On the 24^th June 2014 the Spanish Audiencia Nacional issued its ruling on a hotly debated sports law topic: The whereabouts requirements imposed to athletes in the fight against doping. This blog aims to go beyond the existing commentaries (here and here) of the case, by putting it in the wider context of a discussion on the legality of the whereabouts requirements.                                                                          

I.              The Facts

In 2013, the Spanish High Council for Sports (Consejo Superior de Deportes) adopted resolution 1648/2013 providing two forms (Annex I and Annex II) for athletes to complete in order to fulfil their whereabouts requirements, in the view of implementing the existing Spanish laws against doping.[1]

The key legal provisions underlying this resolution read as follows (translation ASSER[2]):

Article  5 of Ley Orgánica 7/2006, de 21 de noviembre, de protección de la salud y de lucha contra el dopaje en el deporte.

3. In the view of conducting the controls referred to in the first paragraph with the greatest efficiency possible, the athletes, the teams, trainers (coaches) and managers should facilitate, in accordance with the established regulations, the gathering of the data necessary for the localisation of the habitual whereabouts of the athletes, in a way that permits to carry out the doping tests. 

Article 43 of 641/2009 Real Decreto 641/2009, de 17 de abril, por el que se regulan los procesos de control de dopaje y los laboratorios de análisis autorizados, y por el que se establecen medidas complementarias de prevención del dopaje y de protección de la salud en el deporte.

1. The athletes with a licence enabling them to participate in official competition on national level should, in accordance with the following paragraphs, facilitate the transmission of the data that permit the localisation of the habitual whereabouts of the athletes through completion of the specific form established by Resolution of el Presidente del Consejo Superior de Deportes.

3. The athletes subjected to the Individualized Plan have a specific duty to complete the form established by Resolution of el Presidente del Consejo Superior de Deportes.

Article 45 of 641/2009 Real Decreto

1. The athletes subjected to the Individualized Plan have to provide trimestral information on their habitual whereabouts, to this end they should complete the form approved by Resolution of el Presidente del Consejo Superior de Deportes, including in any case the following minimum information:

a) A postal address where the athlete can receive correspondence for notification purposes related to doping tests.

b) A clause signed by the athlete, by which he agrees to communicate the data provided to other anti-doping organizations, pursuant to article 36 de la Ley Orgánica 7/2006.

c) For each trimester, in case of an absence longer than 3 days from the habitual residence, the athlete must provide the full address of his residence or whereabouts.

d) The details, including the name and address, of the training locations of the athlete, as well as his training calendar for the trimester, and the minimum schedule of availability necessary for conducting the doping controls.

e) The trimestral competition calendar, specifying the locations, dates and types of competitions in which he is due to compete.

Spanish athletes are thus divided into two categories: those subjected to an individualized plan under article 45 of the Real decreto and those not subjected to an individualized plan. Accordingly, the Council’s resolution provides two types of obligatory forms, one for athletes not included in the individualized plan covering only the usual place(s) of training (Annex I) and one for athletes included in the individualized plan covering the usual place(s) of training but also the unusual places of training (Annex II). Those forms must be completed and communicated to the national anti-doping agency before the beginning of each trimester.

It is the legality of this resolution, which was challenged by the Spanish Association of Professional Cyclists in front of the Audiencia Nacional , that lead to the ruling adopted 24 June 2014.  

II.            The Ruling

As a preamble, the judges recognized that “the efficiency of the fight against doping would be seriously impeded if no adequate mechanism existed to monitor effectively the whereabouts obligation of the athletes”. However, the Court also considered that “both legal texts refer to the habitual localization of the athlete in order to enable the testing”. Annex I does not go beyond what is necessary to assert this usual localization. Annex II, reserved for athletes subjected to an individualized plan, however, “besides indicating the location of the habitual training whereabouts, also include the request to provide information that should facilitate the ‘occasional localization’… which means that the athletes subject to this annex are (also) subject to a permanent localization obligation”.

The judges considered that this “permanent localization duty” is “submitting the athlete to a permanent control during all the days and hours of the year, thereby exceeding what can be considered “habitual or frequent”. The measure is disproportionate and contrary to the right to privacy, and is not mandated by law, even when considering the special duties that an athlete bears as holder of a sporting licence. It is especially so when subjected to a differentiated plan, since it could be analogized to a measure of penal character requiring a permanent localization that can only be imposed as a consequence of a criminal offence. Therefore, such a permanent localization duty entails an interference that is contrary to the essence of the right to privacy”. 

Thus, the Court considered that the resolution was contrary to the right to privacy and was going beyond the wording enshrined in article 5.3 of the Ley Orgánica. Hence, it is to be considered null and void and a new resolution needs to be devised.

III.           Whereabouts Requirements in the World Anti-Doping Code

So, is this just a Spanish case, relevant only to the national context, or does it reveal a wider problem with the whereabouts requirements imposed by the World anti-doping Code?

Surely, this is first and foremost a national case. However, the laws at stake were all adopted to transpose the World Anti-Doping Code at the national level and to conform to the UNESCO Convention on Doping.[3] Consequently, grasping the scope of the requirements imposed in this regard by the WADA Code is crucial to assessing the potential wider impact of this decision.  

Article 2.4 of the WADA Code 2009 foresees that the following constitutes an anti-doping rule violation:

2.4 Violation of applicable requirements regarding Athlete availability for Out-of-Competition Testing, including failure to file required whereabouts information and missed tests which are declared based on rules which comply with the International Standard for Testing. Any combination of three missed tests and/or filing failures within an eighteen-month period as determined by Anti-Doping Organizations with jurisdiction over the Athlete shall constitute an anti-doping rule violation.  

