Editor's note: This blog is part of a special blog series on the Russian doping scandal at the CAS. Last year I analysed the numerous decisions rendered by the CAS ad hoc Division in Rio and earlier this year I reviewed the CAS award in the IAAF case.

Unlike the International Association of Athletics Federations (IAAF), the International Paralympic Committee (IPC) was very much unaffected by the Russian doping scandal until the publication of the first McLaren report in July 2016. The report highlighted that Russia’s doping scheme was way more comprehensive than what was previously thought. It extended beyond athletics to other disciplines, including Paralympic sports. Furthermore, unlike the International Olympic Committee (IOC) the IPC had a bit more time to deal with the matter, as the Rio Paralympic Games were due to start “only” in September.

After the release of the McLaren Report, the IPC president Sir Philip Craven was “truly shocked, appalled and deeply saddened at the extent of the state sponsored doping programme implemented in Russia”. He immediately announced the IPC’s intention to review the report’s findings and to act strongly upon them. Shortly thereafter, on 22 July, the IPC decided to open suspension proceedings against the National Paralympic Committee of Russia (NPC Russia) in light of its apparent inability to fulfil its IPC membership responsibilities and obligations. In particular, due to “the prevailing doping culture endemic within Russian sport, at the very highest levels, NPC Russia appears unable or unwilling to ensure compliance with and the enforcement of the IPC’s Anti-Doping Code within its own national jurisdiction”. A few weeks later, on 7 August, the IPC Governing Board decided to suspend the Russian Paralympic Committee with immediate effect “due to its inability to fulfil its IPC membership responsibilities and obligations, in particular its obligation to comply with the IPC Anti-Doping Code and the World Anti-Doping Code (to which it is also a signatory)”. Indeed, these “obligations are a fundamental constitutional requirement for all National Paralympic Committees (NPCs), and are vital to the IPC’s ability to ensure fair competition and to provide a level playing field for all Para athletes around the world”. Consequently, the Russian Paralympic Committee lost all rights and privileges of IPC membership. Specifically, it was not entitled to enter athletes in competitions sanctioned by the IPC, and/or to participate in IPC activities. Thus, “the Russian Paralympic Committee will not be able to enter its athletes in the Rio 2016 Paralympic Games”.

This was an obvious blow to Russia’s Paralympic team and, as was to be expected, the RPC decided to challenge the decisions. Thanks to an agreement with the IPC, the case moved directly to the Court of Arbitration for Sport (CAS), which decided in favour of the IPC on 23 August. Nonetheless, the legal battle did not end there as Russian athletes continued the fight in the German courts. In this blog I will first review the CAS award and then discuss the follow-on disputes in German courts.

I.              The IPC’s triumph before the CAS

At play in front of CAS was the use of clauses 9.2.2 and 9.3 of the IPC Constitution to suspend the RPC for failing to fulfil its obligations as a member. Indeed, the member’s obligation provided in clause 2 of the IPC constitution, includes the obligation “to comply with the World Anti-Doping Code”[1] and to “contribute to the creation of a drug-free sport environment for all Paralympic athletes in conjunction with the World Anti-Doping Agency (WADA)”[2]. The RPC challenged the claim that it had failed to comply with these obligations. Furthermore, it considered that in any event the sanction applied was disproportionate.

A.    Did the RPC fail to comply with its membership obligations? 

The RPC contested in full the factual findings of the McLaren Report. Yet, the Panel held that the RPC failed to provide the necessary evidence to rebut McLaren’s factual claims. In particular, the RPC “decided not to cross-examine him although given the opportunity to do so”[3] and “did not call any athlete named by Professor McLaren as having been subject to the system he described”[4]. In other words, “Mc Laren’s evidence stands uncontradicted”[5]. However, in light of the lack of precise information, the Panel refused to conclude, like the IPC requested, that “the RPC and its Board Members were involved in, or complicit in, or knew of the existence of State sponsored doping of athletes and the methodologies as set out in the IP Report”.[6]

Nonetheless, the arbitrators also found that it is “undisputed that the RPC accepted the obligations imposed on it as a member of the IPC”, and amongst those obligations there is “the specific obligation under Article 20.1 of the WADA Code to adopt and implement anti-doping policies and rules for the Paralympic Games which conform with the WADA Code”.[7] Moreover, “the obligation vigorously to pursue all potential anti-doping rule violations within its jurisdiction and to investigate cases of doping (Article 20.4.10), are not passive”.[8] Thus, at a national level “the RPC is the responsible entity having the obligation to the IPC as well as to the IPCs’ members to ensure that no violations of the anti-doping system occur within Russia”.[9] Yet, the mere “existence of the system as described in the IP Report and in the McLaren affidavit means that the RPC breached its obligations and conditions of membership of the IPC”.[10]

