Yesterday the sports law world was buzzing due to the Diarra decision of the Tribunal de Commerce du Hainaut (the Tribunal) based in Charleroi, Belgium. Newspapers were lining up (here, here and here) to spread the carefully crafted announcement of the new triumph of Jean-Louis Dupont over his favourite nemesis: the transfer system. Furthermore, I was lucky enough to receive on this same night a copy of the French text of the judgment. My first reaction while reading quickly through the ruling, was ‘OMG he did it again’! “He” meaning Belgian lawyer Jean-Louis Dupont, who after a string of defeats in his long shot challenge against FIFA’s TPO ban or UEFA’s FFP (see here and here), had [at least I believed after rushing carelessly through the judgment] manufactured a new “it”: a Bosman. Yet, after carefully re-reading the judgment, it became quickly clear to me that this was rather a new Mutu (in the sense of the latest CAS award in the ‘Mutu saga’, which I have extensively analysed on this blog and in a recent commentary for the new Yearbook of International Sports Arbitration) coupled with some reflections reminding a bit (but not really as will be explicated below) the Pechstein case.

In this blog, I will retrace briefly the story behind the case and then analyse the decision of the Belgium court. In doing so, I will focus on its reasoning regarding its jurisdiction and the compatibility of article 17(2) RSTP with EU law.

I.              The facts of the case

On 20 August 2013, the French footballer Lassana Diarra and the Russian top-tier club FC Lokomotiv Moscow (Lokomotiv) agreed on a four-year contract (Contract). Article 8 (3) of the Contract provided that in case Lokomotiv terminates the Contract for disciplinary reasons, Mr. Diarra would be liable for compensation amounting to EUR 20,000,000 (Compensation).  One year later, on 22 August 2014, Lokomotiv terminated the Contract due to Diarra's recurring failures to perform his obligations arising thereof. Lokomotiv relied on Article 8 (3) of the Contract and claimed the Compensation.

Less than a month later, Lokomotiv lodged a request for compensation with the FIFA Dispute Resolution Chamber (DRC) against Diarra. Diarra subsequently filed his counterclaim in which he asked for the payment of bonuses and wage arrears as well as the compensation amounting to the remuneration which would still have to be paid between August 2014 and 30 June 2017, the term provided for in the Contract. On 10 April 2015, the DRC rendered its decision ruling that Lokomotiv’s decision to terminate the Contract was justified (DRC Decision). Regarding the compensation due by Diarra, the DRC noted that Article 8 (3) of the Contract provided for the Compensation (amounting to EUR 20,000,000) claimed from Diarra. On the other hand, in case a compensation was due by Lokomotiv, Article 8 (5) of the Contract set a limit to three months of Diarra’s salary (approximately EUR 1,500,000). Taking into account the discrepancy, the DRC noted that the respective rights of the parties were completely disproportionate and the Contract should be disregarded. The DRC nevertheless decided that the consequences of the Contract's termination had to be assessed in light of Article 17 (1) of the FIFA Regulation for the Status and Transfer of Players (RSTP). In line with the said provision, the DRC decided that Diarra had to pay Lokomotiv the amount of EUR 10,500,000 for having repeatedly breached the Contract. Although this issue was not directly related to the case, the DRC pointed out that, following the termination of the Contract, Diarra did not immediately manage to find a new club so that Article 17 (2) RSTP (making a professional player and his new club jointly and severally liable for a compensation owed to a previous club) was in principle not applicable to the case. Furthermore, the DRC ruled that, having regard to the date of the Contract's termination and the time elapsed between that date and the issuance of the DRC Decision, Article 17 (2) would not apply in case Diarra finds a new club in the future.

Yet, during the period between 22 August 2014 and 10 April 2015, Diarra had attracted attention from several European clubs (e.g. Inter Milan, West Ham United, Celtic Glasgow and Sporting Charleroi). Negotiations, however, did not succeed for the reason that those clubs were afraid of being held jointly liable for a compensation which could have been potentially awarded by the DRC. On 19 February 2015, the Belgian football club Sporting Charleroi (Charleroi) offered Diarra a 15-month contract concerning the period between 30 March 2015 and 30 June 2016. This offer was, however, subject to the following conditions:

1. Diarra is registered and qualified as a member of Charleroi by 30 March 2015 at the latest; and
2. The governing bodies, Belgian Football Association (URBSFA) and FIFA, expressly confirm that Charleroi is not required to pay the compensation for which Diarra could be held liable at the end of the proceedings before the DRC.

