Editor’s note: Stefano Bastianon is Associate Professor in European Law at the University of Bergamo and lawyer admitted to the Busto Arsizio bar. He is also member of the IV^th Division of the High Court of Sport Justice (Collegio di Garanzia dello sport) at the National Olympic Committee.

1. From the very beginning, the outcome of the ISU case was highly predictable, at least for those who are familiar with the basics of antitrust law. Nevertheless, more than twenty years after the Bosman judgment, the sports sector has shown the same shortsightedness and inability to see the forest for the trees. Even this attitude was highly predictable, at least for those who know the basics of sports governance. The final result is a clear-cut decision capable of influencing the entire sports movement.

2. On the 8^th of December 2017, the European Commission ruled that ISU’s eligibility rules breached EU competition law. In particular, the Commission focused on the ISU’s eligibility rule, according to which speed skaters participating in competitions that were not approved by the ISU face severe penalties up to a lifetime ban from all major international speed skating events. The Commission found that such rules restrict competition and enable the ISU to pursue its own commercial interests to the detriment of athletes and organizers of competing events[1]. In sharp contrast with the Commission’s decision is the ISU’s statement published the same day. Indeed, according to the ISU the Commission’s decision is wrong because it fails to consider the specific nature of sports by putting commercial interests ahead of the principles of integrity, health and safety that protect fair play in sport. For this reason the statement ends with the ISU’s reserve to appeal the decision.

3. As it often occurs, small cases (that is cases involving almost unknown athletes or less popular sports and for this reason often underestimated) are able to generate consequences of great importance, presenting many aspects of interest to scholars of EU sports law: this is the case of the ISU affair.

4. First of all, it is a matter of common knowledge that the Commission tends not to intervene in cases dealing with regulatory and organizational aspects of sport. To this regard, it is sufficient to consider that in the 1999 Mouscron case the Commission took the view that the UEFA Cup rule requiring that each club must play its home match at its own ground ("at home and away from home" rule) was a sports rule that did not fall within the scope of the Treaty's competition rules and therefore rejected the complaint. In the 2001 FIA case the Commission closed various anti-trust investigations into certain regulations and commercial arrangements involving Formula One after the parties agreed to make changes which limited the FIA to a regulatory role, so as to prevent any conflict of interests and remove certain commercial restrictions imposed on circuit owners and TV broadcasters. Similarly, in the 2002 FIFA case, the Commission closed its investigation into the rules governing international transfers of football players, in which it formally rejected the complaints related to FIFA in the light of the adoption of new rules capable of balancing a player’s fundamental right to free movement and stability of contracts together with the legitimate objective of integrity of the sport and the stability of championships. Lastly, in the 2002 UEFA multi-ownership rule case the Commission established that the purpose of the rule was not to distort competition, but to guarantee the integrity of the competitions it organizes and rejected the complaint. More recently, in the 2011 Formula One Engine Manufacturers case and the 2014 Financial Fair-Play case the Commission rejected the complaints because of a lack of community interest. In this context, even from a purely statistical point of view, the ISU decision cannot be underestimated.

5. Secondly, one aspect of the importance of the ISU decision lies in the specific matter dealt with. Indeed, eligibility rules (although sometimes differently named) are a common element of many sports. For example the FINA General Rule 4, under the heading “Unauthorised relations”, states that

«no affiliated Member shall have any kind of relationship with a non-affiliated or suspended body (…). Any individual or group violating this Rule shall be suspended by the affiliated Member for a minimum period of one year, up to a maximum period of two years. (…). Each Member that conducts a competition shall strictly enforce the FINA Rules governing eligibility».

The FIG Technical Regulations, Appendix B (Rules of Eligibility for the International Gymnastic Federation) state that

«an eligible gymnast is any gymnast who abides by the eligibility rules of the FIG and the gymnast's National Federation. In any competition sanctioned or conducted by the FIG, each National Federation is responsible for certifying the eligibility of gymnasts from its country. Only gymnasts meeting the requirements of Regulation I are authorised to participate in official competitions and particularly those competitions which qualify gymnasts for Olympic Games and Youth Olympic Games (…). A gymnast may not: (…); b) take part in any gymnastic competition or exhibition which is not sanctioned by the FIG or his/her National Federation (…). Any gymnast infringing these rules, after their enforcement, may not claim to be eligible to participate in the Olympic Games and Youth Olympic Games or qualifying tournaments for the Games».

The FIH Regulations on Sanctioned and Unsanctioned Events state that

«it is prohibited for any National Association, and for any organisation or individual (including Athletes, technical officials, umpires, coaching or management staff) under the jurisdiction of a National Association, to participate in any manner in an Unsanctioned Event. Any Athlete or other individual who participates in any capacity in an Unsanctioned Event is automatically ineligible for twelve months thereafter to participate in any capacity in any International Event».

The UCI Cycling Regulations, under the heading «Forbidden Races», state that

«no licence holder may participate in an event that has not been included on a national, continental or world calendar or that has not been recognised by a national federation, a continental confederation or the UCI».

As a consequence, the ISU decision goes far beyond the specific sport considered (speed skating) and represents a clear message sent by the Commission to the entire sports world.