To this end article 5.1.1 of the WADA Code 2009 provides that each Anti-Doping Organization shall:

5.1.1 Plan and conduct an effective number of In- Competition and Out-of-Competition tests on Athletes over whom they have jurisdiction, including but not limited to Athletes in their respective Registered Testing Pools. Each International Federation shall establish a Registered Testing Pool for International-Level Athletes in its sport, and each National Anti- Doping Organization shall establish a national Registered Testing Pool for Athletes who are present in that National Anti-Doping Organization’s country or who are nationals, residents, license-holders or members of sport organizations of that country. In accordance with Article 14.3, any Athlete included in a Registered Testing Pool shall be subject to the whereabouts requirements set out in the International Standard for Testing.

Finally article 14.3. of the WADA Code 2009 indicates that:

14.3 Athlete Whereabouts Information

As further provided in the International Standard for Testing, Athletes who have been identified by their International Federation or National Anti-Doping Organization for inclusion in a Registered Testing Pool shall provide accurate, current location information. The International Federations and National Anti- Doping Organizations shall coordinate the identification of Athletes and the collecting of current location information and shall submit these to WADA. This information will be accessible, through ADAMS where reasonably feasible, to other Anti-Doping Organizations having jurisdiction to test the Athlete as provided in Article 15. This information shall be maintained in strict confidence at all times; shall be used exclusively for purposes of planning, coordinating or conducting Testing; and shall be destroyed after it is no longer relevant for these purposes. 

These whereabouts requirements are further fleshed out in the International Standard for Testing 2012. Article 11.3 of the Standard deals with the Whereabouts Filing Requirements and foresees that: 

11.3.1 On a date specified by the Responsible ADO that is prior to the first day of each quarter (i.e. 1 January, 1 April, 1 July and 1 October, respectively), an Athlete in a Registered Testing Pool must file a Whereabouts Filing with his/her IF (if the Athlete has been included in its international Registered Testing Pool) or his/her NADO (if the Athlete has been included in its national Registered Testing Pool) that contains at least the following information:

a. complete mailing address where correspondence may be sent to the Athlete for formal notice purposes. Any notice or other item mailed to that address will be deemed to have been received by the Athlete five working days after it was deposited in the mail;

[…]

d. for each day during the following quarter, the full address of the place
where the Athlete will be residing (e.g. home, temporary lodgings, hotel, etc);

e. for each day during the following quarter, the name and address of each location where the Athlete will train, work or conduct any other regular
activity (e.g. school), as well as the usual time-frames for such regular activities; and

f. the Athlete’s competition schedule for the following quarter, including the name and address of each location where the Athlete is scheduled to compete during the quarter and the date(s) on which he/she is scheduled to compete at such location(s).

11.3.2 The Whereabouts Filing must also include, for each day during the following quarter, one specific 60-minute time slot between 6 a.m. and 11 p.m. each day where the Athlete will be available and accessible for Testing at a specific location. 

The question whether a specific type of information is to be included in the Whereabouts Filing is key to the Spanish ruling. The WADA Standard mentions only the “the name and address of each location where the Athlete will train, work or conduct any other regular activity (e.g. school), as well as the usual time-frames for such regular activities”. This is further broken down in the comment to article 11.3.1(e) of the Standard, where it is specified that “[T]his requirement applies only to regular activities, i.e. activities that are part of the Athlete’s regular routine”. Furthermore, the WADA Guidelines for implementing an effective athlete whereabouts program provide at article 3.5 (p.19) that “an activity is only ‘regular’ if it is done as part of a standard schedule/in accordance with a routine pattern or practice”.

One can deduce from the above review of the WADA provisions that the Spanish system was even going beyond what WADA requires in terms of information to be communicated in the framework of the whereabouts requirements. Accordingly, the Court considered that the incriminated Annex II goes beyond what is necessary to fulfil the objective of the anti-doping fight, if the global anti-doping watchdog is not confident that such information is needed. It would be a stretch, therefore, to interpret this judgment as an immediate threat for the WADA Code. Its wording seems rather to be in line with the Code’s own provisions.  

IV.          The Controversy Over Whereabouts Requirements

Anyhow, this case fuels the on-going controversy over the conciliation of whereabouts requirements with the right to privacy of athletes. The Court’s view that submitting an athlete to a permanent control of his whereabouts is contrary to her right to privacy might speak against a requirement to provide “for each day during the following quarter, the full address of the place where the Athlete will be residing (e.g. home, temporary lodgings, hotel, etc)” or “for each day during the following quarter, the name and address of each location where the Athlete will train, work or conduct any other regular
activity (e.g. school)”. The proportionality of such, little less intruding, requirements could be put to the test as well. In fact, in its second opinion on the WADA Code, Article 29 Data Protection working party of the EU, specified that “the information to be provided concerning the whereabouts and the time slots for controls should be clearly determined by taking into account the requirements of the principles of necessity and proportionality with respect to the purposes of out of competition testing, and avoiding the collection of information that might lead to undue interference in athletes’ private lives or reveal sensitive data on athletes and/or third parties”. In this regard, it “considers it to be proportionate to require personal data regards to the specific 60-minute time slot and to require filling in the name and address of each location where the athlete will train, work or conduct any other regular activity”. But, it called onto WADA to “reconsider requesting that the residence on each day of the following quarter (even temporary lodging) should be filled in (article 11.3.1 under d. of the International Standard for Testing) as this would appear to be questionable”.[4]

This controversy also has a philosophical flavor as scores of legal and social science scholars have been discussing the issue over the years. Some laments the “lack of concern given to athletes’ privacy”[5], the fact that “athletes are now just as likely to be punished for taking prohibited substances as they are for being bad at paperwork”[6], or “a State of Exception”[7] for elite athletes. Leading them to wonder: “[W]ith respect to the ‘whereabouts’ policy we must ask whether human rights are genuinely violated?”[8]

