On October 24th and 25th
2019, the T.M.C. Asser Institute and the International Sports Law Centre hosted
the International Sports Law Journal (ISLJ) Conference for a third year in a
row, bringing together a group of academics and practitioners from around the
world. This year’s conference celebrated the 20th year of the International Sports Law Journal,
which was originally started by Robert Siekmann. Over the past 20 years, the
ISLJ has aimed to be a truly international journal that addresses global topics
in sports law while keeping the highest academic standards.
With this background, the conference
facilitated discussions and exchanges over six differently themed panels on international
sports law’s most pertinent issues and gave participants wide opportunities to
engage with one another. Additionally, this year’s edition also had the great
honor of hosting two distinguished keynote speakers, Moya Dodd and Ulrich Haas,
who were able to share their wealth of experience and knowledge with the
conference participants.
The following report aims to give an
overview of the ISLJ Conference 2019 to extract and underline the fundamental
ideas raised by the different speakers.
Day 1:
Opening Speech: Moya Dodd
The conference was kickstarted by Moya Dodd, a former FIFA Council member
and current ICAS member, who gave an engaging presentation on her experiences
as an athlete in boardrooms of FIFA. After retiring from the Australian
National Team, she began to become involved in sport governance, starting as a
member of the AFC Executive Committee. She eventually made her way to the FIFA
Executive Committee where she made it a priority to represent groups who did
not have a voice in FIFA’s governance. In this vain, she launched a task force for
women, which helped spearhead reforms that brought gender issues into light.
Ms. Dodd also explained how she worked hard to keep connections with persons
outside of the sports governing structures in order to represent them from the
inside. In the end, she explained how the experience playing sports helped
develop skills that became invaluable in the boardroom. This includes, teamwork
skills, constantly striving to improve oneself, valuing persons for their
capabilities, and the ability to deal with setbacks. This discussion led particularly
well into the first panel of the conference, which took a magnifying glass to
the role of athletes in sports governance.
Panel 1: Where is the athletes’
voice? The (il)legitimacy of international sports governing bodies
Antoine
Duval and Marjolaine Viret
began the first panel of the conference by exploring the athletes’ voice in the
fight against doping and particularly within WADA. They explained that in order
for the World Anti-Doping Code (WADC) and WADA to be considered legitimate, the
actors most affected by its policies, athletes, would need to be participating
meaningfully and have a real input in the decision-making process. This input
requires an actual reflection in the regulatory output of WADA, and it entails
not only consulting with athlete stakeholders but that representatives have
voting powers on both the code revision process and the administrative bodies
of WADA. Their study examines to what extent the current operation of WADA is
in line with these ideals by examining the role of athletes in WADA’s bodies
and its actual regulatory output.
Mark
Conrad studied the issue from a wider lens by explaining how the current representation
of athletes in sports governing bodies is inadequate and why there needs to be
a fundamental rethinking of the current athlete committee model. This model, he
explains, is ineffective in truly representing athletes’ interests, since their
mandates are not clearly defined and greatly rely on the good favor of the federations’
management. As an alternative model, he presented a collective bargaining
approach, which already is widespread in North America, in which athlete unions
would represent athletes’ interests in a bargaining process with the sports
governing bodies. Such a model would give the athletes ‘real’ representation by
relying on their strength in numbers and by negotiating agreements that would
entitle them to specific rights. These agreements could cover salary standards,
salary controls, free agency, drug testing and many other aspects of the
employment relationship. He concluded by discussing the general pros and cons
of such a model but that overall, since athletes would actually have an effective
representation, it would overcome any of the negative effects of such a model.
Panel 2: Criminal law and sports
– criminal law of sports
The day’s conversation then shifted from
sports governance structures to the application of criminal law in sports. Björn
Hessert kicked off the panel with a presentation on the cooperation and
reporting obligations in sport investigations. He began by illustrating the
catch-22 situation in which athletes may find themselves during an investigation.
On the one hand, they are required to ‘cooperate fully’ with the investigation
authorities, including providing self-incriminating evidence, or face sanctions.
If they choose not to cooperate, then they also receive sanctions. This state
of affairs may have had a direct impact on the skyrocketing number of sanctions
over the past few years involving reporting and cooperation violations. Hessert
argued that this situation could be significantly improved by introducing
fundamental procedural rights found in criminal law systems to these
investigations, such as the right to remain silent and the privilege against
self-incrimination. These rights are found in article 6 (1) and (2) of the
European Convention on Human Rights (ECHR). Such a regime would force sports
governing bodies to be creative in finding new strategies to investigate and
prosecute alleged sports rule violations.
