating in non-authorized third-party events under the threat of sanctions. Individuals may face a one-month suspension and a fine of 50 to 100 CHF.[4] Such an event pre-authorization scheme has been the focal point of two major EU sports competition law cases: the CJEU’s decision in MOTOE and the Commission’s decision concerning the ISU’s eligibility rules. It is likely that if the Commission takes on this case, it will closely scrutinize the UCI’s pre-authorization scheme and its actual application, including the accompanied sanctions. From the outset, it is critical to bear in mind that the CJEU has held that rules of sport governing bodies may escape the prohibitions under Article 101 TFEU  if ‘the consequential effects restrictive of competition are inherent in the pursuit of those objectives (Wouters and Others, paragraph 97) and are proportionate to them’.[5] On the other hand, a dominant undertaking may justify its actions under Article 102 TFEU if it can demonstrate ‘that its conduct is objectively necessary or by demonstrating that its conduct produces substantial efficiencies which outweigh any anti-competitive effects on consumers’.[6]

As a preliminary note, it should be stated that if the Commission decides to pursue the case under Article 102 TFEU, it will not be hard pressed to find the UCI and its respective national federations collectively dominant[7] in the relevant market.[8] The relevant market regarding the Hammer races will most likely be confined to the organization and commercial exploitation of international road cycling races on the worldwide market.[9] Even though the Professional Cycling Council (PCC) adopts the UCI WorldTour calendar, Velon could still contend that the UCI exerts control over its adoption given the composition of the PCC.[10]

 

4.     Analysis of the ‘hampered’ Series and alleged discrimination against women’s cycling

4.1.MOTOE

In MOTOE, ELPA, a Greek motorsport organization, was given the regulatory power through a national law to approve or deny motorsport events in Greece, while also organizing and commercially exploiting such events itself.[11] MOTOE challenged the national law giving ELPA this power after one of its events was not approved. The CJEU ruled that the dual role of ELPA as both a regulator and commercial exploiter was contrary to competition law because it had not given an ‘equality of opportunity’ ‘between the various economic operators’.[12] AG Kokott’s Opinion goes further and describes a ‘conflict of interest’ in which sport governing bodies are placed if they are both the gatekeeper and promoter of sport events.[13] A similar situation in the Commission’s FIA case even resulted in the complete separation of FIA’s ‘commercial and regulatory functions’ in order to cease its breach of EU competition law.[14]

Unlike ELPA, the UCI is not given the power to regulate the events included in its calendar by an act of a state or public body. Nonetheless, it still wields an immense power over the regulation and approval of events in road cycling deriving from its position as the world’s cycling governing body. The UCI also benefits considerably from the registration of events in its calendar, a fact that is quickly verified by having a glance at its yearly financial report,[15] which demonstrates the extent to which it is dependent on revenues connected to its sanctioned events. The UCI can only justify charging fees for events if there is the existence of an official closed calendar of events. Additionally, the UCI itself is an event organizer since it arranges the annual UCI Road World Championships. Therefore, it is very likely that the UCI may be faced with a ‘conflict of interest’ because it holds the keys to its events calendar while having an apparent financial stake in the approval of events.

 At this point, it is also helpful to examine the Commission’s decision in the ISU case which delves in depth on the compatibility of event pre-authorization schemes with EU law.

4.2.The Commission’s ISU Decision

The ISU case concerned two Dutch speed skaters who challenged the ISU eligibility rules precluding them from participating in non-ISU authorized events, subject to a potential lifetime ban (the ban was amended during the proceedings to allow greater flexibility on the sanction but was still found to be contrary to EU law). The concerned skaters wished to participate in IceDerby’s events. IceDerby is an ice-skating events organizer who aimed to create a new race format that would introduce ‘a new type of skating events on a different size track than the ISU recognized track’.[16] This very much echoes some of the fact pattern of the present case in which Hammer seeks to introduce a new road cycling race format. The Commission found that the severity of the sanctions in case of a breach of the ISU’s eligibility rules inherently aimed ‘at preventing athletes from participating in events not authorised by the ISU, resulting in the foreclosure of competing event organizers’.[17] In the end, the case largely turned on whether the ISU’s eligibility rules pursued legitimate objectives and whether they were inherent and proportionate to its aims. The Commission identified that ‘the integrity of the sport, the protection of the athletes’ health and safety and the organisation and proper conduct of sport’ could be considered legitimate objectives but that the ISU’s eligibility rules did not actually pursue any of these objectives.[18] Moreover, the Commission found that the financial and economic interests of the ISU could not be considered legitimate objectives.[19]