Undeniably, WADA’s Athlete Committee is supporting staunchly the whereabouts requirements[9], but its members do not represent in any democratic, nor legitimate, way the affected athlete population. However, in the face of the impossible task of enforcing a harmonized global surveillance of the implementation of the whereabouts requirements[10], recent social-science surveys have shown that athletes doubt the necessity, proportionality and efficacy of such controls.[11]

The case at hand is a great opportunity to reflect on the foucauldian turn of the anti-doping fight. In practice it is looking more and more like a panopticon, devised to optimize the surveillance of athletes, while irremediably failing to do so.[12] In turn, each new failure triggers calls for a reinforcement of the surveillance’s means and scope, thus, overlooking the deeper socio-economic roots of doping. In this context, the judgement of the Spanish High Court is reaffirming a healthy, and reasonable, limit to a potential disciplinary overreach. An overreach, which, in many eyes, raises a more fundamental question: “is it worth the cost?”[13]

[1] Especially the Ley Orgánica 7/2006, de 21 de noviembre, de protección de la salud y de lucha contra el dopaje en el deporte and the Real Decreto 641/2009, de 17 de abril, por el que se regulan los procesos de control de dopaje

[2] I thank Oskar Van Maren for his translating skills.

[3] Here one should look specifically at the preamble of the Ley Organica 7/2006 and of Real Decreto 641/2009, 1462/2009 and 1744/2011

[4] This provision is still included in the new 2015 version of the International Standard for testing and investigations at I.3.1.(d), p.88

[5] Sarah Teetzel (2007) Respecting privacy in detecting illegitimate enhancements in athletes, Sport, Ethics and Philosophy, 1:2, 159-170

[6] Niall Trainor, The 2009 WADA Code : A more proportionate deal for athletes ?, Entertainment and Sports law journal, June 2010, §65

[7] Lev Kreft (2009) The Elite Athlete – In a State of Exception?, Sport, Ethics and Philosophy, 3:1, 3-18

[8] Lev Kreft (2009) The Elite Athlete – In a State of Exception?, Sport, Ethics and Philosophy, 3:1, 3-18 p.12

[9] One example amongst many WADA Athlete Committee Meeting April 3–4, 2008, p.2

[10] See the Report to WADA Executive Committee on Lack of effectiveness of Testing Programs, 18 may 2012; Dag Vidar Hanstad , Eivind Å. Skille & Sigmund Loland (2010) Harmonization of anti-doping work: myth or reality?, Sport in Society: Cultures, Commerce, Media, Politics, 13:3, 418-430; Dikic N, Samardzic Markovic S, Mc Namee M, ‘On the efficacy of WADA’s Whereabouts policy: between filing failures and missed tests’ Deutsche Zeitschrift für Sportmedizin ‘Jahrgang 62, nr. 10 (2011), 324-328

[11] Dag Vidar Hanstad , Eivind Å. Skille & Sigmund Loland (2010) Harmonization of anti-doping work: myth or reality?, Sport in Society: Cultures, Commerce, Media, Politics, 13:3, 418-430, p.420; Diane Valkenburga, Olivier de Honb, Ivo van Hilvoordea, Doping control, providing whereabouts and the importance of privacy for elite athletes’, International Journal of Drug Policy xxx (2014) xxx–xxx

[12] This logic of surveillance is highlighted by  I. Waddington (2010), Surveillance and control in sport: A sociologist looks at the WADA whereabouts system. International Journal of Sport Policy and Politics 2: 255–74. And Hanstad, D.V., and S. Loland. ‘Elite Level Athletes’ Duty to Provide Information on their Whereabouts: Justifiable Anti-doping Work or an Indefensible Surveillance Regime?’ European Journal for Sport Sciences 9 (2009): 3–10.

[13] I. Waddington (2010), Surveillance and control in sport: A sociologist looks at the WADA whereabouts system. International Journal of Sport Policy and Politics 2: 255–74

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

 On March 05, the T.M.C. Asser Institute hosted ‘Mega-sporting events and human rights: What role can EU sports diplomacy play?’ a Multiplier Sporting Event organized in the framework of a European research project on ‘Promoting a Strategic Approach to EU Sports Diplomacy’. This project funded by the European Commission through its Erasmus+ program aims to help the EU adopt a strategic approach to sports diplomacy and to provide evidence of instances where sport can help amplify EU diplomatic messages and forge better relations with third countries. In particular, Antoine Duval from the Asser Institute is focusing on the role of EU sports diplomacy to strengthen human rights in the context of mega sporting events (MSE) both in Europe and abroad. To this end, he organized the two panels of the day focusing, on the one hand, on the ability of sport governing bodies (SGB) to leverage their diplomatic power to promote human rights, particularly in the context of MSEs and, on the other, on the EU’s role and capacity to strengthened human rights around MSEs. The following report summarizes the main points raised during the discussions.

2.     Context to the Event

Before diving into the panels, the scene was set by a few speakers who described the background and some of the main issues encircling the event. First, Antoine Duval (Asser Institute) kicked the day off by describing the general goal of the project and his role within it. Specifically, Duval strives to explore key questions such as: to what extent are SGB’s diplomatic actors and do they have human rights responsibilities? Also, what is the role of the EU’s sports diplomacy with regard to human rights at MSEs? Can it and should it get involved and if so, what could it do to be most effective?

Having laid the foundation of the event, Richard Parrish (Edge Hill University) described the background to the project ‘Promoting a Strategic Approach to EU Sports Diplomacy’. Parrish explained that while many countries have a clear sports diplomacy strategy, the EU has been rather ‘late’ to the party. He explained that there may be room for a soft power approach to EU sports diplomacy. The project aims to continue the political momentum gained from a 2016 report on EU sports diplomacy and has now held several events across Europe that analyze this subject from different lenses. Parrish concluded by explaining that the EU has started to be more conscious of this issue and has, for example, now included sport in its dialogue with China for the first time.

