Editor's note: This report compiles the most relevant legal
news, events and materials on International and European Sports Law based on
the daily coverage provided on our twitter feed @Sportslaw_asser.
The Headlines
Coronavirus Pandemic Takes
Over Sports
Since the last monthly
report, the coronavirus pandemic has completely taken over the headlines and
has had enormous impacts on the sports field. The most significant of these
impacts so far was the rather slow (see here and here) decision by the IOC to move the Tokyo 2020
Olympic Games to 2021 after a widespread push among athlete
stakeholders to do so. Concerns were raised that besides the wellbeing
of the participants, athletes under lockdowns would not have the access to the
training facilities, meaning preparations for the Games would suffer. The IOC has
already started its new planning for Tokyo
2021 and sees this new opportunity to be ‘an Olympic flame’ at the end of a
‘dark tunnel’ for the entire world.
Besides the Olympics, football
has also experienced colossal effects as this crisis landed right as leagues
were approaching the end of their season. In this context, FIFA has released specific guidelines on player
contracts and transfer windows, which has included extending player
contracts to the new postponed end of season dates. It has also organized a
working group on COVID-19, which has already made recommendations to postpone all men and
women’s international matches that were to be played during the June 2020
window. Earlier in March, UEFA had already announced that the EURO 2020 was also postponed by 12
months and has also recently approved guidelines on domestic competitions. These guidelines place
emphasis on ‘sporting merit’ and urge ‘National Associations and Leagues to
explore all possible options to play all top domestic competitions giving
access to UEFA club competitions to their natural conclusion’. Nevertheless,
UEFA also emphasizes that the health of all stakeholders must remain the top
priority.
In the end, numerous sport
federations have also had to amend their calendars due to the pandemic (see UCI and FIBA) and a variety of sport
stakeholders have been confronted with immense financial strain (e.g. football, tennis and cycling). For example, UEFA has
acted preemptively in releasing club benefit payments to try to alleviate the
economic pressure faced by clubs. There have also been efforts to support
athletes directly (e.g. FIG and ITF). All in all, the social
and economic impacts of the coronavirus pandemic on sport have been
unprecedented and will require creative solutions while continuing to place
public health as the top priority.
Platini’s ECtHR Appeal
Falls Flat
There have also been a few
other stories that have (understandably) been overshadowed by the pandemic. One
of these include Michel Platini’s unsuccessful appeal to the ECtHR challenging
his 2015 football ban. The ECtHR’s decision concerned the
admissibility of his appeal and in the end found it to be ‘manifestly
ill-founded’. This is because he failed to raise his procedural rights concerns
under Article 6 (1) ECHR in his proceedings at the Swiss Federal Tribunal. Besides
rejecting his other claims based on Article 7 and 8 ECHR, the ECtHR decision also
touched upon the issue of CAS’ procedural and institutional independence. In
doing so, it referred to its Pechstein decision and once more affirmed
that the CAS is sufficiently independent and impartial (see para 65), further
giving credence to this notion from its case law. However, there are still concerns on this matter as was highlighted in the
Pechstein dissent. Overall, the decision indicates
that the ECtHR is willing to give the CAS the benefit of the doubt so long as
it sufficiently takes into account the ECHR in its awards.
Mark Dry – UKAD Dispute
In February, Mark Dry was suspended by UKAD after a decision of the National Anti-Doping
Panel (NADP) Appeal Tribunal for four years after having given a ‘false
account’ in order to ‘subvert the Doping Control process’. Specifically, Dry
had told anti-doping authorities that he had been out fishing after he had
missed a test at his residence. After further investigation, Dry admitted that
he had forgotten to update his whereabouts while he was actually visiting his
parents in Scotland and in panic, had told anti-doping authorities that he had
been out fishing. Following the decision of the NADP Appeal Tribunal, athlete
stakeholders have argued the four-year ban was disproportionate in this case.
