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

FIFA's Human Rights Agenda: Is the Game Beautiful Again? – By Tomáš Grell

Editor’s note: Tomáš Grell holds an LL.M. in Public International Law from Leiden University. He contributes to the work of the ASSER International Sports Law Centre as a research intern.

 

Concerns about adverse human rights impacts related to FIFA's activities have intensified ever since its late 2010 decision to award the 2018 and 2022 World Cup to Russia and Qatar respectively. However, until recently, the world's governing body of football had done little to eliminate these concerns, thereby encouraging human rights advocates to exercise their critical eye on FIFA. 

In response to growing criticism, the Extraordinary FIFA Congress, held in February 2016, decided to include an explicit human rights commitment in the revised FIFA Statutes which came into force in April 2016. This commitment is encapsulated in Article 3 which reads as follows: ''FIFA is committed to respecting all internationally recognized human rights and shall strive to promote the protection of these rights''. At around the same time, Professor John Ruggie, the author of the United Nations Guiding Principles on Business and Human Rights ('UN Guiding Principles') presented in his report 25 specific recommendations for FIFA on how to further embed respect for human rights across its global operations. While praising the decision to make a human rights commitment part of the organization's constituent document, Ruggie concluded that ''FIFA does not have yet adequate systems in place enabling it to know and show that it respects human rights in practice''.[1]

With the 2018 World Cup in Russia less than a year away, the time is ripe to look at whether Ruggie's statement about FIFA's inability to respect human rights still holds true today. This blog outlines the most salient human rights risks related to FIFA's activities and offers a general overview of what the world's governing body of football did over the past twelve months to mitigate these risks. Information about FIFA's human rights activities is collected primarily from its Activity Update on Human Rights published alongside FIFA's Human Rights Policy in June 2017. More...

International and European Sports Law – Monthly Report – June 2017. By Tomáš Grell

 Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

 

The Headlines

 
ISLJ Annual Conference on International Sports Law

On 26 and 27 October, the T.M.C. Asser Institute in The Hague will host the first ever ISLJ Annual International Sports Law Conference. This year’s edition will feature panels on the Court of Arbitration for Sport, the world anti-doping system, the FIFA transfer regulations, human rights and sports, the labour rights of athletes, and EU law and sport. More...



Mitigating Circumstances and Strict Liability of Clubs in Match-fixing: Are We Going in the Wrong Direction? An Analysis of the Novara and Pro Patria Cases - By Mario Vigna


Editor’s note: Mario Vigna is a Senior Associate at Coccia De Angelis Vecchio & Associati in Rome, Italy. His main practice areas are sports law, commercial law, and IP law. He also has extensive experience in the Anti-doping field, serving as Deputy-Chief Prosecutor of the Italian NADO and as counsel in domestic and international sports proceedings. He is a frequent speaker at various conferences and workshops. He was not involved in either of the cases discussed below.


I.               Introduction 

Gambling in football is a popular and potentially lucrative activity. It also raises numerous issues. When faced with the issue of gambling, the European Court of Justice (now Court of Justice of the EU) determined that gambling was economic activity per se, notwithstanding gambling’s vulnerability to ethical issues, and thus could not be prohibited outright.[1] With the legality of gambling established, it was left to the proper legislative bodies (national legislatures, national and international federations, etc.) to regulate gambling in order to guard against fraud and corruption. Gambling was not going to disappear; the dangers inherent to gambling would require attention.  More...




Overdue payables in action: Reviewing two years of FIFA jurisprudence on the 12bis procedure – Part 2. By Frans M. de Weger and Frank John Vrolijk.

Editor's Note: Frans M. de Weger is legal counsel for the Federation of Dutch Professional Football Clubs (FBO) and CAS arbitrator. De Weger is author of the book “The Jurisprudence of the FIFA Dispute Resolution Chamber”, 2nd edition, published by T.M.C. Asser Press in 2016. Frank John Vrolijk specialises in Sports, Labour and Company Law and is a former legal trainee of FBO and DRC Database.

This second blog will focus specifically on the sanctions available for FIFA under Article 12bis. It will provide explanatory guidelines covering the sanctions imposed during the period surveyed.


Introduction

The possibility to impose sanctions under article 12bis constitutes one of the pillars of the 12bis procedure. Pursuant to Article 12bis of the RSTP, edition 2016, the DRC and the PSC may impose a sanction on a club if the club is found to have delayed a due payment for more than 30 days without a prima facie contractual basis[1] and the creditor have put the debtor club in default in writing, granting a deadline of at least 10 days.[2] The jurisprudence in relation to Article 12bis also shows that sanctions are imposed ex officio by the DRC or the PSC and not per request of the claimant.More...





