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 Odds of Match Fixing – Facts & Figures on the integrity risk of certain sports bets”. By Ben Van Rompuy

Media reports and interested stakeholders often suggest that certain types of sports bets would significantly increase the risks of match fixing occurring. These concerns also surface in policy discussions at both the national and European level. Frequently calls are made to prohibit the supply of “risky” sports bets as a means to preserve the integrity of sports competitions.

Questions about the appropriateness of imposing such limitations on the regulated sports betting, however, still linger. The lack of access to systematic empirical evidence on betting-related match fixing has so far limited the capacity of academic research to make a proper risk assessment of certain types of sports bets. 

The ASSER International Sports Law Centre has conducted the first-ever study that assesses the integrity risks of certain sports bets on the basis of quantitative empirical evidence. 

We uniquely obtained access to key statistics from Sportradar’s Fraud Detection System (FDS). A five-year dataset of football matches worldwide, which the FDS identified as likely to have been targeted by match fixers, enabled us to observe patterns and correlations with certain types of sports bets. In addition, representative samples of football bets placed with sports betting operator Betfair were collected and analysed. 

The results presented in this report, which challenge several claims about the alleged risks generated by certain types of sports bets, hope to inform policy makers about the cost-effectiveness of imposing limits on the regulated sports betting offer.More...

The Pechstein ruling of the Oberlandesgericht München - Time for a new reform of CAS?

Editor's note (13 July 2015): We (Ben Van Rompuy and I) have just published on SSRN an article on the Pechstein ruling of the OLG. It is available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2621983. Feel free to download it and to share any feedback with us!


On 15 January 2015, the earth must have been shaking under the offices of the Court of Arbitration for Sport (CAS) in Lausanne when the Oberlandesgericht München announced its decision in the Pechstein case. If not entirely unpredictable, the decision went very far (further than the first instance) in eroding the legal foundations on which sports arbitration rests. It is improbable (though not impossible) that the highest German civil court, the Bundesgerichtshof (BGH), which will most likely be called to pronounce itself in the matter, will entirely dismiss the reasoning of the Oberlandesgericht. This blogpost is a first examination of the legal arguments used (Disclaimer: it is based only on the official press release, the full text of the ruling will be published in the coming months).More...



In blood we trust? The Kreuziger Biological Passport Case. By Thalia Diathesopoulou

Over the last twenty years, professional cycling has developed the reputation of one of the “most drug soaked sports in the world”.[1] This should not come as a surprise. The sport’s integrity has plummeted down due to an unprecedented succession of doping scandals. La crème de la crème of professional cyclists has been involved in doping incidents including Tyler Hamilton, Floyd Landis, Alejandro Valverde and Lance Armstrong. The once prestigious Tour de France has been stigmatized as a race of “pharmacological feat, not a physical one”.[2]

In view of these overwhelming shadows, in 2008, the International Cycling Union (UCI), in cooperation with the World Anti-Doping Agency (WADA) took a leap in the fight against doping. It became the first International Sports Federation to implement a radical new anti-doping program known as the Athlete Biological Passport (ABP).[3] More...

A Question of (dis)Proportion: The CAS Award in the Luis Suarez Biting Saga

The summer saga surrounding Luis Suarez’s vampire instincts is long forgotten, even though it might still play a role in his surprisingly muted football debut in FC Barcelona’s magic triangle. However, the full text of the CAS award in the Suarez case has recently be made available on CAS’s website and we want to grasp this opportunity to offer a close reading of its holdings. In this regard, one has to keep in mind that “the object of the appeal is not to request the complete annulment of the sanction imposed on the Player” (par.33). Instead, Suarez and Barcelona were seeking to reduce the sanction imposed by FIFA. In their eyes, the four-month ban handed out by FIFA extending to all football-related activities and to the access to football stadiums was excessive and disproportionate. Accordingly, the case offered a great opportunity for CAS to discuss and analyse the proportionality of disciplinary sanctions based on the FIFA Disciplinary Code (FIFA DC).  More...