Those are extremely important considerations to support the effectiveness of the world anti-doping system. In practice, the CAS is closing the door on national federations hiding behind the failure of other anti-doping bodies to deny their responsibility. If decided inversely, this would have led to a situation of organized irresponsibility, in which the bucket is simply passed over to a public institution (in Russia’s case RUSADA) that cannot be sanctioned under current anti-doping rules. Indeed, WADA declare RUSADA non compliant, but RUSADA is not a member of sporting associations, it does not enter athletes in international sporting competitions, thus SGBs would be hard pressed to find a way to impose any deterrent sanctions against it. If noncompliance is to be met with adequate sanctions, SGBs, which are tasked to supervise specific sports at national level, must bear the indirect responsibility for the systemic failure of the anti-doping system operating in their home country.

B.    Is the sanction imposed by the IPC proportionate?

As the Panel recognized from the outlet: “the more difficult question for consideration is whether the decision to suspend the RPC without reservation, or alleviation of the consequences to Russian Paralympic athletes, was proportionate”.[11] The RPC submited “that the IPC could have adopted a “softer measure” that still permitted clean Russian athletes to compete in the Paralympic Games in Rio”.[12] Furthermore, it argued, “that a blanket prohibition is not justified, as it has not been established that all para-athletes nominated by the RPC have ever been implicated in doping”.[13]

1.     Whose right are disproportionately affected?

The Panel considered first that as para-athletes are not parties to this appeal, “[q]uestions of athletes’ rights that may not derive from the RPC, but of which they themselves are the original holder, such as rights of natural justice, or personality rights, or the right to have the same opportunities to compete as those afforded to Russian Olympic athletes by the IOC in its decision of 24 July 2016 regarding the Olympic Games Rio 2016, are not for this Panel to consider”.[14] Instead, the “matter for review by this Panel is thus not the legitimacy of a “collective sanction” of athletes, but whether or not the IPC was entitled to suspend one of its (direct) members”.[15] Furthermore, “the collective member cannot hide behind those individuals that it represents” .[16]

Here the Panel adopts a relatively formalistic reasoning by denying the RPC the competence to invoke the potential rights of its athletes. This might contradict the idea that athletes bear a responsibility for the noncompliance of their national federation with the rules of an international federation as put forward by the Panel in the IAAF case. The RPC does, at least partly, represent the athletes, and there is a good case that can be made for it to be allowed to raise the potential infringements of the personality rights of its members in this procedure. It does not mean that the rights of the athletes were disproportionately affected, only that they should have been considered and not brushed aside as the Panel did in the present instance. 

2.     The (extraordinary) nature of the RPC’s regulatory failure

Unfortunately, the award’s analytical structure can lead to some confusion when dealing with the proportionality analysis of the IPC’s decision. There are two (implicit) steps that are key in the decision. First, an analysis of the depth (and consequences) of the RPC’s regulatory failure, and second an analysis of the proportionality of the sanction responding to this failure. The former will be dealt with in this section.

The Panel points out that the IPC “was faced with probative evidence of widespread systemic doping under the RPCs “watch””.[17] Moreover, as argued by the IPC, the RPC’s failure to act is even more acute in light of the IPC’s dependence on national members to implement its policies at national level. Thus, in particular, “the IPC relies on the RPC to ensure compliance in Russia with its zero tolerance anti-doping policy”.[18] More generally, “this federal system with complementary international and national obligations is the core back-bone of the fight against doping”.[19] In this context, the fact that the RPC claims that “it did not know what was happening and that it had no control over those involved in the system described by Professor McLaren does not relieve the RPC of its obligations but makes matters worse” [20]. Though it is unclear from the formulation used in this section of the award, the outcome of the case points undoubtedly to the fact that the Panel endorses the IPC’s understanding of the scope of responsibility of the RPC. Furthermore, the arbitrators insist that the “damage caused by the systemic, non-compliance is substantial” [21]. Finally, it finds again that the RPC “had a non-delegable responsibility with respect to implementing an anti-doping policy in conformity with the WADA Code in Russia”.[22] Thus, the RPC could not simply “delegate the consequences [of this responsibility] where other bodies within Russia acting as its agent implement a systemic system of doping and cover-up”.[23]

In this section of the award, the Panel recognizes, rightly in my view, that the effectiveness of the transnational regulation of international sports relies on the compliance of national federations and this is even more so in the case of the anti-doping fight.

