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 European Commission’s ISU antitrust investigation explained. By Ben Van Rompuy

In June 2014, two prominent Dutch speed skaters, Mark Tuitert (Olympic Champion 1500m) and Niels Kerstholt (World Champion short track), filed a competition law complaint against the International Skating Union (ISU) with the European Commission.


ChanceToCompeteTwitter.png (50.4KB)


Today, the European Commission announced that it has opened a formal antitrust investigation into International Skating Union (ISU) rules that permanently ban skaters from competitions such as the Winter Olympics and the ISU World and European Championships if they take part in events not organised or promoted by the ISU. The Commissioner for Competition, Margrethe Vestager, stated that the Commission "will investigate if such rules are being abused to enforce a monopoly over the organisation of sporting events or otherwise restrict competition. Athletes can only compete at the highest level for a limited number of years, so there must be good reasons for preventing them to take part in events."

Since the case originates from legal advice provided by the ASSER International Sports Law Centre, we thought it would be helpful to provide some clarifications on the background of the case and the main legal issues at stake. More...





Interview with Wil van Megen (Legal Director of FIFPro) on FIFPro’s EU Competition Law complaint against the FIFA Transfer System

Editor’s note
Wil is working as a lawyer since 1980. He started his legal career at Rechtshulp Rotterdam. Later on he worked for the Dutch national trade union FNV and law firm Varrolaan Advocaten. Currently he is participating in the Labour Law Section of lawfirm MHZ-advocaten in Schiedam in the Netherlands. He is also a member of a joint committee advising the government in labour issues.

Since 1991 he is dealing with the labour issues of the trade union for professional football players VVCS and cyclists’ union VVBW. Since 2002, he works for FIFPro, the worldwide union for professional football players based in Hoofddorp in the Netherlands. He is involved in many international football cases and provides legal support for FIFPro members all over the world. Wil was also involved in the FIFPro Black Book campaign on match fixing and corruption in Eastern Europe. More...


The Scala reform proposals for FIFA: Old wine in new bottles?

Rien ne va plus at FIFA. The news that FIFA’s Secretary General Jérôme Valcke was put on leave and released from his duties has been quickly overtaken by the opening of a criminal investigation targeting both Blatter and Platini.

With FIFA hopping from one scandal to the next, one tends to disregard the fact that it has been attempting (or rather pretending) to improve the governance of the organisation for some years now. In previous blogs (here and here), we discussed the so-called ‘FIFA Governance Reform Project’, a project carried out by the Independent Governance Committee (IGC) under the leadership of Prof. Dr. Mark Pieth of the Basel Institute on Governance. Their third and final report, published on 22 April 2014, listed a set of achievements made by FIFA in the area of good governance since 2011, such as establishing an Audit and Compliance Committee (A&C). However, the report also indicated the reform proposals that FIFA had not met. These proposals included the introduction of term limits for specific FIFA officials (e.g. the President) as well as introducing an integrity review procedure for all the members of the Executive Committee (ExCo) and the Standing Committees. More...

Why the CAS #LetDuteeRun: the Proportionality of the Regulation of Hyperandrogenism in Athletics by Piotr Drabik

Editor's note
Piotr is an intern at the ASSER International Sports Law Centre.

Introduction

On 24 July the Court of Arbitration for Sport (CAS) issued its decision in the proceedings brought by the Indian athlete Ms. Dutee Chand against the Athletics Federation of India (AFI) and the International Association of Athletics Federations (IAAF) in which she challenged the validity of the IAAF Regulations Governing Eligibility of Female with Hyperandrogenism to Compete in Women’s Competition (Regulations). The Regulations were established in 2011 as a response to the controversies surrounding South African athlete Caster Semenya (see e.g. here, here, and here), and for the purpose of safeguarding fairness in sport by prohibiting women with hyperandrogenism, i.e. those with excessive levels of endogenous (naturally occurring) testosterone, from competing in women athletics competitions. Owing to the subject-matter that the Regulations cover, the case before the CAS generated complex legal, scientific and ethical questions. The following case note thus aims at explaining how the Panel addressed the issues raised by the Indian athlete. It follows a previous blog we published in December 2014 that analysed the arguments raised in favour of Ms. Chand. More...