6. From this point of view, it is important not to forget that before the Commission there are still pending two complaints lodged respectively by the Euroleague Basketball and by FIBA. The dispute between FIBA and Euroleague Basketball goes back to the end of 2015 when FIBA announced the creation of a basketball Champions League in direct competition with the two European professional clubs’ competitions organized by the ECA. In order to force professional clubs to participate in the new Basketball Champions League, FIBA did not hesitate to put pressure on national federations threatening the possibility of excluding their national teams from participation in main competitions such as EuroBasket and the Olympic Games. According to the Euroleague Basketball the complaint «targets the unacceptable and illegal threats and pressures that FIBA and its member federations are making against clubs, players and referees to force them to abandon the Euroleague and the EuroCup and only participate in FIBA competitions. The complaint's objective is to guarantee that clubs, players and referees can freely make the choice to participate in the competitions that they consider appropriate without being subject to threats or pressures. FIBA is violating European Union law because, in a blatant conflict of interest, FIBA has rules on its books that provide for sanctions against those who are involved in competitions not approved by FIBA». In a completely specular way, FIBA has lodged a complaint against the Euroleague Basketball alleging an abusive tying by imposing undue pressure on leagues and clubs, as well as threatening exclusion from the Euroleague unless they commit to the EuroCup (…); a “syndication agreement” circulated among the 11 A license clubs who hold the majority of votes in ECA, meaning that six clubs control ECA, including all Euroleague and EuroCup decisions in sporting and commercial matters; arbitrarily cherry-picking clubs for Euroleague and EuroCup, which means destroying any commercial and sporting value of domestic leagues and undermining the competitive balance in European basketball; abusively discriminating against financially weaker clubs, thereby placing them at a further competitive disadvantage». However, the FIBA/Euroleague dispute involves another fundamental aspect related to the scheduling of competitions. According to FIBA, the new Euroleague calendar does not include windows of time for national team competitions in February or November, and for this reason, the Euroleague is preventing the release of players to national team competitions. On the contrary, according to the Euroleague, FIBA’s new windows in February and November represent a change from the past where international competitions, including the World Cup qualifiers, were held in the summer, during the offseason for most leagues.[2]

Although different in many respects compared to the ISU case, the FIBA/Euroleague affair raises again the problem of conflict of interest when sports federations pretend to exercise autonomously their regulatory power for the sake of the organization of sport and to simultaneously carry out an economic activity related to the organization of sporting events. In consideration of the dual nature of sports federations, the basic problem to be solved is to clarify if and to what extent the conduct of a sports federation is legitimate when it uses its regulatory power to exclude or marginalize third parties from the market of the organization of sporting events. 

7. Going back to the merit of the ISU affair and waiting to read the decision, the Commission’s press release and the statement by Commissioner Vestager are very important in order to better understand the scope and limits of the decision. The decision is not about the pyramid structure of European sports. The principle of a single federation for each sport and the right of the federations to organise competition from local to international levels is a milestone of the European model of sport. In this context the decision does not question the right of sports federations to enact rules necessary to achieve those goals. However, the ISU decision confirms that sport is not just for fun, but it is also a business. Therefore, although the Commission does not intend “to be the referee in every dispute about sport”, in matters dealing with the economic dimension of sport, sports federations must understand that the business of sports has to comply with competition rules. This means that the sole fact that eligibility rules or any other rule enacted by sports federations pursue a legitimate objective (for example, the protection of athletes’ health, the integrity and the proper conduct of sport, the fight against doping) does not represent a valid justification to put those rules outside the scope of EU law. Indeed, according to the Court of Justice’s case law, sporting rules set up by sports federations are compatible with EU law only if they pursue a legitimate objective and the restrictions that they create are inherent and proportionate to reaching this objective. Therefore, in cases relating to the exercise of regulatory power by sports federations the problem does not concern the legitimate nature of the objectives pursued. Generally speaking, in all the cases examined by the Commission and National antitrust authorities, the legitimacy of the objectives pursued by the federations has never been questioned. On the contrary, in those cases the problem was the inherent and proportionate character of the restrictions created by the federations through the exercise of their regulatory power. From this point of view, therefore, it can be said that it must certainly be considered inherent and proportionate to the objective of ensuring the integrity of the sport the rule requiring the athletes who participate in an event not authorized by the respective federation to undergo, at their own expense, an anti-doping tests before being able to attend an event organized by the federation. Quite the reverse, a clause sanctioning the athlete who participates in a competition not authorized by the federation with a lifetime ban from all the events organized by the federation appears totally disproportionate. Similarly, it must certainly be considered inherent and proportionate to the objective of ensuring the integrity of the sport the rule requiring anyone who intends to organize a sporting event outside the federation to ensure compliance with the rules of the game, as elaborated by the federation, and the anti-doping controls. In contrast, the clause that imposes on the organizer of an event the obligation to respect the rules of the federation in regards to the choice of the athletes or teams admitted to participate in such competition must be considered disproportionate. Although it is true that the European model of sport expressly refers to the mechanism of promotion and relegation as a distinguishing feature compared to the US model, it is equally true that the Commission has never qualified the structure of open leagues as a legitimate objective capable of justifying the provision of rules restricting competition or the free movement of persons. Moreover, even considering the model of the open leagues a necessary feature of the European sports model, it must be emphasized that the organization of a sporting event based on a system of special licenses is not in itself in contrast with the founding values ​​of the European sports model. On the one hand, the existence of other events (national and European) characterized by the traditional mechanisms of promotion and relegation represents the best safeguard of the European model of sport. However, it is clear that in order to protect the meritocratic criterion behind the mechanism of promotion and relegation it is sufficient to provide a mixed system where some athletes or teams are admitted on the basis of a licence and other athletes/teams are admitted on the basis of the results achieved on the pitch.

