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

The Evolution of UEFA’s Financial Fair Play Rules – Part 2: The Legal Challenges. By Christopher Flanagan

The first part of this series looked at the legal framework in which FFP sits, concluding that FFP occupied a ‘marginal’ legal position – perhaps legal, perhaps not. Given the significant financial interests in European football – UEFA’s figures suggest aggregate revenue of nearly €17 billion as at clubs’ 2015 accounts – and the close correlation between clubs’ spending on wages and their success on the field,[1] a legal challenge to the legality of FFP’s ‘break even’ requirement (the Break Even Requirement), which restricts a particular means of spending, was perhaps inevitable.

And so it followed.

Challenges to the legality of the Break Even Requirement have been brought by football agent Daniel Striani, through various organs of justice of the European Union and through the Belgian courts; and by Galatasaray in the Court of Arbitration for Sport. As an interesting footnote, both Striani and Galatasaray were advised by “avocat superstar” Jean-Louis Dupont, the lawyer who acted in several of sports law’s most famous cases, including the seminal Bosman case. Dupont has been a vocal critic of FFP’s legality since its inception. More...





The Evolution of UEFA’s Financial Fair Play Rules – Part 1: Background and EU Law. By Christopher Flanagan

Editor's Note: Christopher is an editor of the Asser International Sports Law Blog. His research interests cover a spectrum of sports law topics, with a focus on financial regulatory disputes, particularly in professional football, a topic on which he has regularly lectured at the University of the West of England.

 

It is five years since the Union of European Football Associations (UEFA) formally introduced ‘Financial Fair Play’ (FFP) into European football through its Club Licensing and Financial Fair Play Regulations, Edition 2012. With FFP having now been in place for a number of years, we are in a position to analyse its effect, its legality, and how the rules have altered over the last half decade in response to legal challenges and changing policy priorities. This article is split into three parts: The first will look at the background, context and law applicable to FFP; Part Two will look at the legal challenges FFP has faced; and Part Three will look at how FFP has iteratively changed, considering its normative impact, and the future of the rules. More...


International and European Sports Law – Monthly Report – July and August 2017. By Tomáš Grell

 Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser.

 

The Headlines

ISLJ Annual Conference on International Sports Law 

On 26 and 27 October 2017, the T.M.C. Asser Institute in The Hague will host the first ever ISLJ Annual International Sports Law Conference. This year's edition will feature panels on the Court of Arbitration for Sport, the world anti-doping system, the FIFA transfer regulations, human rights and sports, the labour rights of athletes, and EU law and sport. We will also welcome the following distinguished keynote speakers:

  • Miguel Maduro, former Advocate General at the European Court of Justice and former head of the FIFA's Governance Committee;
  • Michael Beloff QC, English barrister known as one of the 'Godfathers' of sports law;
  • Stephen Weatherill, Professor at Oxford University and a scholarly authority on EU law and sport;
  • Richard McLaren, CAS Arbitrator, sports law scholar and former head of the World Anti-Doping Agency's investigation into the Russian doping scandal.

You will find all the necessary information related to the conference here. Do not forget to register as soon as possible if you want to secure a place on the international sports law pitch! [Please note that we have a limited amount of seats available, which will be attributed on a 'first come, first served' basis.] More...

FIFA's Human Rights Agenda: Is the Game Beautiful Again? – By Tomáš Grell

Editor’s note: Tomáš Grell holds an LL.M. in Public International Law from Leiden University. He contributes to the work of the ASSER International Sports Law Centre as a research intern.

 

Concerns about adverse human rights impacts related to FIFA's activities have intensified ever since its late 2010 decision to award the 2018 and 2022 World Cup to Russia and Qatar respectively. However, until recently, the world's governing body of football had done little to eliminate these concerns, thereby encouraging human rights advocates to exercise their critical eye on FIFA. 