The International Sports Law Digest – Issue II – July-December 2014

I. Literature


1. Antitrust/Competition Law and Sport

G Basnier, ‘Sports and competition law: the case of the salary cap in New Zealand rugby union’, (2014) 14 The International Sports Law Journal 3-4, p.155

R Craven, ‘Football and State aid: too important to fail?’ (2014) 14 The International Sports Law Journal 3-4, p.205

R Craven, ‘State Aid and Sports Stadiums: EU Sports Policy or Deference to Professional Football (2014) 35 European Competition Law Review Issue 9, 453


2. Intellectual Property Rights in Sports law / Betting rights/ Spectators’ rights/ Sponsorship Agreements

Books

W T Champion and K DWillis, Intellectual property law in the sports and entertainment industries (Santa Barbara, California; Denver, Colorado; Oxford, England: Praeger 2014)

J-M Marmayou and F Rizzo, Les contrats de sponsoring sportif (Lextenso éditions 2014) 

More...






Time to Cure FIFA’s Chronic Bad Governance Disease

 After Tuesday’s dismissal of Michael Garcia’s complaint against the now infamous Eckert statement synthetizing (misleadingly in his eyes) his Report on the bidding process for the World Cup 2018 and 2022, Garcia finally decided to resign from his position as FIFA Ethics Committee member. On his way out, he noted: “No independent governance committee, investigator, or arbitration panel can change the culture of an organization”. It took Garcia a while to understand this, although others faced similar disappointments before. One needs only to remember the forgotten reform proposals of the Independent Governance Committee led by Prof. Dr. Mark Pieth. More...

The CAS Ad Hoc Division in 2014: Business As Usual? - Part. 2: The Selection Drama

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. More...

Should the CAS ‘let Dutee run’? Gender policies in Sport under legal scrutiny. By Thalia Diathesopoulou

The rise of Dutee Chand, India’s 100 and 200-meter champion in the under 18-category, was astonishing. Her achievements were more than promising: after only two years, she broke the 100m and 200m national junior records, competed in the 100m final at the World Youth Athletics Championships in Donetsk and collected two gold medals in the Asian Junior Championships in Chinese Taipei. But, in July 2014, this steady rise was abruptly halted. Following a request from the Athletics Federation of India (AFI), the Sports Authority of India (SAI) conducted blood tests on the Indian sprinters. Dutee was detected with female hyperandrogenism, i.e a condition where the female body produces high levels of testosterone. As a result, a few days before the Commonwealth Games in Glasgow, the AFI declared Dutee ineligible to compete under the IAAF Regulations and prevented her from competing in future national and international events in the female category. Pursuant to the IAAF ‘Hyperandrogenism Policy’, the AFI would allow Dutee to return to competition only if she lowers her testosterone level beneath the male range by means of medical or surgical treatment.[1] On 25 September 2014, Dutee filed an appeal before the CAS, seeking to overturn the AFI’s decision and declare IAAF and IOC’s hyperandrogenism regulations null and void. She is defending her right to compete the way she actually is: a woman with high levels of testosterone. Interestingly enough, albeit a respondent, AFI supports her case.

IAAF and IOC rules set limits to female hyperandrogenism, which is deemed an unfair advantage that erodes female sports integrity. While these rules have been contested with regard to their scientific and ethical aspects, this is the first time that they will be debated in court. This appeal could have far-reaching ramifications for the sports world. It does not only seek to pave the way for a better ‘deal’ for female athletes with hyperandrogenism, who are coerced into hormonal treatment and even surgeries to ‘normalise’ themselves as women[2], but it rather brings the CAS, for the first time, before the thorny question:

How to strike a right balance between the core principle of ‘fair play’ and norms of non-discrimination, in cases where a determination of who qualifies as a ‘woman’ for the purposes of sport has to be made? More...