8. We can imagine the ISU’s disappointment regarding the Commission’s decision.  On the contrary, what is really difficult to understand is the ISU’s position shown in the statement published on the same day of the Commission’s decision. The idea that the Commission’s decision fails to consider the specific nature of sport is simply nonsense considering the rather vague nature of the notion of specificity of sports, especially in the post Meca Medina era. Similarly, the idea that the Commission’s decision puts commercial interests ahead of the principles of integrity, health, and safety that protect fair play in sports has no legal basis. In the same way, the idea that the decision is contrary to the Treaty, which recognizes the voluntary, social, and educational functions of sports reveals a serious lack of knowledge of the basics of EU law applied to the sports sector. On the other hand, the ISU correctly affirms that its eligibility rules—similar to the eligibility rules of many other international sports federations—ensure the protection of the health and safety of athletes at all authorized events as well as the integrity of sports events, and that these rules are essential to the role of international federations as the guardians of sports movement. However, it is easy to assert that the Commission’s decision does not question this argument and the fundamental role of international federations to organize the proper and correct conduct of sport.  To this regard, the decision not to impose a fine on the ISU is a clear signal. Another signal is represented by the recognition that there are many disputes which have little or nothing at all to do with competition rules as they raise primarily issues related to the governance of a sport. In other words, sports federations must understand that the sole fact that they are charged to guarantee the integrity and proper conduct of their sport, the protection of athletes’ health, and other fundamental values related to sports does not automatically mean that the rules enacted to pursue these objectives cannot be scrutinized through the lens of EU law. Once and for all, it should be understood that when the exercise of regulatory power by sports federations is able to affect the distinct market of the organization of sports events, in which sports federations compete with other sports events organisers, EU law applies. This new context should have been evident following the Bosman ruling and, above all, after the Meca Medina judgment. Unfortunately, the ISU decision (and the ISU’s reaction) confirms that this is not yet the case.

[1] For more details, see http://leidenlawblog.nl/articles/what-can-eu-competition-law-do-for-speed-skaters 

[2] On this subject it is worthy to note that the statement by Commissioner Vestager on the ISU decision clearly highlights that things like the penalties for doping or match-fixing, or deciding the precise scheduling have little or nothing at all to do with antitrust. For these, sports organisations must live up to their responsibilities and find solutions and mechanisms for solving disputes that deliver the results that the public and the athletes deserve.

On the first of May 2015, the Spanish Government finally signed the Royal Decree allowing the joint selling of the media rights of the Spanish top two football leagues. The Minister for Sport stated that the Decree will allow clubs to “pay their debts with the social security and the tax authorities and will enable the Spanish teams to compete with the biggest European Leagues in terms of revenues from the sale of media rights”.[1]Although the signing of the Royal Decree was supposed to close a very long debate and discussion between the relevant stakeholders, its aftermath shows that the Telenovela is not entirely over. 

This blog post will first provide the background story to the selling of media rights in Spain. It will, thereafter, analyse the main points of the Royal Decree and outline how the system will work in practice. Finally, the blog will shortly address the current frictions between the Spanish League (LFP) and the Spanish football federation (RFEF). 

I. The road to the royal decree 

The old individual selling system 

The individual selling model of media rights in Spain was adopted in the 1997/1998 season. The Spanish individualized marketing system required that the TV operators and the clubs sign individual agreements over the media rights for La Liga games. Obviously, not all the agreements were born equals. The two biggest clubs in Spain, Real Madrid and FC Barcelona, were soon deriving much more revenue from TV rights as the other clubs. Hence, it is not surprising that latter have been asking for a bigger share of the TV rights revenues since then. For the 2014/15 season, for example, Barcelona and Madrid earned 140 million € each, whereas Córdoba, Eibar and Deportivo la Coruña have only earned 17.5 million €. Even the last winner of La Liga (Atlético de Madrid) has received only 45 million € (3.1 times less than Barcelona and Madrid). Meanwhile, the overall sum paid by the operators to all the teams (MEDIAPRO Agency and PRISA Media Group) reached 742.5 million €/year for a three-year deal (2012/13 to 2014/15).[2] 

Due to the delay in approving the Royal Decree, some clubs (such as Barcelona) decided to sign an individual contract with a TV operator for the 2015/16 season. Consequently, it is unlikely that La Liga will be able to collectively sell its media rights for the next season. However, the new system should be in place for the 2016/17 season.  

Disagreements prior to the Royal Decree 

The negotiating process prior to signing the Royal Decree involved three main stakeholders: the Spanish Government (CSD –High Sports Council- and the Minister for Sport), the RFEF and, obviously, the LFP. The most difficult hurdle to overcome was the RFEF’s demand of a non-negotiable 2% share of the broadcasting revenues. Both the CSD and the LFP refused to budge and considered that the RFEF should not get more than 1%. The negotiations were especially tense as a consequence of a personal feud between the presidents of the main bodies involved.  