Simon Rofe (SOAS) then brought some introductory remarks to help frame the discussions that would follow. Rofe started by pointing out how human rights and diplomacy have not exactly gone hand in hand and that many diplomatic instruments are rather silent on human rights, which often has been intentional. Furthermore, there are also issues when trying to identify which and what form of human rights should be promoted, although the UN has played a leading role in this regard. There are also questions regarding what capacity for change there is within SGBs. Rofe also gave the example of how human rights have already been disseminated through sport, such as during apartheid in South Africa. Nevertheless, as SGBs gain greater roles in non-sport matters, their responsibility to respect and further human rights is significantly increased.

3.     The Panels

a.     Panel 1: Leveraging the Diplomatic Power of the Sports Governing Bodies for Human Rights

Now that the stage was set, the first panel took the floor with Antoine Duval acting as chair. Claire Jenkin (University of Hertfordshire) was the first to speak and examined the concept of legacies, especially in terms of children and young people. In other words, how can SGBs help leave positive human rights legacies in the MSEs host nations? Jenkin took the example of the International Inspiration Programme from the London 2012 Olympics, which was the first ever international legacy initiative linked to the Olympics and ran from 2007-2014. Its goal was to reach out to young people and bring sport to the youth beyond the context of the Games. In the end, it helped influence 55 national policies, strategies and legislative amendments. Jenkin highlighted, once more, how defining which human rights values to promote can be challenging. There are also many in a position that can promote human rights through sport but are simply not aware of their position as a ‘sport diplomat’. Hence, creating awareness, defining the appropriate human rights perspective and ensuring that young voices are heard in this process are essential to developing the SGBs’ human rights diplomacies.

Next up was Florian Kirschner (World Players Association/UNI Global Union) who looked at how SGBs have exercised their human rights diplomatic role. Kirschner illustrated how sport has a fundamental role in our society and is naturally connected to several human rights. The sports movement also clings to principles such as fairness, solidarity, equality and inclusion. However, Kirschner argued, SGBs have not always upheld these principles and pointed to several examples, such as widespread corruption, the award of MSEs to countries with questionable human rights records, suppression of free speech and violations of worker’s rights. There have also been instances of ‘sportwashing’, where states use sport events to try to give the impression that they are compliant with human rights, while coming short of their obligations in practice. The World Players Association, NGOs and other trade unions have come together to push SGBs, under the UN framework, to take greater account of human rights. Kirschner closed with the case of Hakeem al-Araibi and highlighted how many actors, including FIFA, were able to use their influence to push for his release.

Lucy Amis (Unicef UK/Institute for Human Rights and Business) then explained to the participants the importance of transferring the policies SGBs have adopted in relation to human rights into actual practice. This means developing strategies that enforce the values SGBs claim to uphold. There are numerous cases where sport has not lived up to these values: including cases where migrant workers are exploited to build MSE sport facilities, cases of child labor, and various instances where fans chant homophobic and racist slurs. Amis highlighted that SGBs must be especially diligent in cases affecting children because they face the highest risk of exploitation. On the other hand, sports diplomacy has helped initiate positive changes in some countries. In Rwanda, sport was used to help rebuild its society amidst significant adversities. There have also been encouraging developments in Qatar. Despite many calls to cancel the World Cup, FIFA’s persistence to hold the World Cup there has helped bring an end to the kafala system. All in all, challenges do remain. For instance, many national SGBs are limited to a very small and amateur staff, which creates greater challenges in creating, implementing and enforcing human rights strategies.

Finally, Guido Battaglia (Centre for Sport and Human Rights) closed the panel and began by giving an overview of the Centre for Sport and Human Rights’ goals and work. Battaglia described how the Centre’s main priority is helping those who are most affected by sports - the athletes, workers, and fans, among others - based on international human rights standards. The Centre promotes and fosters human rights in sport by bringing a wide variety of actors together, including SGBs, local organizing committees, governments, sponsors, broadcasters, international organizations, civil society and trade unions. The aim is to help these groups share best practices, increase their capacities and improve accountability on human rights issues. Battaglia then shared examples of how the Centre has been active in the field. One of these cases concerned Semyon Simonov, a human rights activist in Russia, who had been arrested while interviewing workers building World Cup stadiums in Volgograd. During this time, the Centre held a conference during which Human Rights Watch directly requested FIFA to monitor the situation. This eventually prompted FIFA to attend one of Simonov’s court hearings, acting as a sort of diplomatic pressure and signaling the sports world was watching. Battaglia concluded that pushing human rights through sports diplomacy, while still in its infancy, is gaining momentum and that there is enormous potential to help unite society through sport.

b.     Panel 2: A Human Rights Dimension for the EU’s Sports Diplomacy?

The second panel, chaired by Carmen Perez (Universidad Carlos III de Madrid), then directly confronted the central question of how the EU could develop a human rights-based sports diplomacy. Arnout Geeraert (Utrecht University) launched the panel with a purposively provocative statement that EU sports diplomacy is ridiculous and that fundamentally there should be a deepening rather than a widening of its action in this matter. Since the EU has limited resources to focus on its sports diplomacy, it should work to strengthen its current efforts. Generally, the EU promotes liberal norms such as liberty, anti-discrimination, democracy, human rights and good governance in its actions. In the sports sector, the EU has had the greatest success in steering SGBs through negative integration and soft power measures, and SGB usually comply because they seek to be on good terms with the EU. In the end, Geeraert contends that the EU’s sport diplomacy should be to place more pressure on SGBs through a variety of existing channels, including coordinating EU member state positions in international organizations like the Council of Europe, and forming alliances with non-member states. The EU could then push human rights through these various relationships, which would indirectly compel SGBs to respect human rights.