The O’Bannon Case: The end of the US college sport’s amateurism model? By Zygimantas Juska

On 8 August, U.S. District Judge Claudia Wilken ruled in favour of former UCLA basketball player O'Bannon and 19 others, declaring that NCAA's longstanding refusal to compensate athletes for the use of their name, image and likenesses (NILs) violates US antitrust laws. In particular, the long-held amateurism justification promoted by the NCAA was deemed unconvincing.

On 14 November, the NCAA has appealed the judgment, claiming that federal judge erred in law by not applying a 1984 Supreme Court ruling. One week later, the NCAA received support from leading antitrust professors who are challenging the Judge Wilken’s reasoning in an amicus curiae. They are concerned that the judgment may jeopardize the proper regulation of college athletics. The professors argued that if Wilken’s judgment is upheld, it

would substantially expand the power of the federal courts to alter organizational rules that serve important social and academic interests…This approach expands the ‘less restrictive alternative prong’ of the antitrust rule of reason well beyond any appropriate boundaries and would install the judiciary as a regulatory agency for collegiate athletics”.   

More...

Image Rights in Professional Basketball (Part II): Lessons from the American College Athletes cases. By Thalia Diathesopoulou

In the wake of the French Labour Union of Basketball (Syndicat National du Basket, SNB) image rights dispute with Euroleague and EA Games, we threw the “jump ball” to start a series on players’ image rights in international professional basketball. In our first blogpost, we discussed why image rights contracts in professional basketball became a fertile ground for disputes when it comes to the enforcement of these contracts by the Basketball Arbitral Tribunal (BAT). Indeed, we pointed out that clubs might take advantage of the BAT’s inconsistent jurisprudence to escape obligations deriving from image rights contracts.

In this second limb, we will open a second field of legal battles “around the rim”: the unauthorized use of players’ image rights by third parties. We will use as a point of reference the US College Athletes image rights cases before US Courts and we will thereby examine the legal nature of image rights and the precise circumstances in which such rights may be infringed. Then, coming back to where we started, we will discuss the French case through the lens of US case law on players’ image rights. 


Source: http://philadelphia.cbslocal.com/2013/09/27/ea-sports-settles-college-likeness-case/ More...


Asser International Sports Law Blog | The Russian Ballet at the CAS Ad Hoc Division in Rio - Act II: On being implicated

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 Russian Ballet at the CAS Ad Hoc Division in Rio - Act II: On being implicated

Editor's note: This is the second part/act of our blog series on the Russian eligibility cases at the CAS ad hoc Division in Rio.

 

Act II: On being implicated


Paragraph 2 of the IOC Decision: The IFs to examine the information contained in the IP Report, and for such purpose seek from WADA the names of athletes and National Federations (NFs) implicated. Nobody implicated, be it an athlete, an official, or an NF, may be accepted for entry or accreditation for the Olympic Games.”

 

The second, and by far largest, wave of complaints involved Russian athletes barred from the game under paragraph 2 of the IOC Decision. None of those were successful in their appeals as the CAS sided with those IFs which took a tough stance with regard to the Russian State doping system. The first set of cases turned on the definition of the word “implicated” in the sense of paragraph 2 of the IOC Decision. In this regard, on 2 August the IOC sent a communication to the IFs aiming at providing some general guidelines. It reads as follows:

"In view of the recent appeals filed by Russian Athletes with CAS, the IOC considers it necessary to clarify the meaning of the notion "implicated" in the EB Decision.

The IOC does not consider that each athlete referred to in the McLaren Lists shall be considered per se "implicated. It is for each International federation to assess, on the basis of the information provided in the McLaren lists and the Independent Person Report, whether it is satisfied that the Athlete in question was implicated in the Russian State-controlled doping scheme.

To assist the International Federations in assessing each individual case, the IOC wishes to provide some information. In the IOC's opinion, an athlete should not be considered as "implicated" where:

·       The order was a "quarantine".