Why a Royal Decree? 

Notwithstanding the RFEF’s outspoken disapproval, the Royal Decree 5/2015 was adopted by the Council of Ministers on 30 April 2015 and was published in the Official Journal on the following day. In principle, a Royal Decree is only used for extraordinary and urgent matters and the Spanish Parliament must consolidate it in a law 30 days after its approval, which was done, last week. Nevertheless, one may question whether this was truly a matter of urgency requiring the introduction of a Royal decree. According to the explanatory memorandum of the Royal Decree it is justified on the basis of the public interest in securing a new system to commercialize the media rights. The justifications included in the Decree read as follows: 

“Concerning the media rights of professional football competitions, three reasons justify the need for an urgent response by the Government: first, the undisputed social relevance of professional sport, second, the repeated and unanimous demands to intervene from all parties involved and, finally, the need to promote competition in the market for the ‘pay-per-view’ television.”[3]

II. The new LFP’s media rights collective selling system 

The LFP’s media rights remain owned by the clubs. However, the football clubs are obliged to assign the right to commercialize them to the organizing bodies of the competition, i.e. the LFP (first and second division) and the RFEF (the cups).[4] 

The conditions for the joint selling of the media rights

In accordance with article 4 of the Royal Decree, the organising bodies will commercialize the media rights on an exclusive or non-exclusive basis.  Moreover, the procedure must be fair and equitable. The LFP and the RFEF will define the different packages commercialized in line with Article 4(4) of the Royal Decree.  These conditions will be attached by the organizing body into categories (‘packages’), depending whether it is on an exclusive basis or not, the time of the game and the duration (maximum 3 years), in accordance with the Article 4(4). The structure of the packages will be set out when the collective selling takes place.  

The specific distribution key of the revenues derived from the collective selling is enshrined in Article 5: 90% of the revenues will go to the first division clubs, and 10% to the second division clubs.   

Graph: Distribution of the money regarding the media rights of the first and second division:

Payments by the clubs after the distribution of revenue: The overdue debts to the Public Revenue and the indirect solidarity contributions.  

After receiving their share of revenue from the media rights, the clubs must first cover their overdue debts with the Spanish tax authorities. Indeed, Article 6(2) holds that “(t)he payment of overdue and payable debts owed to the ‘State Agency Tax Administration’ and the ‘General Treasury of the Social Security’ shall be considered on a preferential basis”. No club will be able to carry out the indirect solidarity payments foreseen by Article 6(1), if they do not reimburse their outstanding liabilities with the public authorities.

It is a well-known fact that Spanish football clubs have accumulated large amounts of debts over recent years. Indeed, at the end of the year 2013, the debt of the Spanish football amounted to 3.600 million € in total, with “around 700 million” to the public authorities. The Royal Decree is also aimed at tackling this longstanding debt “addiction” of many Spanish football clubs.                                             

Furthermore, in accordance with article 6(1) of the Decree, the clubs will have to make solidarity contributions to specific funds and Institutions promoting football and sport. These contributions will only be made after the obligatory contributions to the tax authorities have been paid. The five contributions include:

1. 3.5% of the broadcasting revenues will be used to create a ‘Compensation Fund’ in order to assist relegated clubs from the first Division to the second and from the second division to the third division (in Spain known as the second division “B”). Out of the Compensation Fund, 90% will flow to the relegated clubs from the first Division and 10% to the relegated clubs from the second Division.

2. 1% of the broadcasting revenues will go to the LFP for the purpose of promoting the League on the domestic and international market.

3. 1% of the broadcasting revenues will go to the RFEF as a solidarity contribution to develop amateur football[5].

4. Up to 1% of the broadcasting revenues will go to the Consejo Superior de Deportes (CSD), a Spanish Governmental body encouraging the development of sport in Spain. The goal of this contribution is to finance the social protection of high-level athletes (not just football players).

5. A further 0,5% of the broadcasting revenues will go to the CSD, and shall be distributed in the following way:

   1. Aid to female football clubs participating in the Women’s First Division, covering social security contributions.

   2. Aid to football clubs participating in the Second Division “B”, in order to pay social security contributions.

   3. Aid to associations or unions of players (‘AFE’), referees, coaches and trainers. 
      

The Spanish cup and Supercup revenue-sharing criteria

The packages will be made according to the criteria similar to those applicable to the LFP’s media rights. The revenue generated by the RFEF’s competitions will be shared as follows (Article 8):

1. 90% will be directly allocated to the LFP teams (first and second division). This money will be distributed to these clubs using similar criteria as for LFP Competitions. The revenue share depends on the results obtained by the teams in the cup. The distribution envisaged foresees 22%, for the winner; 16%, for the runner-up; 9%, for the semi-finalists; 6%, for the quarter-finalists; and 2,5%, for the clubs who got knocked-out the round of the last 16.

2. 10% will be used for the promotion of lower (semi) professional football and amateur football, that is to say, for clubs who play in the cup but are not in first or second division.

