The editorial board of the International Sports Law Journal (ISLJ) is very pleased to invite you to submit abstracts for its first Annual Conference on International Sports Law. The ISLJ, published by Springer in collaboration with ASSER Press, is the leading publication in the field of international sports law. Its readership includes both academics and many practitioners active in the field. On 26-27 October 2017, the International Sports Law Centre of the T.M.C. Asser Instituut and the editorial board of the International Sports Law Journal will host in The Hague the first ever ISLJ Annual Conference on International Sports Law. The conference will feature panels on the Court of Arbitration for Sport, the world anti-doping system, the global governance of sports, the FIFA transfer regulations, comparative sports law, and much more.

Abstracts could, for example, tackle questions linked to the following international sports law subjects:

• The interaction between EU law and Sport 
• International sports arbitration (CAS, BAT, etc.)
  
• The functioning of the world anti-doping system (WADA, WADC, etc.)
  
• The global governance of sport
  
• The regulation of mega sporting events (Olympics, FIFA World Cup)
  
• The international regulation of football (FIFA Regulations on the Status and Transfer of Players and UEFA Financial Fair play Regulations)
  
• The global fight against corruption in sport
  
• Comparative sports law

Your abstract (no more than 300 words) and your CV should be sent no later than 15 May 2017 to Antoine Duval. Selected speakers will be informed by 30 May.

The ASSER Institute will offer one night accommodation for the speakers and will provide a limited amount of travel grants. If you wish to be considered for a grant please provide an explanation in your submission.

ISLJ Awards: The three best papers of the conference will receive an ISLJ award and their authors will be given the opportunity to publish them in the ISLJ.

 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 CAS award in Joseph S. Blatter v. FIFA

In the first half of March, the CAS published its long-awaited award in the arbitration procedure between FIFA’s former President Mr Joseph S. Blatter and FIFA itself. The Panel dismissed the appeal filed by Mr Blatter against the decision rendered by the FIFA Appeal Committee on 16 February 2016. As a result, Mr Blatter remains banned from taking part in any football-related activity at national and international level for six years as of 8 October 2015.

The dispute in question concerned (i) a payment of CHF 2,000,000 made by FIFA to Mr Michel Platini in early 2011 allegedly remunerating work performed by Mr Platini for FIFA between January 1999 and June 2002; and (ii) Mr Blatter’s alleged authorization which entitled Mr Platini to receive credit towards his FIFA ExCo pension fund for his service to FIFA from 1998 to 2002. With regard to the former, the Panel held that assuming there actually had been an oral agreement between Mr Blatter and Mr Platini dating back to 1998, such an agreement would nevertheless have been superseded by the written employment contract signed in August 1999 (according to that contract, Mr Platini were to be remunerated ‘only’ CHF 300,000 a year). Consequently, the Panel concluded that there was no contractual basis for the payment of CHF 2,000,000 in favour of Mr Platini. In respect of the second point of contention, namely the contribution towards Mr Platini’s FIFA ExCo pension fund, the Panel held that Mr Platini was simply not entitled to receive such a contribution for his service to FIFA from 1998 to 2002, as he became a member of the FIFA Executive Committee only in 2002.

The CAS award in Seraing FC v. FIFA 

The dispute between the Belgian football club Seraing FC and FIFA has its roots in the decision rendered by the FIFA Disciplinary Committee in September 2015. In this decision, the FIFA Disciplinary Committee imposed a transfer ban (four consecutive registration periods) and a fine of CHF 150,000 on Seraing FC for violating Articles 18bis and 18ter of the Regulations on the Status and Transfer of Players which prohibit the third-party influence on clubs and the third-party ownership of players’ economic rights (TPO) respectively. The Belgian club challenged the said decision (as confirmed by the FIFA Appeal Committee) before the CAS.

In its press release dated 10 March 2017, FIFA expressed its content with the award delivered by the CAS. According to FIFA, ‘the CAS has recognized and confirmed the validity of FIFA’s ban on TPO, which was adopted in order to preserve the independence of clubs and players in matters of recruitment and transfer, and to ensure the integrity of matches and competitions’. The CAS has not yet published the award, nor has it issued any statement in this regard.

