Close to 100 participants from 37 different countries attended the first ISLJ Annual International Sports Law Conference that took place on 26-27 October 2017 in The Hague. The two-day programme featured panels on the FIFA transfer system, the labour rights and relations in sport, the protection of human rights in sport, EU law and sport, the Court of Arbitration for Sport, and the world anti-doping system. On top of that, a number of keynote speakers presented their views on contemporary topics and challenges in international sports law. This report provides a brief summary of the conference for both those who could not come and those who participated and would like to relive their time spent at the T.M.C. Asser Institute.

Day 1

Opening Keynote by Miguel Maduro

The audience did not have to wait long for one of the highlights of the conference as Miguel Maduro, a former Chair of the FIFA Governance Committee, took the floor immediately after Johan Lindholm, an Editor-in-Chief of the International Sports Law Journal, and Antoine Duval, the Head of the Asser International Sports Centre, had delivered their opening speeches. Drawing on his experience as a Chair of the FIFA Governance Committee, Miguel identified the resistance to public scrutiny, accountability and transparency as root causes of the governance crisis currently faced by FIFA. He suggested that an independent international agency be established to supervise the governance of international sports governing bodies. According to him, only the European Union is capable of taking such an initiative.

Panel Sessions

The first panel, chaired by Johan Lindholm, revolved around the FIFA transfer system. Jakub Laskowski from Legia Warszawa explained why we might need a different approach to solidarity in professional football. Eleanor Drywood from the University of Liverpool then examined the FIFA's ban on the international transfer of minors, suggesting that international sports governing bodies in general, and FIFA in particular, should take account of the United Nations Convention on the Rights of the Child in order to enhance the protection of minors in sport. Finally, William McAuliffe, a sports lawyer practising in Switzerland, spoke about buy-out clauses and the club's consent to transfer under the FIFA Regulations on the Status and Transfer of Players.

The afternoon session started with a panel on the labour rights and relations in sport chaired by Professor Richard Parrish from Edge Hill University. Jack Withaar from Tilburg University focused on employment contracts in professional sport, concluding with the question whether international sports federations should take into consideration labour standards elaborated by the International Labour Organization. Thereafter, Matthew Graham from the World Players Association shared his insights on the functioning of international players' unions. Finally, Andrea Cattaneo from Edge Hill University encouraged a greater use of social dialogue to regulate professional football.

The last panel of the day, chaired by Professor Mark James from Manchester Metropolitan University, tackled a relatively new topic in international sports law – the protection of human rights. Whereas our research intern Tomáš Grell and Daniela Heerdt from Tilburg University discussed how human rights could be affected by the organisation of a mega-sporting event, Brendan Schwab from the World Players Association shed light on the more specific human rights risks faced by professional athletes. Both Tomáš Grell and Daniela Heerdt agreed that international sports governing bodies need to translate their human rights commitments from bidding and hosting agreements to actual practice. Brendan Schwab, for his part, emphasised that sportspeople are human first and athletes second, and introduced the World Player Rights Policy adopted by the World Players Association in July 2017.

Keynote Discussion between Michael Beloff QC and Sean Cottrell

Throughout his more than 50-years-long career in sports law, Michael Beloff QC, also known as one of the 'godfathers of sports law', has witnessed first-hand the professionalization of sport. This and many more aspects of his truly exceptional career as a sports lawyer featured in his keynote discussion with Sean Cottrell from LawInSport (a trusted media partner of the conference). Michael also touched upon some of the contemporary sports law themes, among which the lack of gender equality in the composition of international sports governing bodies, the role of athletes in good governance of sport, inaccuracies in sporting regulations or transparency at the Court of Arbitration for Sport.   

Day 2

Keynote Lecture by Stephen Weatherill

The second day also kicked off with a keynote lecture, this time delivered by Professor Stephen Weatherill from Oxford University, who examined the conditional autonomy enjoyed by international sports governing bodies under EU law. Against the background of UEFA's Financial Fair Play rules or the FIFA's ban on third-party ownership, he explained how sporting rules that would otherwise be incompatible with EU law could nevertheless be justified on account of the specific nature of sport, what he called the 'sporting margin of appreciation'. However; he also criticised the pyramidal structure of international sport for not allowing those at the bottom end (athletes and clubs) to participate in decision-making processes of international sports governing bodies.

Morning Session

The first panel of the day, chaired by Ben Van Rompuy from Leiden University, offered some interesting perspectives on the application of EU law to sport. Stefania Marassi from The Hague University of Applied Sciences explored the policies adopted by the European Union with a view to contributing to the promotion of sporting issues in line with Article 165 of the Treaty on the Functioning of the European Union. Christopher Flanagan, a lawyer practising in England, discussed why attempts to regulate the financial aspects of professional football are met with challenges under EU law. Employing FIFA's private order as a case study, Branislav Hock from the University of Portsmouth argued in his presentation that successful private modes of governance continuously emerge from public interventions, provided that the public acts as a reversed civil society. It is worthwhile to note that Branislav won the award for the best paper presented at the conference.