Overdue payables in action: Reviewing two years of FIFA jurisprudence on the 12bis procedure – Part 1. By Frans M. de Weger and Frank John Vrolijk.

Editor's Note: Frans M. de Weger is legal counsel for the Federation of Dutch Professional Football Clubs (FBO) and CAS arbitrator. De Weger is author of the book “The Jurisprudence of the FIFA Dispute Resolution Chamber”, 2nd edition, published by T.M.C. Asser Press in 2016. Frank John Vrolijk specialises in Sports, Labour and Company Law and is a former legal trainee of FBO and DRC Database.

In this first blog, we will try to answer some questions raised in relation to the Article 12bis procedure on overdue payables based on the jurisprudence of the DRC and the PSC during the last two years: from 1 April 2015 until 1 April 2017. [1] The awards of the Court of Arbitration for Sport (hereinafter: “the CAS”) in relation to Article 12bis that are published on CAS’s website will also be brought to the reader’s attention. In the second blog, we will focus specifically on the sanctions applied by FIFA under Article 12bis. In addition, explanatory guidelines will be offered covering the sanctions imposed during the period surveyed. A more extensive version of both blogs is pending for publication with the International Sports Law Journal (ISLJ). If necessary, and for a more detailed and extensive analysis at certain points, we will make reference to this more extensive article in the ISLJ. More...

International and European Sports Law – Monthly Report – May 2017. By Tomáš Grell

Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

The Headlines

The end of governance reforms at FIFA?

The main sports governance story that surfaced in the press (see here and here) during the last month is related to significant personal changes made by the FIFA Council within the organization’s institutional structure. In particular, the FIFA Council dismissed the heads of the investigatory (Mr Cornel Borbély) and adjudicatory (Mr Hans-Joachim Eckert) chambers of the Independent Ethics Committee, as well as the Head (Mr Miguel Maduro) of the Governance and Review Committee. The decision to remove Mr Maduro was taken arguably in response to his active role in barring Mr Vitaly Mutko, a Deputy Prime Minister of Russia, from sitting on the FIFA Council due to an imminent conflict of interests. These events constitute a major setback to governance reforms initiated by the football’s world governing body in 2015. For a more detailed insight into the governance reforms at FIFA, we invite you to read the recent blog written by our senior researcher Mr Antoine Duval. More...

The Olympic Games and Human Rights – Part II: Human Rights Obligations Added to the Host City Contract: Turning Point or Empty Promise? – By Tomáš Grell


This is a follow-up contribution to my previous blog on human rights implications of the Olympic Games published last week. Together with highlighting some of the most serious Olympic Games-related human rights abuses, the first part has outlined the key elements of the Host City Contract ('HCC') as one of the main legal instruments regulating the execution of the Olympic Games. It has also indicated that, in February 2017, the International Olympic Committee ('IOC') revised the 2024 HCC to include, inter alia, explicit human rights obligations. Without questioning the potential significance of inserting human rights obligations to the 2024 HCC, this second part will refer to a number of outstanding issues requiring clarification in order to ensure that these newly-added human rights obligations are translated from paper to actual practice. More...


The Olympic Games and Human Rights – Part I: Introduction to the Host City Contract – By Tomáš Grell

Editor’s note: Tomáš Grell is currently an LL.M. student in Public International Law at Leiden University. He contributes to the work of the ASSER International Sports Law Centre as a part-time intern.


In its press release of 28 February 2017, the International Olympic Committee ('IOC') communicated that, as part of the implementation of Olympic Agenda 2020 ('Agenda 2020'), it is making specific changes to the 2024 Host City Contract with regard to human rights, anti-corruption and sustainable development. On this occasion, IOC President Thomas Bach stated that ''this latest step is another reflection of the IOC's commitment to embedding the fundamental values of Olympism in all aspects of the Olympic Games''. Although the Host City of the 2024 Summer Olympic Games is scheduled to be announced only in September this year, it is now clear that, be it either Los Angeles or Paris (as Budapest has recently withdrawn its bid), it will have to abide by an additional set of human rights obligations.

This two-part blog will take a closer look at the execution of the Olympic Games from a human rights perspective. The first part will address the most serious human rights abuses that reportedly took place in connection with some of the previous editions of the Olympic Games. It will also outline the key characteristics of the Host City Contract ('HCC') as one of the main legal instruments relating to the execution of the Olympic Games. The second part will shed light on the human rights provisions that have been recently added to the 2024 HCC and it will seek to examine how, if at all, these newly-added human rights obligations could be reflected in practice. For the sake of clarity, it should be noted that the present blog will not focus on the provisions concerning anti-corruption that have been introduced to the 2024 HCC together with the abovementioned human rights provisions. More...