Not comfortably satisfied? The upcoming Court of Arbitration for Sport case of the thirty-four current and former players of the Essendon football club. By James Kitching

Editor's note: James Kitching is Legal Counsel and Secretary to the AFC judicial bodies at the Asian Football Confederation. James is an Australian and Italian citizen and one of the few Australians working in international sports law. He is admitted as barrister and solicitor in the Supreme Court of South Australia. James graduated from the International Master in the Management, Law, and Humanities of Sport offered by the Centre International d'Etude du Sport in July 2012.


Introduction

On 12 May 2015, the Court of Arbitration for Sport (CAS) announced that the World Anti-Doping Agency (WADA) had filed an appeal against the decision issued by the Australian Football League (AFL) Anti-Doping Tribunal (AADT) that thirty-four current and former players of Essendon Football Club (Essendon) had not committed any anti-doping rule violation (ADRV) identified within the AFL Anti-Doping Code (AADC). The players had each been charged with using Thymosin-Beta 4 (TB4) during the 2012 AFL season.

On 1 June 2015, WADA announced that it had filed an appeal against the decision by the AADT to clear Mr. Stephen Dank (Dank), a sports scientist employed at Essendon during the relevant period, of twenty-one charges of violating the AADC. Dank was, however, found guilty of ten charges and banned for life.

This blog will solely discuss the likelihood of the first AADT decision (the Decision) being overturned by the CAS. It will briefly summarise the facts, discuss the applicable rules and decision of the AADT, review similar cases involving ‘non-analytical positive’ ADRVs relating to the use of a prohibited substance or a prohibited method, and examine whether the Code of Sports-related Arbitration (CAS Code) is able to assist WADA in its appeal.

This blog will not examine the soap opera that was the two years leading-up to the Decision. Readers seeking a comprehensive factual background should view the excellent up-to-date timeline published by the Australian Broadcasting Corporation. More...


EU Law is not enough: Why FIFA's TPO ban survived its first challenge before the Brussels Court


Star Lawyer Jean-Louis Dupont is almost a monopolist as far as high profile EU law and football cases are concerned. This year, besides a mediatised challenge against UEFA’s FFP regulations, he is going after FIFA’s TPO ban on behalf of the Spanish and Portuguese leagues in front of the EU Commission, but also before the Brussels First Instance Court defending the infamous Malta-based football investment firm Doyen Sport. FIFA and UEFA’s archenemy, probably electrified by the 20 years of the Bosman ruling, is emphatically trying to reproduce his world-famous legal prowess. Despite a first spark at a success in the FFP case against UEFA with the Court of first instance of Brussels sending a preliminary reference to the Court of Justice of the EU (CJEU), this has proven to be a mirage as the CJEU refused, as foretold, to answer the questions of the Brussels Court, while the provisory measures ordered by the judge have been suspended due to UEFA’s appeal. But, there was still hope, the case against FIFA’s TPO ban, also involving UEFA and the Belgium federation, was pending in front of the same Brussels Court of First Instance, which had proven to be very willing to block UEFA’s FFP regulations. Yet, the final ruling is another disappointment for Dupont (and good news for FIFA). The Court refused to give way to Doyen’s demands for provisional measures and a preliminary reference. The likelihood of a timely Bosman bis repetita is fading away. Fortunately, we got hold of the judgment of the Brussels court and it is certainly of interest to all those eagerly awaiting to know whether FIFA’s TPO ban will be deemed compatible or not with EU law. More...


The New FIFA Intermediaries Regulations under EU Law Fire in Germany. By Tine Misic

I'm sure that in 1985, plutonium is available in every corner drugstore, but in 1955, it's a little hard to come by.” (Dr. Emmett L. Brown)[1]


Back to the future?