3.     The proportionality of the sanction

The key question in the proportionality analysis was whether the sanction inflicted upon the RPC was adequate and necessary to attain its aim. The reasoning of the Panel is piecemeal and spread around a number of paragraphs of the award, which are regrettably not well connected together.

The first question is whether the IPC was pursuing a legitimate objective when imposing that sanction on the RPC. On the IPC’s own account, the sanction was considered “the only way to ensure that the system, and systematised doping, in Russia no longer continued”.[24] It adds “that it was a legitimate aim to send a message that made clear the lack of tolerance on the part of the IPC to such systemic failure in a country”.[25] The Panel recognizes that the “concern that clean athletes, inside and outside of Russia, have confidence in the ability to compete on a level playing field, and the integrity and credibility of the sporting contest, represent powerful countervailing factors to the collateral or reflexive effect on Russian athletes as a result of the suspension”[26], and constitutes “an overriding public interest that the IPC was entitled to take into account in coming to the Decision”.[27]

The second question linked to the proportionality of the sanction relates to its necessity. Was there a less restrictive alternative sanction available to attain the aim pursued? The IPC argued that the suspension of the RPC’s membership was necessary for three reasons:

• “to provoke behavioural change (for the future) within the sphere of responsibility of the RPC”
• “the suspension took into account that the failures in the past had resulted in a distorted playing field on an international level, because the IPC anti-doping policy was not being adequately enacted and enforced vis-à-vis para-athletes affiliated to RPC”
• “a strong message had to be issued to restore public confidence, since the Paralympic movement depends – much more than other sports – on the identification with moral values”[28]

The Panel held that the suspension was “a powerful message to restore public confidence”. It insisted also that there “was no submission to the Panel of an alternative measure that would, comparably and effectively, restore a level playing field for the present and the immediate future, affect future behavioral change and restore public trust”.[29]

Finally, the Panel concluded that “in light of the extent of the application of the system described by Professor McLaren and his findings of the system that prevailed in Russia, made beyond reasonable doubt, the Decision to suspend the national federation was not disproportionate”.[30] Moreover, it insisted that the consequences for the athletes were following logically from the suspension of the RPC and therefore proportionate, as it had decided in the IAAF case. The Panel also brushed aside the RPC’s attempt to portray the IPC’s decision as contrary to the IOC Decision dated 24 July 2016. On the one side, it found the IOC Decision to be irrelevant for the IPC and, on the other, it considered the IPC’s suspension to be in any event compatible with the IOC Decision.

II.            The Russian appeals in the German courts

The RPC’s appeal to the Swiss Federal Tribunal failed on 30 August because it could not demonstrate its ability to fulfil its obligations with regard to the anti-doping rules of the IPC and WADA, not unlike the one of the Russian athletes and RusAF in the IAAF case,. Nor could RusAF demonstrate that its interests would override those of IPC to fight effectively against doping and protect the integrity of sport. 

Yet, interestingly, new challenges against the RPC’s suspension were quickly lodged in German courts. Indeed, as the IPC is seated in Bonn, a number of Russian athletes tried to obtain provisory judgments from the Landgericht (LG) Bonn to participate in the Rio Paralympics. These cases were appealed to the Oberlandesgericht (OLG) Düsseldorf, and even ended up in front of Germany’s constitutional court, the Bundesverfassungsgericht (BVerfG). It would have been ironical if the German courts had quashed the decision of the IPC, bearing in mind that it is the German public broadcaster (ARD) which brought the Russian doping scheme to the fore in the first place.

A.    The decisions of the LG Bonn

On 5 and 6 September the LG (first instance tribunal) Bonn rendered two judgments (available here and here) on the matter. Both rejected the claims of the Russian athletes.

The first judgment found that the athletes could not rely on any contractual claims, as no contract existed between them and the IPC. This is due to the fact that the RPC is supposed to nominate them to participate in the Paralympic Games, for the court there is no contract between the IPC and the athletes.[31] Even where the IPC foresees in its rules that it can directly nominate athletes to participate in the Paralympic Games, one cannot derive that it has a contractual duty to select the claimants. Instead, it enjoys certain discretion in doing so. However, the LG recognized that the Russian athletes’ interests are affected by the IPC’s Decision of 7 August 2016, but it also acknowledged that the IPC justified its decision by the existence of a state-run doping scheme in Russia.[32] Thus, the final decision to enter or not athletes in the Paralympic Games of Rio should be left to the IPC. The fact that the IOC applied a different regime to the Russian athletes willing to participate in the Rio Games is deemed not binding upon the IPC, as it is a separate legal entity.