WADA calls upon athletes and other persons to ‘Speak Up!’ 

On 9 March 2017, WADA launched a new digital platform called ‘Speak Up!’, which seeks to encourage athletes and others to come forward and report (i) alleged Anti-Doping Rule Violations under the World Anti-Doping Code (Code); (ii) non-compliance violations under the Code; or (iii) any act or omission that could undermine the fight against doping in sport. On this occasion, WADA’s Director General, Mr Olivier Niggli, stated that ‘WADA’s independent Pound and McLaren Investigations, which were both triggered by whistleblowers, highlighted the importance of these individuals to the Agency and to clean sport on the whole’. The platform is accessible via a secure app for iPhone and Android phones.

Sports Law Related Decisions

• CAS – Award delivered in the arbitration between Mr Alex Schwazer and IAAF
• CAS – Award delivered in the arbitration between Mr Arijan Ademi and UEFA
• CAS – Award delivered in the arbitration between Mr Joseph S. Blatter and FIFA
• Sport Resolutions (UK) – Award delivered in the arbitration between Aljaž Bedene, The Lawn Tennis Association Limited (applicants) and ITF (respondent)

Official Documents and Press Releases

• CAS – CAS registers two appeals filed by the Bolivia Football Federation
• CAS – Dr Sergei Portugalov sanctioned with lifetime ban
• CAS – FIS refers the case of Therese Johaug to the CAS
• CAS – Harold Mayne-Nicholls files an appeal at the CAS
• CAS – Settlement agreement in the case of FK Partizan v. UEFA
• FIFA – Circular on ‘Limited minor exception’
• FIFA – FIFA completes internal investigation, shares findings with authorities
• FIFA – FIFA rejects appeal of Sevilla FC against sanctions under third-party influence rules
• FIFA – FIFA suspends Malian Footbal Association
• FIFA – FIFA welcomes CAS award recognising compatibility of TPO ban with EU law
• FIFA – Human Rights Advisory Board meet in Zurich
• FIFA – Informative note on the eligibility checks
• FIFA – Match official banned for life due to match manipulation
• FIFPro – Football player sanctions: Legal opinion
• IOC – Declaration of the IOC Executive Board
• IOC – IOC launches bold initiative on gender equality
• UEFA – Zero tolerance for match-fixing
• WADA – The athlete voice, compliance and whistleblowing take centre stage at WADA Annual Symposium
• WADA – WADA encouraged by signs of progress within Russia after President Vladimir Putin urges country to heed demands of McLaren Investigation
• WADA – WADA launches ‘Speak Up!’ – A secure digital platform to report doping violations
• WADA – WADA removes Spain from the list of Signatories deemed non-compliant with the World Anti-Doping Code

In the news

Doping 

• Anti-Doping Database FIS wants reasonably extended ban for Norwegian cross-country skier
• Nick Butler Anti-doping claimed to cost sport $ 300 million each year
• Nick Butler Isinbayeva reappointed head of Russian Anti-Doping Agency in face of WADA opposition
• Nick Butler USOC propose exclusion of Olympic officials from WADA governance
• Daniel Etchells iNADO publishes list of measures aimed at reforming WADA’s governing structures
• Global News World Anti-Doping Agency headquarters staying in Montreal until at least 2021
• Le Monde L’Agence mondial antidopage exige un système transparent
• Sputnik International Putin denies state-sponsored doping in Russia, vows to boost anti-doping efforts
• Sputnik International WADA needs Russian Anti-Doping Agency back in fold to secure funding