After Hessert’s presentation on procedural
rights in sports investigations, Jan
Exner took the podium to discuss the proportionality of the sanctions in
the anti-doping code. He began by giving an overview of the characteristics of
the sanctions in the WADC, which include a fixed sanction framework and limited
flexibility for panels hearing alleged doping rule violations. He explained
that due to the rigid sanction framework of the WADC, panels hearing a doping
dispute are unable to go below limits set therein and that in certain
exceptional cases, these sanctions may be disproportionate. Exner then
illustrated some of the negative effects of the current system in which CAS
panels hearing similar factual circumstances end up with delivering different
sanctions. Such a predicament, Exner argues, goes against any equality of
outcome of the proceedings. In the end, he contended that there should be a
revised sanction framework that would allow hearing panels to go below the
limits set in the WADC as long as certain criteria are met in order to ensure
that the sanction is proportionate to the rule violation.
Ruby
Panchal closed the panel by shining a light on match-fixing. She argued
that sports governing bodies have been so concerned with doping that match
fixing has not been sufficiently addressed. Much like how anti-doping rules
have been significantly developed over time, anti-match-fixing laws also need
to be made far more robust. Panchal explained that certain factors essential
for the development of lex sportiva will
be essential in the growth of this field. These factors include the validity of
unilateral action clauses, a growing relationship between sports governing
bodies and state courts, the creation of evidentiary processes in disciplinary
proceedings, and co-operation between sports governing bodies and investigative
authorities. Panchal closed her talk by examining the approach of the
Convention on the Manipulation of Sports Competitions (Macolin Convention) in
addressing this regulatory void. While the Convention takes a ‘hopeful
approach’, the question remains open as to how effective it will be in
combatting match-fixing.
Panel 3: Transfer systems in
international sports
The last panel of day one of the conference
took a deep dive into transfer systems in international sports. Jan Łukomski opened the panel by studying
the finalization of international football transfers and professional football
players’ contracts. There are many kinds of agreements that could be
potentially involved in the transfer of a football player, including offers,
pre-contracts, definite contracts, that have significantly different legal
effects. For example, the CAS explained in CAS 2008/A/1589 MKE Ankaragücü Spor Külübü v. J. that the difference between a
pre-contract and a contract ‘is that the parties to the ‘precontract’ have not
agreed on the essential elements of the contract or at least the “precontract”
does not reflect the final agreement’. This is just one example of a growing
CAS case law on issues of contractual validity of football contracts. In the
end, Łukomski explains that often times disputes on contractual validity stems
from ‘mistakes’ that were made by clubs and players during the negotiation process.
Following the examination of the transfer
system in football, Xavier
Mansat gave the participants a small peek into the archaic transfer model
currently in place in volleyball. He took the audience on a journey of the transfer
of one volleyball player by emphasizing all the different steps and actors participating
in the process. Mansat also elucidated the various administrative and transfer
fees that are taken out at every step by the involved actors. He closed the
panel by explaining that the current system is in the process of being
challenged by a new stakeholder group, Association des Clubs Professionels de
Volleyball (ACPV) and that it is likely that some of the components in the
current transfer framework are incompliant with EU law.
Day one ended with an opportunity for the conference
participants to unwind over a dinner in the charming harbor of Scheveningen.
Day 2:
Keynote lecture: Ulrich Haas
Day two of the ISLJ Conference was launched
by a lecture from Ulrich
Haas, who gave an in-depth lecture on the nature and function of
association tribunals in international sport. Haas underlined that while
association tribunals are the most important dispute resolution mechanism in
practice, legal literature on them is scarce. The sheer volume of the decisions
made by association tribunals is staggering. In the case of FIFA, the decisions
are around 10000-11000 per year. After having demonstrated the incredible
importance of association tribunals to the functioning of sports governance, he
outlined their legal basis, which is based in the freedom of association (in
Switzerland and Germany). Austria, on the other hand, makes association
tribunals mandatory. Haas then began to unpack the differences between
authoritarian decision-making, used by association tribunals, compared to other
forms of alternative dispute resolution, such as mediation, conciliation, and
arbitration. Interestingly, he concluded that while all these differences can
serve as indications of whether a body is an association tribunal or an
arbitration panel, there is no set international standard to make this determination.
Hence, there is a need to refer to national law in order to fill this void. In
conclusion, Haas endorsed a procedural law approach over a substantive law
approach to determine the appeals status of an association body’s decision.
Panel 4: Rethinking sports
arbitration
The first panel of day two of the ISLJ Conference
took to rethinking the current framework of sports arbitration. Veronica Lavista was
first to go and presented her findings on the influence of international
dispute settlement on sports. She took an empirical approach to her study by
going through CAS’ case law and placing the arbitrators in those cases into
different categories based on their background, such as a sports law, corporate
law, or international law specialist. Based on this determination, Lavista was
then able to identify that the makeup of the panel had an appreciable influence
on the extent certain legal issues were discussed in the award. Lavista also
underlined some of the overlaps between international dispute resolution and
the CAS, including the voluntary nature of their jurisdiction, the use of ad
hoc panels, and the explosion of case law over the past few decades.
