Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Olympic Agenda 2020: To bid, or not to bid, that is the question!

This post is an extended version of an article published in August on hostcity.net.

The recent debacle among the candidate cities for the 2022 Winter Games has unveiled the depth of the bidding crisis faced by the Olympic Games. The reform process initiated in the guise of the Olympic Agenda 2020 must take this disenchantment seriously. The Olympic Agenda 2020 took off with a wide public consultation ending in April and is now at the end of the working groups phase. One of the working groups was specifically dedicated to the bidding process and was headed by IOC vice-president John Coates.  More...

The CAS jurisprudence on match-fixing in football: What can we learn from the Turkish cases? - Part 2: The procedural aspects. By Thalia Diathesopoulou

With this blog post, we continue the blog series on Turkish match-fixing cases and our attempt to map the still unchartered waters of the CAS’s match-fixing jurisprudence.

The first blog post addressed two issues related to the substance of match-fixing disputes, namely the legal characterization of the match-fixing related measure of ineligibility under Article 2.08 of the UEL Regulations as administrative or disciplinary measure and the scope of application of Article 2.08. In addition, The Turkish cases have raised procedural and evidentiary issues that need to be dealt with in the framework of match-fixing disputes.

The CAS panels have drawn a clear line between substantial and procedural matters. In this light, the Eskişehirspor panel declared the nature of Article 2.08 UEL Regulations to be administrative and rejected the application of UEFA Disciplinary Regulations to the substance. Nonetheless, it upheld that disciplinary rules and standards still apply to the procedure. This conclusion, however, can be considered puzzling in that disciplinary rules apply to the procedural matters arising by a pure administrative measure. To this extent, and despite the bifurcation of different applicable rules into substantial and procedural matters, the credibility of the qualification of Article 2.08 as administrative seems to be undermined. And here a question arises: How can the application of rules of different nature to substantial and procedural matters in an identical match-fixing dispute be explained?More...

The EU State aid and Sport Saga – A blockade to Florentino Perez’ latest “galactic” ambitions (part 2)

This is the second part of a blog series on the Real Madrid State aid case. In the previous blog on this case, an outline of all the relevant facts was provided and I analysed the first criterion of Article 107(1) TFEU, namely the criterion that an advantage must be conferred upon the recipient for the measure to be considered State aid. Having determined that Real Madrid has indeed benefited from the land transactions, the alleged aid measure has to be scrutinized under the other criteria of Article 107(1): the measure must be granted by a Member State or through State resources; the aid granted must be selective; and it must distorts or threatens to distort competition. In continuation, this blog will also analyze whether the alleged aid measure could be justified and declared compatible with EU law under Article 107(3) TFEU.More...

The CAS jurisprudence on match-fixing in football: What can we learn from the Turkish cases? - Part 1 - By Thalia Diathesopoulou

The editor’s note:

Two weeks ago we received the unpublished CAS award rendered in the Eskişehirspor case and decided to comment on it. In this post Thalia Diathesopoulou (Intern at the ASSER International Sports Law Centre) analyses the legal steps followed and interpretations adopted by CAS panels in this case and in a series of other Turkish match-fixing cases. The first part of the post will deal with the question of the legal nature of the ineligibility decision opposed by UEFA to clubs involved in one way or another into match-fixing and with the personal and material scope of UEFA’s rule on which this ineligibility is based. The second part is dedicated to the procedural rules applied in match-fixing cases.


Introduction

The unpredictability of the outcome is a sine qua non feature of sports. It is this inherent uncertainty that draws the line between sports and entertainment and triggers the interest of spectators, broadcasters and sponsors. Thus, match-fixing by jeopardising the integrity and unpredictability of sporting outcomes has been described, along with doping, as one of the major threats to modern sport.[1] More...


Sport and EU Competition Law: uncharted territories - (I) The Swedish Bodybuilding case. By Ben Van Rompuy

The European Commission’s competition decisions in the area of sport, which set out broad principles regarding the interface between sports-related activities and EU competition law, are widely publicized. As a result of the decentralization of EU competition law enforcement, however, enforcement activity has largely shifted to the national level. Since 2004, national competition authorities (NCAs) and national courts are empowered to fully apply the EU competition rules on anti-competitive agreements (Article 101 TFEU) and abuse of a dominant position (Article 102 TFEU).

Even though NCAs have addressed a series of interesting competition cases (notably dealing with the regulatory aspects of sport) during the last ten years, the academic literature has largely overlooked these developments. This is unfortunate since all stakeholders (sports organisations, clubs, practitioners, etc.) increasingly need to learn from pressing issues arising in national cases and enforcement decisions. In a series of blog posts we will explore these unknown territories of the application of EU competition law to sport.More...

