Editor's note: Roger Pielke Jr. is a professor at the University of Colorado Boulder

The decision this week by the Swiss Federal Tribunal not to revisit the arbitral decision of the Court of Arbitration for Sport (CAS) in the case of Caster Semenya was not unexpected, but it does help to expose a major design flaw in international sports governance. Specifically, the institutions that collectively comprise, create and enforce “sports law” appear incapable of addressing flawed science and violations of basic principles of medical ethics.

While different people will have different, and legitimate, views on how male-female competition classifications might be regulated, the issues highlighted involving science and ethics are not subjective, and are empirically undeniable. In normal systems of jurisprudence, procedures are in place to right such wrongs, but in sports governance processes in place prevent such course corrections. And that is a problem.

The empirical flaws in the science underpinning the IAAF (now World Athletics) Semenya regulations are by now well understood, and have been accepted by WA in print and before CAS (I was an expert witness for Semenya, and was present when IAAF accepted responsibility for the flawed research). You can read all the details here and in the CAS Semenya decision. I won’t rehash the flawed science here, but the errors are fatal to the research and obvious to see.

One key part of the comprehensive institutional failures here is that the journal which originally published the flawed IAAF research (the British Journal of Sports Medicine, BJSM) has, inexplicably, acted to protect that work from scrutiny, correction and retraction. Normally in the scientific community, when errors of this magnitude are found, the research is retracted. In this case, the BJSM refused to retract the paper, to require its authors to share their data or to publish a critique of the IAAF analysis. Instead, upon learning of the major errors, the BJSM published a rushed, non-peer reviewed letter by IAAF seeking to cover-up the errors. All of this is non-standard, and a scandal in its own right.

The violation of basic principles of medical ethics required by the implementation of the WA Semenya regulations is also not contested. Both WA and the IOC have claimed to uphold the World Medical Association’s Helsinki Declaration on medical and research ethics. Yet, the WMA has openly criticized the WA regulations as unethical and asked doctors not to implement them. In response, WA has stated that it will help athletes who wish to follow the regulations to identify doctors willing to ignore medical ethics guidelines.

Flawed science and ethical violations are obviously issues that go far beyond the case of Caster Semenya, and far beyond sport. In any normal system of jurisprudence such issues would prove readily fatal to regulatory action, either in the first instance of proposed implementation or via review and reconsideration.

Sport governance lacks such processes. At CAS, the panel claimed that matters of scientific integrity and medical ethics were outside their remit. The SFT is allowed to reconsider a CAS decision only on narrow procedural grounds, and thus also cannot consider matters of scientific integrity or medical ethics. So far then, the flaws in the WA regulations – sitting in plain sight and obvious to anyone who looks, have not been correctable.

This leaves the world of sport governance in a compromised position. Some may look past the scientific and ethical issues here, perhaps judging that barring Semenya from sport is far more important that correcting such wrongs. 

Regardless of one’s views on sex and gender classification in sport, the WA regulations and the processes that produced and have challenged them reveal that sports governance has not yet entered the 21^st century. Science and ethics matter, and they should matter in sport jurisprudence as well.  It is time to correct this basic design flaw in international sport governance.

Yesterday, the European Commission stunned the European Sports Law world when it announced unexpectedly that it had signed a “partnership agreement” with UEFA named (creatively): ‘The Arrangement for Cooperation between the European Commission and the Union of European Football Associations (UEFA)’. The press release indicates that this agreement is to “commit the two institutions to working together regularly in a tangible and constructive way on matters of shared interest”. The agreement was negotiated (as far as we know) secretly with UEFA. Despite recent meetings between EU Commissioner for sport Vassiliou and UEFA President Platini, the eventuality of such an outcome was never evoked. It is very unlikely that third-interested-parties (FIFPro, ECA, Supporters Direct etc.) were consulted in the process of drafting this Arrangement. This surprising move by an outgoing Commission will be analysed in a three-ponged approach. First, we will discuss the substance of the Arrangement (I). Thereafter, we will consider its potential legal value under EU law (II). Finally, and maybe more importantly, we will confront the political relevance of the agreement (III).  

Source: http://ec.europa.eu/avservices/photo/photoDetails.cfm?sitelang=en&ref=026448#13

The substance of the “Arrangement” between UEFA and the European Commission

What’s in the Arrangement? In short, a lot of random considerations, very little concrete commitments, and an administrative structure for future dialogue.

The “basis” for the cooperation between UEFA and the European Commission is a mixed bag of shared concerns and common views. Both institutions are keen on strengthening their dialogue “in the interests of the long-term development and societal role of sport in general and football in particular” (Article 2.1. of the Arrangement), especially in the light of the societal value of sport (Article 2.2.) and the many challenges and risks it is facing (Article 2.3.). Therefore, they “endeavour to strengthen policies designed to encourage the local training and education of athletes” (Article 2.4.). The parties share the view that “appropriate solutions are to be found in order to ensure that athletes are available to play for their national teams” (Article 2.5.), but also that “redistribution mechanisms concerning, for example, audiovisual media revenues and training compensation fees should be recommended” (Article 2.6.). Furthermore, they acknowledge that “[F]inancial stability, transparency and better governance within sport can be pursued through responsible self-regulation”. For example, “measures to encourage greater rationality and discipline in club finances with a focus on the long-term as opposed to the short-term, such as Financial Fair Play initiative, contribute to the sustainable development and healthy growth of sport in Europe” (Article 2.7.).  