·       The McLaren List does not refer to a prohibited substance which would have given rise to an anti-doping rule violation or;

·       The McLaren List does not refer to any prohibited substance with respect to a given sample."

The CAS went on to address this question concretely in three cases analysed below. [1]

 

A.    CAS OG 16/19 Natalia Podolskaya & Alexander Dyachenko v. ICF

Podolskaya and Dyachenko are two canoeists from Russia who were suspended by the International Canoe Federation (ICF) and removed from the Rio Games as they were deemed implicated in the IP Report. In an affidavit to the CAS, referred to in the award, Richard McLaren disclosed the facts that led to both athletes being considered implicated.

Regarding Podolskaya, McLaren indicated that he has retrieved electronic evidence that “reveals that on 31 July 2013 at 00:50 hours, in contravention of the International Standard for Laboratories, the Moscow Laboratory reported to email address av@sochi2014.com that sample member 2780289, belonging to a female canoe athlete taken at the Russian Championships in Moscow, was suspected for EPO and further inquired what should be done”.[2] In a quick response on 1 August 2013, Alexey Velikodniy, then vice-minister for sports, “communicated back to Laboratory that the sample number 2780289 belonged to Ms. Natalia Podolskaya and instructed the Laboratory to "SAVE"”.[3] Similarly, as far as Dyachenko is concerned, the “electronic evidence reveals that on 5 August 2014 at 12:09 hours, in contravention of the International Standard Laboratories, the Moscow Laboratory reported to Alexey Velikodniy that pre-departure sample number 2917734, collected at a Training Camp on 3 August 2014, contained a lot oftrenbolone and a little methenolone. Alexey Velikodny's response to the laboratory on 6 August 2014 at 1%:26 [sic] was that sample number 2917734 from 3 August 2014 pre-departure test belonging to Mr Alexander Dyachenko, and on instruction from "llR", should be a "SAVE".”[4] McLaren concludes that for both “Ms. Natalia Podolskaya and Alexander Dyachenko, the "SAVE" instruction signalled to the Laboratory that no further analytical bench work was to be done on the samples and the Laboratory filed a negative ADAMS report for each athlete”. [5]

In its assessment of the application of paragraph 2 of the IOC Decision by the ICF, the CAS Panel finds that the “Applicants were among five athletes so [as implicated in the IP Report] named” and that the “ICF was entitled to conclude that the Applicants failed to meet the criteria in paragraph 2”.[6] Moreover, this “conclusion has been reinforced by the evidence made available to the Panel by Professor Mclaren” and “is justified on the standard of comfortable satisfaction”.[7] The applicants, unsuccessfully, argued that they were never sanctioned for an anti-doping rule violation, and that the samples referred to in the IP Report cannot be tested anymore to prove their innocence. They also claimed that other contemporary samples returned negative and “that if they had used prohibited substances, all the tests would have returned positive”.[8] Nonetheless, WADA pointed out that “due to the nature of the substances concerned and the timing of the provision of the samples, this cannot be concluded”.[9] The Panel accepted “WADA's submission, not contradicted by the Applicants, that there are explanations consistent with the Applicant's assertion but also consistent with the taking of the prohibited substances at the relevant time”.[10]

Finally, the Russian applicants tried to fight their ineligibility under the implication criteria laid down in paragraph 2 of the IOC Decision by arguing that it was not compatible with natural justice.[11] Yet, The CAS refused to follow this line of reasoning. Instead, the Panel found that the “Applicants have challenged that decision in the CAS and have been given the opportunity to rebut that evidence”, thus they “have not been denied natural justice or procedural fairness”.[12]

 

B.    CAS OG 16/21 Elena Anyushina & Alexey Korovashkov v. ICF & RCF 

Anyushina and Korovashkov are also two canoeists from Russia. Similar to Podolskaya and Dyachenko, they were suspended on 26 July 2016 by the ICF and removed from the Rio Games as they were deemed implicated in the IP report. However, Anyushina was quickly reinstated and declared eligible to compete at the Games by the IOC.[13] The procedure was, consequently, limited to Korovashkov. He was deemed implicated because, as outlined by Richard McLaren in his affidavit:

"On 15 August 2014 at 09:22 hours, in contravention of the International Standard for Laboratories, the Moscow Laboratory reported to Alexey Velikodniy that sample number 2916461, collected 10 August 2014 in connection with an International Competition being held in Moscow, contained a lot of marijuana that was certainly above the threshold. (The /CF website reflects that the /CF Canoe Sprint World Championships took place in Moscow from the 8-10 August 2014)Alexey Velikodniy's response to the Laboratory on 18 August 2014 at 08:59 identified that sample number 2916461 belonged to Mr. Alexey Korovashkov and instructed that it should be a 'SAVE." Alexey Velikodniy also notes that Mr. Alexey sample is under investigation. Mr. Korovashkov's sample number 2916461 was reported negative in ADAMS."[14]

The Russian canoeist argued that the “evidence concerning the relevant sample on which the ICF relies to support its decision is unreliable”, because “there is no "threshold" provided for marijuana in WADA Technical Document TD 2013DL of 11 May 2013 concerning Decision Limits for the Confirmatory Quantification of Threshold Substances”.[15] In his view, “[i]f there is no threshold, it is unlikely that the laboratory would have provided such odd information to Alexey Velikodniy rather than reporting the threshold itself; the evidence does not resemble a laboratory report
Correspondence could not have been authored by the laboratory's employees, who are fully aware that they would be required to calculate and then state the actual result”.[16] The Panel rebutted this argument by pointing out that, in fact, the relevant WADA document included a threshold for Cannabinoids.[17] The Panel concluded that “the evidence is that the State sponsored doping system was applied to the Second Applicant so as to prevent a positive report of marijuana over the threshold for that substance”.[18] Consequently, Korovashkov was deemed implicated in the IP Report. The Panel did display its sympathy with the Russian athlete, as it pointed out that “[t]he ICF indicated that marijuana is not, in its view, a performance enhancing drug and the Panel notes that there is no suggestion of any other substance involved”.[19] 

The Panel further rejected Korovashkov argument that the ICF’s decision to declare him ineligible for the Rio Olympics amounted to a wrongful anti-doping sanction.[20] The applicant argued that the use of the word “suspended” in the original letter to the ICF was the terminology used under the WADA Code. The Panel finds that even though “suspended” “is a word used, and a sanction provided for, in the WADA Code, this does not mean that its inclusion means that the decision is made under that Code”.[21] Moreover, the CAS arbitrators consider it “clear that the letter was in direct response to the IOC Executive Board’s decision and concerned the eligibility of Russian athletes to compete in the Games of the XXXI Olympiad in Rio de Janeiro Games and to be accredited to those Games”. [22] Thus, it “was not a decision under the WADA Code and was not bound by the provisions of that Code”. [23] In other words, the Decision should not and could not be misconstrued as a doping ban based on the WADA Code, but found its legal basis in the IOC Decision and in Article 12.3 of the ICF Anti-doping Rules.

This case demonstrates the willingness of CAS arbitrators to adopt an objective reading of the notion of implication. If an athlete benefitted from the Russian doping scheme, even in case of a relatively harmless substance like cannabis, it was considered legitimate for an IF to remove him or her from Russia’s Olympic team.