On this second condition, Diarra and Charleroi demanded confirmation from FIFA and the URBSFA. Both governing bodies refused to adopt a concrete position with respect to the application of Article 17 (2) RSTP to the case at hand. On 27 March 2015, in light of the abovementioned replies obtained from FIFA and URBSFA, Diarra referred the case to the President of the Commercial Court of Brussels asking to order FIFA and URBSFA:

1. To register and qualify him as a professional football player of Charleroi, thereby allowing him to play for the rest of the 2014/2015 season;
2.  Not to apply Article 17 (2) and (4) RSTP to Charleroi.

No order had been delivered before the DRC Decision was issued. Furthermore, the DRC Decision confirmed that Article 17 (2) RSTP was not applicable to any new club which would hire Diarra in future. As a result, Diarra decided to withdraw his action from the Commercial Court of Brussels. However, he was not able to play as a professional player for Charleroi until the end of the 2014/2015 season. In July 2015, Diarra entered into a contract with the French top-tier club Olympique Marseille. This contract is still in force. 

Diarra also appealed against the DRC Decision before the CAS in Lausanne. On 27 May 2016, the CAS rendered its award by which it confirmed the DRC Decision. In the end, Diarra filed a lawsuit with the the Tribunal de Commerce du Hainaut. Diarra sued both FIFA and URBSFA for damages caused by not being able to exercise the status of a professional football player during the entire 2014/2015 season. Finally, on 19 January 2017, the Hainaut Commercial Tribunal – Charleroi division rendered the judgment analysed in this blog.            

II.            The decision of the Tribunal of Charleroi

A.    Does the Tribunal of Charleroi have jurisdiction?

FIFA (and the Belgium federation) argued that the Tribunal lacked jurisdiction for two (main) reasons: Diarra was bound by a CAS arbitration clause and the Belgium court is incompetent based on the Lugano Convention. Let’s turn to the Tribunal’s rebuttal of both objections.

1.     The inexistence of a CAS arbitration clause

FIFA argued that M. Diarra was bound, through his registration as a professional football player with the French Football Federation, by the CAS arbitration clause included in the Statutes of FIFA.[1] In particular it refers to Article 68 of the FIFA Statutes. 

The Tribunal finds that this provision poses difficult problems of interpretation. Especially, Article 68(3) FIFA Statutes does not stipulate that the prohibition to have recourse to ordinary courts entails necessarily an arbitration clause in favorem of the CAS. Instead, the Tribunal finds this lack of clarity in the wording of the provision to play in favour of the player. Thus, it concludes that the FIFA Statutes do not create an obligation for the player to turn to the CAS to solve this dispute.

The judges add that even if one considers the FIFA Statutes to be sufficiently clear and precise, the parties must have concluded an arbitral convention in the sense of Article 1680 of the Code Judiciaire Belge (Belgian Judicial Code). In this regard, FIFA needs to demonstrate through documentary evidence (not necessarily signed by the parties) the existence of an agreement fulfilling the law’s requirements of clarity and precision.[2] Yet, in the present case, FIFA was unable to show that it had any contractual links with Diarra. Hence, the judges concluded that there were no elements demonstrating that Diarra would have consented expressly or implicitly to arbitrate at the CAS disputes stemming from its relation with FIFA. Additionally, the Tribunal refers in footnote 7 to the evident contradiction between FIFA’s claim and the agreement signed with the European Commission to put an end in 2001 to the Commission’s investigation into the FIFA RSTP. Indeed, this agreement clearly stipulates that “arbitration is voluntary and does not prevent recourse to national courts”.[3] Finally, the Tribunal insists that any general prohibition (as the one included in FIFA’s statutes) to have recourse to national courts would be contrary to Ordre Public and, therefore, must be disregarded by the Tribunal.

Is it a new Pechstein? Hardly. FIFA is not relying on a specific arbitration clause included in its Statutes, nor does it refer to any arbitration clause included in the Statutes of the French Football Federation. In the Pechstein case (on ‘Pechstein’ see our blogs here and here), Claudia Pechstein was forced (as a condition of entry to the competitions of the ISU) to sign an arbitration agreement in favour of the CAS. In the Diarra case, the player never signed anything and the Tribunal just highlighted that the vague language included in the FIFA Statutes cannot be constructed as a sufficient legal basis for a general arbitration agreement binding all football players (and clubs) for all disputes involving FIFA or national federations around the globe.