Football

• BBC Franz Beckenbauer questioned by prosecutors in 2006 World Cup fraud inquiry
• Andy Brown FA publishes written reasons for Manchester City ‘whereabouts’ fine
• Daily Sabah CAS rejects Trabzonspor’s appeal against UEFA’s match-fixing decision
• David Davutovic Exciting Australian prospect Seb Pasquali still waiting for FIFA clearance to join Ajax youth team
• Graham Dunbar FIFA to review pay, pension deals for Council members
• Rob Harris Russia World Cup head Vitaly Mutko barred from FIFA Council
• Elias Meseret Hayatou’s reign ends as African soccer head and FIFA VP
• Reuters Argentine FA faces possible FIFA ban
• Reuters FIFA looks to ease the fixture burden on players
• TASS Russian football player Eremenko to challenge UEFA’s decision with CAS
• The Guardian – Premier League launches major fightback against illegal streaming
• The Guardian – UEFA President hints at luxury tax and transfer changes to rein in rich clubs
• Max Winters – Equatorial Guinea launch CAS appeal against international football tournaments ban
• Yahoo! Sports FIFA ban Nigeria’s Adamu for two years

Other

• Yann Bouchez Evidence of corruption over Rio’s bid for the 2016 Olympic Games
• Nick Butler Paris 2024 become first Olympic bid to receive sustainability award
• Reuters Athletics: Fredericks steps aside from IAAF Taskforce
• Reuters IOC Ethics Committee looks into Rio payment claims
• The Times of India IOC cuts off funding to Kenya, suspension possible next week

Academic Materials

• Antoine Duval The Russian Doping Scandal at the Court of Arbitration for Sport: Lessons for the World Anti-Doping System
• Mathieu Maisonneuve Le Tribunal Arbitral du Sport et les Droits Fondamentaux des Athlètes
• Oskar van Maren How to bail out your local club: The application of the State aid rules to professional football clubs in financial difficulty
• Despina Mavromati Swiss Law in Doping Cases
• Peter Heermann Die Sportschiedsgerichtsbarkeit nach dem Urteil des BGH im Pechstein-Verfahren

Blog

Asser International Sports Law Blog

• Ryan Gauthier Kosovo at the Court of Arbitration for Sport – Constructing Statehood through Sport?
• Tomáš Grell FIFA’s Responsibility for Human Rights Abuses in Qatar – Part II: The Zurich Court’s Ruling

Law in Sport

• Phil Bonner Football’s zero tolerance rule on betting bites once again – Wayne Shaw pie eating case
• Terry Brennan How MLS’ single entity status works and its relationship with antitrust law
• Sean Cottrell Inclusive sport – Transgender participation
• Adam Osper Why athletes should consider career-ending insurance to protect against serious injuries
• Libby Payne, Andy Carruthers How football clubs must change to meet the needs of disabled fans
• Andrew Smith ‘Speak up!’ WADA’s recent reforms to its whistleblowing policies, procedures and systems
• Erin Stephens A guide to the UK’s new Code for Sports Governance
• Lloyd Thomas Should managers be required by regulation to pick full-strength sides?
• Lloyd Thomas The dangers of copyright disputes arising from the use of football club badges

Others

• Jens Andersen Anti-doping: Give WADA more owners and strengthen global commitment
• Andy Brown US anti-doping hearing: Stop the fox guarding the henhouse
• Andy Brown Weathering the storm – interview with Papa Massata Diack
• Josimar The slaves of St Petersburg
• Simon Leaf Article 50 and sport: What triggering of Brexit process could mean for Britain’s sport industry, from player transfers to stadium projects and intellectual property
• Keir Radnedge Swiss left holding the baby as FIFA wraps up its own inquiry into culture of corruption
• Rebecca Ruiz Willing to blow the whistle on doping? New legal aid group wants to help
• Rory Smith UEFA’s new President, Aleksander Ceferin, craves plenty of change in his staid sport

Upcoming Events

• 28-29 April – 2017 Macolin Anti-Doping Summit: A Fresh Look at the Science, Legal, and Policy Aspects of Anti-Doping, Swiss National Sports Centre, Macolin (Magglingen) Switzerland
• 7-9 June – International Conference on Doping and Public Health, Thon Hotel Ullevaal Stadion, Oslo, Norway
• 29-30 June – Sport & EU 12^th Annual Conference, Molde University College, Molde, Norway

