I have just released on SSRN four of my most recent articles on Lex Sportiva/Transnational Sports Law. The articles are available open access in their final draft forms, the final published version might differ slightly depending on the feedback of the editors. If you wish to cite those articles I (obviously) recommend using the published version.

I hope they will trigger your attention and I look forward to any feedback you may have!

Antoine

• Transnational Sports Law: The Living Lex Sportiva - Forthcoming in P. Zumbansen (ed.), ’Oxford Handbook of Transnational Law’, Oxford University Press (2020).
  

Abstract: This chapter focuses on the emergence of a transnational sports law, also known as lex sportiva, ruling international sports. In the transnational law literature, the lex sportiva is often referred to as a key example or case study, but rarely studied in practice. Yet, it constitutes an important playground for transnational legal research and practice, and this chapter aims to show why. The focus of the chapter will first be on the rules of the lex sportiva. Law, even in its transnational form, is still very much connected to written rules against which a specific behaviour or action is measured as legal or illegal. As will be shown, this is also true of the lex sportiva, which is structured around an ensemble of rules produced through a variety of law-making procedures located within different institutions. The second section of this chapter will aim to look beyond the lex sportiva in books to narrate the lex sportiva in action. It asks, what are the institutional mechanisms used to concretize the lex sportiva in a particular context? The aim will be to go beyond the rules in order to identify the processes and institutions making the lex sportiva in its daily practice. Finally, the enmeshment of the lex sportiva with state-based laws and institutions is highlighted. While the lex sportiva is often presented as an autonomous transnational legal construct detached from territorialized legal and political contexts, it is shown that in practice it operates in intimate connection with them. Hence, its transnational operation is much less characterized by full autonomy than assemblage.

• Seamstress of Transnational Law: How the Court of Arbitration for Sport Weaves the Lex Sportiva - Forthcoming in N. Krisch (ed.) ‘Entangled Legalities’, Cambridge University Press (2020).

Abstract: This chapter aims to show that the work of the Court of Arbitration for Sport (‘CAS’), which is often identified as the institutional centre of the lex sportiva, can be understood as that of a seamstress weaving a plurality of legal inputs into authoritative awards. In other words, the CAS panels are assembling legal material to produce (almost) final decisions that, alongside the administrative practices of sports governing bodies (‘SGBs’), govern international sports. It is argued that, instead of purity and autonomy, the CAS’ judicial practice is best characterised by assemblage and hybridity. This argument will be supported by an empirical study of the use of different legal materials, in particular pertaining to Swiss law, EU law and the European Convention on Human Rights (‘ECHR’), within the case law of the CAS. The chapter is a first attempt at looking at the hermeneutic practice of the CAS from the perspective of a transnational legal pluralism that goes beyond the identification of a plurality of autonomous orders to turn its sights towards the enmeshment and entanglement characterising contemporary legal practice.

• Time to Go Public? The Need for Transparency at the Court of Arbitration for Sport - A. Duval & A. Rigozzi (eds), Yearbook of International Sports Arbitration 2017, T.M.C. Asser Press, Springer (2019).

Abstract: Has the time come for the Court of Arbitration for Sport to go public? This article argues that after the Pechstein decision of the European Court of Human Rights, CAS appeal arbitration must be understood as forced arbitration and therefore must fully comply with the due process guarantees enshrined in Article 6(1) ECHR. In particular, this entails a strong duty of transparency with regard to the hearings at the CAS and the publication of its awards. This duty is of particular importance since the rationale for supporting the validity of CAS arbitration, if not grounded in the consent of the parties, must be traced back to the public interest in providing for the equality before the (sports) law of international athletes. Thus, the legitimacy and existence of the CAS is linked to its public function, which ought to be matched with the procedural strings usually attached to judicial institutions. In short, if it is to avoid lengthy and costly challenges to its awards, going public is an urgent necessity for the CAS.

• Offside? Challenging the Transnational Legality of Israeli Football Activities in the Occupied Palestinian Territories - A.Duval & E. Kassoti (eds.), ‘The Legality of Economic Activities in Occupied Territories: International, EU Law and Business and Human Rights Perspectives’, Routledge (2020).