III. The Problem with the Decree: RFEF and AFE’s Opposition 

The main beneficiaries, i.e. the clubs, are quite exultant after the publication of the Royal Decree. Nonetheless, two bodies believe that they are the principal losers of the distribution model adopted, namely the RFEF and AFE (Spanish Professional Footballer's Association). In fact, the RFEF and AFE’s discontent is such that they have threatened to organize a strike paralysing the last few games of the current season, should the Decree not be renegotiated.

RFEF

The RFEF wanted 2% of the total revenue for itself, but the Decree allocated to the RFEF only 1% of the total. , As discussed above, this share will be paid indirectly by the club as outlined in Article 6(1). This implies that the federation will get paid only once, and if, the clubs have serviced their overdue debts with the public authorities.

In addition to this, the Federation did not obtain any compensation for women’s football or (semi) professional football in lower divisions. The competence for supporting women’s football and lower professional football rests with the CSD even though it is the RFEF that is in charge of the organisation of the competitions. In other words the RFEF has no control over the money flowing into the competitions it is responsible for. 

AFE

The frustration expressed by AFE (Professional Footballer's Association) is also understandable. The players have not obtained a fixed share of the broadcasting revenues, as is the case in England (1.5%) or France (1.09%). Nevertheless, according to the Royal Decree, AFE will receive from the CSD a contribution of “up to 0.5%” (Article 6(1)(e), par. 3). Moreover, the players’ representatives claim they were unjustifiably excluded from the negotiations. Without the ability of partaking to the negotiations, they were unable to secure higher guarantees for the players regarding the payment of the salaries in the lower divisions of Spanish football. Given that many players do not receive their salaries on time in the lower Spanish divisions, this money would have been a potential solution to a chronicle problem.

The strike

In return, AFE (supported by elite players like Casillas, Xavi, Piqué or Ramos) threatened with a strike. For its part, RFEF suspended all the Spanish football competitions. In response to these moves, the LFP lodged a case against AFE in the Spanish Courts, requesting the suspension of the strike and the recognition of its illegality as it would lack a legitimate ground and would violate the existing collective bargaining agreement. 

The Audiencia Nacional (the National High Court in Spain) decided on 14 May in a preliminary decision to suspend the strike. This decision ensured that the last two games of the season and the final of the Copa del Rey will be played. The case is still pending and awaits a decision on the merits. The hearing will be held on 17 June. The parties have already commenced negotiations in order to reach an agreement before the hearing. But, given that the Royal Decree has been ratified by the Parliament, very few substantial changes to the system put in place by the Decree can be made. Thus, only minor peripheral adjustments are to be expected.  

Conclusion

In my opinion, there are two key aspects that must be kept in mind. First, the duty to pay overdue debts to the public Authorities. This mandatory requirement cannot be found in any other countries and is clearly linked with the specific problems that exist in Spanish football with regard to the clubs’ indebtedness and the enmeshment of local politicians in their management. On the other hand, the other key change introduced by the Royal Decree will be that La Liga will be in a position to negotiate a much hoped for gigantic TV deal with the broadcasters. A deal, which will not exclusively benefit Real Madrid and FC Barcelona. The economic gap between these two teams and the rest of the pack was growing bigger and bigger over the last years. With the new system in place, this gap is poised to be reduced. Nevertheless, the distribution method still heavily favours the status-quo. The traditionally large clubs are rewarded for having a large number of supporters, and for their past performances. Hence, it is still virtually impossible for a smaller Spanish clubs to become, over a short time span, one of the top-earning clubs in La Liga.

[1] IUSPORT: “Aprobado el Real Decreto-Ley de los derechos audiovisuales del fútbol”

http://iusport.com/not/6713/aprobado-el-real-decreto-ley-de-los-derechos-audiovisuales-del-futbol/

[2] MARCA, “Así será el reparto del dinero televisivo”, available at http://www.marca.com/2015/05/01/futbol/1430467483.html

[3] RD 5/2015, Explanatory Memorandum.

[4] Article 2 RD 5/2015.

[5] This percentage may be expanded by agreement

In a first blog last month we discussed the problem of the scope of jurisdiction of the Ad Hoc Division of the Court of Arbitration for Sport. The key issue was whether an athlete could get his case heard in front of the CAS Ad Hoc Division or not. In this second part, we will also focus on whether an athlete can access a forum, but a different kind of forum: the Olympic Games as such. This is a dramatic moment in an athlete’s life, one that will decide the future path of an entire career and most likely a lifetime of opportunities. Thus, it is a decision that should not be taken lightly, nor in disregard of the athletes’ due process rights. In the past, several (non-)selection cases were referred to the Ad Hoc Divisions at the Olympic Games, and this was again the case in 2014, providing us with the opportunity for the present review.

Three out of four cases dealt with by the CAS Ad Hoc Division in Sochi involved an athlete contesting her eviction from the Games. Each case is specific in its factual and legal assessment and deserves an individual review.