In response to growing criticism, the Extraordinary FIFA Congress, held in February 2016, decided to include an explicit human rights commitment in the revised FIFA Statutes which came into force in April 2016. This commitment is encapsulated in Article 3 which reads as follows: ''FIFA is committed to respecting all internationally recognized human rights and shall strive to promote the protection of these rights''. At around the same time, Professor John Ruggie, the author of the United Nations Guiding Principles on Business and Human Rights ('UN Guiding Principles') presented in his report 25 specific recommendations for FIFA on how to further embed respect for human rights across its global operations. While praising the decision to make a human rights commitment part of the organization's constituent document, Ruggie concluded that ''FIFA does not have yet adequate systems in place enabling it to know and show that it respects human rights in practice''.[1]

With the 2018 World Cup in Russia less than a year away, the time is ripe to look at whether Ruggie's statement about FIFA's inability to respect human rights still holds true today. This blog outlines the most salient human rights risks related to FIFA's activities and offers a general overview of what the world's governing body of football did over the past twelve months to mitigate these risks. Information about FIFA's human rights activities is collected primarily from its Activity Update on Human Rights published alongside FIFA's Human Rights Policy in June 2017. More...

International and European Sports Law – Monthly Report – June 2017. By Tomáš Grell

 Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

 

The Headlines

 
ISLJ Annual Conference on International Sports Law

On 26 and 27 October, the T.M.C. Asser Institute in The Hague will host the first ever ISLJ Annual International Sports Law Conference. This year’s edition will feature panels on the Court of Arbitration for Sport, the world anti-doping system, the FIFA transfer regulations, human rights and sports, the labour rights of athletes, and EU law and sport. More...



Mitigating Circumstances and Strict Liability of Clubs in Match-fixing: Are We Going in the Wrong Direction? An Analysis of the Novara and Pro Patria Cases - By Mario Vigna


Editor’s note: Mario Vigna is a Senior Associate at Coccia De Angelis Vecchio & Associati in Rome, Italy. His main practice areas are sports law, commercial law, and IP law. He also has extensive experience in the Anti-doping field, serving as Deputy-Chief Prosecutor of the Italian NADO and as counsel in domestic and international sports proceedings. He is a frequent speaker at various conferences and workshops. He was not involved in either of the cases discussed below.


I.               Introduction 

Gambling in football is a popular and potentially lucrative activity. It also raises numerous issues. When faced with the issue of gambling, the European Court of Justice (now Court of Justice of the EU) determined that gambling was economic activity per se, notwithstanding gambling’s vulnerability to ethical issues, and thus could not be prohibited outright.[1] With the legality of gambling established, it was left to the proper legislative bodies (national legislatures, national and international federations, etc.) to regulate gambling in order to guard against fraud and corruption. Gambling was not going to disappear; the dangers inherent to gambling would require attention.  More...




Overdue payables in action: Reviewing two years of FIFA jurisprudence on the 12bis procedure – Part 2. By Frans M. de Weger and Frank John Vrolijk.

Editor's Note: Frans M. de Weger is legal counsel for the Federation of Dutch Professional Football Clubs (FBO) and CAS arbitrator. De Weger is author of the book “The Jurisprudence of the FIFA Dispute Resolution Chamber”, 2nd edition, published by T.M.C. Asser Press in 2016. Frank John Vrolijk specialises in Sports, Labour and Company Law and is a former legal trainee of FBO and DRC Database.

This second blog will focus specifically on the sanctions available for FIFA under Article 12bis. It will provide explanatory guidelines covering the sanctions imposed during the period surveyed.


Introduction

The possibility to impose sanctions under article 12bis constitutes one of the pillars of the 12bis procedure. Pursuant to Article 12bis of the RSTP, edition 2016, the DRC and the PSC may impose a sanction on a club if the club is found to have delayed a due payment for more than 30 days without a prima facie contractual basis[1] and the creditor have put the debtor club in default in writing, granting a deadline of at least 10 days.[2] The jurisprudence in relation to Article 12bis also shows that sanctions are imposed ex officio by the DRC or the PSC and not per request of the claimant.More...





Overdue payables in action: Reviewing two years of FIFA jurisprudence on the 12bis procedure – Part 1. By Frans M. de Weger and Frank John Vrolijk.

Editor's Note: Frans M. de Weger is legal counsel for the Federation of Dutch Professional Football Clubs (FBO) and CAS arbitrator. De Weger is author of the book “The Jurisprudence of the FIFA Dispute Resolution Chamber”, 2nd edition, published by T.M.C. Asser Press in 2016. Frank John Vrolijk specialises in Sports, Labour and Company Law and is a former legal trainee of FBO and DRC Database.