The second judgment, rendered the day after, follows a very similar line of reasoning. The LG added a pointed rebuttal of the claim that the Russian athletes were discriminated against. It insisted that the other countries are not suspected of running state doping schemes.[33] The court recognized that athletes cannot easily change their nationality, but it insisted that the Olympic Games are more than any other sporting competition characterized by the fact that athletes participating are not primarily representing themselves but their home country.[34] In this context, athletes must accept to face restrictions for which they might not be personally responsible.[35] Furthermore, the ineligibility of the Russian athletes was not deemed a disproportionate restriction on the freedom to work or on the fundamental personality rights of the claimants. The LG considered that authorizing specific athletes to compete under a neutral flag would not have been a milder solution to fight against doping, as the Russian public would still have identified them as Russian.[36] Instead, as members of the RPC, the claimants must accept such a restriction to their individual rights.

The LG Bonn strongly supported the decision adopted by the IPC. The court has, as the CAS did, declined to consider the suspension of the RPC, and the ensuing ineligibility of Russian athletes for the Rio Paralympic Games, as discriminatory or disproportionate.

B.    The Appeal to the Oberlandesgericht Düsseldorf

The appeal decision of the OLG Düsseldorf is probably the most interesting of the German decisions analysed here. In the first part of its judgment, the OLG criticized harshly the Russian athletes for failing to request earlier a provisory order from the German courts. Indeed, at the time of the decision, 13 September 2016, the Paralympic Games were almost one week underway (7 September). Consequently, many (if not all) of the appellants would be unable to compete at the Games anyway, even if the court were to grant the requested order.

Yet, the core of the OLG’s ruling, and its most important contribution to the world anti-doping system, is its assessment of the balance of interests between the Russian athletes and the IPC. In a nutshell, the OLG found that the IPC’s interest in declaring the Russian athletes ineligible prevails because there is a legitimate suspicion that those athletes have been involved in doping in the previous years.[37] To come to this conclusion, the court conducted a fairly comprehensive assessment of the opposing interests. On the one side, the Russian athletes have an interest in participating in the Paralympic Games to secure economic revenues deriving primarily from sponsoring. On the other side, stands the IPC’s “fundamental interest in the organization of a fair sporting competition excluding athletes who have used doping or against which there is a strong suspicion of doping”.[38] In this case, the OLG held that the interest of the IPC for “clean” Paralympic Games prevails and justifies the rejection of the complaint.[39] For the Düsseldorf court, the personal guilt of the athletes is irrelevant, as the fact that they had the possibility to exercise their sport with the support of doping without risking to be discovered justifies in itself a general suspicion of doping against all Russian athletes.[40] Thus, the IPC can, for the preservation of the fairness of its competitions, declare them ineligible for the Paraympic Games. Only the athletes for whom it can be confidently demonstrated that they have not doped can be exempted from this exclusion.

Hence, the OLG considered that the factual constellation of the case justifies that each and every Russian Paralympian can be legitimately suspected of having been involved in doping over the recent years. Furthermore, Paralympic athletes were, as corroborated by the McLaren Report and his affidavit, also a target of the Russian doping system.[41] This suspicion cannot be rebutted by the oath taken by 68 (out of 84) of the appellants that they have not tested positive for doping in the last two years. Indeed, it cannot be demonstrated that the athletes have been subjected to non-manipulated doping tests.[42] In the end, the OLG fully endorsed the IPC’s decision to prioritize its objective of providing “clean Games” to the detriment of the interests of Russian Paralympians in participating.

C.    Final Stop at the Bundesverfassungsgericht

The next, and final stop, for the claimants was the BVerfG in Karlsruhe. The court, which rendered its ruling on 15 September, was faced with the demands of Russian athletes for a provisory order allowing them to participate (at least) to the closing ceremony of the Paralympic Games due to take place on 18 September.

The court’s balancing exercise between the interests of the IPC and those of the Russian athletes is favourable to the former. Thus, the BVerfG found that if it would grant the provisory order and later reject a related constitutional complaint, this would have irreparable consequences for the pending Paralympic competitions and closing ceremony and would send a (negative) signal to sport in general.[43] Even if, to their credit, the individual athletes are not directly involved in the state-run doping scheme unearthed by the McLaren Report, the Court believed that the decision of the IPC and the CAS to declare the whole Russian team ineligible must be respected. The entering of athletes through the national courts would intrude substantially on the autonomy of the IPC and of the CAS[44] and the deterring signal send by the RPC’s exclusion, which aims at scaring off national federations from supporting or tolerating systematic doping schemes, would be substantially weakened.[45]

Furthermore, if instead the provisory order is rejected and the Russian athletes prevail in a later constitutional complaint, the interests of the athletes to participate in the closing ceremony is still of significantly less weight than the IPC’s interest to ensure that the use of doping in sport is fought against effectively.[46] In particular, one cannot ignore that, besides one of the appellants, all the others will in any event not be able to participate to competitions which have already taken place.[47] Even for the only athlete potentially able to participate there are legitimate doubts regarding her material ability to compete in the Rio Paralympic Games. Therefore, the BVerfG rejected the appellants’ plea and definitely put an end to their hope in participating to the Rio Paralympic Games.