Availing oneself of EU law in the ambit of sports in 1995 must have felt a bit like digging for plutonium, but following the landmark ruling of the European Court of Justice (ECJ) in the Bosman case[2], 20 years later, with all the buzz surrounding several cases where EU law is being used as an efficient ammunition for shelling various sports governing or organising bodies, one may wonder if in 2015 EU law is to be “found in every drug store” and the recent cases (see inter alia Heinz Müller v 1. FSV Mainz 05, Daniel Striani ao v UEFA, Doyen Sports ao v URBSFA, FIFA, UEFA) [3] cannot but invitingly evoke the spirit of 1995.

One of the aforementioned cases that also stands out pertains to the injunction decision[4] issued on 29 April 2015 by the Regional Court (Landesgericht) in Frankfurt am Main (hereinafter: the Court) in the dispute between the intermediary company Firma Rogon Sportmanagement (hereinafter: the claimant) and the German Football Federation (Deutschen Fußball-Bund, DFB), where the claimant challenged the provisions of the newly adopted DFB Regulations on Intermediaries (hereinafter: DFB Regulations)[5] for being incompatible with Articles 101 and 102 TFEU.[6] The Court, by acknowledging the urgency of the matter stemming from the upcoming transfer window and the potential loss of clients, deemed a couple of shells directed at the DFB Regulations to be well-aimed, and granted an injunction due to breach of Article 101 TFEU. More...




Compatibility of fixed-term contracts in football with Directive 1999/70/EC. Part 2: The Heinz Müller case. By Piotr Drabik

Introduction
The first part of the present blog article provided a general introduction to the compatibility of fixed-term contracts in football with Directive 1999/70/EC[1] (Directive). However, as the Member States of the European Union enjoy a considerable discretion in the implementation of a directive, grasping the impact of the Directive on the world of football would not be possible without considering the national context. The recent ruling of the Arbeitsgericht Mainz (the lowest German labour court; hereinafter the Court) in proceedings brought by a German footballer Heinz Müller provides an important example in this regard. This second part of the blog on the legality of fixed-term contract in football is devoted to presenting and assessing the Court’s decision.


I. Facts and Procedure
Heinz Müller, the main protagonist of this case, was a goalkeeper playing for 1.FSV Mainz 05 a club partaking to the German Bundesliga. More...


Compatibility of Fixed-Term Contracts in Football with Directive 1999/70/EC. Part.1: The General Framework. By Piotr Drabik

Introduction
On 25 March 2015, the Labour Court of Mainz issued its decision in proceedings brought by a German footballer, Heinz Müller, against his (now former) club 1. FSV Mainz 05 (Mainz 05). The Court sided with the player and ruled that Müller should have been employed by Mainz 05 for an indefinite period following his 2009 three year contract with the club which was subsequently extended in 2011 to run until mid-2014. The judgment was based on national law implementing Directive 1999/70 on fixed-term work[1] (Directive) with the latter being introduced pursuant to art. 155(2) TFEU (ex art. 139(2) TEC). On the basis of this article, European social partners’ may request a framework agreement which they conclude to be implemented on the European Union (EU, Union) level by a Council decision on a proposal from the Commission. One of the objectives of the framework agreement,[2] and therefore of the Directive, was to establish a system to prevent abuse arising from the use of successive fixed-term employment contracts or relationships[3] which lies at the heart of the discussed problem.[4] More...

UEFA’s FFP out in the open: The Dynamo Moscow Case

Ever since UEFA started imposing disciplinary measures to football clubs for not complying with Financial Fair Play’s break-even requirement in 2014, it remained a mystery how UEFA’s disciplinary bodies were enforcing the Club Licensing and Financial Fair Play (“FFP”) regulations, what measures it was imposing, and what the justifications were for the imposition of these measures. For over a year, the general public could only take note of the 23 settlement agreements between Europe’s footballing body and the clubs. The evidential obstacle for a proper analysis was that the actual settlements remained confidential, as was stressed in several of our previous Blogs.[1] The information provided by the press releases lacked the necessary information to answer the abovementioned questions.