Abstract: In 1998 the FIFA welcomed the Palestinian Football Association as part of its members - allegedly, as an attempt by then FIFA President, the Brazilian João Havelange, to showcase football as an instrument of peace between Israeli and Palestinians. Ironically, almost 20 years after Palestine’s anointment into the FIFA family, instead of peace it is the conflict between Israeli and Palestinians that moved to FIFA. In recent years the Palestinian Football Association (PFA) and the Israeli Football Association (IFA) have been at loggerheads inside FIFA over the fate - I will refer to it as the transnational legality – of five (and then six) football clubs affiliated to the IFA which are physically located in the Israeli settlements in the Occupied Palestinian Territories (OPT). This chapter chronicles the legal intricacies of this conflict, which will serve as a backdrop to discuss arguments raised regarding the legality of business activities of corporations connected to the Israeli settlements. Indeed, as will be shown in the first part of this chapter, the discussion on the legality of economic activities in the OPT has recently taken a business and human rights turn involving systematic targeting of corporations by activists. Interestingly, we will see that this business and human rights turn also played a role in the conflict between the IFA and the PFA. This case study is therefore an opportunity to examine how the strategy of naming and shaming private corporations, and in our case not-for-profit associations, for their direct or indirect business involvement in the settlements has fared. It is also an occasion to critically assess the strength of the human rights ‘punch’ added to the lex sportiva, by the UNGPs.

The year is coming to an end and it has been a relatively busy one for the CAS Ad Hoc divisions. Indeed, the Ad Hoc division was, as usual now since the Olympic Games in Atlanta in 1996[1], settling  “Olympic” disputes during the Winter Olympics in Sochi. However, it was also, and this is a novelty, present at the Asian Games 2014 in Incheon.  Both divisions have had to deal with seven (published) cases in total (four in Sochi and three in Incheon). The early commentaries available on the web (here, here and there), have been relatively unmoved by this year’s case law. Was it then simply ‘business as usual’, or is there more to learn from the 2014 Ad Hoc awards? Two different dimensions of the 2014 decisions by the Ad Hoc Division seem relevant to elaborate on : the jurisdiction quandary (part. 1) and the selection drama (part. 2).

Part. 1: The Jurisdiction quandary: Too early to be judged!

The scope of jurisdiction of the Ad Hoc Division of CAS is provided for in article 1 of the ‘Arbitration Rules for the Olympic Games’ (the same is true for the Asian Games)[2]. However, legal uncertainties over this scope of jurisdiction remain a defining feature. Many earlier disputes in front of the Ad Hoc division have tackled this question, and this has been true again this year.[3]

It is not so much the scope rationae personae that might be problematic, although one case arose at the Asian games in which two former squash players were denied access to the Ad Hoc division on the basis of not being “participating athletes”.[4] Nor is it the rationae materiae that has been a real problem, as claimants tend to submit disputes, which are related to the Games. No, the problem child is usually the jurisdiction rationae temporis. Indeed, article 1 of the rules states that “any disputes covered by Rule 61 of the Olympic Charter, insofar as they arise during the Olympic Games or during a period of ten days preceding the Opening Ceremony of the Olympic Games” can be subjected to the jurisdiction of the Ad Hoc Division. So the key question is: When does a dispute “arise”? 

In the Birkner case[5], the Ad Hoc Division in Sochi had to grapple extensively with the question of when the dispute arose as, during the hearing, the respondent, Comitato Olympico Argentino, “denied the existence of a basis of jurisdiction of the panel”. The case concerned a selection drama for the Sochi Games (see part 2); jurisdiction rationae personae and rationae materiae were unproblematic. The CAS did examine whether the local remedies were exhausted, and considered that “that there were no internal remedies to exhaust”.[6] The only barrier left for jurisdiction to be asserted was the ratione temporis. In short, “did the dispute arise in the required time frame?”[7]

This “vexing issue” [8] was touched upon repeatedly in past Ad Hoc division awards.[9] In the Birkner case, it had to be demonstrated that the dispute arose not earlier than the 28 January 2014, 10 days before the opening ceremony scheduled for the 7 February 2014. The panel first reaffirmed the fact that “the date when the dispute arose cannot, per se, be the date when the Request for Arbitration is filed” .[10]  So, back to the key question, when did the dispute arise?