The parties also agree that the “health and human dignity of athletes must be protected from abusive and unethical practices”. In this regard, “[I]t is important that […] so-called third-party ownership of the “economic rights” of player, do not threaten the integrity of sporting competition or undermine the relationship of trust and mutual respect that should exist in any relationship of employment” (Article 2.8.). More broadly, the parties recognise the need for social dialogue, protecting fundamental rights, promoting gender equality and to fight all forms of racism, xenophobia, homophobia and discrimination (Article 2.9.). It is recognized that “[t]o improve good governance standards, UEFA can also play a prominent role in seeking appropriate solutions on issues pertaining to players’ transfers and agents at European level” (Article 2.10.). Concerning match-fixing, the parties acknowledge that close cooperation is needed (2.11). 

The Arrangement calls for an “effective protection of intellectual property rights”, as their exploitation “represents an important source of income for professional football” (Article 2.12.). It also favours “the reinforcement of the Council of Europe convention on spectator violence” (Article 2.13.). In a very important holding, arbitration is recognised as “an important voluntary tool for settling disputes in sport and ensuring that sporting rules are applied, interpreted and enforced in an effective and uniform manner, while also ensuring respect of the applicable legal norms and procedural safeguards within and outside of the EU” (Article 2.14.). Finally, “the European Commission and UEFA will collaborate in the context of the planned European Week of Sport, using football to promote healthy physical activity” (Article 2.15).

This collection of, more or less, random thoughts collated in the Arrangement lead to two broad objectives: “to promote cooperation and strengthen relations between the European Commission and UEFA in the interests of the sustainable development of football” (Article 3.1.1.) and “to exchange information, knowledge and good-practice on matters of common interest” (Article 3.1.2). These objectives are to be implemented through a “policy dialogue” between the Secretary General of UEFA and the Director General responsible for Sport in the EC (Article 4.1, 4.2, 4.4, & 4,5). The implementation will also involve “Regular and ad hoc meetings […] between officials of the Sides […]” (Article 4.3.).

The Arrangement will start on the date of the signature [14 October 2014] and is to last until 31 December 2017 (Article 5.1.). The Sides to the Arrangement are free to amend it (Article 5.2). While, each side “can, at any time discontinue the application of this Arrangement, but should endeavour to provide a three-month notice of such discontinuation to the other Side” (Article 5.3.). Finally, both sides acknowledge that the “Arrangement does not create rights or obligations under international, EU or domestic law” (Article 5.4.).   

The legal value of the “Arrangement” under EU law

This is not a memorandum of understanding, a gentleman’s agreement between UEFA and the Commission, or a simple political declaration; this Arrangement is formally approved by a binding decision of the European Commission, to which it is attached. This decision could not be based on Article 165 paragraph 4 of the TFEU (the sports legal basis), as it does not confer to the European Commission the power to adopt such a decision. Hence, the Commission needed to rely on its general competence derived from Article 17 TEU.[1] Already, this is cause for legal concern; for example one could question the legitimacy of the circumvention of the limits set expressively in Article 165 TFEU and the recourse to Article 17 TEU to stretch the Commission’s competences. Ultimately, it could lead to a legal challenge against the decision, based on the European Commission’s lack of competence to adopt it. In any way, this is unlikely to happen, as it would require an EU Institution (the Council or the European Parliament), or a Member State to do so. 

What does the fact that the Arrangement is enshrined in a European Commission decision mean in legal terms? As specified in Article 288 TFEU: “A decision shall be binding in its entirety”. This is a legally binding document, in theory reviewable by Courts and potentially capable of generating rights and legitimate expectations for a third party (most probably UEFA). The Commission was apparently very weary of dodging this possibility. Therefore, it kept the wording of its commitments relatively vague and introduced many references to the primacy of EU Competition law and the EU acquis in the text. Moreover, article 5.4 of the Arrangement stipulates that it “does not create rights or obligations under international, EU or domestic law”. This makes it very difficult to envisage a possibility for UEFA to claim that it has concrete legitimate expectations arising from this Arrangement.[2] Consequently, in practice, this Arrangement is very much a soft legal instrument in the guise of hard law administrative decision. Nevertheless, the law is not always only about the law and such soft legal documents might have hard political and legal consequences. 

The hard political (and legal) reality of a soft legal “Arrangement”

The legal theoretical debate over the nature and function of soft law instruments has been on-going for more than 20 years now.[3] But, one thing seems to be more or less certain, soft legal mechanisms matter.[4] They matter politically, as they shape the perception of public opinion and play a role in public discourse. Sometimes they might also matter legally, especially when legal standards based on the substantial balancing of values (or risks) are used, as for example the proportionality principle. Therefore, the European Commission should be very weary of using such soft instruments in a blunt fashion. 