The Legia Warszawa case: The ‘Draconian’ effect of the forfeiture sanction in the light of the proportionality principle. By Thalia Diathesopoulou

The CAS denial of the urgent request for provisional measures filed by the Legia Warszawa SA in the course of its appeal against the UEFA Appeals Body Decision of 13 August 2014 put a premature end to Legia’s participation in the play-offs of the UEFA Champion’s League (CL) 2014/2015. Legia’s fans- and fans of Polish football - will now have to wait at least one more year to watch a Polish team playing in the CL group stage for the first time since 1996. More...

The EU State aid and Sport Saga – A blockade to Florentino Perez’ latest “galactic” ambitions (part 1)

This is the first part of a blog series involving the Real Madrid State aid case.

Apart from being favoured by many of Spain’s most important politicians, there have always been suspicions surrounding the world’s richest football club regarding possible financial aid by the Madrid City Council. Indeed, in the late 90’s a terrain qualification change by the Madrid City Council proved to be tremendously favourable to the king’s club. The change allowed Real Madrid to sell its old training grounds for a huge sum. Though the exact price for the grounds remains unknown, Real Madrid was suddenly capable of buying players like Figo and Zidane for record fees. However, the European Commission, even though agreeing that an advantage was conferred to the club, simply stated that the new qualification of the terrain in question does not appear to involve any transfer of resources by the State and could therefore not be regarded as State aid within the meaning of article 107 TFEU.

Agreements between the club and the Council have been a regularity for the last 25 years.  A more recent example concerns an agreement signed on 29 July 2011 (Convenio29-07-2011.pdf (8MB). More...

UEFA Financial Fair Play Regulations Put PSG and Manchester City on a Transfer Diet

The main lesson of this year’s transfer window is that UEFA’s Financial Fair Play (FFP) rules have a true bite (no pun intended). Surely, the transfer fees have reached usual highs with Suarez’s move to FC Barcelona and Rodriguez’s transfer from AS Monaco to Real Madrid and overall spending are roughly equal to 2013 (or go beyond as in the UK). But clubs sanctioned under the FFP rules (prominently PSG and Manchester City) have seemingly complied with the settlements reached with UEFA capping their transfer spending and wages. More...

Right to Privacy 1:0 Whereabouts Requirement - A Case Note on a Recent Decision by the Spanish Audiencia Nacional

On the 24th June 2014 the Spanish Audiencia Nacional issued its ruling on a hotly debated sports law topic: The whereabouts requirements imposed to athletes in the fight against doping. This blog aims to go beyond the existing commentaries (here and here) of the case, by putting it in the wider context of a discussion on the legality of the whereabouts requirements. More...

The Rules of the Electoral Game for the FIFA 2015 Presidential Elections

After the success of this year’s World Cup in Brazil, FIFA President Sepp Blatter can start concentrating on his Presidential campaign for next June’s FIFA elections. Even though the 78-year old Swiss is not officially a candidate yet, he is still very popular in large parts of the world, and therefore the favourite to win the race. Nonetheless, even for the highly experienced Mr. Blatter these elections will be different. All candidates will have to respect the newly introduced Electoral Regulations for the FIFA PresidencyMore...

Asser International Sports Law Blog | The International Partnership against Corruption in Sport (IPACS) and the quest for good governance: Of brave men and rotting fish - By Thomas Kruessmann

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

The International Partnership against Corruption in Sport (IPACS) and the quest for good governance: Of brave men and rotting fish - By Thomas Kruessmann

Editor's note: Prof. Thomas Kruessmann is key expert in the EU Technical Assistant Project "Strengthening Teaching and Research Capacity at ADA University" in Baku (Azerbaijan). At the same time, he is co-ordinator of the Jean-Monnet Network "Developing European Studies in the Caucasus" with Skytte Institute of Political Studies at the University of Tartu (Estonia).


The notion that “fish rots from the head down” is known to many cultures and serves as a practical reminder on what is at stake in the current wave of anti-corruption / integrity and good governance initiatives. The purpose of this blog post is to provide a short update on the recent founding of the International Partnership against Corruption in Sport (IPACS), intermittently known as the International Sports Integrity Partnership (IPAS), and to propose some critical perspectives from a legal scholar’s point of view.

During the past couple of years, the sports world has seen a never-ending wave of corruption allegations, often followed by revelations, incriminations and new allegation. There are ongoing investigations, most notably in the United States where the U.S. Department of Justice has just recently intensified its probe into corruption at the major sports governing bodies (SGBs). By all accounts, we are witnessing only the tip of the iceberg. And after ten years of debate and half-hearted reforms, there is the widespread notion, as expressed by the Council of Europe’s (CoE’s) Parliamentary Assembly (PACE) Resolution 2199/2018 that “the sports movement cannot be left to resolve its failures alone”.


What is IPACS and why has it been created? 