In particular, Global Athlete contended that Whereabouts
Anti-Doping Rule Violations only occur in cases where an athlete misses three
tests or filing failures within a year. Furthermore, even if Dry had ‘tampered
or attempted to tamper’, a four-year sanction is too harsh. Subsequently, UKAD responded
with a statement, arguing that
‘deliberately providing false information’ is ‘a serious breach of the rules’
and that the UKAD NADP Appeal Tribunal ‘operates independently’. In light of
the mounting pressure, Witold Bańka, WADA President, also responded
on Twitter that he is ‘committed to ensuring that athletes’ rights are upheld under the World
Anti-Doping Code’. More...
Editor's note: Marjolaine is a researcher and attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences.
I.
Introduction
The COVID-19 pandemic has shaken the manner
in which we approach human interactions that suppose close and prolonged physical
contact. Across the world, authorities are having to design ways to resume
essential activities without jeopardising participants’ health, all the while
guaranteeing that other fundamental rights are paid due respect. The fight
against doping is no exception. Anti-doping organizations – whether public or
private – have to be held to the same standards, including respect for physical
integrity and privacy, and considerate application of the cornerstone principle
of proportionality.
Throughout this global crisis, the World
Anti-Doping Agency (‘WADA’) has carefully monitored the situation, providing
anti-doping organizations and athletes with updates and advice. On
6 May 2020, WADA issued the document called ‘ADO
Guidance for Resuming Testing’ (‘COVID Guidance’). A COVID-19
‘Q&A’ for athletes (‘Athlete Q&A’) is also available on WADA’s
website, and has been last updated on 25 May 2020. This article focuses on
these two latest documents, and analyses the solutions proposed therein, and
their impact on athletes.
Like many public or private recommendations
issued for other societal activities, the WADA COVID Guidance is primarily
aimed at conducting doping control while limiting the risk of transmission of
the virus and ensuing harm to individuals. More specifically, one can identify two
situations of interest for athletes that are notified for testing:
- The athlete has or suspects
that they may have been infected with COVID-19, or has come in close contact
with someone having COVID-19;
- The athlete fears to be in
touch with doping control personnel that may be infected with COVID-19.
Quite obviously, either situation has the
potential to create significant challenges when it comes to balancing the
interests of anti-doping, with individual rights and data protection concerns.
This article summarises how the latest WADA COVID Guidance and Athlete Q&A
address both situations. It explores how the solutions suggested fit in with
the WADA regulatory framework and how these might be assessed from a legal
perspective.
The focus will be on the hypothesis in
which international sports federations – i.e. private entities usually
organised as associations or similar structures – are asked to implement the COVID
Guidance within their sport. National anti-doping organizations are strongly
embedded in their national legal system and their status and obligations as
public or semi-public organisations are likely to be much more dependent on the
legislative landscape put in place to deal with the COVID-19 pandemic in each
country. Nevertheless, the general principles described in this article would
apply to all anti-doping organizations alike, whether at international or
national level. More...
Editor’s
note: Thomas Terraz is a fourth year LL.B.
candidate at the International and European Law programme at The Hague
University of Applied Sciences with a specialisation in European Law. Currently
he is pursuing an internship at the T.M.C. Asser Institute with a focus on
International and European Sports Law.
Since its inception, the Olympic Movement, and in particular the
IOC, has tirelessly endeavored to create a clean bubble around sport events, protecting
its hallowed grounds from any perceived impurities. Some of these perceived ‘contaminants’
have eventually been accepted as a necessary part of sport over time (e.g.
professionalism in sport),[1]
while others are still strictly shunned (e.g. political protest and
manifestations) and new ones have gained importance over the years (e.g.
protection of intellectual property rights). The IOC has adopted a variety of
legal mechanisms and measures to defend this sanitized space. For instance, the IOC has led massive efforts
to protect its and its partners’ intellectual property rights through campaigns
against ambush marketing (e.g. ‘clean venues’ and minimizing the athletes’
ability to represent their personal sponsors[2]). Nowadays,
the idea of the clean bubble is further reinforced through the colossal security
operations created to protect the Olympic sites.