I.               Daniela Bauer (CAS OG 14/01)

Daniela Bauer is an Austrian halfpipe freestyle skier contesting the decision by the Austrian Olympic Committee (AOC) and the Austrian Ski Federation (ASF) not to select her for the Sochi Olympic Games. Shortly before the Games, a member of the ASF had informed Ms. Bauer that she would get to participate in the Olympics if Austria were offered an additional quota place for the halfpipe competition.[1] But, when the AOC got the opportunity to fill such a quota spot, it declined to use it. It did so because “the sporting performances of the Austrian athletes in this discipline were not good enough and would adversely affect the overall perception of the Federation and its athletes at the Olympics”[2]. Hence, on 2 February 2014, the athlete decided to file an application with the CAS Ad Hoc Division against her non-selection.

She claimed that ASF and AOC had “induced legitimate expectations in the Applicant that having qualified under the FIS Rules she would be selected through the use of quota places”. Therefore, ASF and AOC “are estopped[3] from changing their course of action, i.e. from relying on their authority in any given case to decline the quota allocated to Austria”[4]. Moreover, she argued that “[t]he right of the ASF to recommend an athlete to the AOC (Rule 44.4 of the OC) as well as the right of the AOC to select an athlete for the Olympic Games (Rule 27.7.2 of the OC) cannot be exercised in an unreasonable manner”[5]. This standard of reasonableness was not met in her case because[6]:

• “no reasons were given”;
• “the Respondents’ discretion not to recommend and select her was exercised arbitrarily”;
• “the applicant was never notified that reference would be made to the above-mentioned criterion of sporting perspective”;
• “the AOC violated Rule 44.4 of the OC by not investigating whether the ASF’s non-recommendation was based on discrimination”;
• “the AOC should accept all the quotas allocated to it, irrespective of the potential results of the nominated athletes”;
• and she “should have been immediately informed of the decisions taken by the ASF and AOC”.

The ASF and AOC opposed that “[n]o person has the authority to bind the ASF and the AOC with respect to the Applicant’s participation in the Olympic Games” and, therefore, “[t]he AOC has the exclusive authority under Rule 27 of the OC to decide which athletes shall take part in the Olympic Games” [7].

The jurisdiction of the CAS Ad Hoc Division was not contested and the panel moved directly to the merit of the case. The panel refers to its settled case-law and reminds that “it is not in issue that it is for an NOC to select its competitors for the Olympics […] (CAS OG 08/03)”[8]. Hence, “although the Applicant satisfied the FIS minimum qualification standards and the AOC was below its maximum athlete quotas for all freestyle events, the AOC would have violated the OC by nominating her for a quota allocation for women’s halfpipe as she had not been recommended by the ASF”[9]. Even though it is acknowledged that ASF member Mr. Rijavec “may have created an expectation that the ASF would recommend to the AOC that she would be nominated for a quota allocation”, he “was not authorized to make any representations, promises or guarantees regarding whether the AOC would nominate her if she satisfied these standards”[10]. Consequently, no legitimate expectations to be selected could arise. In addition to this, the panel found that the ASF disposes of a “significant degree of subjective discretion”[11] as it does not have recourse to any objective criteria regarding the selection of freestyle skiers.[12] Nevertheless, it “has a legal duty not to be arbitrary, unfair, or unreasonable”, which it was not in this instance as “it had a legitimate sports performance justification” .[13]

Finally, the Panel, in a remarkable twist of mind, “wishes to express in clear terms that it does not condone its lack of published qualification criteria that misled the Applicant by failing to provide clear and timely notice of the performance standards she was required to meet in order to be recommended by the ASF for the nomination by the AOC to the Austrian Olympic team”. Additionally, “the panel strongly recommends that the ASF establish, identify, and publish clear criteria to enable athletes to determine in a timely manner the Olympic Games qualification standards they are required to meet” .[14] Despite these final remonstrances, the panel concludes that the claims of Ms. Bauer lack merit.

II.             Clyde Getty (CAS OG 14/02)

The claimant, Mr. Getty, is an Argentinean freestyle skier competing in the aerials discipline; the respondent is the International Ski Federation (FIS). This is a case also related to the attribution of an additional quota spot to participate to the Sochi Olympic Games. On 24 January the Argentinean Ski Federation (FASA) received an email from the FIS informing it that it was allocated a quota spot for the aerials competition in Sochi. The FASA immediately informed Mr. Getty of the good news. However, later that day, after confirming its interest in the spot, the federation received a second email from FIS stating that FASA “does not have an athlete that is eligible to participate in the Aerials men event” and therefore cannot get the spot misleadingly offered in the first email. Henceforth, Mr. Getty decided to challenge his proclaimed ineligibility to participate to the Olympics in front of the CAS Ad Hoc Division. 

Mr Getty claims that he is “eligible to be entered into the Sochi Games by the Argentinean NOC irrespective of his current FIS points”[15]. He is of the opinion that FIS rules are ambiguous on the selection process for quota spots and therefore should be interpreted in his favour on the basis of the contra preferentem principle.[16] Moreover, he argues that “FIS is estopped from denying [him] a quota place” [17]. In other words, Mr. Getty claims FIS had prompted legitimate expectations, especially after the 24 January  email, that he would be participating to the Sochi Olympic Games. Finally, Mr Getty submits that denying him the participation in the Sochi Games “would be unfair and contrary to the spirit of the Olympic Movement” [18]. He bases his claim, amongst many other things, on the fact that he is the only freestyle athlete representing South America and that his “dedication to sport is an inspiration to many” [19]. The FIS disputes these claims and points out that “the Applicant’s description of the qualification procedure is incorrect and misleading” [20]. In fact, Mr. Getty never reached the minimum points for eligibility, nor is any alternative qualification criterion accessible. Likewise, the FIS is not estopped, as it could not create any legitimate expectations with its email.