Exploring the Validity of Unilateral Extension Options in Football – Part 2: The view of the DRC and the CAS. By Saverio Spera

Editor’s Note: Saverio Spera is an Italian lawyer and LL.M. graduate in International Business Law at King’s College London. He is currently an intern at the ASSER International Sports Law Centre. 

This blog is a follow up to my previous contribution on the validity of Unilateral Extension Options (hereafter UEOs) under national and European law. It focuses on the different approaches taken to UEOs by the FIFA Dispute Resolution Chamber (DRC) and the Court of arbitration for sport (CAS). While in general the DRC has adopted a strict approach towards their validity, the CAS has followed a more liberal trend. Nonetheless, the two judicial bodies share a common conclusion: UEOs are not necessarily invalid. In this second blog I will provide an overview of the similarities and differences of the two judicial bodies in tackling UEOs. More...

Nudging, not crushing, private orders - Private Ordering in Sports and the Role of States - By Branislav Hock

Editor's note: Branislav Hock (@bran_hock)  is PhD Researcher at the Tilburg Law and Economics Center at Tilburg University. His areas of interests are transnational regulation of corruption, public procurement, extraterritoriality, compliance, law and economics, and private ordering. Author can be contacted via email: b.hock@uvt.nl.


This blog post is based on a paper co-authored with Suren Gomtsian, Annemarie Balvert, and Oguz Kirman.


Game-changers that lead to financial success, political revolutions, or innovation, do not come “out of the blue”; they come from a logical sequence of events supported by well-functioning institutions. Many of these game changers originate from transnational private actors—such as business and sport associations—that produce positive spillover effects on the economy. In a recent paper forthcoming in the Yale Journal of International Law, using the example of FIFA, football’s world-governing body, with co-authors Suren Gomtsian, Annemarie Balvert, and Oguz Kirman, we show that the success of private associations in creating and maintaining private legal order depends on the ability to offer better institutions than their public alternatives do. While financial scandals and other global problems that relate to the functioning of these private member associations may call for public interventions, such interventions, in most cases, should aim to improve private orders rather than replace them. More...



Asser International Sports Law Blog | The Russian Ballet at the CAS Ad Hoc Division in Rio - Act I: Saved by the Osaka Déjà-Vu

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 I: Saved by the Osaka Déjà-Vu

Since it was first introduced at the Atlanta Games in 1996,[1] the CAS ad hoc Division has never been as crowded as it was during this year’s Rio Olympics. This is mainly due to the Russian doping scandal, which has fuelled the CAS with Russian athletes challenging their ineligibility to compete at the Games. The CAS recently revealed that out of 28 awards rendered, 16 involved Russian athletes challenging their ineligibility. This Russian ballet is a direct result of the shocking findings of Richard McLaren’s Independent Person (IP) Report ordered by the World Anti-Doping Agency (WADA). McLaren’s investigation demonstrated that the Russian State was coordinating a sophisticated doping system. The revelation triggered an outrage in the media and amongst other competitors. Numerous calls (especially by WADA and various National Anti-Doping Organisations) were heard urging the IOC to ban the entire Russian delegation from the Olympics. The IAAF decided to exclude the whole Russian athletics team, [2] with the exception of Darya Klishina, but, to the disappointment of many, the IOC refused to heed these calls and decided, instead, to put in place a specific procedure to assess on a case-by-case basis the eligibility of Russian athletes.

The IOC’s Decision (IOC Decision) of 24 July foresees that the International Federations (IFs) are competent to determine whether each Russian athlete put forward by the Russian Olympic Committee (ROC) to participate in the Olympics meets a specific set of conditions. Moreover, the ROC was also barred from entering athletes who were sanctioned for doping in the past, even if they have already served their doping sanction. In the end, a majority of the Russian athletes (278 out of 389 submitted by the ROC) cleared the IOC’s bar relatively easily, but some of them did not, and many of the latter ended up fighting for their right to compete at the Rio Olympics before the CAS ad hoc Division.[3] In the following blogs, I will analyse the ten published CAS awards related to Russian athletes.[4] It is these legal fights that I suggest to chronicle in the following parts of this blog. To do so, I have divided them in five different (and analytically coherent) Acts:


Act I: Saved by the Osaka déjà-vu

Paragraph 3 of the IOC Decision: “The ROC is not allowed to enter any athlete for the Olympic Games Rio 2016 who has ever been sanctioned for doping, even if he or she has served the sanction”. 