Next up, Daniela Mirante
and Artur
Flaminio da Silva offered a case study in the Portuguese context of sports
arbitration to argue that perhaps switching to a mandatory arbitration scheme would
alleviate many of the issues currently present in the ‘voluntary’ arbitration
model. Portugal created a permanent sport arbitration center in the Portuguese
Court of Arbitration for Sport (TAD), which has a mandatory jurisdiction for
‘all sports disputes related to administrative law’. After underlining many of
the issues plaguing the TAD, such as institutional independence and
arbitrators’ impartiality, the confidentiality of the awards, and the high
costs of arbitration, they explained the advantages of mandatory sports
arbitration. First, it would get rid of the concept of consent, which they
argue is a fiction since athletes must consent to arbitration or else not be
able to participate in the sport. It would also reduce the time needed to
render a decision since there would be less room for parties to challenge the
jurisdiction of arbitration panels. They concluded that mandatory arbitration
definitely could be a future path for sports arbitration but that it would have
to follow a different path than the current Portuguese model.
To close the panel, Massimiliano Trovato brought forth
his three ‘radical’ proposals to ensure the legitimacy of the CAS. Before unveiling
the three proposals, Trovato gave a brief historical overview of the CAS and
its relationship with the Olympic Movement to contextualize his arguments. He
highlighted the interactions between the two and how certain individuals have
held top positions in the CAS bodies and other sports governing bodies, like
the IOC, leading to potential conflicts of interest. At this point, Trovato revealed
his first proposal that article S4 and S6 of the CAS Statutes be amended to make
the ICAS into a body ran by the arbitrators themselves, since they have both
the ability and expertise to run the CAS for the interests of all the parties
involved. Second, Trovato argued that the closed-list system of arbitrators be
abolished under article S14 and move towards an open system. The quality of the
arbitrators, Trovato explained, could still be assured by introducing certain
minimum eligibility requirements for the arbitrators. The third proposal
Trovato presented was that Article R65 be altered to make sports governing bodies
responsible for the costs of arbitration, not the parties. Shifting the burden would make sports
governing bodies more disciplined and would help compensate for the fact that
athletes are essentially forced into arbitration.
Book L(a)unch: The Court of
Arbitration for Sport and its Jurisprudence: An Empirical Inquiry Into Lex
Sportiva by Johan Lindholm
During lunchtime, the conference
participants were treated to a very special book launch from the ISLJ’s chief
editor, Johan Lindholm. His book, The Court of
Arbitration for Sport and its Jurisprudence: An Empirical Inquiry Into Lex
Sportiva, is an exhaustive and thorough empirical study into the CAS’
jurisprudence, its arbitrators, and its parties. Covering a period of 30 years
(1984-2014), the book tries to unpack some of the most often raised arguments
against the CAS and puts these claims to the ultimate test. For example, whether
particular arbitrators are more likely to be chosen by certain parties. Furthermore,
the book, through impressive data visualization graphics, illustrates a variety
of intriguing data samples, including what kind of cases the CAS has
deliberated and to what extent the CAS can call itself a global international
sports tribunal.
Panel 5: Revisiting the
(in)dependence and transparency of the CAS
Following the book l(a)unch, the next panel treated
conference participants to a fascinating debate on the (in)dependence and
transparency of the CAS. Velislava
Hristova launched the panel by exploring the intersection between human
rights and sports arbitration and in particular, the right to a public hearing
in sport cases. She used the ECtHR case of Mutu
and Pechstein v. Switzerland to illustrate the topic. Before jumping into
the legal issues, Hristova gave an overview of the nearly 10-year legal history
of the Pechstein Saga. She explained that the case boiled down to four main
issues: whether Article 6 (1) ECHR (right to a fair and public hearing) could
be applicable to sports arbitration, whether Pechstein waived this right, whether
the CAS is sufficiently independent and impartial, and whether the lack of a
public hearing in this case actually violated Article 6 (1). Next, Hristova analyzed
the findings of the ECtHR on these four issues and explained how the ECtHR concluded
that while the right to a public hearing is not absolute, the lack of a public
hearing in Pechstein’s case was a violation because of the compulsory nature of
sports arbitration, the fact that a public hearing was requested, the ‘nature
and complexity’ of the case, and since the factual background had been
contested. In the end, athletes, arbitrators and the CAS will have to take this
landmark ruling into account moving forward.