In our view, this Arrangement between UEFA and the European Commission is a misguided soft law instrument. Indeed, despite its willingness not to get into an agreement creating legal rights for UEFA, the European Commission will be haunted (politically and legally) by it for the years to come. For example, it will be very difficult for the European Commission to consider that UEFA’s Financial Fair Play regulations are disproportionate in the sense of the Meca-Medina test, after recognizing that it contributes to “the sustainable development and healthy growth of sport in Europe”. The Commission also adds that this recognition is “subject to compliance with competition law”. Thus, it remains in theory possible for the DG Competition to consider FFP incompatible with EU Competition law. However, one need not be a political wizard to understand the difficulty to do so after having enshrined such a statement in an official decision (UEFA is already claiming that the Commission “fully supports” the “implementation of Financial Fair Play”). UEFA would easily point at the obvious contradiction and the European public would rightly blame the European Commission for its inconsistency.                                                                                            

Unfortunately, this Arrangement is not only about UEFA’s FFP regulations; instead, the European Commission is signing on a set of very controversial statements. Indeed, by qualifying sporting Arbitration as “an important voluntary tool for settling disputes in sport” and “ensuring respect of the applicable legal norms and procedural safeguards within and outside of the EU” it indirectly recognizes the legitimacy of the Court of Arbitration for Sport. This is notwithstanding the very acute doubts about the “voluntary” nature of this arbitration[5], as well as potential concerns related to its independence. In this context, one can only be perplexed by the willingness of the European Commission to throw caution to the wind. The CAS might be a useful tool for sports governing bodies trying to evade the purview of national courts; it might even be necessary to avoid the fragmentation of the global anti-doping regime or to offer a quick and clean dispute resolution mechanisms in certain disciplinary or commercial cases. However, its legitimacy and its capacity to safeguard the fundamental rights of athletes is not a given and the European Commission would have been well advised to show considerable restraint in weighing in on this question. This lack of caution is generally true for other very complex socio-economic issues tackled en passant in the Arrangement, and in which UEFA had a keen (economic) interest to defend: the release of players for the national teams, the intellectual property rights over football and the regulation of the transfer system. 

Finally, UEFA will now enjoy privileged access to the highest level of the EU’s executive branch. This is akin to an ‘all you can eat’ lobbying ticket to defend its interests and views. UEFA may have a central function in the organization of European football, but, it is not the UN, States have no say in its policies, nor have the people which are directly affected by them.[6] There is no good reason to confer a special political status to UEFA, especially taking into account that, as a private government, it refuses to give a real institutional voice to some of its most prominent “citizens”: the players, the clubs or the fans. By doing so, the Commission risks cutting itself from the other legitimate voices of football and losing sights of its duty to defend the European general interest as a whole. 

Did the outgoing European Commission rush to cash-in on a visual accolade from Michel Platini? One is left to wonder. For all these substantial political concessions, the European Commission won only the meagre promise that “UEFA will collaborate in the context of the planned European Week of Sport, using football to promote healthy physical activity”. Such an Arrangement could have potentially made sense, if the European Commission would have imposed in return certain governance standards on UEFA (real stakeholders participation, transparency requirements etc…), or conditioned its signature to the full implementation of the recently agreed (and not even mentioned in the Arrangement) European social dialogue agreement for professional football players. 

In short, with this Arrangement the European Commission capitulated politically in front of UEFA. Such a capitulation need not take a legally binding form; its political meaning is enough. It is a sad day for European Sports Law and for those keen on democratizing the governance of football and on subjecting it to the rule of law. One can only hope that, as it has done in the past, the Court of Justice will be willing to supplant the Commission in defending the European general interest and the rights of athletes.

[1] Article 17(1) TEU reads as follows: “The Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union. It shall execute the budget and manage programmes. It shall exercise coordinating, executive and management functions, as laid down in the Treaties. With the exception of the common foreign and security policy, and other cases provided for in the Treaties, it shall ensure the Union's external representation. It shall initiate the Union's annual and multiannual programming with a view to achieving interinstitutional agreements.”

[2] On the scope of the notion of « Legitimate expectations » in EU administrative Law, see P. Craig, EU Administrative Law, OUP, 2012, pp. 567-570

[3] For an early discussion of soft law in the framework of EU law see : F. Snyder, ‘The effectiveness of European Community Law : Institutions, Processes, Tools and Techniques’, Modern Law Review, vol.56, 1993, 19-56, p.32-35

[4] L. Senden, Soft law in European Community Law, Hart Publishing, 2004 ; O. Stefan, Soft Law in Court : Competition Law, State Aid and the Court of Justice of the EU, Kluwer, 2013.

[5] The recent Pechstein decision by the Landgericht München highlighted this lack of consent from the part of the athlete. See the decision at www.openjur.de/u/678775.html

[6] On the need to distinguish between its factual capacity to create legal rules and its legitimacy to do so, see A. Duval, ‘Lex Sportiva : A playground for transnational law’ available at http://ssrn.com/abstract=2317826