Conclusion

At the time of writing, the RPC is still suspended by the IPC and the second McLaren Report has corroborated with more evidence the extensive nature of the Russian doping scheme. The IPC has developed, in collaboration with WADA, a set of tough reinstatement criteria to be met by the RPC in order to be reinstated. The compliance of the RPC with the criteria will be monitored by a special taskforce. Thus, the IPC demonstrated its willingness to tackle head-on the Russian doping scheme. In doing so, it followed a radically different approach than the IOC and declared all Russian Paralympians to be ineligible.  

The CAS and the German courts later fully endorsed this approach. In fact, it seems that the national courts were even going beyond the findings of the CAS by emphasizing that there was a legitimate presumption from the side of IPC that all the Russian Paralympic athletes were doped. The CAS and the German courts also insisted that a balancing exercised between the interests of the athletes to participate in the Paralympic Games and the interests of the IPC to defend clean and doping free competitions, would be decided to the benefit of the latter. Even so athletes might not be directly responsible for the state-run doping scheme, they share the responsibility (as in the IAAF case) for the governance failures of their sports governing bodies. In the eyes of the German courts, this responsibility is reinforced by the fact that they are representing their country at the Paralympic Games.

In the end, the CAS (and the German courts) had to choose between:

1. Burdening athletes for the systematic failure of the Russian sports governing bodies to comply with their anti-doping commitments and risk to sanction innocent athletes;
2. or let the athletes compete and risk to jeopardize the already weak effectiveness of the world anti-doping system.

In general, this is the big fork-in-the-road question raised by the Russian scandal. On the one side, we can double down on anti-doping, beef up compliance mechanisms, and endure collateral damages: some innocent athletes. Or, on the other side, we acknowledge the total failure of the world anti-doping system as it is and de facto (or de jure) condone the use of doping in international sporting competitions. The CAS and the German courts clearly decided to follow the regulatory route, but this is only the beginning of a very long anti-doping journey.

[1] Clause 2.1.1.

[2] Clause 2.27.

[3] CAS 2016/A/4745, Russian Paralympic Committee v. International Paralympic Committee, award of 23 August 2016, para.43.

[4] Para.44.

[5] Para.43.

[6] Para. 54 and 55.

[7] Para. 56.

[8] Para. 59.

[9] Para. 60.

[10] Ibid.

[11] Para. 73

[12] Para. 76.

[13] Ibid.

[14] Para.79.

[15] Ibid.

[16] Ibid.

[17] Para. 81.

[18] para. 82.

[19] Ibid.

[20] Ibid.

[21] Para. 86.

[22] Para. 86.

[23] Para. 86.

[24] Para.83.

[25] Para.84.

[26] Para.84.

[27] Para.84.

[28] Para. 88.

[29] Para.89.

[30] Para. 91.

[31] „Anders als die Antragsteller meinen, kommt allein durch die Ausrichtung der Paralympics zwischen den Parteien kein Vertragsverhältnis oder vertragliches Vorverhältnis i.S.v. § 311 Abs. 2 BGB zustande. Da die Nominierung zur Teilnahme an den Paralympics im Regelfall durch das S und nicht durch den Antragsgegner erfolgt, ist nicht ersichtlich, dass die Parteien potentielle Vertragspartner wären.“ Landgericht Bonn, 20 O 323/16, at II.

[32] „Das Gericht verkennt nicht, dass die russischen Para-Athleten durch die Entscheidung des Antragsgegners vom 07.08.2016 nachhaltig in ihren sportlichen und auch wirtschaftlichen Interessen betroffen werden. Jedoch hat der Antragsgegner seine Entscheidung nachvollziehbar mit dem Vorwurf des organisierten Staatsdopings in Russland begründet. Insoweit muss es dem Antragsgegner selbst überlassen bleiben, von seinem Recht zur Zulassung einzelner Athleten Gebrauch zu machen oder aber nicht.“ Ibid.

[33] „Soweit die Antragsteller auf eine Ungleichbehandlung im Vergleich zu den Para-Athleten aus anderen Ländern abstellen, ist dem entgegenzuhalten, dass diese anderen Länder nicht dem Verdacht des organisierten Staatsdopings unterliegen.“ Landgericht Bonn, 20 O 325/16,  at II.