Nevertheless, politics, and in particular political protest, has
long been regarded as one of the greatest threats to this sanitized space. More
recently, politics has resurfaced in the context of the IOC
Athletes’ Commission Rule 50 Guidelines. Although Rule 50 is nothing new, the
Guidelines stirred considerable criticism, to which Richard
Pound personally responded, arguing that Rule 50 is a rule encouraging ‘mutual
respect’ through ‘restraint’ with the aim of using sport ‘to bring people
together’.[3] In
this regard, the Olympic Charter aims to avoid ‘vengeance, especially misguided
vengeance’. These statements seem to endorse a view that one’s expression of
their political beliefs at the Games is something that will inherently divide people
and damage ‘mutual respect’. Thus, the question naturally arises: can the world
only get along if ‘politics, religion, race and sexual orientation are set
aside’?[4] Should
one’s politics, personal belief and identity be considered so unholy that they
must be left at the doorstep of the Games in the name of depoliticization and
of the protection of the Games’ sanitized bubble? Moreover, is it even possible
to separate politics and sport?
Even Richard Pound would likely agree that politics and sport are at
least to a certain degree bound to be intermingled.[5]
However, numerous commentators have gone further and expressed their skepticism
to the view that athletes should be limited in their freedom of expression
during the Games (see here,
here
and here).
Overall, the arguments made by these commentators have pointed out the hypocrisy
that while the Games are bathed in politics, athletes – though without their labor
there would be no Games – are severely restrained in expressing their own
political beliefs. Additionally, they often bring attention to how some of the
most iconic moments in the Games history are those where athletes took a stand
on a political issue, often stirring significant controversy at the time. Nevertheless,
what has not been fully explored is the relationship between the Olympic Games
and politics in terms of the divide between the ideals of international unity
enshrined in the Olympic Charter and on the other hand the de facto embrace of country
versus country competition in the Olympic Games. While the Olympic Charter
frames the Games as ‘competitions between athletes in individual or team events
and not between countries’, the reality is far from this ideal.[6] Sport
nationalism in this context can be considered as a form of politics because a
country’s opportunity to host and perform well at the Games is frequently used to
validate its global prowess and stature.
To explore this issue, this first blog will first take a historical
approach by investigating the origins of political neutrality in sport followed
by an examination of the clash between the ideal of political neutrality and
the reality that politics permeate many facets of the Olympic Games. It will be
argued that overall there has been a failure to separate politics and the Games
but that this failure was inevitable and should not be automatically viewed negatively.
The second blog will then dive into the Olympic Charter’s legal mechanisms that
attempt to enforce political neutrality and minimize sport nationalism, which
also is a form of politics. It will attempt to compare and contrast the IOC’s
approach to political expression when exercised by the athletes with its
treatment of widespread sport nationalism.More...
Editor's note: This report compiles the most relevant legal
news, events and materials on International and European Sports Law based on
the daily coverage provided on our twitter feed @Sportslaw_asser.
The Headlines
Manchester City sanctioned
by UEFA’s Financial Fair Play
Manchester City has been sanctioned under UEFA’s Financial
Fair Play (FFP) regulations for two seasons for ‘overstating its sponsorship
revenue in its accounts and in the break-even information’ it had provided
UEFA. The February 14 decision of the Adjudicatory Chamber of the Club
Financial Control Body (CFCB) likely heralds the start of a long and bitter legal
war between Manchester City and UEFA, which may end up settling many of the
questions surrounding the legality of FFP rules. Since its introduction in
2010, the compatibility of FFP with EU law, especially in terms of free
movement and competition law, has been a continued point of contention amongst
the parties concerned and commentators (see discussion here, here and here). It was only a matter of
time that a case would arise to test this issue and the present circumstances seem
to indicate that this may go all the way.