Agata Dziarnowska (European Commission) took a different view from Geeraert and argued that a widening of the EU’s sport diplomacy should also be a part of the EU’s strategy in this field. Fundamentally, Dziarnowska argued, soft power is the EU’s most effective tool, and when you add the fact that Article 165 TFEU gives the EU the ability to cooperate with third countries on issues related to sport, there is a clear path for the EU to act. When it does so, it should be promoting EU values, including those related to human rights. In this context, the EU has already begun to take action within this strategic framework. For example, promoting the aforementioned values will be part of the new Erasmus programme. Additionally, the Council relatively recently adopted Conclusions related to sports events to ‘enhance integrity, transparency and good governance in major sport events’. These Conclusions specifically addressed business and human rights principles and highlight the importance of the selection process. Dziarnowska closed by underlining that EU action will greatly rely on strong political support, particularly from the Member States.

Alexandre Mestre (Sport and Citizenship) built on Dziarnowska’s contention that there is indeed an avenue for the EU to intervene on human rights. Given the wording of Article 165 TFEU, there are a multitude of areas for EU action. Mestre explained that crucial issues such as fighting against human trafficking, doping, child labor, sexual abuse of athletes, excessive commercial/economic exploitation of athletes are matter that deserve the EU’s attention. Furthermore, recent cases, such as Caster Semenya’s dispute with World Athletics, has shown how the SGBs’ eligibility rules could be another area where the EU could add value, given its previous experience with eligibility. Moreover, the EU has tremendous experience dealing with cases of discrimination and could use this expertise as a basis to promote human rights issues. Like Geeraert, Mestre also sees the EU increasing its cooperation with other entities, such as with the Council of Europe, civil society and third countries hosting MSEs. Mestre, nevertheless, also envisages direct cooperation with SGBs as part of the EU’s sports diplomacy strategy.

Lastly, Christian Salm (European Parliamentary Research Service) gave a historical perspective on the EU’s sports diplomacy, emphasizing the European Parliament’s role. Salm described how the 1970s were truly pivotal in this story, especially since it was the ‘decade of breakthrough’ for human rights. There were two events that placed human rights as a top priority: the World Cup in Argentina in 1978 and the 1980 Moscow Olympics. Concerning the first, the European Parliament’s Political Affairs Committee decided to have a hearing concerning human rights to counter political propaganda from Argentina’s right-wing military regime. While the hearing was blocked by a vote, the socialist group decided to hold its own debate, which created a significant media interest. The hearing generated calls for the release of the opposition leader in Argentina and led to a wider debate concerning sport events, specifically with regards to boycotts. Salm then described how leading up to the 1980 Moscow Olympics the international situation following the Soviet invasion of Afghanistan and the wave of oppression on human rights activists stimulated majority support amongst the European Parliament to boycott the Olympics. While the European Parliament was in many ways limited, it understood its role as a guardian of human rights and was able to generate significant attention to these issues. More recently, in February 2014 the European Parliament also held a public hearing on migrant workers building stadiums. With this perspective, Salm explained, the European Parliament can definitely play a part in developing a human rights dimension to EU sports diplomacy.

4.     Conclusion

After each of the panels, participants were able to ask questions which stimulated many fruitful discussions, such as the importance of including human rights considerations in MSE bidding processes and defining an overall EU diplomatic strategy that would effectively use the EU’s leverage on these questions. On the latter issue, to prevent a fragmented diplomatic approach, the second panel concluded that coordination between all EU actors and informal policy making – such as raising awareness through public hearings and conferences – can help create a cohesive and effective EU sports diplomacy scheme. In any event, from all the discussions, it is evident that human rights will need to play a greater role in any EU sports diplomacy strategy given the inherent human rights concerns that MSEs carry.

On behalf of the organizers, we would like to thank all the speakers and participants for ensuring a remarkably productive and rich event in difficult times. We look forward to seeing you at the Institute again soon!

Editor’s note: Rhys Lenarduzzi is a final semester Bachelor of Law (LL.B) and Bachelor of Philosophy (B.Phil.) student, at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.

Having considered the history and justifications for the FIFA training compensation and solidarity mechanisms in my previous blog, I will now consider these systems in the African context. This appears to be a worthwhile undertaking given these global mechanisms were largely a result of European influence, so understanding their (extraterritorial) impact beyond the EU seems particularly important. Moreover, much has been written about the “muscle drain” affecting African football and the need for such drain to either be brought to a halt, or, more likely and perhaps more practical, to put in place an adequate system of redistribution to ensure the flourishing of African football that has essentially acted as a nursery for European football for at least a century. In the present blog, I intend to draw on my experiences as a football agent to expand on how FIFA’s redistributive mechanisms function in practice when an African player signs in Europe via one of the many kinds of entities that develop or purport to develop talent in Africa. I will throughout address the question of whether these mechanisms are effective in a general sense and more specifically in relation to their operation in Africa.

1.     The context: African players’ pattern of migration to Europe

There is a substantial body of work on player migration from Africa to Europe. The history of this movement is important context but just one element to the composition of this blog, so for a more comprehensive unpacking I recommend turning to Darby and Poli’s work. Briefly though, much of the movement began in the early 1900s, with an axiomatic nexus between African countries and their colonial ruler. These connections and channels live on and as one author noted, old colonial ties continue to structure the flow’.[1] This is of little surprise given the language advantages, cultural and economic connections between countries already in place, though some other explanations for the ongoing and evidently near exclusively one way flow are at play.

Economic prosperity has always been the drawcard for African footballers pursuing the European dream, though as Ungruhe submits, in modernity there is an additionally strong pull and distortion at play.[2] Here Ungruhe apportions considerable blame on Africans and the media painting a picture of football in Europe through the lives of players like Didier Drogba and Samuel Eto’o. The result for young African footballers is a ‘dream of being part of an imagined Euro-American modernity and aspirations of a good life as well as socio-cultural demands of ‘becoming a somebody’ in society.’[3] These dreams don’t always align with the realities and come at the cost of other educational or career pursuits.