[34] „Zwar haben die Antragsteller keine Möglichkeit, ihr Land oder ihren Verband zu wechseln. Jedoch werden die Olympischen Spiele sowie die Paralympics weit mehr als Weltmeisterschaften oder andere sportliche Wettkämpfe dadurch gekennzeichnet, dass die Athleten an ihnen nicht nur auf eigene Rechnung, sondern vor allem für ihr Land teilnehmen.“ Ibid.

[35] „Der Charakter und die Besonderheit der Spiele können so auch dazu führen, dass der einzelne Athlet von ihm selbst nicht verschuldete Einschränkungen hinnehmen muss. Insoweit ist auch kein Verstoß gegen das Diskriminierungsverbot der §§ 19, 20 und 33 GWB zu erkennen.“ Ibid.

[36] „Die Zulassung einzelner Sportler bei Beibehaltung der Suspendierung des S wäre – als die Antragsteller meinen – nicht als milderes Mittel gleichermaßen geeignet zum Kampf gegen das Doping. Zwar liefen die russischen Para-Athleten dann nicht mit ihrer Landesfahne auf und träten dabei nicht offiziell für ihr Land auf. Sie würden aber dennoch von den Zuschauern mit ihrem Land identifiziert.“ Ibid.

[37] „Die Abwägung der widerstreitenden Interessen führt zu dem Ergebnis, dass der Antragsgegner den Antragstellern eine Teilnahme an den Paralympischen Spielen 2016 in Rio de Janeiro verwehren darf, weil der begründete Verdacht gerechtfertigt ist, dass diese Sportler in den vergangenen Jahren Doping betrieben haben.“ Oberlandesgericht Düsseldorf, VI-W (Kart) 13/16, at B.2.a.

[38] „Auf der Seite des Antragsgegners, der die Paralympischen Spiele 2016 veranstaltet, steht demgegenüber das fundamentale Interesse, einen fairen und sportlichen Wettkampf zu gewährleisten und alle diejenigen Sportler von den Spielen fernzuhalten, die entweder des Dopings überführt sind oder gegen die der hinreichend begründete Verdacht des Dopings besteht.“ Ibid., at B.2.a.bb.(2).

[39] „Im Streitfall führt das überragende Interesse des Antragsgegners an „sauberen“ Paralympischen Spielen zu dem Ergebnis, dass die streitbefangenen Zulassungsbegehren abzulehnen waren.“ Ibid., at B.2.a.bb.(3).

[40] „Diese ein Doping begünstigenden Rahmenbedingungen rechtfertigen gegen alle Athleten, die unter dem System trainiert haben, einen Dopingverdacht.“ Ibid.

[41] Ibid., at B.2.a.bb.(3) (3.1)..

[42] Ibid., at B.2.a.bb.(3) (3.3)..

[43] „Würde die beantragte einstweilige Anordnung ergehen, die noch zu erhebende Verfassungsbeschwerde aber später erfolglos bleiben, hätte dies erhebliche Auswirkungen für die noch ausstehenden Wettkämpfe und die Durchführung der Abschlussfeier der Paralympischen Spiele am 18. September 2016 in Rio de Janeiro und eine Signalwirkung nicht nur für paralympischen Sport, sondern für den Sport insgesamt.“BVerfG, Beschluss der 2. Kammer des Ersten Senats vom 15. September 2016, 1 BvQ 38/16, at II.3.a).

[44] „Eine Zulassung einzelner Athletinnen und Athleten durch die staatlichen Gerichte griffe erheblich in die Verbandsautonomie des IPC und der internationalen Sportgerichtsbarkeit ein.“ Ibid.

[45] „Die mit dem Ausschluss des RPC von den Paralympischen Spielen beabsichtigte Signalwirkung, die insbesondere nationale Sportverbände von der Duldung, Unterstützung oder Organisation systematischen Dopings abschrecken soll, würde erheblich beeinträchtigt.“ Ibid.

[46] „Zwar erscheint das Interesse der Antragstellerinnen und des Antragstellers auch dann durchaus gewichtig, wenn ihnen nur die Teilnahme an der Abschlusszeremonie am 18. September 2016 möglich sein sollte. Im Vergleich zu dem Interesse des IPC, den Einsatz von Dopingmitteln im Sport nachhaltig und effektiv zu bekämpfen, hat dies jedoch deutlich weniger Gewicht.“ Ibid., at II.3.b).