Regardless, the ban will not be enforced this season and in light of the
appeal process, it is hard to predict when the CFCB’s decision will have any
effect. Indeed, Manchester City has shown an incredible willingness to fighting this out in
the courts and shows no signs of backing down. The next stop will be the CAS and perhaps followed by
the Swiss Federal Tribunal. It should also be recalled that the CAS has already
examined FFP in its Galatasaray award, where it found FFP
compatible with EU law (see commentary here). There is even a decent
chance that this emerging saga may end up in front of the European Commission
and eventually the Court of Justice of the European Union.
Sun Yang CAS award published
After a much-anticipated
public hearing, the Panel’s award in the Sun Yang case has finally been published, sanctioning Sun Yang with
an eight-year period of ineligibility (see here for a detailed
commentary). The decision does not reveal anything groundbreaking in terms of
its legal reasoning and in many ways the case will most likely be remembered for
its historical significance: the case that jumpstarted a new era of increased
public hearings at the CAS.
Perhaps of some interest
is the extent to which the panel took into account Sun Yang’s behavior during
the proceedings in order to support its assessment of the case. For example,
the panel describes how Sun Yang had ignored the procedural rules of the
hearing by inviting ‘an unknown and unannounced person from the public gallery
to join him at his table and act as an impromptu interpreter’. The Panel
interpreted this as Sun Yang attempting ‘to take matters into his own hands’
which it found resembled the athlete’s behavior in the case (see para 358). The
Panel also found it ‘striking’ that Sun Yang did not express any remorse
concerning his actions during the proceedings. Since the proceedings were held
publicly and have been recorded, it is possible to verify the Panel’s
assessment in this regard.
In the end, it is possible
that Sun Yang may seek to reduce the period of ineligibility once the 2021 WADA
Code comes into force (see para 368). For now, Sung Yang may also try to appeal
the award to the Swiss Federal Tribunal on procedural grounds, and has already indicated his wish to do so. More...
Editor’s note:
Thomas Terraz is a fourth year LL.B. candidate at the International and
European Law programme at The Hague University of Applied Sciences with a
specialisation in European Law. Currently he is pursuing an internship at the
T.M.C. Asser Institute with a focus on International and European Sports Law.
1. Introduction
On
March 05, the T.M.C. Asser Institute hosted ‘Mega-sporting events and human
rights: What role can EU sports diplomacy play?’ a Multiplier Sporting Event
organized in the framework of a European research project on ‘Promoting a
Strategic Approach to EU Sports Diplomacy’. This project funded by the European
Commission through its Erasmus+ program aims to help the EU adopt a strategic approach to sports
diplomacy and to provide evidence of instances where sport can help amplify EU
diplomatic messages and forge better relations with third countries. In
particular, Antoine Duval from the Asser
Institute is focusing on the role of EU sports diplomacy to strengthen human rights in the
context of mega sporting events (MSE) both in Europe and abroad. To this end,
he organized the two panels of the day focusing, on the one hand, on the ability
of sport governing bodies (SGB) to leverage their diplomatic power to promote
human rights, particularly in the context of MSEs and, on the other, on the
EU’s role and capacity to strengthened human rights around MSEs. The following
report summarizes the main points raised during the discussions. More...
The International Sports Law Journal (ISLJ) invites submissions to a
special issue focusing on legal aspects of fantasy sports. For some
time, fantasy sports has been a major phenomena in North America and
this has been reflected in the sports law literature.
Fantasy sports have more recently grown in popularity in the rest of
world, raising a number of novel legal questions. The ISLJ wants to
support fruitful global discussions about these questions through a
special issue. We welcome contributions from different
jurisdictions analyzing fantasy sports from the perspective of various
areas of law including, but not limited to, intellectual property law,
gambling law, and competition law.