2.     The competence of the Tribunal of Charleroi on the basis of the Lugano Convention

The second objection raised by FIFA and the URBSFA regarding the competence of the Tribunal is related to the Lugano Convention. In principle, as pointed out by the respondents, Article 2.1. Lugano Convention foresees that one should be sued in the courts of her domicile. Any derogation to this general rule is, in their view, limited to exceptional circumstances in which there is a particularly close linked between the dispute and the jurisdiction other than the one of the domicile of the respondent.

Yet, the Tribunal refers to Article 5.3. Lugano Convention, which stipulates that “in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur”. It held that this special competence is grounded on the existence of closed connecting factors between the dispute and the place where the damage occurred. The judges refer to the Mines de potasse and Shevill jurisprudence of the Court of Justice of the EU to conclude that the notion of harmful event covers both the place where the damage materialized and the place where the event occurred. In the present case, it entails that Diarra is not forced to lodge a complaint in Switzerland, where FIFA adopted the controversial regulation. Instead, he could also submit a complaint at the place where the damage was felt. More precisely in Belgium (and more specifically Charleroi) due to the missed opportunity to be employed by Sporting Charleroi.

This is (with other cases we have chronicled on this blog, see here and here) a good reminder that FIFA’s regulations, as long as they have damaging effects outside of Switzerland, are easily subjected to challenges in the EU Member States. In particular due to a potential incompatibility with EU free movement and competition law.

B.    The compatibility of article 17(2) FIFA RSTP with EU law?

The core of the substantial evaluation of the case plays out mainly around the question of the compatibility of article 17(2) FIFA RSTP with EU law. Unfortunately for the European Sports Law geek, but reasonably in the context of the factual construction of the case, the Tribunal did not pick on the request of Diarra’s lawyer to send a preliminary reference to the CJEU regarding the compatibility of article 17(1) FIFA RSTP with EU free movement law. [4]

Instead, the Tribunal focused on the interpretation (at least until April 2015) by FIFA (and the URBSFA) of article 17(2) FIFA RSTP. Indeed, it refers to the legislative history of the FIFA RSTP and in particular the EU Commission-FIFA agreement to strongly affirm that “there is no doubt that the European Commission would have never given its green light to such a system, which boils down in fine to preventing a worker dismissed by his employer – even if it is due to his behaviour - to find a new job”.[5] To further support this argumentation it refers directly to the CAS award rendered in the latest episode of the ‘Mutu saga’. In that case, the CAS clearly affirmed that the interpretation provided by the FIFA DRC, insofar as it extends the applicability of article 17(2) FIFA RSTP to players dismissed by their clubs on the basis of their behaviour, is contrary to EU law and the Bosman jurisprudence. Thus, the Tribunal concludes that the application of article 17(2) FIFA RSTP supported by the defendants in the present case was contrary to the freedom of movement of workers. Henceforth, the faulty behaviour of FIFA was established.

Interestingly, and this is the more original aspect of the decision, the Tribunal found that the URBSFA should also be deemed at fault for having implemented the rule on FIFA’s behalf. The national federation cannot hide behind its duty to implement FIFA regulations, especially because since 21 January 2015 (meaning before it opposed the move to Sporting Charleroi) it should have been aware of the decision of the CAS (here the Tribunal is a bit unfair with the URBSFA because the full text of the award was not published until March 2015, and until then it was impossible for the URBSFA to clearly assess the CAS’ reasoning). Moreover, the Tribunal rejects the objection raised by the URBSFA that the Russian federation would not have issued an International Transfer Certificate. Instead, the judges held that “when the contract is terminated by the club, the player must have the possibility to sign a new contract with a new employer, without restrictions to his free movement”. The Tribunal added [and this is the key part that had me believe in a new Bosman for a minute ;)]

“Allowing, like the RSTP seems to do, a federation or association to which the former club belongs […] not to deliver an ITC if there is a contractual disputes between the former club and a player that has been dismissed (and who has not taken the initiative of breaching his contract) and who has concluded (or wishes to conclude) a new contract in another country, is equivalent to requiring the new club to pay to the former club the compensation requested from the player, which is akin to imposing to the new club to pay a transfer fee to the former club to recruit a player who in fact is out of contract. This is exactly the practice deemed contrary to EU law in the Bosman case.”[6]

The scope of this paragraph could have been way broader if the Tribunal had not included the “who has been dismissed” part. Indeed, it seems to exclude situations where the player decides to leave his club and, thus, preserves the possibility to hold the new club accountable for compensation due by the player to his former club for having terminated his contract.