IPACS was founded under the authority of the International Olympic Committee (IOC) as “a cross-sectorial, multi-stakeholder platform to enable a pragmatic partnership allowing the development and implementation of programmes and initiatives by the various partners, to strengthen efforts promoting transparency, integrity and good governance in sports organisations, in particular through education and awareness-raising initiatives.” These words, taken from the Declaration of the Second International Forum for Sports Integrity (IFSI), held in Lausanne on 15 February 2017, provide a summary of the tasks IPACS was agreed to address. Interestingly, later on the official mission statement was significantly watered down: “To bring together international sports organisations, governments, inter-governmental organisations and other relevant stakeholders to strengthen and support efforts to eliminate corruption and promote a culture of good governance in and around sport.” This change mission statement betrays some of the controversies that lie behind the difficult quest for good governance and integrity.

One obvious question is why was it only in 2017 that IPACS was created? The short answer is that IFSI took up an idea that had been put forward at the UK Anti-Corruption Summit one year earlier. However, the real question is, why did this initiative emerge only in 2016/17 after corruption scandals had been hitting SGBs over the entire past decade and had become particularly acute with FIFA around 2010? The reason is that there is a major undercurrent in fighting corruption in SGBs: the doctrine of the autonomy of sports. For historical reasons, most major SGBs have been created as private entities, often associations or non-commercial entities, and are adamant at defending the notion of independence and autonomy of sports. While international anti-corruption conventions by the nature of international law address only states, SGBs are in the fortunate position to have to comply only with the criminal laws of their host state. And despite the fact that the commercialisation of sports has turned SGBs into multi-billion dollar ventures, since their inception their internal structures have resembled “gentlemen’s clubs”. It therefore comes as no surprise that even in the IFSI Declaration of February 2017, participants are eager to refer to the 69th United Nations General Assembly proclaiming the autonomy of sports and shifting the responsibility in fighting corruption primarily to governments.

This undercurrent explains why the original IPACS mission statement calls for a “pragmatic partnership” and emphasizes education and awareness-raising initiatives. The truth is that even by 2017, many stakeholders (“participants to the IFSI Declaration”) were fighting to protect the independence of SGBs teeth and claw. And that only now a consensus is emerging, as expressed in the CoE PACE Resolution 2199/2018, that “enough is enough” and that SGBs have actually failed in cleaning up their business. Earlier resolutions, e.g. by the 14th CoE Conference of Ministers responsible for Sport from 22 February 2017, have been more diplomatic in language. But it is clear that IPACS, despite all defensive battles from SGBs, is now representing a change in the tide of governments and anti-corruption related international organisations (such as CoE, OECD and UNODC) finally eager “to talk tough” with SGBs.


Is “talking tough” with SGBs credible? 

Now, even if we assume that the most recent investigations into corruption scandals were the straw that broke the camel’s back, will international anti-corruption organisations and governments be credible in fighting corruption by breaking up the doctrine of sports autonomy? Switzerland has been in the vanguard of national governments extending the offense of corruption in the private sector to NGOs and other non-commercial entities. This new offense (Arts 322octies – 322decies Swiss Criminal Code) is innovative because it does no longer require a distortion of the market. GRECO is reported to be preparing a “Typology Study on Private Sector Corruption” which will also cover the sports sector.

International anti-corruption organisations, by contrast, have a more careful line to tread. Arguably, there is a host of integrity-related problems in the world of sports that has been viewed for a long time in a reductionist way. Doping, match-rigging and other kinds of manipulation of sports events have ever too often been seen independently of the governance regimes of SGBs. Looking at them as individual wrongdoing at best supported the argument that SGBs may not have been vigilant enough. But this never came close to insisting that such kinds of wrongdoing are the logical consequence of structural governance defects in these bodies. As IPACS is now marking a shift in the consensus towards a more holistic and interventionist approach, what will this mean for international anti-corruption organisations? The problem is that during the past decade, many of them were only too happy to focus on singular problems while being co-opted by SGBs into “partnerships” to “address” governance issues. Analytically, this can be described as a horizontal legitimacy-building strategy by SGBs. By concluding memoranda of understanding, e.g. between the IOC and the UN or between FIFA and the CoE, SGBs, depending on their level of regional or universal activities, co-opted their potential critics and tried to acquire legitimacy by involving them into so-called reform processes.

Arguably, by being drawn into piecemeal reforms of SGBs over the last decade, international anti-corruption organisations have become part of the problem. The question is, how can they become part of the solution again? This is where IPACS presents an answer: it can be understood as a tacit dissolution of the prevailing partnerships and, depending on style and substance, offering a fresh start for a holistic and thus governance-related approach to establishing integrity. 


How is IPACS going about its work?