The award refers extensively to the Schuler case[11]. In its main holding on jurisdiction, the 2006 panel considered that “it would not be possible to say that a dispute had arisen until Ms Schuler had decided to appeal and had filed notice of her appeal”.[12] Nevertheless, the 2014 panel refused to consider the Schuler precedent to be applicable to the Birkner case for two reasons: the factual situation is different and the reasoning used in Schuler is fundamentally flawed.

On the factual side, contrary to the Schuler case, the panel finds that “[i]n the present case […] the explanation was not given on a date inside the required period, as it was either on 20 January 2014, which is the date of the letter of explanation, or on 22 January 2014, which is the date on which the Applicant says that she received that letter”.[13] Both of these dates being well before the 10 days period, the panel is of the opinion that it lacks jurisdiction. On the legal side, the panel is clearly not “convinced by the legal reasoning adopted in the Schuler case” .[14] In fact, it considers that “[s]uch conclusion could extend the jurisdiction of the ad hoc Division outside the precise and limited framework set by the Rules, which this Panel is required to respect and apply” [15]. The panel is of the opinion that “the date when a dispute arises is in general […] the date of the decision with which the Applicant disagrees” .[16] However, “[s]uch a date can arise later […] if […] the decision is not self-explanatory and requires some explanation in order for the parties to know with certainty that they are in disagreement”.[17]

This is a noteworthy consideration, which indicates a substantial reduction of the scope of jurisdiction of the CAS Ad Hoc Division. If the parties do not agree to the jurisdiction of CAS (in practice they often do not contest the jurisdiction[18]) it will render more difficult the referral of a dispute to the Ad Hoc Division. This understanding of the start of a dispute is contradicting the overall aim of the Ad Hoc Division, which is to deal swiftly with all disputes intimately linked to the Games. In this light, a more flexible interpretation of the jurisdiction rationae temporis, as suggested in the Schuler case, is preferable. Athletes are no legal experts; they (and sometimes their lawyers) need time to find their way through the jungle of sporting regulations and dispute resolution mechanisms potentially applicable. The crucial importance of the Olympic Games for an athlete’s career call for an interpretation of the start of the dispute that focuses on the intention to challenge the decision as highlighted in the Schuler award[19]. Moreover, any doubts concerning the starting date of the dispute should play in favour of the athlete, unless the time between the date of notification of the contentious decision and the decision to lodge a complaint in front of CAS is disproportionately (and abusively) long. The attack by the Birkner panel on the reasoning adopted in Schuler is no anodyne move; in the future it may threaten the access to justice of athletes and their ability to obtain a swift and fair decision, in a context where they most urgently need it.

[1] On the early days of the CAS Ad Hoc Division at the Olympics, the book by Gabrielle Kaufmann-Kohler is a must read : G. Kaufmann-Kohler, Arbitration at the Olympics, Kluwer Law, 2001.

[2] Article 1 of the Arbitration Rules for the OG stipulates that:

“The purpose of the present Rules is to provide, in the interests of the athletes and of sport, for the resolution by arbitration of any disputes covered by Rule 61 of the Olympic Charter, insofar as they arise during the Olympic Games or during a period of ten days preceding the Opening Ceremony of the Olympic Games.”

“In the case of a request for arbitration against a decision pronounced by the IOC, an NOC, an International Federation or an Organising Committee for the Olympic Games, the claimant must, before filing such request, have exhausted all the internal remedies available to him/her pursuant to the statutes or regulations of the sports body concerned, unless the time needed to exhaust the internal remedies would make the appeal to the CAS Ad Hoc Division ineffective.”

[3] CAS OG 14/03; CAS AG 14/01; CAS AG 14/02.

[4] See CAS AG 14/01, §2.5. See also CAS OG 12/03, §2.3.