In Velon’s complaint, as in the ISU case, there are two connected, yet separate elements that the Commission will most likely have to analyze: (a) the prohibition of participating in non-approved events and the relevant sanctioning framework and (b) the UCI’s events approval process (the pre-authorization scheme). Concerning the former, Pat McQuaid, the former UCI president explained the aim of the rules banning participation in non-approved events in a letter to USA Cycling back in 2013. He explained that it ‘allows for a federative structure’, ‘which is inherent in organised sport and which is essential to being a part of the Olympic movement’. The Commission dismissed this notion in the ISU case when it pointed out that there are several sport federations that do not have an ‘ex-ante control system’ that effectively precludes athletes from participating in third party events.[20] Nevertheless, this stated objective may still fall under the organization and proper function of sport, which was deemed a legitimate objective by the Commission.

However, the issue remains as to whether the UCI’s pre-authorization scheme, the latter element identified above, pursues legitimate objectives while meeting the proportionality requirements.  In other words, why does the UCI oppose the organization of Hammer races in a series and approving a corresponding women’s event? From Velon’s claims, it is questionable whether the UCI has a ‘pre-established objective, nondiscriminatory and proportionate criteria’ in approving events since it claims that it never received an explanation as to why its series was rejected.[21] In addition, the UCI must elaborate its reasoning in denying a women’s Hammer Stavanger event beyond that it ‘was not in the best interest of women’s cycling’. The UCI will have to explain why it not only allegedly threatened to remove Hammer races from the calendar and denied the inclusion of a women’s race but also why it did not provide Velon a full response that gave objective justifications, not tied to any economic or financial interests, as to why it is opposed the organization of a Hammer Series and a women’s Hammer Stavanger race.

In the end, in order for the ISU to keep its event pre-authorization scheme it was required to: (a) ‘provide for sanctions and authorization criteria that are inherent in the pursuit of legitimate objectives’, (b) ‘provide for objective, transparent and non-discriminatory sanctions and authorization criteria’ that are proportionate to its objectives, and (c) ‘provide for an objective, transparent and non-discriminatory procedure for the adoption and effective review of decisions’ concerning the ‘authorisation of speed skating events’.[22] The Commission will likely evaluate the UCI’s pre-authorization scheme in light of these criteria.

4.2.1.    The UCI’s pre-authorisation scheme in light of the ISU criteria

This examination will begin by investigating the second and third criteria before returning to the first criteria. On the second criteria, the UCI lays out the sanctions for participating in ‘forbidden races’ in Part 1 of its Regulations under Article 1.2.021 that plainly states that breaches ‘shall render the licence holder liable to one month’s suspension and a fine of CHF 50 to 100’. Since the sanction is not nearly as draconian as the ISU’s sanctions, the UCI may have a greater chance of arguing that it is proportionate to its objective, although it could still be argued that the sanction does not give much flexibility depending on the circumstances of the case.[23] Concerning the event authorization criteria, the UCI explains the requirements to register a race in the international calendar in the ‘Registration Procedure for UCI Calendars 2020/2020-2021’, which sets out the financial obligations of event organizers, the relevant deadlines, and the documentation[24] that event organizers will have to provide. In addition, the UCI does not have the same intrusive financial disclosure requirements, which was strongly rebuked by the Commission.[25] However, nowhere does it explicitly mention ‘an interest of cycling’ criteria, which makes it a real wonder as to why this was the reason given, according to Velon, concerning the rejection of the women’s Hammer Stavanger race. Consequently, the Commission will have to examine whether the criteria are in practice applied in a uniform and non-discriminatory manner and whether the UCI uses other criteria to assess the inclusion of an event on the international calendar. The Commission did not condone the ISU’s non-exhaustive list of criteria and the broad margin of discretion it had in approving or rejecting event applications.[26]