On 24 April 2015, the UEFA Club Financial Control Body lifted part of the veil by referring FC Dynamo Moscow to the Adjudicatory Body. Finally, the Adjudicatory Body had the opportunity to decide on a “FFP case. The anxiously-awaited Decision was reached by the Adjudicatory Chamber on 19 June and published not long after. Now that the Decision has been made public, a new stage of the debate regarding UEFA’s FFP policy can start.More...

Asser International Sports Law Blog | The Specificity of Sport - Comparing the Case-Law of the European Court of Justice and of the Court of Arbitration for Sport - Part 1 - By Stefano Bastianon

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 Specificity of Sport - Comparing the Case-Law of the European Court of Justice and of the Court of Arbitration for Sport - Part 1 - By Stefano Bastianon

Editor’s note: Stefano Bastianon is Associate Professor in EU Law and EU sports law at the University of Bergamo and lawyer admitted to the Busto Arsizio bar.*

 

1. Introduction.

The so-called specificity of sport represents one of the most debated, if not the most debated, but still undefined issue under European Union (EU) law. A noteworthy peculiarity is that the specificity of sport is frequently mentioned in several legislative and political documents issued by EU institutions, however it is not expressly referred to in any judgment by the European Court of Justice (ECJ).Conversely, the Court of Arbitration for Sport (CAS) case-law on Art. 17 of FIFA Regulations on status and transfer of players (RSTP) has repeatedly and expressly referred to the specificity of sport.[1] Apparently, the concept of specificity of sport has different meanings and purposes in the ECJ and CAS jurisprudence. In this blog (divided in two parts), I will try to analyse those two different meanings and to what extent the CAS case-law is consistent with the concept of specificity of sport as elaborated under EU law.

 

2. The specificity of sport under EU law.

The concept of the specificity of sport is mentioned in several documents issued by the EU institutions. In the Helsinki Report on Sport (1999), it is affirmed that ‘the application of the Treaty's competition rules to the sporting sector must take account of the specific characteristics of sport, especially the interdependence between sporting activity and the economic activity that it generates, the principle of equal opportunities and the uncertainty of the result’. According to the Declaration of Nice, (2000) ‘even though not having any direct powers in this area, the Community must, in its action under the various Treaty provisions, take account of the social, educational and cultural functions inherent in sport and making it special, in order that the code of ethics and the solidarity essential to the preservation of its social role may be respected and nurtured’.

However, neither the Nice Declaration nor the Helsinki Report contains a clear definition of the specificity of sport: the Helsinki Report simply lists some specific characteristics of sports activities that are particularly important in the field of antitrust law, whereas the Nice Declaration identifies the specificity of sport with the social, educational and cultural functions inherent in sport. The same applies to the White Paper on Sport (2007), where it is stated that ‘sport has certain specific characteristics, which are often referred to as the “specificity of sport”’. According to the White Paper, the specificity of sport can be approached through two prisms: ‘the specificity of sporting activities and of sporting rules, such as separate competitions for men and women, limitations on the number of participants in competitions, or the need to ensure uncertainty concerning outcomes and to preserve a competitive balance between clubs taking part in the same competitions; the specificity of the sport structure, including the autonomy and diversity of sport organisations, a pyramid structure of competitions from grassroots to elite level and organised solidarity mechanisms between the different levels and operators, the organisation of sport on a national basis, and the principle of a single federation per sport’.