[5] CAS OG 14/03

[6] CAS OG 14/03, §5.14

[7] CAS OG 14/03, §5.17-5-30

[8] CAS OG 14/03, §5.20

[9] Most notably in the Schuler case, CAS OG 06/002. For a general commentary see: I.S.LR. 2006 pp.50-51 and A. Rigozzi, ‘The decisions rendered by the CAS Ad Hoc Division at the Turin Winter Olympic Games 2006’, Journal of International Arbitration 23 (5): 453-466, 2006

[10] CAS OG 14/03, §5.21

[11] CAS OG 14/03, §5.24

[12] CAS OG 06/002, §14

[13] CAS OG 14/03, §5.25

[14] CAS OG 14/03, §5.25

[15] CAS OG 14/03, §5.27

[16] CAS OG 14/03, §5.28

[17] CAS OG 14/03, §5.28

[18] See for example CAS OG 14/01 §6.2 and CAS OG 14/02 §6.5

[19] In cases, in which the dispute overtly arose earlier than 10 days before the games such a restrictive interpretation could be tolerated. See for example: CAS OG 12/03, §2.3.23; CAS OG 12/02, §4.10; CAS OG 12/04, §5.2.

Editor's note: Anna Antseliovich heads the sports practice at the Moscow-based legal group Clever Consult. She also works as a senior researcher at the Federal Science Center for Physical Culture and Sport (Russia).

The Olympic Games have always been a source of genuine interest for spectators as Olympians have repeatedly demonstrated astounding capacity of the human body and mind in winning Olympic gold, or by achieving success despite all odds.

At the ancient and even the first modern Olympic Games, there was no concept of a national team; each Olympian represented only himself/herself. However, at the 1906 Intercalated Games[1] for the first time, athletes were nominated by the National Olympic Committees (‘NOCs’) and competed as members of national teams representing their respective countries. At the opening ceremony, the athletes walked under the flags of their countries. This was a major shift, which meant that not only the athletes themselves competed against each other, but so too did the nations in unofficial medal standings.  

The nomination and selection of athletes by their NOCs to compete under their national flag and represent their country is a matter of pride for the vast majority of athletes. However, to what extent does such a scheme correspond to the ideals which the Olympic Games were based on in ancient times? Is it possible to separate sport and politics in the modern world?

Olympic Principles

The ancient Olympics began as a religious celebration in honor of the ancient Greek god Zeus. All freeborn male citizens of Greece could participate. The modern Olympics no longer maintain religious significance and are based on modern ideas and principles.

The principles of Olympism are enshrined in the Olympic Charter under “Fundamental Principles of Olympism”. The first paragraph of the Charter reads: “Olympism is a philosophy of life, exalting and combining in a balanced whole the qualities of body, will and mind. Blending sport with culture and education, Olympism seeks to create a way of life based on the joy of effort, the educational value of good example, social responsibility and respect for universal fundamental ethical principles.” Thus, it should seem obvious that Olympism is centered on a human, his/her body, will, and mind. Nations are not mentioned at all in this section. On the contrary, “sports organizations within the Olympic Movement shall apply political neutrality.”

Moreover, the Olympic Charter enshrines the practice of sport as an inherent human right: “Every individual must have the possibility of practicing sport, without discrimination of any kind and in the Olympic spirit, which requires mutual understanding with a spirit of friendship, solidarity and fair play.”  Paragraph 6 continues with “The enjoyment of the rights and freedoms outlined in this Olympic Charter shall be secured without discrimination of any kind, such as race, color, sex, sexual orientation, religion, political or other opinion, national or social origin, property, birth or other status.”

Based on the above, we can conclude that anyone has the right to participate in competitions covered directly or indirectly by the Olympic Charter, and no one person or entity can be deprived of this right. The only limitation on participation is an individual athlete’s qualification and eligibility.  

Entering by NOC

The Olympic Charter Rule 40 provides that “the competitor, team official or other team personnel must be entered by his NOC” to participate in the Olympic Games.

Rule 41 and its By-law deal with cases where there are issues with the nationality of an athlete, such as a change of nationality, a change in the status of the territory on which an athlete resides, etc., but clearly states that, as a general rule, an athlete shall be a national of the NOC that is selecting him/her.