Conclusion: Interpreting the FIFA RSTP with a lot of help from EU law

This case matters, not so much for Diarra, who has secured a meagre EUR 60 001 in damages (and not the EUR 6 million announced everywhere) plus a bit more if his lawyers manage to demonstrate a substantial loss of opportunity from not having played with Sporting Charleroi (which, with all due respect, should prove rather difficult), not so much for its substantial solution because the CAS had come to a similar conclusion in its Mutu award from 2015, not so much either for its arbitration dimension as the Tribunal’s considerations regarding the absence of an arbitral agreement are not really surprising (or new for that matter). No, its importance lies in the reaffirmation of the need to read the RSTP in the light of EU law and to interpret it with the jurisprudence of the CJEU in mind and the agreement with the EU Commission on the table. This decision is laying further ground for broader challenges to the RSTP on the basis of EU law. For example, I do not see where one can find in the EU Commission-FIFA agreement the endorsement of a joint liability of the new club and a player for damages incurred by the latter when terminating his contract with his former club. Thus, the entire article 17(2) FIFA RSTP is build on shaky legal grounds, and if one pursues the logic of the Tribunal until the end there is no reason why it should not be deemed contrary to the EU free movement rights of players.

[1] Jugement du Tribunal de Commerce du Hainaut, division Charleroi, A/16/00141, 19 January 2017, at paras 19-21.

[2] Ibid, at para.21.

[3] Ibid.

[4] Ibid, at para. 27.

[5] Ibid, at para. 28.

[6] Ibid.

Introduction

A remarkable aspect of the run-up to the 2016 Rio Olympic Games was the stream of negative media reports portraying broad-scale public mistrust in sport, with the most prominent topic being the doping scandals in athletics and questions surrounding the participation of Russia.  

A different controversy, but one also directed at the credibility of sports, has exposed a few female Olympians to repeated, and at times rather intrusive, media scrutiny. In June 2016, it was reported that Indian track-and-field athlete Dutee Chand had qualified for the Rio Olympic Games by breaking the national record, thus to become the first Indian athlete to run the 100m at the Olympics since 1980. The attention that Dutee Chand’s qualification attracted within international media, however, was not related only to her outstanding results. It came as part of a medical, ethical and legal controversy that has existed for many years relating to ‘policing’ the male versus female divide in sports. Another athlete who has found herself in the midst of this controversy is South African runner Semenya Caster, whose participation in the Olympics has been the object of much conjecture.

The divide between male and female athletes forms the core of most sports’ competition rules, including athletics. The justification for this basic divide has rarely been questioned as such, but has been a matter for debate when it comes to handling atypical situations on both sides of the ‘dividing line’ ­ such as ��transgender’ or ‘intersex’ athletes. A category of athletes that has, especially, been viewed as a challenge to the divide is composed of female athletes affected by ‘hyperandrogenism’, a health condition that results in naturally elevated androgen levels, including testosterone levels.

On 24 July 2015, a CAS panel rendered a decision involving Dutee Chand (“Dutee Chand” or “the Athlete”) that has fuelled the ongoing debate about the policies regulating hyperandrogenism in sport. Much has been reported in the media about the case: controversial issues include whether the CAS was the appropriate forum to assess these questions; whether the decision was appropriate, both on the merits and on the procedure; and what the consequences of the CAS award would be, for the parties, for athletics and for the sporting community at large.

Much like the current crisis surrounding doping in sports, the public attention on women with (proven or suspected) hyperandrogenism is driven by a concern that an athlete’s physiology – natural or artificially induced ­ could distort competition, destroying the ‘level playing field’ that supports the Olympic ideal. Both topics are also often brought back to the goal of protecting an athlete’s health. Parallels are further found in the strong reactions both topics evoke, and the steps taken by the regulating authorities to convince the public that everything in their power is being done to preserve a level playing field.