Yulia Efimova, a top-level Russian swimmer, had a rough time at the Rio Games, where she was much criticized by her peers. Yet, as a sweet revenge, she did win two silver medals. Her achievement was made possible by a decision of the CAS ad hoc Division that enabled her to compete, although she had been sanctioned previously for doping and fell under paragraph 3 of the IOC Decision. In principle, Efimova, like the rowers Anastasia Karabelshikova and Ivan Podshivalov, did not comply with the criteria imposed by the IOC. However, in the awards CAS OG 16/13 and CAS OG 16/06, the CAS Panels, relying primarily on the concept of ‘natural justice’ and referring to the established CAS jurisprudence regarding the so-called ‘Osaka rule’,[5] sided with the Russian athletes against the IOC. The ‘Osaka rule’, which was adopted by the IOC in June 2008 in Osaka, foresaw that any person sanctioned with a doping ban of more than six months would be ineligible for the Olympic Games following the date of expiry of the ban. In 2011, the CAS found that rule to be contrary to the WADA Code and the IOC’s Olympic Charter.[6]

In both awards, the CAS ad hoc Division clearly identified that the “issues before the Panel focused primarily upon the legality of paragraph 3 of the
IOC Decision”.[7] The arbitrators emphasized that the IOC had acted in “good faith and with the best intentions”[8] in addressing the release of the IP Report. However, the Panels also stressed that the IOC Decision recognised the “right of the individual athletes to natural justice”.[9] In this regard, both Panels challenged the legality of paragraph 3 of the IOC Decision. Thus, it is argued that this paragraph “contains simple, unqualified and absolute criterion”.[10] Furthermore, “there is no recourse for such an athlete, no criteria that considers the promotion by the athlete of clean athletics (as the IAAF consider by way of an example) or any other criteria at all”.[11] Therefore, the arbitrators struggled “to reconcile this paragraph [3] with the stated aim to provide the athletes with an opportunity to rebut the presumption of guilt and to recognise the right to natural justice”.[12] Consequently, “this denial of the rules of natural justice renders paragraph 3 as unenforceable”.[13] Another related question was whether paragraph 3 should be treated as an eligibility rule or an additional sanction on athletes that had already been sanctioned for positive doping test. Though they deemed it a moot point, both Panels referred to the well-known case law of the CAS on the ‘Osaka rule’ to find that paragraph 3 constitutes an additional sanction.[14]

While Efimova went on to win two medals, both Karabelshikova and
 Podshivalov were barred from participating to the Rio Games on other grounds. The fact that paragraph 3 of the IOC Decision is deemed unenforceable should come as no surprise to anybody involved in international sports law. The CAS jurisprudence on this matter is very much a principle stand, under the current WADA Code there is simply no room for an Olympic ban in addition to a doping ban. This is a lesson often lost on the media and general public during Olympic days, but the principle of legality is a cornerstone principle of our legal systems and cannot be discarded lightly. Why the IOC decided to ignore this jurisprudence is open to interrogation. Did it want to appear as doing something substantial, while being aware that the CAS would not allow the rule to fly? Maybe. If not, paragraph 3 of the IOC Decision was just legal amateurism at its best, unjustifiable under any state of doping emergency.


[1] On the first years of the CAS ad hoc Division, see G. Kaufmann-Kohler, Arbitration at the Olympics, Kluwer Law, 2001.

[2] This decision was upheld by the CAS in an unpublished award CAS 2016/0/4684.

[3] On the role of the CAS ad hoc Division in Olympic selection dispute see A. Duval, Getting to the games: the Olympic selection drama(s) at the court of arbitration for sport, The International Sports Law Journal, July 2016, Volume 16, Issue 1, pp 52–66.

[4] The following awards are reviewed: CAS OG 16/13 Anastasia Karabelshikova & Ivan Podshivalov v. FISA & IOC ; CAS OG 16/04 Yulia Efimova v. ROC, IOC & FINA ; CAS OG 16/09 RWF v. IWF ; CAS OG 16/11 Daniil Andrienko et al. v. FISA & IOC ; CAS OG 16/18 Kiril Sveshnikov et al. v. UCI & IOC ; CAS OG 16/19 Natalia Podolskaya & Alexander Dyachenko v. ICF ; CAS OG 16/12 Ivan Balandin v. FISA & IOC ; CAS OG 16/21 Elena Anyushina & Alexey Korovashkov v. ICF & RCF ; CAS OG 16/24 Darya Klishina v. IAAF.

[5] See CAS 2011/O/2422 USOC v. IOC and CAS 2011/A/2658 British Olympic Association (BOA) v. World Anti-Doping Agency (WADA).

[6] See CAS 2011/O/2422 USOC v. IOC.

[7] CAS OG 16/13, para. 7.5 and CAS OG 16/04, para. 7.10.

[8] Ibid., para. 7.11 and ibid., para. 7.12.

[9] Ibid., para. 7.16 and similarly ibid., para. 7.18.

[10] Ibid., para. 7.17.

[11] Ibid.

[12] Ibid, para. 7.18.

[13] Ibid., para. 7.18 and CAS OG 16/04, para. 7.25.

[14] Ibid., paras 7.19-7.22 and ibid., para. 7-17.

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