Thanks to Women in Sports Law, an association that unites women from more than 40 countries who specialise in sports law, the conference also continued over lunch. Lindsay Brandon, a sports lawyer practising in the United States, and Despina Mavromati, a Co-Founder of Women in Sports Law and a former Managing Counsel at the Court of Arbitration for Sport, talked about the current state of whereabouts requirements in the world anti-doping system. They were joined in the discussion by Professor Richard McLaren.

Keynote Lecture by Richard McLaren

After lunch, Professor Richard McLaren from Western University in Ontario, the former head of WADA's investigation into the Russian doping scandal, spoke about broader challenges to the operation of the world anti-doping system. Among other things, he stressed that athletes have a crucial role in uncovering doping practices, as they know much more about these practices than anybody else. Having insisted that whistleblowers are of utmost importance, he also criticised the International Olympic Committee for its treatment of the Russian athlete Yuliya Stepanova who was eventually blocked from competing at the Rio Olympics despite her exceptional contribution to the fight against doping. In more general terms, Richard asserted that the integrity of sport is threatened not only by doping but also by archaic governance, corruption or match-fixing.

Afternoon Session

After the lecture given by Richard McLaren, the conference continued with a panel on international sports arbitration chaired by Despina Mavromati. Howard Jacobs, an American sports lawyer, together with Lindsay Brandon from his office, discussed the proposal to create a permanent anti-doping division at the Court of Arbitration for Sport. Professor Jernej Letnar Černič from the Graduate School of Government and European Studies in Ljubljana then looked at how the guarantee of a fair trial could be strengthened in proceedings before the Court of Arbitration for Sport. Finally, Kazushige Ogawa from Rikkyo University in Tokyo shared his insights on the functioning of the Japan Sports Arbitration Agency.

The last panel of the conference, chaired by Antoine Duval, addressed one of the most pressing issues in the world of sport – the fight against doping. Kelsey Erickson from Leeds Beckett University examined a range of psychological factors influencing athletes who intend to blow the whistle on doping. Jan Exner from the Czech Olympic Committee focused on the sanctions for anti-doping rule violations, suggesting that a four-year period of ineligibility might be disproportionate. Finally, our last speaker Louise Reilly, an Irish barrister and a former counsel at the Court of Arbitration for Sport, provided a precise overview of jurisprudence dealing with intentional anti-doping rule violations under the 2015 World Anti-Doping Code.

A thank you note

We would like to take this opportunity to thank all the speakers and participants not only for joining but also for actively contributing to the very rich discussions that followed after each session. We hope that this is only the beginning and that the ISLJ Annual International Sports Law Conference will become a tradition in the coming years. For those who did not have the chance to attend, the ISLJ will publish a special issue including the papers of the conference, so stay tuned!

Looking forward to seeing you next year,

The team of the Asser International Sports Law Centre

PS: Feel free to leave us comments with your feedback/suggestions, so that we can work on improving the conference.

There has been a lot of Commission interest in potential state aid to professional football clubs in various Member States.  The huge sums of money involved are arguably an important factor in this interest and conversely, is perhaps the reason why state aid in rugby union is not such a concern. But whilst the sums of money may pale into comparison to those of professional football, the implications for the sport are potentially no less serious.

At the end of the 2012/2013 season, Biarritz Olympique (Biarritz) were relegated from the elite of French Rugby Union, the Top 14 to the Pro D2.  By the skin of their teeth, and as a result of an injection of cash from the local council (which amounted to 400,000€), they were spared administrative relegation to the amateur league below, the Fédérale 1, which would have occurred as a result of the financial state of the club. Article 8 of the Statuts et Règlements Générqaux (the rules that govern professional rugby) states that if it is determined by the DNACG (Direction Nationale d’Aide et de Contrôl de Gestion; the organisation charged with overseeing the administrative, financial and legal aspects of rugby in France) that a professional team is unable to satisfy its projected financial commitments, it will be relegated to the amateur leagues. Biarritz have been one of the great Top 14 clubs, having won the league in 2005 and 2006, having reached the Heineken Cup final in 2010 and won the smaller of the European competitions, the Challenge Cup in 2012 and they look set to make their return to the Top 14 next year, something that would not have been possible had the local council not intervened, an intervention that was permitted by the DNACG.

Article 107 TFEU provides for a very inclusive definition of state aid, declaring as incompatible with the internal market any aid whatsoever, granted by the State or funded with state resources, which distorts or threatens to distort competition by favouring certain undertakings in so far as it affects trade between Member States. There is a four part test for determining whether or not state aid has been granted; (i) did the money come from state resources; (ii) was it given to an undertaking; (iii) did that money confer selective advantage; and (iv)did it have the potential to distort competition. 