A less obvious but equally important point of comparison can be found in the issues both topics raise concerning the legal validity of decisions made by sports organizations, especially in a science-related context. This blog focuses on those more ‘legal’ aspects, through the prism of the decision of the CAS in the Dutee Chand matter and its legal implications. After touching briefly on the background of the case, we will comment on two aspects of the Chand award with respect to challenges in regulating hyperandrogenism in sport within the confines of the law: First from the viewpoint of a CAS panel called upon to evaluate the validity of a set of regulations, and second from the viewpoint of the sports organizations seeking to both adequately protect fairness in sport and to provide a legally valid (and effective) regulatory solution.[1]

Background of the Case

In 2014, Dutee Chand, an internationally successful, young track-and-field athlete, was provisionally suspended from participation in any athletic events by the Athletics Federation of India (the “AFI”),[2] as a result of a series of medical examinations that suggested her “male hormone” levels were elevated.[3] Dutee Chand filed an appeal against this decision to the CAS, naming both the AFI and the IAAF as respondents. She asked the CAS panel to (i) declare the Hyperandrogenism Regulations invalid, and (ii) overturn the AFI’s decision and clear her to compete. The second request for relief, however, was dropped during the course of the proceeding, thus the award addressed only the issue of the Regulation’s validity.

The IAAF Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition (“Hyperandrogenism Regulations” or “the Regulations”) govern the eligibility of female athletes with a condition known as ‘hyperandrogenism’ to participate in the female category of athletic events. Schematically, the Regulations provide that in order to be eligible to participate in the female category, a woman must have androgen levels below the “normal male range,” which is defined as testosterone levels falling below a threshold of 10 nmol/L.[4] An athlete with testosterone levels reported above this threshold may still be allowed to compete if she establishes, by a balance of probabilities, that she “derives no competitive advantage from having androgen levels in the normal male range”.[5] Cases of suspected hyperandrogenism may be investigated according to three levels of medical assessment, potentially including tests targeting physical, laboratory, genetic, imaging, and psychological assessments. Should an athlete be eventually diagnosed with hyperandrogenism, the stakes are high: in order to return to competition, athletes need to undergo medical treatment to reduce their testosterone levels below the ‘admissible’ threshold.

Dutee Chand challenged the Regulations’ validity on several grounds, which the CAS panel considered after addressing the parties’ respective burdens and standards of proof in an initial section. The grounds examined were unlawful discrimination, lack of scientific validity, breach of proportionality, and conflict with the World Anti-Doping Code (“WADC”).

Challenges CAS panels face in assessing the validity of sports regulations

The Chand award formidably illustrates the challenges an arbitration panel faces when asked to reach a conclusion on the ‘legal validity’ of a set of sports regulations, especially when such assessment implies delving into complex scientific issues. Each of these challenges can provide valuable ‘lessons learned’ for future CAS panels confronted with comparable issues.

Reconciling the ‘abstract’ and ‘concrete’ facets of the dispute

Ostensibly, the object of the CAS proceedings was for Dutee Chand to be cleared to resume competing as a female athlete, in other words, for the decision rendered against her by the AFI to be set aside[6]. But this ‘concrete’ request for relief was dropped at the hearing, leaving the panel with only the ‘abstract’ question of the Regulation’s validity to consider. It appears that the CAS panel was asked between the lines to render an informal advisory opinion on the legitimacy of the current approach to hyperandrogenism in sport; the formal advisory opinion is an instrument no longer available under the CAS Code.[7]

This left the CAS panel in an uncomfortable position: having to decide on abstract legal questions without the benefit of a concrete set of facts to rely upon. Symptomatically, the background presented in the award regarding the Athlete’s actual situation is tenuous. The award does not even discuss whether Dutee Chand’s testosterone levels actually exceeded the 10nmol/L threshold set in the Hyperandrogenism Regulations[8]. The CAS panel simply conducted its entire assessment under the - unverified - assumption of her being genuinely an athlete with hyperandrogenism within the meaning of the Regulations.

Moreover, real questions of defence strategy relevant to counsel appearing before CAS can be raised here: had Dutee Chand not waived her request for relief directed against the AFI decision, the CAS panel would have been forced to render a final award on her case and could not have left her in the legal limbo in which she is now (see below, on the rendering of an interim rather than a final award).