On 6 October 2014, the CAS upheld the appeal filed by the former General Secretary of the World Karate Federation (WKF), George Yerolimpos, against the 6 February 2014 decision of the WKF Appeal Tribunal. With the award, the CAS confirmed a six-months membership suspension imposed upon the Appellant by the WKF Disciplinary Tribunal.[1] At a first glance, the case at issue seems to be an ordinary challenge of a disciplinary sanction imposed by a sports governing body. Nevertheless, this appeal lies at the heart of a highly acrimonious political fight for the leadership of the WKF, featuring two former ‘comrades’:  Mr Yerolimpos and Mr Espinos (current president of WKF). As the CAS puts it very lucidly, "this is a story about a power struggle within an international sporting body"[2], a story reminding the Saturn devouring his son myth.

This case, therefore, brings the dirty laundry of sports politics to the fore. Interestingly enough, this time the CAS does not hesitate to grapple with the political dimension of the case.

Background and Facts of the Case: ‘The K on its way’ to leadership battles 

The third successive failure of the WKF to have Karate included in the Programme of the 2020 Tokyo Olympics -after the failed campaigns for inclusion in the 2012 London and 2016 Rio Olympics, respectively- spared disappointment in the ranks of the WKF and gave rise to a political war, led by the former ‘crony’ Mr Yerolimpos who used these failures to challenge WKF president Espinos. 

In the wake of concerns raised by some members of national Karate federations, in June and July 2013, the Appellant emailed the WKF Treasurer twice, questioning the lack of transparency on financial matters and challenging the leadership of the current president. The second email where the Appellant directly accused  Espinos of serious mismanagements was copied to all Executive Committee (EC) members and to the presidents of all Karate NF‘s. Following this “dirty manifesto” - in the words of WKF Treasurer[3], Espinos considered that the Appellant’s behavior amounted to a serious breach of the necessary relationship of confidence with the president. As a result, by application of Article 14.7 of the WKF Statutes, he revoked by email the Appellant from his position as Secretary General of WKF. The email battle continued with the Appellant accusing Espinos of manipulating the democratic processes. However, on 14 August 2013, the Appellant’s revocation was ratified by the EC members through an electronic vote, pursuant to Article 13.20 of the WKF Statutes. 

Then, on a request by the WKF Executive Bureau, the Disciplinary Tribunal (DT) of the WKF Disciplinary Legal Commission (TDC) opened disciplinary proceedings against the Appellant in order to examine whether the Appellant’s emails resulted in infringement of Article 9 of the WKF Statutes[4], i.e. his duty to act in a manner commensurate with his role at the WKF. On 30 October 2013, the DT decided to suspend the Appellant from membership of the WKF and EC for six months. It found that the Appellant’s conduct was in breach of his duties entrenched in Articles 9 and 13.2.5 of the WKF Statutes, since his criticism against the WKF president relied on subjective, unproven and unsubstantiated considerations.  More importantly, his criticism was directly circulated to the Karate NFs, without having previously debated them within the WFK Executive Bureau. The DT decision was appealed before the WKF Appeal Tribunal (AT), which on 6 February 2014 confirmed the first instance decision, finding that the content of the Appellants’ emails was prejudicial, defamatory, amounting to a serious violation of Article 9.2 and 13.25 (3) of the WKF Statutes. 

Lastly, the Appellant’s appeal before CAS dating from 26 February 2014, was set aside on 6 October 2014.       

Two main axes in the CAS reasoning 

In his appeal, the Appellant submitted a set of contentions. Specifically, he alleged: (1) the improper initiation of the disciplinary proceedings; (2) the non-identification of relevant offence in Articles 9 and 13.25.3 of the WKF Statutes; (3) the non-violation of these articles by the Appellant; (4) the violation of the principle ne bis in idem in double sanctioning the Appellant; (5) the violation of due process by the DT and AT Panels and finally; (6) the violation of the principle of proportionality in the sanctions imposed by the DT and AT Panels. 