[47] „Zudem kann nicht unberücksichtigt bleiben, dass - abgesehen allenfalls von der Antragstellerin zu 5) - die übrigen Antragstellerinnen und der Antragsteller wegen des inzwischen weitgehend durchgeführten Gesamtprogramms der aktuellen Paralympischen Spiele nicht mehr an den sportlichen Wettkämpfen teilnehmen können und ihnen damit insoweit nur noch ein bloßer Zuschauerstatus zukommen könnte, den sie auch ohne Erlass der einstweiligen Anordnung wahrnehmen können.“ Ibid.

The European Commission has published the “Study on Sports Organisers’ Rights in the EU”, which was carried out by the ASSER International Sports Law Centre (T.M.C. Asser Institute) and the Institute for Information Law (University of Amsterdam). 

The study critically examines the legal protection of rights to sports events (sports organisers’ rights) and various issues regarding their commercial exploitation in the field of media and sports betting, both from a national and EU law perspective.  

In a number of posts, we will highlight some of the key findings of the study. 

“It was Hyde, after all, and Hyde alone, that was guilty.” 

In recent years, numerous national and European sports organisers have called for the adoption of a specific right to consent to the organisation of bets (“right to consent to bets”), by virtue of which no betting operator could offer bets on a sports event without first entering into a contractual agreement with the organiser. 

A sports organisers’ right to consent to bets was first introduced in Victoria (Australia) in 2007. Yet it was the recognition of a similar right in France that created the true momentum for sports organisers to advocate its adoption at the EU or EU-wide national level. The argument is twofold. First, a right to consent to bets would entitle sports organisers to demand a “fair financial return” for the commercial exploitation of theirs sports events by betting operators. Second, it would establish a statutory obligation for betting operators to work in partnership with sports organisers to preserve the integrity of sports events. According to the contractual provisions agreed upon by the involved parties, mutual obligations (for e.g. fraud detection) and conditions of information exchange can be identified. 

A restriction to the freedom to provide services? 

From an EU internal market law perspective, it is important to note that the conditions implementing a right to consent to bets are capable of constituting a restriction of the free movement of services within the Union (within the meaning of Article 56 TFEU). Indeed, the requirement for betting operators to obtain consent for the organisation of sports bets could impede or render less attractive the free provision of gambling services.[1] 

The Court of Justice (CJ) has consistently held that restrictions on gambling activities are acceptable only if justified by an imperative requirement in the general interest and compliant with the principle of proportionality. The CJ has accepted the prevention of fraud as a legitimate objective justification. The financing of public interest activities through proceeds from gambling services, on the other hand, can only be accepted as a beneficial consequence that is incidental to the restrictive policy adopted.[2]  

It follows that a strict regulatory framework that genuinely reflects a concern to prevent the manipulation of sports events must accompany the introduction of a right to consent to bets. 

The origins of the French betting right 

With the enactment of a new gambling law in 2010, the French legislator, following case law precedent recognizing sports bets as a form of commercial exploitation of sports events, introduced a right to consent to bets in the French Sports Code. 

Interestingly, the concept of the right to consent to bets evolved considerably during the course of the legislative process.  

When the draft law opening up online gambling and betting to competition and regulation was introduced in the French parliament, the rationale of the right to consent to bets was solely expressed in terms of generating a “fair financial return” to sport. Under Chapter IX (“Provisions concerning the exploitation of sports events”) of the original draft law, the following addition to Article L.334-1 of the Sports Code was proposed: 

“The use, for commercial purposes, of any characteristic element of sporting events or competitions, notably names, calendars, data or results, requires the consent of the owners of the exploitation rights under conditions, in particular of a financial nature, defined by contract, subject to the provisions of articles L. 333-6 to L.333-9”.^[3]

On 5 March 2009, the French authorities notified the draft law to the European Commission, in accordance with the provisions of Directive 98/34/EC of 22 June 1988.[4] In its detailed opinion, the Commission stressed that several provisions of the draft law would infringe Article 56 TFEU if they were to be adopted without due consideration of the Commission’s objections. Amongst other things, the Commission rightly observed that the financing of sport through gambling revenues could not justify an obstacle to free movement, in this case the requirement to obtain consent from the sports organiser. The Commission further noted that the characteristic elements that are already in the possession of sports organisers, such as calendars, data or results, could not qualify for sui generis database right protection.  