Further and perhaps more obvious reasons for the movement is the relatively cheap labour costs an African player presents in opposition to the European player of equivalent footballing quality. Transfer fees, or more relevant to this blog, training compensation, is commonly waived (often in exchange for a less than ideal future sell-on arrangement) making the African player attractive in an economical sense. The way Africa acts as a nursery to European football clubs has been analogised by Darby to the mining of the imperialist colonial period, where the ‘sourcing, refinement, and export of raw materials’ can be compared to the ‘mining and export of indigenous football talent for consumption on the European football market.’[4] Though as has been noted above, this is ongoing and the movement continues to be one way, seemingly pointing to a neo-colonialist dimension to player movement, a term famously used in a Sepp Blatter interview (2003), along with such practice being labelled ‘social and economic rape’.

Though much is made of the movement being nearly exclusively one-directional historically and in a contemporary transfer market, the movement and environment surrounding such transfers might be more defensible if FIFA’s redistributive mechanisms were effective.

2.     Statistics of concern: FIFA redistribution mechanisms and Africa

Quantitative data in this space has historically been hard to come by. In fact, a breakdown of the parties that paid the due training compensation and solidarity contributions, a breakdown of those that did not meet their payment obligations, and the confederations in which the paying and the owing entities sit would be instructive but is currently missing. Nevertheless, the recently published Players’ Status Department Report and Global Transfer Market Report 2019 provide some interesting insights. For instance, the Players’ Status Department Report shows inter alia that clubs from CAF are very rarely a respondent in training compensation and solidarity mechanism claims,[5] the rather obvious result of being largely an export rather than import market. If we focus on 2018-2019 transfers to UEFA clubs (see fig.12), most transfers to these clubs are from within UEFA (8,108), whereas CONMEBOL to UEFA is second (836), then CAF to UEFA (581). Despite there being a gap between CONMEBOL and CAF transfers to UEFA, it is not nearly as significant as the gap between claims brought and resolved at FIFA, for both solidarity contributions and the training compensation mechanism. For instance, the solidarity contribution mechanism claims brought and resolved where CONMEBOL is the claimant and UEFA in the respondent (304) is approximately double that of CAF as claimant and UEFA as respondent (144) (see fig.12). The number of resolved claims with UEFA as respondent for training compensation disputes is again, approximately double, with CONMEBOL (131) and CAF (70). (see fig.19) This disproportionality between total transfers and disputes brought and resolved on the redistributive mechanisms, may point to African clubs being either unaware of their rights under these mechanisms or rendering themselves unable of achieving a remedy when falling victim to a more powerful club from Europe.

In 2018, it was reported that just USD$67.7m of the USD$351.5m due to be distributed in solidarity contributions, was actually paid. That is a mere 19.3% of what should have trickled down and perhaps just as alarming is that this percentage has been worsening. Africa, as a poorer continent than most and certainly a poorer continent than Europe to which it provides football talent more than it provides any other confederation, is arguably hurt most from this non-payment. Furthermore, the 2019 FIFA Global Transfer Market Report stated that USD$12.2 million in training compensation was paid,[6] which is a considerable distance from what was paid in solidarity contributions and light-years from what was supposed to be paid in solidarity contributions. So what might this say about these mechanisms in general and in the African context specifically, if one is to conclude that Africa provides a wealth of talent for Europe and other confederations and is hence in most need of redistribution for fulfilling the role of talent nursery?

3.     The Operation of Training Compensation in the African Context

More than any other confederation, Africa has found itself with an array of different entities undertaking football training and education, most commonly referred to as academies. Not all have questionable intentions, however this range of non-conventional arrangements of registering or attaching young players to a particular entity is usually for profit. This often results in some regulatory gymnastics, and particularly in relation to both the training compensation and solidarity mechanisms when profit is on the line.  I will borrow Darby’s four categories of training structures in Africa and apply my understanding of the industry. I would submit that we can look at these arrangements and form conclusions on how training compensation may operate in each scenario if a young player from either of these environments is recruited to Europe. I will keep the players and clubs involved in the following anecdotes anonymous, in the interest of confidentiality and professionalism. I will pay particular attention to scenarios (1) and (3) as what takes place in practice behind the scenes in these categories can be less obvious and perhaps more interesting for the purpose of this blog.

Darby’s four categories of training structures in Africa are; ^[7]

1)    African academies, organized and run by African club sides or African national federations

2)    Afro-European academies, which involve either a partnership between an existing academy and a European club or an arrangement whereby a European club takes a controlling interest in an African club[8]

3)    Private or corporate-sponsored academies, which have well-established foundations and operate with the support and sponsorship of private individuals

4)     Non-affiliated, improvised academies, which are set up on an ad hoc basis and involve poorly qualified staff and lack proper facilities[9]

3.1. Scenario 1: Training compensation and African club academies

In my experience as a football agent and that of my colleagues and competitors that I’ve spoken with on the topic, scenario (1) is the most likely to result in some redistribution, though it is still not always commonplace for clubs to stand their ground and demand training compensation. Instead, what regularly happens is a gamble of sorts, where African clubs waive their right to training compensation initially, in exchange for a percentage of future sell-on value. This can be pitched by a new club to be an amount that would be greater than what a club would receive in training compensation, but is simultaneously often a condition of a “take it or leave it” offer from a buying club, meaning that the player will no longer be of interest if they are not free. This “fee” or piece of future sell-on value is then at times contingent on things such as the new club’s success or first team appearances of the player in question. Unfortunately with the latter, there have been instances when clubs have stopped selecting the player in question when his number of appearances is coming close to the threshold of that clause.  