Please submit proposed papers through the ISLJ submission system (http://islj.edmgr.com/) no later than November 15, 2020. Submissions should have a reccomended length of 8,000–12,000
words and be prepared in accordance with the ISLJ's house style guidelines (https://www.springer.com/journal/40318/submission-guidelines). All
submissions will be subject to double-blind peer review.
Question about the special issue can be directed to the Editor–in-Chief, Johan Lindholm (johan.lindholm@umu.se).
Editor's note: This report compiles the most relevant legal
news, events and materials on International and European Sports Law based on
the daily coverage provided on our twitter feed @Sportslaw_asser.
The Headlines
IOC Athlete Commission
releases its Rule 50 Guidelines for Tokyo 2020
The IOC Athlete Commission
presented its Rule 50 Guidelines for Tokyo 2020 at its annual joint meeting with the IOC Executive
Board. It comes as Thomas Bach had recently underlined the importance of political
neutrality for the IOC and the Olympic Games in his New Year’s message. Generally, rule 50 of
the Olympic Charter prohibits any political and religious expression by
athletes and their team during the Games, subject to certain exceptions. The
Guidelines clarify that this includes the ‘field of play’, anywhere inside the
Olympic Village, ‘during Olympic medal ceremonies’ and ‘during the Opening,
Closing and other official ceremonies’. On the other hand, athletes may express
their views ‘during press conferences and interview’, ‘at team meetings’ and
‘on digital or traditional media, or on other platforms. While rule 50 is
nothing new, the Guidelines have reignited a debate on whether it could be
considered as a justified restriction on one’s freedom of expression.
The IOC has made the case
that it is defending the neutrality of sport and that the Olympics is an
international forum that should help bring people together instead of focusing
on divisions. Specifically, Richard Pound has recently made the
argument that the Guidelines have been formulated by the athletes themselves and
are a justified restriction on free expression with its basis in ‘mutual
respect’. However, many commentators have expressed their skepticism to this
view (see here, here and here) citing that politics and
the Olympics are inherently mixed, that the IOC is heavily involved in politics,
and that the Olympics has often served as the grounds for some of history’s
most iconic political protests. All in all, the Guidelines have certainly been
a catalyst for a discussion on the extent to which the Olympics can be
considered neutral. It also further highlights a divide between athlete
committees from within the Olympic Movement structures and other independent
athlete representation groups (see Global Athlete and FIFPro’s statements on rule 50).
Doping and Corruption
Allegations in Weightlifting
The International
Weightlifting Federation (IWF) has found itself embroiled in a doping and
corruption scandal after an ARD documentary was aired early in
January which raised a wide array of allegations, including against the
President of the IWF, Tamás Aján. The documentary also included hidden camera interviews
from a Thai Olympic medalist who admits having taken anabolic steroids before
having won a bronze medal at the 2012 London Olympic Games and from a team
doctor from the Moldovan national team who describes paying for clean doping
tests. The IWF’s initial reaction to the documentary was
hostile, describing the allegations as ‘insinuations, unfounded accusations and
distorted information’ and ‘categorically denies the unsubstantiated’
accusations. It further claims that it has ‘immediately acted’ concerning the
situation with the Thai athletes, and WADA has stated that it will follow up
with the concerned actors. However, as the matter gained further attention in
the main stream media and faced increasing criticism, the IWF moved to try to ‘restore’ its reputation. In practice, this means
that Tamás Aján has ‘delegated a range of operation responsibilities’ to Ursual
Papandrea, IWF Vice President, while ‘independent experts’ will conduct a
review of the allegations made in the ARD documentary. Richard McLaren has been
announced to lead the investigation
and ‘is empowered to take whatever measures he sees fit to ensure each and
every allegation is fully investigated and reported’. The IWF has also stated
that it will open a whistleblower line to help aid the investigation.More...
Editor’s
note: Thomas Terraz is a fourth year LL.B.
candidate at the International and European Law programme at The Hague
University of Applied Sciences with a specialisation in European Law. Currently
he is pursuing an internship at the T.M.C. Asser Institute with a focus on
International and European Sports Law.