The CAS has often – explicitly or through the decision of its panels ­shown ambition to act as a harmonising body, an ‘international’ or ‘supreme’ court of sport.[9] From a perspective of sports policy, that may be – depending on the opinion – a desirable objective, or an illegitimate attempt for sports governing bodies to shield their regulations from the judicial review of state courts. From a strictly legal perspective, it is questionable whether CAS panels have at their disposal the means to fulfil this ambition. CAS panels are arbitration tribunals in arbitral proceedings conducted under Swiss arbitration law. As such, they only have the power to rule on a dispute brought before them by two – or more – specific parties, and they can only render decisions on requests for relief that a party has submitted to them, within the framework of the facts put forward by the parties. Approaches such as the one taken in the Chand award should not be encouraged, especially in this odd combination in which a CAS panel would accept to rule on abstract requests for relief that are not directly decisive to the outcome of the dispute.

Allocating the burden of proof to prove or disprove the Regulation’s validity

For reasons that are not readily apparent from the award, the CAS panel separated its assessment of the Regulations’ scientific basis into two limbs: i.) one referred to as an assessment of the ‘scientific validity’ of the Regulations, for which Dutee Chand was said to have accepted the burden of proof, and ii.) one referred to as a justification for the prima facie discrimination and considered part of the proportionality assessment, for which the IAAF was assigned the burden of proof[10]. For both limbs, the CAS panel ended up holding that the party bearing the burden of proof failed to discharge its burden, due to lack of sufficient scientific evidence.

The reasoning of the CAS panels in the award makes it rather obvious that the two limbs are conceptually one and the same: Both assess the question of whether the infringement upon female athletes’ rights entailed by the Regulations could be justified by a sufficiently strong scientific basis. Assigning the burden with respect to the general ‘scientific validity’ to Dutee Chand (i.e. the use of testosterone as a valid marker for purposes of the Regulations) and the burden with respect to another aspect of ‘scientific validity’ (i.e. the threshold set in the Regulations for that marker) to the IAAF (via the proportionality test), as the panel did, created an artificial separation in the legal analysis, by dressing the same issue in two different hats.

From the viewpoint of legal technique, this separation appears questionable and unnecessarily complicated. The assumption, from a viewpoint of judicial policy, is that the separation provided the arbitrators with an argument to both support the general thinking underpinning the Regulations (i.e. the use of testosterone levels as a marker) by considering that it was not without scientific basis, while at the same time finding the Regulations lacked sufficient strength in their modalities (i.e. the extent of the advantage conferred to hyperandrogenic athletes by their testosterone levels) to be upheld.

Differentiating between fact-finding and legal appreciation

Whether sports regulations have a sufficiently strong basis in science does not pertain to the fact-finding process, but to the CAS panel’s appreciation of the legal validity ­ or justification (including proportionality) ­ of those regulations. In this particular set-up, the question of ‘scientific validity’ is thus not strictly speaking one related to the burden of proof, as the Chand award would imply, but reflects which party suffers consequences if a CAS panel is not able to make sense of the scientific state-of-knowledge. The prospect of suffering adverse consequences indirectly provides an incentive for parties to present studies and expert opinions in support of their position, but does not qualify as a burden of proof stricto sensu, which only applies to issues of fact[11].

Nevertheless, the outcome of the CAS panel’s reasoning in the Chand matter appears justified: To the extent that the Hyperandrogenism Regulations represent an infringement on certain athletes’ rights (or, as the award considered it, in cases of discrimination), such infringement or discrimination has to be justified to be considered valid. In the case of the Hyperandrogenism Regulations, the alleged justification was based on the scientific basis behind the mechanics of the regulations. Thus, if no such basis could be shown, the CAS panel was bound to consider the Hyperandrogenism Regulations invalid. The CAS panel, in the particular matter, reached the same outcome by assigning the burden of proof on the issue it ultimately declared decisive to the IAAF, i.e. whether the manner in which testosterone was used as marker in the Regulations (especially the threshold value) could claim a sufficiently solid scientific basis.

Accounting for the role of scientific uncertainty

A truly important message to retain from the CAS award on scientific validity is the crucial role that ‘scientific uncertainty’ bears for the legal rule-making or adjudicative process. ‘Scientific uncertainty’ here refers to situations in which no consensus can be found within the scientific community, in which various expert positions coexist, or in which experts agree that the state-of-knowledge does not allow for a definitive answer. In all cases, the science is ‘unsettled’ in a manner that makes it impossible for the legal actors to extract a clear-cut finding that would suit their purposes. By nature, situations of ‘scientific uncertainty’ are the most likely to lead to legal disputes. CAS panels are frequently confronted with this constellation in doping matters or other science-related disputes brought before them.