On the third criteria, the UCI does have a rather transparent process (see flow chart below[27]) concerning the adoption of its calendar, and it also has a process for the review of a rejection of an event application.[28] If the UCI management committee rejects an application, the event organizers may have the opportunity to defend the application. If it does not have this opportunity, the organizer may appeal to the UCI’s arbitral board, however, the decision is final and cannot be appealed further. It is at this point that the UCI’s event pre-authorization scheme may run into further difficulties meeting the ISU criteria because it does not even allow the possibility for the organizer to appeal to the CAS. Even the ISU in its Communication No. 1974 allowed for an appeal to the CAS, which still did not preclude the Commission from questioning the extent an appeals arbitration would ensure the effectiveness of EU competition law, to which it concluded that an appeal to the CAS reinforced the restriction of competition.[29] Against this background, the Commission would likely find the UCI’s grip over the review process restrictive of competition.

Returning to the first of the ISU criteria, the question is whether the UCI’s sanctions and pre-authorization criteria are inherent in the pursuit of a legitimate objective. Considering the above, it is doubtful whether the potentially open list of criteria and the limited effective review of decisions could be considered inherent in the pursuit of a legitimate objective such as ‘the organisation and proper conduct of sport’. Furthermore, Velon’s case may turn on how well it can demonstrate that it has been unjustly put under pressure from the UCI.

4.3. Final thoughts on the ‘hampered’ series

It appears that the UCI has allegedly wielded its regulatory power through its event pre-authorization scheme to force Velon to remove a critical aspect of its races: the series. The UCI’s alleged move is further puzzling by the fact that none of the Hammer races interfere with the men’s or women’s World Tour race calendar (with the exception of Il Lombardia and Hammer Hong Kong), meaning that teams and riders would anyway be available. Even if there was an interference, it is important to keep in mind that professional cycling teams are usually sufficiently large and organized to compete in more than one race in the world simultaneously.

Finally, while the UCI did not actually remove the men’s Hammer races from the calendar, just an imminent threat of doing so may be sufficient to restrict competition. Cyclists are severely discouraged to participate in non-authorized events considering the sanctions they may face. Hence, event organizers, such as Velon, are completely reliant on the UCI to approve their events in order to have any chance at a successful and economically viable event,[30] and consequently, Velon cannot risk losing the UCI’s

approval for the Hammer races. Furthermore, the UCI has in practice already denied a women’s race at Hammer Stavanger, which greatly strengthens Velon’s claims against the UCI. Lastly, given the vagueness of the claim that the UCI overall hampered the development of the Hammer Series, it is possible that there are additional details that have not been publicized that could further support a potential violation of EU competition law by the UCI.

 

5.     Conclusion

Velon has also requested interim measures that would force the UCI’s approval of a women’s race during Hammer Stavanger 2020. However, since interim measures are rarely granted,[31] it is unlikely  Velon will succeed on this front. Nevertheless, based on the discussion above, there are quite a few signs that the UCI has perhaps overstepped its regulatory powers. The UCI’s alleged actions, especially its opposition to the organization of a women’s Hammer Stavanger race, beg the question as to how it will defend its decision as pursuing legitimate objectives and respecting the proportionality requirements. Moreover, it should be recalled that Velon’s complaints also concern the UCI’s equipment regulations and that there is a completely separate complaint from the Lega del Ciclismo Professionistico. Thus, due to the large territorial scope and the potentially wide range of actors affected by the UCI’s actions in these cases, it would be a missed opportunity if the Commission declines to further elucidate how sport governing bodies must exercise their regulatory powers in order to comply with EU competition law, especially when their own financial interests may be in play.


[1] Teams include: Bora-Hansgrohe, CCC Team, Deceuninck–QuickStep, EF Education First, Lotto Soudal, Mitchelton-Scott, Team Ineos, Team Jumbo-Visma, Team Sunweb, Trek-Segafredo and UAE Team Emirates.

[2] Both Team Sunweb and Trek-Segafredo also operate professional women’s cycling teams.