In previous years, the IOC allowed so-called independent athletes to participate in the Olympic Games (such teams had different names but the same status). In 1992 they were athletes from Macedonia and Yugoslavia, in 2000 from East Timor, in 2012 athletes from the Netherlands Antilles and South Sudan, in 2014 from India, in 2016 from Kuwait and Russia, and in 2018 from Russia. These athletes competed as independent/neutral athletes for various reasons, such as the absence of the NOC, the suspension of the NOC from the IOC, doping scandals, or international sanctions.

The increased role of the State that is expressed by the appearance of the national symbols on the athletes' uniform, the playing of national anthems, and the flying of the national flag at the award ceremony has given rise to an unofficial medal count, which now - whether the IOC wants it or not - plays an extremely important role at each Olympic Games. Spectators intensely monitor which country is leading the medal count - sometimes even more than the competition itself. More and more countries are competing against each other, drawing up medal plans in an attempt to prove that their training system is the best and the most progressive, which, in turn, shows the superiority of their political and/or financial system. This all takes the spectators’ attention away from the purity of revelling in the capabilities of the human body and spirit and admiring the achievements of athletes.

Such an approach to the formation of Olympic teams (at least in individual sports) does not comply with the principle enshrined in Rule 6 of the Olympic Charter “the Olympic Games are competitions between athletes in individual or team events and not between countries..” and it seems that it is unfair for several reasons.

First, while for most athletes the very opportunity to represent their country at the most important sporting event is a source of great pride, for other athletes, it is not. For example,  refugees who have fled their homeland, for fear of torture and/or death. For them, it is unacceptable to compete under the flag of their country. Their “national” NOC could not enter them in any event. To circumvent this problem, the IOC created a team of 10 refugee athletes who competed under the IOC flag and anthem for the first time at the Rio de Janeiro 2016 Olympic Games. In 2018, at the 133rd session of the IOC in Buenos Aires, it was confirmed that the Tokyo Olympics will also feature a refugee team. However, refugees are not the only group of athletes who have difficult relations with the authorities and/or political regimes. There are many places in the world where people are struggling for independence or with repressive regimes. For these athletes to compete under the national symbols used by such authorities is fundamentally and morally impossible because it contradicts their political views (for example, some of the Kurds may not be happy to represent Turkey, some of the Basques may be happy to see any flag but not a Spanish one, some individuals residing in Northern Ireland may feel themselves hurt and unhappy to compete under the Union Jack, the flag of the United Kingdom, Tibetans and Uighurs hardly want to glorify the flag of China that suppresses any attempts to show their national identity, etc.).

Second, despite the requirement of the Olympic Charter to observe political neutrality by NOCs, in reality, this is not always respected. A vivid example is a current situation in Belarus, where until February 2021 the NOC was headed by President Aleksandr Lukashenko, after whose election mass protests broke out in the country resulting in numerous human rights violations. Since February 2021, the NOC has been headed by his son, Viktor Lukashenko. Athletes who took part in the protests were persecuted and sometimes even imprisoned. It is obvious that such athletes have no chance to be selected by the NOC for the Tokyo Olympics and even if they were to be entered, they would unlikely be proud to perform under the symbols of a regime that they consider illegitimate.

The two examples demonstrate that performing under a national flag can sometimes have grave significance. Athlete can either be completely barred from competing in the Olympics should they not hold the correct political allegiance, or be forced to compete under a national flag that does not reflect their political views.

The author considers that a solution to the abovementioned problem consists in the registration of an athlete, if he/she meets sports criteria for participation in the Olympic Games, directly by the IOC in the personal capacity. Each athlete will then be able to independently decide to use the national symbols that correspond to his political views, or to refuse to use any symbols in general. This approach is consistent with the abovementioned principles.

Conclusion

The Olympic Games have evolved enormously from local games as part of a religious celebration to a worldwide sports festival watched by millions of people. The Olympics are the epitome of international competition between athletes and between nations. Political controversy and scandals surrounding the Olympics often overshadow athletes' successes. To remove the political underlying basis of the Olympics, the approach of entering athletes by the NOCs should be abandoned, and athletes (at least in individual sports) should be allowed to compete in a personal capacity stripping away political connotations that ought to be extraneous to sports competitions. 

[1] Intercalated Games were supposed to be a series of international competitions held in Athens halfway between Summer Olympic Games. The only such games were held in 1906.