Axiomatically, the White Paper tried to draw a distinction between the specificity of sporting rules  and the specificity of sporting structure The Commission’s effort is certainly commendable, except for two aspects:

a) on the one hand, the Commission does not offer a clear definition of the specificity of sport and instead has just highlighted some features of the specificity of sport in the EU context;

b) on the other hand, some of these features are rather questionable and deserve to be discussed in more detail. For example, separate competitions for men and women. What is the EU legal basis for not allowing Serena Williams to play the final of Wimbledon against Novak Djokovic? Similarly, as regards the competitive balance argument, we can all agree that it is good, but no one can truly define a ‘balanced’ competition. So, if we do not know how much competitive balance is needed, how can we say that it is always good?

More recently, Art. 165 TFEU states that ‘the Union shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport’. Again, the specificity of sport is only mentioned, but not defined. Lastly, the report Mapping the specificity of sport by the European Commission – Directorate-General for Education and Culture (2016) says that ‘the specificity of sport refers to the inherent characteristics of sport which set it apart from other economic and social activities’.

It follows from the foregoing that under EU sports policy, all the institutions agree on the fact that sport is special, in the sense that it is different from any other activity because of its social and educational dimension. That said, if one tries to translate this concept into a definition to be applied in concrete cases it is impossible to find a common benchmark.

 

3. The specificity of sport in the case law of the ECJ

In terms of EU case-law, the situation is even more difficult, given the ECJ has never defined the notion of specificity of sport. Rather, the Court of Justice has always indirectly dealt with the specificity of sport in terms of a general rule and its (even more general and not defined) exceptions. Since the Walrave ruling, the ECJ has always stated that ‘the practice of sport is subject to Community [now European] law only in so far as it constitutes an economic activity’ (the rule); however at the same time is has also stated that the prohibition of any discrimination based on nationality ‘does not affect the composition of sport teams, in particular national teams, the formation of which is a question of purely sporting interest and as such has nothing to do with economic activity’ (the exception). The Walrave judgment (and subsequent ECJ case-law) shows that from the very beginning the common idea had been that sporting rules relating to purely sporting issues were as such, not subject to EU law and were known as purely sporting rules.

From a legal point of view, the notion of purely sporting rules is unclear. Through case law however, the ECJ managed to translate the concept of purely sporting rules into a workable tool to distinguish which rules are subject to EU law and which were not. In this context, it was possible to say that the purely sporting rules and the specificity of sport were two sides of the same coin. In other words, sport was not special because it was subject to EU law, but at the same time, it was special because some sporting rules were outside the scope of the Treaty.

This situation totally changed after the Meca Medina judgment by the ECJ. In order to contextualise the relevance of the Meca Medina case, it is worth recalling that the case was about the allegedly anticompetitive nature of the antidoping rules of the International Olympic Committee (IOC).

During the first round before the General Court, the judges stated that purely sporting rules may have nothing to do with economic activity, such that they do not fall within the scope of provisions on the free movement of people. Consequently, they have nothing to do with the economic relationships of competition, with the result that they also do not fall within the scope of Arts. 81 and 82 EC [now Arts. 101 and 102 TFEU]. Since the prohibition of doping is based on purely sporting considerations, it follows that it has nothing to do with any economic considerations. Thus, antidoping rules cannot come within the scope of the Treaty provisions on the economic freedoms and, in particular, of provisions on the free movement of people and competition.

Though according to the ECJ, the reasoning of the General Court amounted to a mistake in law. In its judgement, the ECJ underlined that ‘the mere fact that a rule is purely sporting in nature does not have the effect of removing from the scope of the Treaty the person engaging in the activity governed by that rule or the body which has laid it down. If the sporting activity in question falls within the scope of the Treaty, the conditions for engaging in it are then subject to all the obligations which result from the various provisions of the Treaty. It follows that the rules which govern that activity must satisfy the requirements of those provisions, which, in particular, seek to ensure freedom of movement for workers, freedom of establishment, freedom to provide services, or competition. Therefore, even if those rules do not constitute restrictions on freedom of movement because they concern questions of purely sporting interest and, as such, have nothing to do with economic activity, that fact means neither that the sporting activity in question necessarily falls outside the scope of Articles 81 EC and 82 EC nor that the rules do not satisfy the specific requirements of those articles. In such a context, account must first of all be taken of the overall context in which the decision of the association of undertakings was taken or produces its effects and, more specifically, of its objectives. It has then to be considered whether the consequential effects restrictive of competition are inherent in the pursuit of those objectives and are proportionate to them’.