1. Introduction
As we begin plunging into a new decade, it can be helpful to look
back and reflect on some of the most influential developments and trends from
2019 that may continue to shape international sports law in 2020 and beyond. Hence,
this piece will not attempt to recount every single sports law news item but
rather identify a few key sports law stories of 2019 that may have a continued
impact in the 2020s. The following sections are not in a particular order.More...
The upcoming 2022 FIFA World Cup in Qatar and its links
to human rights violations has been the subject of many debates in the
media and beyond. In particular, the respect of migrant workers’ labour
rights was at the forefront of much public criticisms directed against
FIFA. Similarly, past Olympics in Rio, Sochi or Beijing have also been
in the limelight for various human rights issues, such as the lack of
freedom of the press, systematic discrimination on the basis of sexual
orientation or forced evictions. These controversies have led sports
governing bodies (SGBs) to slowly embrace human rights as an integral
part of their core values and policies. Leading to an increased
expectation for SGBs to put their (private) diplomatic capital at the
service of human rights by using their leverage vis-à-vis host countries
of their mega-sporting events (MSEs). In turn, this also raises the
question of the need for the EU to accompany this change by putting
human rights at the heart of its own sports diplomacy.
Research collective
This Multiplier Sporting
Event, organised in the framework of the transnational project on
‘Promoting a Strategic Approach to EU Sports Diplomacy’ funded by the
Erasmus + Programme, aims to trigger discussions on the role of an EU
sports diplomacy in strengthening respect for human rights in the
context of MSEs both at home and abroad. It will feature two roundtables
focused on the one hand on the diplomatic power and capacity of SGBs to
fend for human rights during MSEs and on the other on the EU’s
integration of human rights considerations linked to MSEs in its own
sports diplomacy.
Programme
13:20 – 14:00 – Welcome and opening speech –Antoine Duval (Asser Institute)
14:00 - 15:30 - Panel 1: Leveraging the Diplomatic Power of the Sports Governing Bodies for Human Rights
- Lucy Amis (Unicef UK/Institute for Human Rights and Business)
- Guido Battaglia (Centre for Sport and Human Rights)
- Florian Kirschner (World Players Association/UNI Global Union)
- Claire Jenkin (University of Hertfordshire)
15:30 – 16:00 - Coffee Break
16:00 - 17:30 - Panel 2: A Human Rights Dimension for the EU’s Sports Diplomacy?
- Arnout Geeraert (Utrecht University)
- Agata Dziarnowska (European Commission)
- Alexandre Mestre (Sport and Citizenship)
- Ministry of Health, Welfare and Sport (TBC)
17:30 - Reception
Editor’s
note: Thomas Terraz is a fourth year LL.B.
candidate at the International and European Law programme at The Hague
University of Applied Sciences with a specialisation in European Law. Currently
he is pursuing an internship at the T.M.C. Asser Institute with a focus on
International and European Sports Law.
1
Introduction
The International Olympic Committee (IOC), after many years of ineffective
pushback (see here,
here
and here)
over bye law 3 of rule 40[1] of
the Olympic Charter (OC), which restricts the ability of athletes and their
entourage to advertise themselves during the ‘blackout’ period’[2]
(also known as the ‘frozen period’) of the Olympic Games, may have been gifted a
silver bullet to address a major criticism of its rules. This (potentially) magic
formula was handed down in a relatively recent
decision of the Bundeskartellamt, the German competition law authority,
which elucidated how restrictions to athletes’ advertisements during the frozen
period may be scrutinized under EU competition law. The following blog begins
by explaining the historical and economic context of rule 40 followed by the
facts that led to the decision of the Bundeskartellamt. With this background,
the decision of the Bundeskartellamt is analyzed to show to what extent it may serve
as a model for EU competition law authorities. More...