The main focal point of the dispute lies on whether the Appellant’s defamatory emails constitute a serious misconduct and breach the relevant disciplinary provisions of the WKF Statutes. Therefore, this commentary will focus on how the CAS dealt with the interpretation of the disciplinary provisions laid down in Articles 9 and 13.25.3 of the WKF Statutes. Particularly, the commentary will map the CAS reasoning on the following issues: (a) the nature of the misconduct proscribed by the disciplinary provisions of the WKF Statutes and (b) the assessment of the duties bearing on the General Secretary of WKF in the political context of this case.

(a)The violation of Articles 9 and 13.25.3 WKF Statutes.

It is well established that a sports governing body may impose disciplinary sanctions upon its members if they are found guilty of a disciplinary offence, which has to be enshrined in the applicable rules and regulations. In the case at hand, before examining whether the Appellant by sending the above mentioned emails acted in violation of Articles 9and 13.25.3[5] WKF Statutes, the CAS has to examine what type of conduct is covered by these disciplinary provisions. In other words, how do the Articles 9 and 13.25.3 define the offence committed by the Appellant, i.e. the violation of his duty to act in the best interests of the WKF?

Firstly, the CAS takes into account that, in principle, the disciplinary provisions of sports governing bodies statutes are broadly drafted and, therefore, the principle of criminal law nulla poena sine lege does not apply in the case at issue. However, the question remains whether the broadly drafted Articles 9 and 13.25.3 encompass the allegedly offensive behavior of the Appellant. According to the Panel, it is not sufficient that the drafters of the WKF disciplinary provisions intended to entail “the multifarious forms of behavior considered unacceptable” [6] in karate, but whether they actually achieved it. Concretely, as far as Article 9.2 is concerned, the CAS proceeds by identifying two separate obligations for the members: the first entails compliance with the rules of the sport and the second refers to the maintenance of an appropriate conduct in any activity performed. Following an interpretation of the wording of Article 9.2 and particularly of the word "maintaining" which lies between the two obligations (as juxtaposed to the meaning of the word "gardant" in the French version of Article 9.2) the CAS concludes that there is an inextricable link between these obligations.[7] As a result, Article 9.2 sets two prerequisites for the fulfillment of the duty imposed: the members should comply with the rules of sport and additionally should adopt the appropriate demeanour. In practice, this means that at first, a rule has to be breached. While in the case at hand the CAS accepts that the rules of sport can be interpreted in a broad manner and refer not only to the rules of karate itself, the CAS notes that neither the Respondent nor the Panel have identified a rule proscribing the alleged offensive behavior of the Appellant. Thus, the inappropriate conduct of the Appellant cannot amount to a violation of the duty enshrined in Article 9.2.

With regard to the interpretation of the General Secretary’s duties laid down in Article 13.25.3, the CAS remarks that its scope does not overlap with Article 9.2. However, even if Article 13.25.3 is examined in isolation of the requirements of the other disciplinary provisions, the CAS notes that the Appellant’s conduct cannot be considered as amounting to an inappropriate demeanour in fulfilling his duties of maintaining relations with international federations. Indeed, the Appellant’s emails entailed a criticism against the president, involving national federations as well, but according to the CAS this criticism does not constitute a breach of the duty envisaged in Article 13.25.3.

Therefore, having concluded that the alleged conduct of the Appellant does not constitute the subject matter of any offence provided in the relevant regulations, the question whether the Appellant acted in breach of any rule has been rendered moot.

(b) The freedom of speech of the General Secretary of WKF

As mentioned above, the CAS had not identified a violation of the existing disciplinary provisions of the WKF. Nevertheless, it felt the remarkable urge to complement this reasoning with a broader reflection on the freedom of speech in sports governing bodies. To this end, the panel engaged in a very interesting dictum: "The Panel, however, because of first the importance of the issues; secondly out of respect for the excellent way in which the submissions were presented, thirdly against the contingency of an appeal on the Panels conclusion on the absence of any relevant offence in the WKF code, will deal with them succinctly".[8]