 

C.    CAS OG 16/12 Ivan Balandin v. FISA & IOC

Ivan Balandin is a rower from Russia who was declared ineligible to compete at the Rio Olympics by the World Rowing Federation (FISA) on 27 July 2016, due to his implication in the IP Report. More precisely, he appears in the Report as having been “saved” by the Russian Deputy Minister of Sport and his test was later reported as negative in the ADAMS system.[24] 

The athlete first argued, as did Korovashkov, that this was an anti-doping sanction, which did not follow the appropriate procedure. WADA clarified “that the Athlete may yet face proceedings relating to an ADRV, however, the nature of these could yet to be determined [sic]”[25] and added that the “matter at hand concerns eligibility for the Rio Games”.[26] The Panel concurred and concluded that the “dispute at hand concerns the Athlete’s eligibility for the Rio Games alone”.[27]

The next question was whether Balandin was implicated in the IP Report. The Panel notes, as pointed out in the IOC letter from 2 August 2016, that a simple implication in the Report does not necessarily indicate that an athlete benefited from the State-doping scheme. In his defence, the athlete singled out that a date of collection was missing for the sample, in order to attack the validity of the information provided by McLaren. FISA responded that it had taken “the necessary steps to establish this date by calling UKAD”.[28] Moreover, Richard McLaren revealed in his amicus curiae “the exact date and times of the message from the Moscow Laboratory that the screen of the Athlete’s A sample revealed positive for the prohibited substance GW 1516 and the response from the Deputy Minister to change the positive into a negative, following the DPM” .[29] In any event, “the Panel is satisfied that the information provided to FISA and the additional checks it took with UKAD, were sufficient to show the Athlete was “implicated” in this scheme”.[30] The athlete was deemed implicated, but did he actually benefit from the scheme? The Panel “notes that the substance GW 1516 is a metabolic modulator and a non-specified substance and is prohibited at all times (without a threshold)”.[31] Additionally, “the instruction from the Deputy Minister was “save””[32]. Thus, the CAS arbitrators were “comfortably satisfied” that Balandin had benefitted from the scheme.

 

In all three cases, the athletes mentioned in the Report as ‘saved’ were recognized as implicated by the CAS. The court clearly distinguished the notion of implication from the fact that the athletes committed an anti-doping violation as defined by the WADA Code. However, it is unclear whether the arbitrators would have deemed an athlete implicated, if he or she was not named in the evidence provided by McLaren. As the disappearing positive methodology implemented by the Moscow laboratory was an ultima ratio, this still entails that many Russian athletes competing in Rio might have profited from Russia’s State doping scheme by escaping a positive test altogether. Hence, the IOC’s choice to narrow down on implicated athletes seems rather inadequate to tackle the generalized doping system unveiled by the IC and IP reports. 


[1] CAS OG 16/19 Natalia Podolskaya & Alexander Dyachenko v. ICF; CAS OG 16/21 Elena Anyushina & Alexey Korovashkov v. ICF & RCF; CAS OG 16/12 Ivan Balandin v. FISA & IOC. A fourth case, CAS OG 16/18 Kiril Sveshnikov et al. v. UCI & IOC, was declared inadmissible.

[2] CAS OG 16/19 Natalia Podolskaya & Alexander Dyachenko v. ICF, para. 2.11.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Ibid., para. 7.13.

[7] Ibid., para. 7.14.

[8] Ibid., para. 7.24.

[9] Ibid., para. 7.24.

[10] Ibid., para. 7.26.

[11] Ibid., paras 7.15-7.26.

[12] Ibid., para. 7.18.

[13] CAS OG 16/21 Elena Anyushina & Alexey Korovashkov v. ICF & RCF, para. 3.13.

[14] Ibid., para. 2.6.

[15] Ibid., para. 7.10.

[16] Ibid., para. 7.12.

[17] Ibid., paras 7.15-17.

[18] Ibid., para. 7.20.

[19] Ibid., para. 7.21.

[20] Ibid., paras 7.23-7.27.

[21] Ibid., para. 7.24.

[22] Ibid., para. 7.25.

[23] Ibid.

[24] CAS OG 16/12 Ivan Balandin v. FISA & IOC, para.2.9.

[25] Ibid., para. 7.13.

[26] Ibid.

[27] Ibid., para. 7.15.

[28] Ibid., para 7.28.

[29] Ibid., para 7.29.

[30] Ibid.

[31] Ibid., para 7.30.

[32] Ibid.

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