As mentioned before, IPACS was created in the wings of the Second IFSI, held on 15 February 2017 in Lausanne, and it will operate within the broader IFSI structure. By 2019 when the Third IFSI is scheduled, IFSI participants will therefore review a progress report on the activities realized which invariably includes any progress made by IPACS.

The work of IPACS itself is structured on three levels. There is a core group in which the most important anti-corruption international organisations are represented, a Working Group which is basically a tripartite structure representing the interests of SGBs, governments and inter-governmental organisations, and topical task forces. Core group members (CoE, IOC, OECD, UNODC and the UK Government) are in charge of preparing and co-ordinating the Working Group meetings. The first Working Group meeting took place at the CoE’s venue on 21 June 2017, the second Working Group meeting was held at the OECD on 14-15 December 2017. The third Working Group meeting is scheduled for June 2018 at the IOC’s headquarters in Lausanne.

So far, three task forces with experts from outside the Working Group have been established:

  • Task force 1 (TF1) on reducing the risk of corruption in public procurement;
  • Task force 2 (TF2) on ensuring transparency and integrity in the selection of major sport events, with an initial focus on managing conflicts of interest; and
  • Task force 3 (TF3) on optimising the processes of compliance with good governance principles to mitigate the risk of corruption.

The expected outputs from these task forces are as follows:

(1) TF1 to develop by the end of 2018 a general mapping of procurement standards to the specific context of sport, possibly complemented by illustrative case studies on how these standards could be applied in practice.

(2) TF2 to define conflict of interest in the specific sports context and undertake a stock-taking exercise of procedures and practices for managing conflict of interest in the specific context of the selection of major sporting events.

(3) TF3 “to aim to”

  • map relevant governance standards and their applicability to the sports context;
  • consider developing indicators to evaluate compliance with these standards;
  • consider means for building capacity to implement good governance standards.

From the wording it appears that from TF1 to TF3, the tasks get ever larger and the commitment ever more unspecific. While TF1 is given a precise task with a definitive deadline, TF3 is asked to “aim to” reach certain goals. But this specific wording is perhaps a correct reflection of the difference in the scope of the problem. Procurement standards can easily be adopted from the corporate world. There is no specific challenge in running procurement for SGBs. Conflicts of interest, in particular when selecting major sports events, are of a different magnitude. Very often, the traditional ways of addressing such conflicts in the corporate setting or in public administration are clear-cut and addressed in a number of regulations. In SGBs which have been traditionally considered as “gentlemen’s clubs”, conflicts of interest run through the entire fabric of the institution. Therefore, the magnitude is much larger. But the real issue is how shall the mandate of TF2 be distinguished from that of TF3? Conflicts of interest and bad governance are twin concepts, and both flourish in the same environment. So, let us now turn to the central question: what can be expected from the most crucial TF3 in the IPACS setting?


Do governance standards finally get applied? 

In its first set of assignments, TF3 is asked to look into “relevant” governance standards, map them and analyse their applicability to the sports context. What sounds like a logical sequence of steps is actually quite muddled. Judging what is relevant and what is not is certainly the task at hand, but if we assume that “relevant standards” have been found, why is it necessary in a second step to “analyse their applicability in the sports context”? Is not applicability in the sports context the key criterion for judging what is relevant and what is not? Or will there first be other criteria for judging relevance outside from applicability in the sports context?

The point here is not to ridicule the language of the task force assignment, but to point to a deeper problem. Over the entire past decade, there have been numerous projects seeking to identify relevant governance standards. Without going into this issue very deeply, let me name just the most important ones:

In addition, when it comes the second set of assignments to TF3, in particular “developing indicators to evaluate compliance with these standards”, the following benchmarking tools already exist:

So all things considered, a large amount of work has already been done to identify relevant standards for SGBs. Would it not simply be enough to take these project results seriously and start implementing them and evaluate their effects? Indeed, from an outside observer’s point of view, it looks as if this entire process is flawed. There is simply no need to go into another round of identifying standards, assessing their relevance and benchmarking them with indicators when all the work has already been done.

One argument to support the TF3 engagement is that there are simply too many different standards, and that, when it comes to governments intervening with SGBs and forcing them to adopt good governance standards, there should be one agreed-upon set of standards for all cases. Likewise, CoE PACE Resolution 2199 (2018) “strongly calls for the development and implementation of a solid set of harmonised good governance criteria” (italics not in the original). And in para 4 of the appendix to this Resolution, PACE even speaks of the necessity of identifying “core criteria” of good governance in sport. While such quest for harmonising and reducing to core elements may be intellectually stimulating, there is doubt whether the sports world can accept another round of soul-searching. The fish has already been rotting for a while, and the same “brave men” (aka experts) who had been dealing with the issue for a decade are now employed again in yet another attempt of the international community to clear up the mess of SGBs. We will eagerly await some results when the IPACS Working Group will convene for its next meeting in June 2018.

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