It was only during the subsequent first reading of the draft law in the French National Assembly that the statutory recognition of the right to consent to bets was presented as a means of preserving sports integrity. On 21 July 2009, the French Minister for the Budget declared: 

“in reality, the interest of this right for sport is not financial but ethical, by requiring commercial agreements between gambling operators and the organisers of sports competitions, this right finally will give professional sport the means to make the operators share their concerns in matters of competition ethics”.^[5]

 Accordingly, the relevant provision was substantially amended to address the concerns about its compliance with the EU internal market rules. First, it no longer mentioned that the consent to the organisation of bets was related to the use of fixtures and schedules. Second, the title of Chapter IX was changed to “Provisions concerning the exploitation of sports events and the fight against fraud and cheating in the context of these events” (emphasis added). Third, multiple paragraphs were added, so as to stipulate that (1) the betting right contracts should impose obligations on betting operators concerning fraud detection and prevention and (2) the financial contribution is intended to compensate for costs incurred by sports organisers for anti-fraud mechanisms.^[6]

The proof of the pudding is in the eating  

On the basis of an in-depth assessment of the exploitation of the French right to consent to bets, the study concludes that the rationale of safeguarding the integrity of sports events did not really override its economic rationale. 

Decree No. 2010-614 requires the betting right marketing contracts to specify information and transparency obligations imposed on operators to detect fraud and prevent the risk of harm to the integrity of sports events.^[7] Contrary to the relatively strong language about the stipulation of “information and transparency obligations” imposed on the operators, Decree No. 2010-614 merely requires the holder of the right to consent to bets to specify in the contracts the measures it “intends” to introduce for preventing the risk for the integrity of the events in question. However, the law does not mandate the effective implementation of these integrity measures. Furthermore, although the compensation paid for the right to organise bets must take account “in particular the costs incurred in detecting and preventing fraud”, there is no guarantee that the income is allocated to fraud prevention and detection. 

If Member States would consider introducing a right to consent to bets, it appears critical from an EU law perspective that it is genuinely designed to protect a non-economic public interest objective in a proportional manner. The Victorian (Australia) regulatory regime is recommended as a best practice model. Here, the financial return is truly a compensation for the integrity assurances given by the sports bodies. Before a sports body is legally entitled to exercise the right to consent to bets, it must first invest time and resources into developing adequate integrity mechanisms. Furthermore, in case the sports body fails to fulfil its contractual obligations, the gambling regulator may revoke its ability to exercise the right to consent to bets. Indeed, the rights and obligations in the betting right agreements must work both ways: sports betting operators are also entitled to expect that the sports organisers truly implement the integrity policies.  

For a detailed exploration of the virtues of a right to consent to bets and the challenges of adopting such a mechanism from a legal, institutional, and practical perspective, check out the full study available at http://ec.europa.eu/sport/news/2014/study-on-sport-organisers-rights_en.htm.

[1] All measures that prohibit, impede or render less attractive the exercise of the fundamental freedoms must be regarded as restrictions, see e.g. C-439/99 Commission v Italy [2002] ECR I-305, para. 22; Case C-205/99 Analir and Others v Administratión General del Estado [2001] ECR I-271, para. 21.

[2] See e.g. Joined Cases C 316/07, C 358/07 to C 360/07, C 409/07 and C 410/07 Markus Stoß and Others v Wetteraukreis and Others [2010] ECR I-8069, para. 104; C-67/98 Questore di Verona v Diego Zenatti [1999] ECR I-7289, para. 36; Judgment of the EFTA Court in Case 3/06 (Ladbrokes) para. 63.

[3] Unofficial translation by the research team (“L’utilisation, à des fins commerciales, de tout élément caractéristique des manifestations ou compétitions sportives, notamment leur dénomination, leur calendrier, leurs données ou leurs résultats, ne peut être effectuée sans le consentement des propriétaires des droits d’exploitation, dans des conditions, notamment financières, définies par contact, sous réserve des dispositions des articles L. 333-6 à L. 333-9”).

[4] Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (1998) OJ L 204/37. This “Transparency Directive” requires Member States to notify their rules on information society services in draft form, and generally observe a standstill period of at least three months before formal adoption, in order to allow other Member States and the European Commission to raise concern about potential trade barriers within the EU.

[5] Assemblée Nationale, Audition de M. Éric Woerth, ministre du budget, des comptes publics, de la fonction publique et de la réforme de l'État au cours de la réunion du 21 Juillet 2009.

[6] In the context of the second reading of the draft law in the French Senate, the rapporteur of the Finance Committee welcomed this solution to accommodate the European Commission’s concerns regarding Article 52. Sénate, Rapport n° 209 (2009-2010) de M. François Trucy, fait au nom de la commission des finances, déposé le 19 janvier 2010.

[7] Décret no. 2010-614 du 7 Juin 2010 relatif aux conditions de commercialisation de droits portant sur l’organisation de paris en relation avec une manifestation ou compétition sportives, Article 2.