Scenario (1) type clubs can appear to be the most legitimate entities of the four categories to claim training compensation, though perhaps the following two anecdotes taken from my practice will shed light on how the mechanism operates in practice, with particular attention to it’s waiver and the ‘hindrance effect’[10] it might have. For instance, a former youth national team captain from Ghana had been on the edge of a transfer to a myriad of small-medium size clubs in Europe. The interest had been intense since his 16^th birthday and the plan was for him to move at 18 when the regulations permitted. However, due to a short-term injury around age 18, the interest for an immediate transfer diminished. The player recovered and struggled to generate the same interest in Europe as before, but became of interest in Australia, where the strategy would have been to play at a club within a country that was arguably a better stepping stone to Europe than his current club. When the interest was from Europe, his club was open to waiving training compensation in exchange for a future sell-on benefit and saw this as a safer bet. However,when the interested club was an Australian one, the training club saw the chances of the player moving on to Europe as less likely and the chance to profit substantially from future sell on fees unlikely, hence it refused to waive the training compensation. The player is still at the same club years later, in his mid-twenties and with little prospects of playing outside of his home nation. The result in this instance is that the player's career was strongly affected by the training compensation mechanism, his training clubs and community will never be the beneficiaries of redistribution, and the Australian club who was only interested if the player was free missed out on a player who wanted to come to the club. Can such a strong restriction on a player’s ability to move to seek employment as a professional player outside of his home country really be justified by the redistributive goal of the training compensation mechanism? Especially, when in many cases this mechanism is being waived and perhaps not considered necessary by FIFA itself. 

In another example of a scenario (1) legitimate club with a youth academy involving the ‘hindrance effect’, an arguably unfortunate outcome can result if a training club refuses to waive its rights to training compensation. Indeed, often only a small group of big clubs with well above average financial resources can afford the entire bill for compensation between the ages of 12 and 21.  I recall a top youth prospect from Mali who had attracted lots of interest from clubs in Europe following strong performances at both the under 17 and the under 20 World Cup. Yet, training compensation due had acted as a hindrance until he had a strong season around age 20. The player’s training club(s) in Mali had stood their ground and insisted training compensation be paid if the player was to transfer. Here, it took a relatively big club that regularly plays Champions League or Europa League football with the financial resources to pay it.  The club has an enormous squad, many international players, and would not generally be thought of as an ideal destination for a youth prospect as they have a history of parking players. Since his signing, the player has played little football as loan options have fallen through and he has been unable to find himself in the first team. In this case the player's development has stagnated, having ended up at a big club, and not at other more suitable destinations despite interest and offers, nearly exclusively because training compensation acted as a barrier for him to be signed by a club that most would deem a more appropriate stepping stone.

3.2. Scenario 3: Training compensation and African private academies

Scenario (3) has become an incredibly common environment for young African footballers to find themselves in, given the abundance of these academies throughout the continent.  Players enter these entities either by paying their way if they have the means and aspirations but lack the talent or having been scouted for their above average potential. This creates for an interesting dynamic come transfer time and considerable controversy. These academies are generally created for profit but are of course non-FIFA entities, requiring they get creative if a player becomes the subject of interest from Europe. Some less than ideal sequences of events can follow from this arrangement.  Examples include academies affiliating themselves with clubs through ‘under the table’ arrangements, handing the player back to a FIFA recognised club before transferring, or having the player registered at that club for the duration of their stay with the academy to simplify a transfer if it eventuates, perhaps then attracting training compensation to the club but more likely arranging an agreement like those alluded to above, where compensation for training a player will only be realised down the track on future sell-on fees. Academies want immediate money as well though so there are instances where a club will pay to have the players current registration and share a percentage of future sell on fees with the academy.  There are a number of other arrangements however one can probably get the picture, that the FIFA training compensation mechanism is regularly being circumvented or tweaked significantly so as to make a deal happen, rather than having it fall through. In this instance, the academies are paid in some form now or later, as well as the clubs that help them facilitate the transfer.

For instance, a star of a recent under 17s World Cup from Nigeria had spent the majority of his youth at one of the more famous scenario (3) type academies. When interest flooded in following the World Cup, there was nearly a year worth of assessing what would be the best move for the player.  A lot of the interest was from medium sized clubs and from destinations outside of the big 5 leagues, and these destinations were arguably a better stepping-stone. However, most of these preferable destinations demanded the player be free or they would not make an offer and some of this interest hinged on an assumption the player would be free given he was the product of a private academy and not a FIFA recognised club.[11] After much dispute and controversy with the academy trying to get in the way of a deal or be the beneficiaries of such a deal, the player managed to get away free from the academy and sign for free with a club. It is difficult to emphasise how tricky it was to fend off attempts from this academy to stop the deal or be a part of it, as well as how important it was that the player be free for a more suitable deal to eventuate. The player has already transferred again within Europe to a bigger club, as he was able to get plenty of first team football to display his abilities. This can sound great for the player and the clubs, but what about the far-reaching societal benefits that training compensation and solidarity is geared towards achieving? In many, perhaps most, analogous cases, the academy would have successfully got in the way of the deal or benefitted from it. In both cases, the deal that happened, or the scenario that usually happens as unpacked above, the objectives of the redistributive mechanisms are bypassed. The ‘hindrance effect’ would have almost certainly played a part in this players journey had compensation been due, or a big club that could afford compensation may have come forward, though it would then have been unlikely that the player would have played first team football to the same extent, and his career might have faltered.

My experience shows that the fact that training compensation can be waived has turned it into a subject of speculation and market negotiation between the more powerful European club and the economically vulnerable African club. The latter are often happy to forego their claim for training compensation if it is necessary to close a deal that would include some future potential benefit. Thus, it can hardly be said that African clubs can rely on this right to training compensation to guarantee stable funding to support their investment in educating players. Furthermore, while being relatively ineffective as a mechanism of redistribution, it nevertheless acts as a hindrance on the movement of African football players. Hence, the continent experiences the worst of both worlds, limited training compensation for its clubs and limited freedom of movement for its players.