Antonio
Rigozzi further delved into the issue of the (in)dependence of the CAS by
not only looking at the Pechstein
case but also the Swiss Federal Tribunal’s (SFT) decision in the Seraing case
and how these rulings could potentially impact the CAS. Concerning the Seraing case, he explained how the SFT
had to determine whether the CAS is structurally independent, which differs
from the Lazutina case because the
SFT had to determine whether it was independent from FIFA, not the IOC. In the
end, the SFT did not find it necessary to depart from its analysis in the
Lazutina case and deemed the CAS to be independent so long there were no overriding
reasons indicating that FIFA is given special treatment. Furthermore, the SFT
noted that the CAS had made significant efforts to strengthen its independence
by improving its structure and functioning. Rigozzi finished by drawing some
conclusions from the Pechstein and Seraing cases. First, the Pechstein case has made public hearings
at the CAS an inevitability now that Article 6 (1) ECHR is fully applicable to
its proceedings, and the CAS will have to improve the optics concerning its
rules on the appointment of the president of the panel. Secondly, the SFT in
the Seraing made clear that while CAS
could be further ‘perfected’, it was not the proper institution to take on such
a project. Instead, it placed the responsibility in the hands of the Swiss
legislator, and it is yet to be seen whether they will actually take the
initiative to introduce change.
The panel was brought to a close by Tom Seamer, who plunged into the issue
of the independence and impartiality of CAS arbitrators. He argued that there
could be two main areas of improvement in this regard, the ICAS and the
appointment of arbitrators. Concerning the ICAS, only minor changes would be
necessary to drastically improve the status quo, such as ensuring that its
president be neutral and has no connections with any sports governing body,
athlete or clubs. Secondly, Seamer supported the contention that certain
arbitrators are repeatedly nominated by the same parties and often make
decisions in favor of that particular party. He explained that in order to test
this theory, one must only look at the period in which the particular
arbitrator was on the approved CAS list and then determine the proportion of
cases they were called upon by a particular party during that same period.
Seamer closed by asserting more needed to be done in order to tackle these
issues, while acknowledging some of the challenges ahead.
Panel 6: The future of sports:
sports law of the future
The last panel of the conference took the
opportunity to look forward into the future of sports law and discussed the growing
fields of e-sports and extreme sports. On e-sports, Cedric
Aghey tackled the issue of e-sports governance and how it could be
potentially integrated into the current sports governing structures, since
currently there is an unharmonized e-sport structure. At the moment, e-sports
relies on a variety of stakeholders operating at different levels, such as games
publishers, e-sports governing bodies, and investors. In order to address this
situation, Aghey argued that the e-sports definition should be narrowed only to
video games that seek to emulate ‘traditional’ sports. This would allow for a rather
seamless integration of these e-sports into the already existing sports
federations. For example, FIFA would absorb its FIFA e-sport counterpart.
Nick
Poggenklaas also presented on e-sports but instead took a wider definition
of e-sports by not only limiting e-sports to games based on ‘traditional’
sports. He contended that the current regulatory framework present in e-sports
is inadequate to sufficiently protect minors from the negative aspects of
sport. This issue is particularly pertinent, since minors make an exceptionally
large share of the e-sport athletes, which is especially worrying since there
have been cases of doping and sexual and financial abuse. Such cases question
whether enough is being done to really combat these problems. Thus, Poggenklaas
put forth several proposals that could substantially improve the situation of
minor’s rights in e-sports. He submitted that by creating an overarching
e-sport governing body that would manage an abuse hotline, minors would be
subject to a more rigid regulatory regime that would at least provide them with
the opportunity and means to raise their concerns. Furthermore, Poggenklaas believes
that the creation of players unions and further parent involvement would also
help to ensure that minors’ interests are sufficiently protected.
Lastly, Angela Busacca examined
extreme sports and the kind of civil liability applicable to these activities. She
first described the elements and different classifications of extreme sports
under Italian law. For instance, extreme sports have a component of risk and
require a certain interaction with nature. They can also be placed on a scale
ranging from sports that have a set of pre-defined rules to those where there
are no pre-defined rules and consequently giving a free range for the athlete’s
actions. In addition, extreme sports are categorized by those that have a clear
governance organizational structure to those who do not have a defined
structure. All these aforementioned components can have an impact on the
establishment of civil liability and whom is responsible in case of an
accident.
Conclusion
After two intense
days of discussion and debate of international sports law’s most pressing
topics through six differently themed panels, two keynote lectures, eighteen
invited speakers, and many other highlights, the ISLJ Conference 2019 came to a
close. The Asser International Sports Law Centre was honored to have been able
to host another successful edition. On behalf of the organizers, we would like
to thank all the speakers and participants who made this conference such a
success and look forward to seeing you all back at the Institute soon!