[3] See Registration Procedure for UCI Calendars: 2020/ 2020-2021, 11 on how the UCI approves events.

[4] See UCI Regulations, Part I: General organization of cycling as a sport, arts 1.2.019, 1.2.020, and 1.2.021 and Part 2 Road Races, art 5.006.

[5] Case C-519/04 David Meca-Medina and Igor Majcen v Commission of the European Communities [2006] ECR I-06991, para 42; See also Commission, ‘White Paper on Sport’ COM/2007/0391 final.

[6] Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings [2009] OJ C45/02, para 28.

[7] See the role of the national federations in handling the event registrations in the flow chart under section 4.2.1.

[8] See Commission, ‘Commission Staff Working Document - The EU and Sport: Background and Context - Accompanying document to the White Paper on Sport’ COM(2007) 391 final, section 2.1.4: ‘sports associations usually have practical monopolies in a given sport and may thus normally be considered dominant in the market of the organization of sport events under Article 82 EC’.

[9] Articles 1.2.002 and 1.2.004 of the UCI Regulations govern the cycling calendars, and it separates road cycling events into different calendars: the international calendar, which includes the UCI WorldTour and continental calendars, and the national calendars to which national federations are responsible. The UCI management committee holds the final say concerning the approval of continental calendars, see flow chart in Registration Procedure for UCI Calendars 2020/ 2020-2021, 11.

[10] The PCC is composed of 12 members (six appointed by UCI management, two representing athletes, two representing the WorldTour Teams and two representing the UCI WorldTour Organizers) and a president nominated by the UCI management (after consultation with the other members). However, given the PCC’s aforementioned composition and the fact that decisions are taken by a simple majority vote, in theory, the UCI only needs to rally its members and the UCI appointed president to ensure a motion is passed. Furthermore, ‘the UCI Executive Committee may suspend the application of regulations adopted by the PCC if it considers that interests of the UCI WorldTour are threatened’, see point 15 of the hyperlinked document.

[11] Case C-49/07 Motosykletistiki Omospondia Ellados NPID (MOTOE) v Elliniko Dimosio [2008] ECLI:EU:C:2008:376.

[12] ibid para 51.

[13] Case C-49/07 Motosykletistiki Omospondia Ellados NPID (MOTOE) v Elliniko Dimosio [2008] ECLI:EU:C:2008:376, Opinion of AG Kokott, para 98.

[14] Commission, ‘Notice published pursuant to Article 19(3) of Council Regulation No 17 concerning Cases COMP/35.163 — Notification of FIA Regulations, COMP/36.638 — Notification by FIA/FOA of agreements relating to the FIA Formula One World Championship, COMP/36.776 — GTR/FIA ' others’ (2001/C 169/03) OJ C 169.

[15] See UCI, Financial/Annual Report 2018, 110.

[16] International Skating Union’s Eligibility rules (CASE AT. 40208) [2017] C(2017) 8240, para 64.

[17] ibid para 168.

[18] ibid para 219.

[19] ibid para 220.

[20] ibid para 252.

[21] ibid para 244.

[22] ibid paras 340-342.

[23] The sanctions under the ISU’s 2014 Eligibility Rules also did not examine the specific circumstances of the infringement. See how the Commission examined this issue in ibid paras 260-262.

[24] UCI Regulations, Part I: General organization of cycling as a sport, art 1.2.009 provides that the organizer must submit the following documentation for the first time a race is organized: ‘- type of race (discipline, speciality, format); - description of the course including total length (in km) and, where applicable, that of stages and circuits; - the type and number of participating teams and/or riders' categories wanted; - financial aspects (prizes, travel and subsistence expenses); - references concerning organization’.

[25] International Skating Union’s Eligibility rules, paras 255-256.

[26] ibid para 257.

[27] Taken from the Registration Procedure for UCI Calendars 2020/ 2020-2021, 11.

[28] UCI Regulations, Part I: General organization of cycling as a sport, art 1.2.013.

[29] See International Skating Union’s Eligibility rules, paras 268-286.

[30] See how this issue is mirrored in ibid paras 68 and 133.

[31] Interim measures were only recently granted after not having been issued for nearly 20 years.

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