The definition of state resources in this context is fairly wide, and covers money provided by local government and so is easily satisfied in this case. The European jurisprudence is clear that a sporting club or association can be considered to be an undertaking within the meaning of the Treaty provisions in so far as its economic activity is concerned; again, this is easily satisfied in this instance. Given the lack of information available as to the nature of Biarritz’s financial concerns or the terms of the grant, it is difficult to determine whether selective advantage has been conferred by the grant. Selective advantage, of this particular type, is conferred when the undertaking could not have obtained that economic advantage under normal market conditions (market economy operator principle), so had Biarritz been unable to obtain a grant on similar terms to that which was provided by the Council, selective advantage will have been obtained. Finally, the aid has to have the potential to distort competition, and idea that is explored below alongside its affect upon trade between Member States.  

The Pro D2 is an entirely domestic league, it has no international fixtures whatsoever, so potentially is a purely domestic matter. In Stevenage Borough Football Club v The Football League (1996) Times Law Review, 6 July, it was deemed too remote that Stevenage would be able to compete for a place in European competitions and so there was no effect on trade between Member States in that case. However, the Commission have been clear that trade between Member States may be affected by aid given to an undertaking that is not itself, trading across borders (Case C-102/87 France v Commission [1988] ECR 4067, para.19) and indeed, have recently opened an investigation into a second division football team in the Netherlands. The Stevenage case can be contrasted with Biarritz where, despite a rocky start to the season, they have now climbed the table and sit second place. They have a serious chance of being promoted back into the Top 14, or at the very least, occupying one of the coveted promotion playoffs spots, thereby altering who could potentially win promotion (in France two teams go up and two teams come down).  Every team in the Top 14 competes in one of two European competitions: the European Championship Cup or the European Challenge Cup.  The potential effect on trade between Member States starts therefore, to become more evident. The concept of ‘trade between Member States’ has traditionally been given a wide interpretation and can be said to include situations which affect the competitive structure of the market, within its scope. The Top 14 has fixtures with other European countries, including England, Ireland and Italy.  Who enters (and who leaves) therefore will affect the competitive structure of those international fixtures. Article 107 however, states that aid is only prohibited ‘in so far as it’ has an effect on trade between Member States, rather than in Article 101 or 102 which rely on ‘may’ as a limiting concept. The jurisprudence is clear that it is the effect of the aid, rather than the intent or form of the aid which is determinative.  A full market analysis of the effect on trade, as occurs under Article 101 and 12, is not required under Article 107, although justification for the finding of a distortion of competition, or threatened distortion, would be necessary (Case 730/79 Philip Morris Holland BV v Commission, [1980] ECR 2671). In the case of Biarritz, the provision of the 400,000€ saved the team from relegation to the Fédéral 1 and therefore put them in a position in which they could immediately fight for promotion back into the Top 14 (which they look likely to achieve). It does not appear therefore, that an investigation would stumble at this stage of its inquiry.   

Due to the inclusive nature of the Article 107 prohibition, many investigations turn on whether they satisfy the exemption criteria of 107(3). The one most typically utilised in the case of investigations of professional football clubs in 107(3)(c) which states that aid used to facilitate the development of certain economic areas or activities may not be incompatible with the internal market, or the ‘failing firm’  defence. The local mayor hinted at the economic implications for the town itself of the teams fall from professionalism, as the primary motive for providing the aid. There is however, no (public) suggestion that the club would have folded without the injection of cash, merely that it would have had to compete in the amateur Fédérale 1. The definition of a failing firm is necessarily flexible. Nevertheless, it is a requirement when considering rescue aid (as opposed to restructuring aid as appears to be the case here) that the difficulties faced by the firm be short/medium term difficulties that are dependent upon short term government help for their resolution. As Biarritz have performed so well this season, it seems that there is an argument to be made that their difficulties were indeed short-term in nature, and have been resolved by the injection of cash provided by the local council. The aid itself would also have to be a ‘one time, last time’ injection of financial help, something that is not entirely clear from the local media reports. Further, the question of whether demotion to an amateur league is comparable to the outright failure of a firm would have to be addressed. Fellow former Top 14 great and rival, Union Sportive Montalbanaise (Montauban) faced administrative relegation in 2010. The local council there did not provide the club with the money required to prevent their fall. The club filed for bankruptcy after being unable to prove to the DNACG that they would be able to address the rumoured 1.7 million Euro shortfall in their budget for that season. After 4 years in the amateur league they succeeded in winning promotion back into the Pro D 2 for the 2014/2015 season, where they currently sit mid-table. Using this as an example, and provided that the criteria laid out in 3.1.1. of the Community Guidelines on State Aid for Rescuing and Restructuring Firms in Difficulty are satisfied, it seems there is at least a basis for defending the council loan. 

However, as there is very little by the way of detailed information available as to the nature of the financial difficulties of the club or the terms of the financial assistance provided by the Council, it is impossible to be determinative as to its standing under Article 107. On the face of it though, the case of Biarritz looks at least worthy of some Commission interest and could well be an example of unlawful state aid, aid that looks likely to have enabled Biarritz re-admittance to the Top 14, the ‘richest league in the world’. 400,000€ may seem like peanuts when compared with the figures the Commission is looking at in respect of professional football, but in this case it seems, paying peanuts gets you a lot more than monkeys.