The jurisdiction of the CAS Ad Hoc Tribunal was not contested and the panel proceeded directly to the merit. As a preamble, the arbitrators remind that “[u]nder Swiss law, the interpretation of statutes has to be rather objective and always start with the wording of the rule”[21]. After reviewing the wording of the FIS’s regulations, the panel concludes that, in the present case, “[a] good faith common sense reading leads to the conclusion that the rules unambiguously require all competitors to meet the individual eligibility requirements” [22]. Additionally, “[t]he fact that the Applicant cannot point to a single instance in the past where an athlete was allowed to compete in the Olympic Games without meeting the eligibility requirements […] is further evidence of this conclusion” [23].

Moreover, the FIS is not deemed estopped from denying Mr. Getty a quota place for the Sochi Olympic Games. In this regard, the Panel notes that “FIS never made during the qualification period a representation that Mr. Getty was eligibile” [24], nor is there “evidence that during the qualification period Mr. Getty received from FIS an individual assurance that he was eligible” [25], and “the fact that COA might ultimately obtain a quota place did (and could) not suggest that FIS would waive the minimum individual qualification requirement for any athlete assigned to that quota place” [26], most importantly “all correspondence between FASA or COA and FIS on 24 October 2014 did not contain any express and individual reference to Mr. Getty”[27]. This is a fundamental difference compared to the existing precedents invoked by Mr. Getty. Indeed, in those cases “the athlete had been given specific and individual assurances about his eligibility” (CAS OG 02/06 & CAS OG 08/02) or “the international federation changed its rules with retroactive effects, depriving an athlete of the eligibility that could be assumed on the basis of prior rules”[28] (CAS 2008/O/1455).

Finally, the Panel also held that the fact that the participation of Mr. Getty to the Sochi Games would be in line with the Olympic spirit is a matter of policy. These concerns are for “FIS to consider when adopting the eligibility rules for the Olympic games; they are not for this Panel which is only asked to apply the existing rules”[29]. Even though the Panel is sympathetic to the athlete’s drive to participate to the Sochi Olympic Games it rejects the application filed by Mr. Getty.

III.           Maria Birkner (CAS OG 14/03)

The final, and maybe most complex and controversial case, is the one involving a well-known Argentine alpine skier: María Birkner. The National Olympic Committee for Argentina (COA) and the Argentinean Ski Federation (FASA) are the respondents in the proceedings. On 20 January 2014 the FASA told Ms. Birkner that she was not selected for the Sochi Olympic Games. This decision not to select her is challenged in front of the CAS Ad Hoc Division.

Ms. Birkner claims “that she was discriminated against on the basis of her being a member of her family”[30]. For a number of reasons, she claims that the Federation has purposefully conspired to banish her from its activities and to exclude her from the Olympic games[31]. Chiefly, she claims the federation has purposefully informed her after the final decision of the existence of specific selection criteria and of a technical committee in charge of the selection. As discussed in the previous blog, the jurisdiction of the Ad Hoc Division was challenged and the panel found that it did not have jurisdiction. Nonetheless, it decided to consider the merits of the case anyway.

The arbitrators brushed aside any bias against the family of Ms. Birkner noting that two of her siblings were present in Sochi and that her brother had even the privilege of carrying the Argentinean Flag during the opening ceremony.[32] Furthermore, in the eyes of the panel, the claimant failed to establish that the qualification process, the Technical Committee and the selection criteria used were biased against her.[33] Indeed, “it cannot be said that the selection criteria said to be applied were arbitrary or unreasonable”[34]. The panel considers that the recriminations of Ms. Birkner against the selection process, especially the allegations of a bias from the part of the Technical Committee and that the other skiers had previous knowledge of the main selection criteria were not sufficiently substantiated and could not be established for the sake of this procedure.

The panel is of the view that the situation is similar to the one of the Bauer case discussed above. Therefore, it recalls the holding of the Bauer Panel observing that “there was a legal duty not to be arbitrary, unfair or unreasonable in the application of objective criteria or in the exercise of subjective discretion but that the exercise of discretion was not so characterised where there was a legitimate sports performance justification for selection”[35]. It finds that “a discretion based on “the evolution and projection in the future” [as invoked by the FASA] is not arbitrary, unfair or unreasonable” [36]. Nevertheless, the panel refers to the obiter holding in the Bauer case and “recommends that FASA establishes, identifies and publishes clear criteria in a timely manner to enable athletes to understand those criteria and the Olympic Games qualification standards that they are required to meet in order to be recommended for selection by COA” [37]. In the present case, “a dedicated athlete with an outstanding history of representing her country, who had successfully competed in many international as well as national events, was devastated by the decision made not to select her, when she had believed that, on the criteria that she had mistakenly understood had applied, she would represent her country at the Sochi Olympic Games” [38].