Though not explicitly stated in the ruling, the traditional approach based on the distinction between purely sporting rules and economic rules was openly denied by the ECJ and the notion of purely sporting rules expelled from EU law. Moreover, the new solution adopted by the ECJ does not simply amount to a terminological change; Consequently, any sporting rule is now subject to EU law per the Meca Medina judgment. Further, in cases where a sporting rule is challenged based on competition law, we must apply the Wouters test to assess the compatibility of the rule with EU law.Then in cases where a sporting rule is challenged on the basis of free movement principles, we must apply the Gebhard test to assess the compatibility of the rule with EU law. Although slightly different, these two tests require assessing the overall context of the rule, the objectives of the rule, if and to what extent the rule is able to attain each objective, and the proportionality of the rule.

The Meca Medina jurisprudence was later also endorsed by the Commission: in the White Paper on Sport, it stated that ‘in respect of the regulatory aspects of sport, the assessment whether a certain sporting rule is compatible with EU competition law can only be made on a case-by-case basis, as recently confirmed by the European Court of Justice in its Meca-Medina ruling. The Court provided a clarification regarding the impact of EU law on sporting rules. It dismissed the notion of “purely sporting rules” as irrelevant for the question of the applicability of EU competition rules to the sport sector. The Court recognised that the specificity of sport has to be taken into consideration in the sense that restrictive effects on competition that are inherent in the organisation and proper conduct of competitive sport are not in breach of EU competition rules, provided that these effects are proportionate to the legitimate genuine sporting interest pursued. The necessity of a proportionality test implies the need to take into account the individual features of each case. It does not allow for the formulation of general guidelines on the application of competition law to the sport sector.’

The new approach raises two fundamental problems:

a) the Wouters test as well as the Gebhard test apply to all sectors of the economy: they apply to goods as well as to services, to lawyers as well to sportspeople. Consequently, if the specificity of sport is taken into account based on the same rules and the same exceptions provided for any other type of economic activity, it follows that sport is no less special under EU law than one may think. Sport is deemed to be special, but sports matters are governed by the same legal tests applied in other economic sectors.

b) according to the Meca Medina judgment, the Court of Justice has the right to assess the proportionate character of any sporting rule allegedly in contrast with EU law. For example, rules relating to penalties in doping cases, rules of the game and rules relating to nationality requirements to be selected for national teams. Undoubtedly, in such cases the ECJ will state that the objectives of these rules are legitimate.

Unfortunately, the same is not true for whether these rules are proportionate. In other words, the simple idea that the ECJ has the right to assess the proportionality of a rule fixing the number of players on the field of play means that sport is no longer special under EU law.  It is important to  remember that in the Meca Medina case, the ECJ ruled that the anti-doping rules at issue were not disproportionate only because the plaintiffs did not plead that the penalties were excessive. What may have happened if the plaintiffs had contested the proportionality of these penalties? Can one be certain that the ECJ has the competence to  decide whether a two-year penalty for doping is/is not proportionate? Does the specificity of sport really require this?


* Associate Professor of EU law and EU sports law, University of Bergamo (Italy); Attorney-at-law; CAS arbitrator. The views, thoughts, and opinions expressed in the text belong solely to the author.

[1] See M. Colucci, The specificity of sport and the employment relationship of athletes, R. Blanpain, F. Hendrickx (eds.), Labour Law between Change and Tradition: Liber Amicorum Antoine Jacobs, 2011, Kluwer Law International BV, The Netherlands.

 

Comments are closed