In this first blog, we will try to answer some questions raised in relation to the Article 12bis procedure on overdue payables based on the jurisprudence of the DRC and the PSC during the last two years: from 1 April 2015 until 1 April 2017. [1] The awards of the Court of Arbitration for Sport (hereinafter: “the CAS”) in relation to Article 12bis that are published on CAS’s website will also be brought to the reader’s attention. In the second blog, we will focus specifically on the sanctions applied by FIFA under Article 12bis. In addition, explanatory guidelines will be offered covering the sanctions imposed during the period surveyed. A more extensive version of both blogs is pending for publication with the International Sports Law Journal (ISLJ). If necessary, and for a more detailed and extensive analysis at certain points, we will make reference to this more extensive article in the ISLJ. More...

International and European Sports Law – Monthly Report – May 2017. By Tomáš Grell

Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

The Headlines

The end of governance reforms at FIFA?

The main sports governance story that surfaced in the press (see here and here) during the last month is related to significant personal changes made by the FIFA Council within the organization’s institutional structure. In particular, the FIFA Council dismissed the heads of the investigatory (Mr Cornel Borbély) and adjudicatory (Mr Hans-Joachim Eckert) chambers of the Independent Ethics Committee, as well as the Head (Mr Miguel Maduro) of the Governance and Review Committee. The decision to remove Mr Maduro was taken arguably in response to his active role in barring Mr Vitaly Mutko, a Deputy Prime Minister of Russia, from sitting on the FIFA Council due to an imminent conflict of interests. These events constitute a major setback to governance reforms initiated by the football’s world governing body in 2015. For a more detailed insight into the governance reforms at FIFA, we invite you to read the recent blog written by our senior researcher Mr Antoine Duval. More...

Asser International Sports Law Blog | “Sport Sex” before the European Court of Human Rights - Caster Semenya v. Switzerland - By Michele Krech

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

“Sport Sex” before the European Court of Human Rights - Caster Semenya v. Switzerland - By Michele Krech

Editor's note: Michele Krech is a JSD Candidate and SSHRC Doctoral Fellow at NYU School of Law. She was retained as a consultant by counsel for Caster Semenya in the proceedings before the Court of Arbitration for Sport discussed above. She also contributed to two reports mentioned in this blog post: the Report of UN High Commissioner for Human Rights,  Intersection of race and gender discrimination in sport (June 2020); and the Human Rights Watch Report, “They’re Chasing Us Away from Sport”: Human Rights Violations in Sex Testing of Elite Women Athletes (December 2020).

This blog was first published by the Völkerrechtsblog and is republished here with authorization. Michele Krech will be joining our next Zoom In webinar on 31 March to discuss the next steps in the Caster Semenya case.



Sport is the field par excellence in which discrimination
against intersex people has been made most visible.

Commissioner for Human Rights, Council of Europe
Issue Paper: Human rights and intersex people (2015)


Olympic and world champion athlete Caster Semenya is asking the European Court of Human Rights (ECtHR) to make sure all women athletes are “allowed to run free, for once and for all”. Semenya brings her application against Switzerland, which has allowed a private sport association and a private sport court to decide – with only the most minimal appellate review by a national judicial authority – what it takes for women, legally and socially identified as such all their lives, to count as women in the context of athletics. I consider how Semenya’s application might bring human rights, sex, and sport into conversation in ways not yet seen in a judicial forum.

Background

Semenya, a South African national, competes in the sport of track and field, which is governed internationally by a private association, World Athletics, headquartered in Monaco. A few years ago, World Athletics introduced new Regulations barring women with innate variations of sex characteristics from competing in certain women’s events, unless they medically reduce their atypically high testosterone levels. Semenya first challenged the Regulations before the Court of Arbitration for Sport (CAS) – an international arbitral tribunal located in Switzerland and commonly known as the “supreme court of sport”. After the majority of the CAS panel upheld the Regulations, Semenya appealed to Switzerland’s highest judicial authority, the Swiss Federal Tribunal (SFT), which dismissed her claim, leaving the Regulations – and “sport sex” – in place.