Conclusion: Deference is not enough 

Selection disputes constitute a big part of the CAS Ad Hoc Division’s caseload.[39] This is probably inevitable, as the non-selection for the Olympic Games is often the toughest setback faced by an athlete in her career. The Sochi cases do not fundamentally sidestep the existing case law of the CAS Ad Hoc Division in this regard. The deference to the subjective criteria used by the National Olympic Committee’s (NOCs) and the International federations (Ifs) is reaffirmed, unless those criteria are applied in an “arbitrary, unfair or unreasonable” way. Furthermore, an athlete can hardly rely on any legitimate expectations, unless he has been offered personally and officially a spot to participate to the Olympic Games. Hence, a non-selection can only be challenged successfully in the most extreme cases. However, when the behaviour of the federation is, to say the least, ambiguous as in the Birkner case, a very heavy burden of proof lies on the shoulder of the athlete to turn this ambiguity into the recognition of an “arbitrary, unfair or unreasonable” behaviour. 

The Sochi Ad Hoc Division’s approach to selection cases is flawed with paradoxical feelings. On the one hand, it urges the Ifs and NOCs to devise and publish “clear criteria in a timely manner”, but, on the other hand, it encourages them not do so by limiting the reviewability of their subjective and blurry selection practices. In short, Panels openly favour objective and predictable schemes on which athletes can rely, while incentivizing subjective and unpredictable assessments by leaving untouched the wide scope of discretion of the Ifs and NOCs.[40] The paradoxical and irreconcilable nature of these views should lead the CAS to reconsider its approach to the selection process. The Sochi panels instinctively felt there was something fundamentally unfair with the non-selection of Ms. Bauer and Ms. Birkner. In this regard, the panels’ final incantations for change will remain unanswered if the CAS Ad Hoc Division refuses to contribute through its jurisprudence to the rise of clear selection criteria. It should impose a more stringent review of the subjective criteria used by the Ifs, by promoting a less strict understanding of the notion of “arbitrary, unfair or unreasonable” scheme and/or by alleviating the burden of proof bearing on athletes to establish the abusive nature of a selection process.

In fact, such an evolution would be in a line with the will expressed by the Olympic movement during the Olympic Agenda 2020 process to be irreproachable in terms of good governance and transparency. The existence of publicly known and clearly defined standards and rules is a hallmark of such good governance. Getting to the Olympics is just too important for athletes to be left at the mercy of the unchecked will

[1] CAS OG 14/01, point 2.5

[2] CAS OG 14/01, point 2.10

[3] For a quick introduction to the doctrine of Estoppel see : http://en.wikipedia.org/wiki/Estoppel

[4] CAS OG 14/01, point 4.2 a)

[5] CAS OG 14/01, point 4.2 b)

[6] CAS OG 14/01, point 4.2 b) i) to vi)

[7] CAS OG 14/01, point 4.3 a) and c)

[8] CAS OG 14/01, point 7.5

[9] CAS OG 14/01, point 7.10

[10] CAS OG 14/01, point 7.12

[11] CAS OG 14/01, point 7.15

[12]In contrast with CAS OG 06/08 and CAS OG 06/02.

[13] CAS OG 14/01, point 7.15

[14]CAS OG 14/01, point 7.16

[15] CAS OG 14/02, point 4.2 a)

[16] CAS OG 14/02, point 4.2 a)

[17] CAS OG 14/02, point 4.2 b)

[18] CAS OG 14/02, point 4.2 c)

[19] CAS OG 14/02, point 4.2 c)

[20] CAS OG 14/02, point 4.3 a)

[21] CAS OG 14/02, point 7.4

[22] CAS OG 14/02, point 8.9

[23] CAS OG 14/02, point 8.10

[24] CAS OG 14/02, point 8.17 i.

[25]CAS OG 14/02, point 8.17 ii.

[26] CAS OG 14/02, point 8.17 iii.

[27] CAS OG 14/02, point 8.17 vi.

[28] CAS OG 14/02, point 8.17 vii.

[29] CAS OG 14/02, point 8.20

[30] CAS OG 14/03, point 4.3

[31] CAS OG 14/03, point 4.4

[32] CAS OG 14/03, point 7.4-7.7

[33] CAS OG 14/03, point 7.16-7.25

[34] CAS OG 14/03, point 7.19

[35] CAS OG 14/03, point 8.2

[36] CAS OG 14/03, point 8.3

[37] CAS OG 14/03, point 8.4

[38] CAS OG 14/03, point 8.4

[39] See the following cases : CAS OG 12/06 ; CAS OG 12/01 ; CAS OG 12/02 ; CAS OG 06/008 ; CAS OG 06/002 ; CAS OG 08/002; CAS OG 08/003; CAS OG 02/005

[40] A problem already identified by Antonio Rigozzi, which noted in 2006 that « This case law [CAS OG 06/002  & CAS OG 06/008] could lead to a switch (back) from selection based on objective criteria to more subjective process. This would be a regrettable evolution. To reduce the risk of dispute, the selecting bodies should enact objective criteria, which are easily intelligible, make sure that they are communicated to (and understood) by the athletes, and avoid any modification of the « rules of the game » during the selection » process. » A. Rigozzi, ‘The Decisions Rendered by the CAS Ad Hoc Division at the Turin Winter Olympic Games 2006’, Journal of International Arbitration, pp.453-466, p.466