4.     Africa’s missing solidarity contributions

The solidarity mechanism is mandatory and cannot be waived like the training compensation mechanism, though as is clear from the gap between what is paid and what ought to have been, there are issues with regard to its implementation. In the African context, there are a number of reasons why payments are not made. On the one hand, it is clear that the differing capacity of administration and the quality of legal advice accessible to African clubs plays a role. Sometimes African clubs are simply unaware that they are even owed solidarity. Further, if they are aware, the task of taking on a European club in a legal battle can be too expensive or too daunting to pursue, ultimately rendering this an access to justice issue as well.

On the other hand, as is true of both solidarity and training compensation mechanisms, funds are channelled through the national association and this has been problematic on occasions. I was once involved in a situation with a club within an African league with a notoriously controversial national body. The club was due to receive solidarity contributions given a player it had registered between the ages of 12 and 21 had signed with a club from one of the big 5 leagues for a fee into the tens of millions of euros. The African club had changed names but remained the same legal entity between the time the player had been at the club and his subsequent transfer. This was common knowledge to the football community within this African country and the national federation. It appeared on this occasion that the national governing body was attempting to argue the club ‘ceased to participate in organised football’ per Annex 5(2)3 of the RSTP which outlines that an association is entitled to receive the proportion of solidarity contribution, though it shall be reserved for youth football development programmes in the association. Given this particular associations track record, suspicions linger as to what the money would have been used for.

It is clear that in general a lot of solidarity money is lost or not paid, and it ultimately does not reach the African grassroots where it is needed most. It seems some, if not most, of this loss can be attributed to the costs attached to the process of obtaining this solidarity funds. If FIFA were serious about redistribution, it would ensure that solidarity transfers be almost automatic. Otherwise all the talk about solidarity is hypocritical at best, as those who need it the most are the least likely to enjoy it.

5.     Concluding remarks

This blog has highlighted various issues that surface in the African context with regard to FIFA’s redistributive systems. While on the face of it solidarity between the richest European football clubs and African training clubs can only be applauded, it remains to be seen whether the current regulatory set-up achieves the desired solidarity.

I have seen first-hand that training compensation acts as a real hindrance for the professional career of African footballers. Players suffer from being unable to go to clubs of suitability, and it is clear that the mechanism has become a regular bargaining chip in the wider transfer market, where a waiver in exchange for a future sell-on fee  may be as common an occurrence as actual payment of a training compensation. In practice and because it can be waived, the training compensation is part and parcel of a speculative transfer market rather than an effective instrument of solidarity between clubs. Moreover, insofar as the solidarity mechanism is concerned, its effectiveness seems to be blunted by the administrative burden that comes with its implementation. All too commonly, African clubs have simply too little means to be able to ensure the rights they should derive from it. Ultimately, from the training compensation mechanism arises a transactional dilemma, whilst in the event of non-payment of solidarity contributions, arises an administrative predicament.

There is a neo-colonial flavour to the fact that the training compensation can be waived. Indeed, (European) buyers are often in a strong bargaining position, as they can (collectively) put pressure on training clubs with ‘take it or leave it’ options. In doing so, they shift some of the risks related to the future development of the player back onto the shoulders of African clubs. Instead of getting an immediate fee for training the player, the African clubs get only a potential opportunity of a future fee that will be dependent on a player’s capacity to adapt to his new club and a myriad of other factors. One could see this as a free choice, yet, such a view would paper over the massive power imbalance between European clubs and African ones. If the objective of FIFA’s regulations is truly to foster solidarity and redistribution then they ought to be devised in a way that takes better account of this power imbalance between clubs from different parts of the world. African clubs must be able to systematically claim their training compensation fee without fearing to miss out on a transfer entirely, and to seamlessly receive the solidarity contributions owed. If not, it becomes extremely hard to justify burdening the (African) players’ right to move and take employment around the world. Indeed, one is left to wonder whether FIFA’s redistributive mechanisms could not be entirely uncoupled from the players’ movement and from the transfer market.

[1] Raffaele Poli, ‘Migrations and Trade of African Football Players: Historic, Geographical and Cultural Aspects’ (2006) Vol. 41, No. 3 The Other Game: The Politics of Football in Africa, at 409.

[2] Christian Ungruhe, 'Mobilities At Play: The Local Embedding Of Transnational Connections In West African Football Migration' (2016) 33 The International Journal of the History of Sport.

[3] Ibid 1770.

[4] Paul Darby, 'Out of Africa: The Exodus of Elite African Football Talent to Europe' (2007) 10 WorkingUSA 445-446.

[5] CAF was not even listed in Fig.11 of the report “Confederation of respondent club for claims resolved in 2019/2020”.

[6] 2019 FIFA Global Transfer Market Report, 12.

[7] Paul Darby, et al, Football Academies and the Migration of African Football Labor to Europe (2007) 31 Journal of Sport & Social Issues, 149-150.

[8] Scenario (2) is ultimately an example of European clubs being commercially savvy and the entire arrangement is to avoid costs or fees like training compensation.  This probably needs little more explanation as one can see that a European club may essentially be paying themselves if they are the main stakeholder in the African club or academy from which their new player has graduated.

[9] Scenario (4) academies are arguably the most detrimental in terms of their societal effects. They often purport to be a channel for ambitious players but lack the quality of facility and coaching, let alone contacts or ability to spring board players onto bigger and better things. They are never the recipient of redistribution given they are not FIFA recognised yet take money for their services and cannot fulfil promises.

[10] Jakub Laskowski, 'Solidarity Compensation Framework In Football Revisited' (2018) 18 The International Sports Law Journal, 168, 178, 182.

[11] The player spent a small amounts of time registered to a club to be eligible for the national team.