All the while, the UN Human Rights Council‘s independent experts and the UN High Commissioner for Human Rights, along with Human Rights Watch, the World Medical Association, and various organizations focused on women’s and LGBTQI+ equality in sport, have expressed serious concern that the Regulations contravene international human rights norms and standards. However, no court has squarely decided this question. The CAS panel measured the Regulations against the non-discrimination provisions of the World Athletics Constitution and the Olympic Charter (para. 424), finding it unnecessary to delve into the “detailed principles” of “international human rights law including those that apply in Monaco … and the domestic laws of many countries in which [World Athletics] has members and holds international competitions” (para. 544). Whether the Regulations were contrary to such laws was deemed a matter for the courts of those jurisdictions to decide (para. 555). But because the CAS decision is an international arbitral award, the SFT was restricted, pursuant to the Federal Statute on Private International Law, to reviewing only one substantive ground of appeal: whether the CAS decision was compatible with Swiss public policy (i.e. the most fundamental values that, according to prevailing opinions in Switzerland, should form the basis of any legal order). As the SFT explained, while the principles underpinning the Swiss Constitution or the European Convention of Human Rights (ECHR) could be considered when defining public policy, the provisions of these instruments could not be directly invoked to challenge the CAS decision (paras. 9.1 to 9.2).

The ECtHR’s consideration of Semenya’s application will therefore mark the first time a court evaluates the private regulations of World Athletics (and, particularly, the role of Switzerland in upholding them) against international human rights law. It may also mark the first time the ECtHR decides a case of discrimination based on sex characteristics. Given such novelty, what else might be new and different before the ECtHR compared to the past (quasi)judicial processes? I consider this question in two (intricately connected) parts – the facts and the law – where the ECtHR could play a remedial role.

The Facts: Sex before the ECtHR

The CAS panel characterized the case as one of “significant scientific complexity” and remarked on both the lack of consensus among experts and the “paucity of evidence” regarding certain matters concerning the effect of testosterone on the athletic performance (para. 582). The majority of the panel found, however, that the totality of the evidence provided adequate support for World Athletics’ claim that the women targeted by the Regulations “enjoy a significant performance advantage over other female athletes, which is of such magnitude as to be capable of subverting fair competition within the female category” (para. 538). This finding was also central to decision of the SFT, which was bound to rule based on the facts found by the CAS. The SFT made clear that, pursuant to its own constitutive law, it could not correct or supplement the arbitrators’ findings, even if the facts had been established in a manifestly incorrect manner or in violation of the law (para. 5.2.2).

Meanwhile, abundant scholarly critiques have been registered against World Athletics’ evidence, ranging from the methodologies used to the conclusions drawn. Moreover, much of this evidence was produced “in-house” by World Athletics; the leaders of its own Health and Science Department conducted the main scientific study relied on to justify the Regulations. Without delving deeper into this apparent lack of independence, it is notable that the conflated “scientific” and “legislative” process here is a private one; no Swiss public authority sought evidence to inform or evaluate the regulatory decision at issue.

To what extent, then, might the ECtHR reassess the evidence? While the Court was not set up as a court of first or fourth instance – that is, to establish the basic facts of a case or to re-evaluate the facts established by a domestic court – it does require parties to substantiate their claims, and is free to assess the admissibility, relevance, and probative value of the evidence put forth. The Court may request additional evidence, draw inferences from the absence of evidence, and even engage in fact-finding if the evidence is contested or unclear. To resolve uncertainty, the Court may rely on evidence from external actors, including experts and academics, as well as a wide variety of third-party interveners.

Considering this range of evidence would reveal that understandings of sex in athletics cannot be detached from understandings of sex beyond the sports sphere. Indeed, sport has been shown to be especially effective at disguising and transmitting socio-scientific ideologies – including those related to testosterone – as self-evident truth. While there are limits to the ECtHR’s ability to decide complex socio-scientific questions, it need not accept factual findings made (tenuously) by the CAS and not by Switzerland. Moreover, it should become clear to the ECtHR that “science” cannot provide a definitive answer to the question before it; in fact, the (selective) way science has been deployed by World Athletics is at the very heart of the alleged human rights violations.

The Law: Sport before the ECtHR

A number of rights guaranteed by the ECHR are pertinent in Semenya’s case. Most obvious is Article 8, which encompasses the right to personal autonomy and identity, including physical, psychological, and moral integrity. The “impossible choices” and documented harms inherent in the Regulations clearly interfere with this right. In addition, Article 14 requires member States to secure to everyone within their jurisdiction all Convention rights “without discrimination on any ground”. The Regulations apply only to women with certain sex characteristics (which the Commissioner for Human Rights has said fall under sex as a prohibited ground of discrimination) and arguably exhibit racial and regional bias.