Herewith, the CAS underlines the right of the Appellant, and more generally of the members of sports governing bodies, to freedom of speech. This materializes more precisely in a fundamental right to criticize, in good faith, the acts and decisions of the governing authority, even if the criticism includes errors of facts. While the CAS acknowledges the political motives of the criticism, it underlines the valuable contribution of this criticism in exposing acts of mismanagement. These considerations on the democratic principle of the right to criticize those in positions of authority, are reinforced by the European Court of Human Rights’ (ECHR) jurisprudence and the principle enshrined in Article 10 of the European Convention on Human Rights.[9] In this sense, the panel takes two important steps. Firstly, it recognizes the controversial[10] applicability of rights enshrined in the European Convention on Human Rights to disciplinary proceedings of sports governing bodies, which are purely private entities, by indicating that the jurisprudence of ECHR is compulsive in jurisdictions to which it applies, and in any case is at least indicative. Secondly, the panel does not hesitate to take a clear position –from a sports politics point of view- establishing that the members of the sports governing bodies have a fundamental right to exercise their freedom of speech to criticize political authorities. It seems, therefore, that this CAS panel feels at ease with its role as a Supreme Court of Sports protecting the fundamental rights of the ‘citizens of world sports’.

In the second limb of its reasoning, the CAS suggests the rules of conduct that members of sports governing bodies should follow when exercising their established right to criticism.[11]Indeed, according to the CAS, the exercise of the right of freedom to speech is subject to two restrictions: the criticism which targets the authority of the sports’ governing body must be lawful and members must demonstrate self-restraint in the exercise of their right. In this light, the CAS finds that the Appellant did not act unlawfully or in bad faith, but he rather exceeded the limits by ignoring the internal procedures available to him. In other words, the Appellant erred in the way he chose to ventilate his criticisms against the current president. Thus, damaging the WKF’s image worldwide. This interpretation elaborated by the CAS seems to be inspired by the so called ‘balancing exercise’ between Articles 8 and 10 European Convention on Human Rights[12]: an interference in the internal affairs of a sports governing body can be justified when it is in accordance with the law and is necessary in the interests of the world sports community. 

Conclusion

In our previous blogpost, we described the CAS hands-off approach in a political conflict internal to a sports governing body. We suggested, instead, that a modicum of interventionism in sports politics would be compatible with the CAS role. In this light, the WKF case is a good illustration of a CAS panel delving into sports politics to uphold certain fundamental political rights. From the preamble to the conclusion of this award, the CAS did not hesitate to interpret the political motives of the parties and their subsequent acts. More importantly, taking into account the law making role of CAS panels in promoting consistency in international sports law, this CAS panel adds to the so-called lex sportiva a democratic resonance, preserving also the freedom of speech of members of sports governing bodies.

[1] CAS 2014/A/3516, George Yerolimpos v. World Karate Federation

[2] Ibid, para 1.

[3] Ibid, para 25.

[4] 9.1 National Federations and individual persons affiliated to the WKF shall undertake to comply with statutory norms, rules and regulations and all provisions issued by the Executive Committee.

9.2 Members shall undertake work in complete compliance with the rules governing the sport, maintaining a demeanour commensurate with the activity performed.

9.3 Any member in breach of the conditions as per points 9.1 and 9.2 above shall be liable to disciplinary action as set forth herein.

[5] The duties of a General Secretary shall be: (a) Execute the decisions taken by the Executive Committee;

(b)To maintain relationships with the continental federations, with the affiliated National Federations and with outside parties; (c) Draw up and take care of the minutes of the Executive Committee and of the Congress Meetings.

[6] CAS 2014/A/3516 (n1), para 105.

[7] Ibid, para 107.

[8] Ibid, para 115.

[9] European Convention on Human Rights, Article 10

Freedom of expression: 1. everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

[10]C Favre-Bulle and others, L’arbitrage et la Convention Européenne des Droits de l’Homme (2001), 73.

[11] CAS 2014/A/3516 (n1), para 117.

[12] ECHR 227 Axel Springer AG v Germany 39954/08 [2012] paras  84-95 & ECHR 228 Von Hannover v Germany (n2) 40660/08[2012] para 100 .