Whatever Convention rights are invoked, the ECtHR will have to decide whether any infringement is legally justifiable. To begin, any potential infringement of Article 8 must be “in accordance with the law” – that is, it must have some basis in domestic law. However, unlike antidoping rules enacted by public authorities – which the ECtHR has held meet this test – the Regulations at issue in Semenya’s case are not part of Swiss law or based on any international treaty. Switzerland will therefore be in the strange position of defending Regulations enacted by a private association located in Monaco.

In this regard, Switzerland will have to establish that the Regulations pursue one of the legitimate aims identified in the ECHR. The ECtHR has previously recognized “fair play and equality of opportunity” in sport as constituting such an aim. More critically, however, Switzerland will have to establish that the Regulations are “necessary in a democratic society” to achieve this aim. In addition to the evidentiary shortcomings discussed already, it is not clear that the Regulations serve a “pressing social need” like antidoping “whereabouts” rules do, according to the ECtHR. The need for the latter was based on abundant State-adduced evidence that doping harms the physical and mental health of athletes and sets a dangerous example for youth. The “danger” that Switzerland is seeking (or allowing World Athletics) to avoid in Semenya’s case is much less apparent. In fact, it is Semenya and other athletes targeted by the Regulations, as well as the youth that look up to them, that are put most at risk.

It therefore cannot be said that the ECtHR has established a blanket principle that the pursuit of fairness can justify serious infringements of athletes’ rights, as the SFT implied in its decision (para. 9.8.3.3). Surely mandating medically unnecessary drug use (or surgery) for certain athletes, as a condition of eligibility for the female category of competition, is not analogous to prohibiting it (with therapeutic use exemptions) for all athletes.

In any case, the ECtHR’s practice is to “balance” individual interests and the interests of the community as a whole. But who makes up the relevant community? The majority of the CAS panel found, for example, that because of “constraints on the [its] competence and role” it was neither necessary nor appropriate for it to consider “the possible wider impact” of the Regulations outside the “segment of society” governed by World Athletics (para. 589). However, it is not just Semenya’s athletic career, but her entire life, that is affected by the Regulations. Likewise, it is not just elite women athletes without intersex traits who comprise the community with interests at stake (and little evidence has been adduced to characterize these interests). A much broader community may have an interest in seeing the unhindered potential of every athlete on display, and the whole of the LGBTQI+ community may have an interest in avoiding the stigmatization that flows from mandatory “normalization” procedures in any sphere of life. The fact that sport is ��a massively visible social practice, extensively relayed worldwide” makes it all the more important which community or communities are counted and valued in the Court’s assessment.

Finally, the scope of the relevant community will also be important to the ECtHR’s consideration of whether there is a relevant European consensus, which in turn informs how great a “margin of appreciation” (i.e. degree of deference) is to be granted to Switzerland. There may be a common European approach reflected in the calls of the Commissioner for Human Rights and the Parliamentary Assembly to end medically unnecessary sex-“normalizing” interventions without free and fully informed consent. When it comes to sport eligibility rules, though, it could be said that the common approach is to defer to private international governing bodies like World Athletics. But any such “consensus by omission” only highlights the structural failure of States to uphold – proactively, where necessary – human rights in the context of sport. Indeed, World Athletics’ Regulations prevent any consensus (or lack thereof) from emerging among States by restricting athletes’ access to domestic courts. Therefore, Switzerland – as the home of the CAS – and the SFT – as the judicial authority with exclusive jurisdiction to review CAS awards – would seem to have a unique responsibility to secure the human rights of athletes. In other words, because Switzerland is effectively speaking for a worldwide community, its margin of appreciation should be very narrow.

When it comes time for the ECtHR to consider the merits of Semenya’s application, it will have to decide whether the paradoxical concept of “sport sex“, as upheld by the SFT, can be sustained in accordance with the ECHR. The limitations of the judicial processes to date point to the potential – if not the promise – of the ECtHR to (re)consider the full range of facts and to directly apply human rights law within athletics. Whatever the ECtHR decides, its decision will have significant implications far beyond both Switzerland and sport.

 

The author gratefully acknowledges Gráinne de Búrca, Antoine Duval, Katrina Karkazis, and Gabriele Wadlig for their input on this piece.

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