The result of the panel’s assessment of the scientific foundations for the Regulations – whether desirable or not, justified or not – was hence utterly predictable. It was pre-determined from the moment the CAS panel decided that the IAAF would have the burden of proof on the very issue that would ultimately prove decisive for the outcome of a dispute. Allocating the burden of proof on a scientific issue amounts to assigning to one party (or one category of party) the risk of scientific uncertainty. Since disputed scientific issues are likely to result in the panel being unable to make up its mind one way or another, thus having to fall back on the burden of proof, the party that carries this risk of scientific uncertainty is almost certain to lose its case.

(Avoiding) reaching a legal conclusion on a highly sensitive issue

At the end of their analysis, the CAS arbitrators reached the conclusion that the IAAF had not discharged its burden of proof and that they were therefore unable to uphold the validity of the Hyperandrogenism Regulations based on the evidence before them[12]. The logical (and legal) consequence would have been for the panel to render a final award in accordance with these conclusions and grant the athlete’s request for relief. However, the panel took a different – and unusual ­ option, of issuing a decision they referred to as “interim award” instead.

One fails to see the rationale for such a decision. The approach may well be pragmatic, since it relieved (at least temporarily) the CAS panel of the need to make a final binding decision on a complex social and political issue, and allowed Dutee Chand to resume competition while at the same time providing a (provisional) framework for international athletic competitions with respect to participation of hyperandrogenic athletes.[13] However, issuing an “interim award” in this matter is not justifiable from the perspective of arbitration law. This is all the more true given that none of the parties appears to have requested the issuing of a preliminary decision in the proceedings, nor even to have contemplated this type of outcome. Its legitimacy under the CAS Code – which is conceived to guarantee an efficient procedural framework on CAS proceedings – is equally questionable. Moreover, the choice of issuing an ‘interim award’ has far-reaching legal and practical consequences for the dispute that further call into doubt the nature of Dutee Chand’s ‘victory’, including the following:

• The CAS proceeding number ‘CAS 2014/A/3759’ is not closed. The CAS panel remains formally constituted for the remainder of the two-year period assigned to the IAAF. If the IAAF does not submit further evidence, the CAS panels will need to make a final award taking note of such failure and drawing the consequences thereof, which could then be appealed before the Swiss Supreme Court;

• The “interim award” can only be appealed to the Swiss Supreme Court on very restrictive grounds under the Swiss Private International Law Act (Article 190, para. 3). Only an appeal for grounds of irregular composition of the tribunal or lack of jurisdiction could be filed, none of which would seem of relevance to the present matter. The other grounds for challenging an arbitral award – in particular the right to be heard or public policy – cannot be raised in an appeal against an interim award. This de facto bars the parties from appealing the award before the elapse of the two-year period; and

• The award does not acquire a res iudicata effect and cannot be enforced, though it binds the panel itself to its own determinations (as opposed to a mere procedural order).[14] Its effect for other athletes potentially concerned by decisions made under national regulations implemented to reflect the Hyperandrogenism Regulations is thus uncertain. In theory, but for the panel’s expectations that the IAAF will act based on the sport hierarchy, a national federation that was not a party to the dispute could still make a decision against an athlete.

While CAS panels may order further evidentiary measures on their own initiative and request a party to adduce further evidence, the CAS Code certainly does not envisage that a party could be given a period of two years to do so. Rendering an interim award in these circumstances could be considered to amount to a denial of justice, i.e. a refusal by the CAS panel to rule on the request for relief properly submitted to it. The time limit granted unilaterally, to one of the parties only, could also be seen as conflicting with equality of the parties.[15] Should the IAAF return with additional evidence during the two-year period, would Dutee Chand also be granted an equivalent time limit to respond to the evidence?

Challenges sports organisations face in navigating the interface between law and science

The debate surrounding the definition of male and female is a complex one, not only in sport but in various domains of society. This means that a sports organisation’s task of making policy decisions that adequately account for these complexities is far from straightforward.

Unlike former policies in sport, the manner in which the IAAF – and other sports federations based on the policy of the IOC – set out to deal with hyperandrogenism as of 2012 does not formally aim at defining an athlete’s sex. Hence, it does not represent a ‘gender or sex testing’ process stricto sensu. Instead, the CAS panel in the Dutee Chand case acknowledged that whether a person is to be considered ‘female’ from the viewpoint of participation in athletics relies on the criterion of whether a person is a female as a matter of law[16]. The Hyperandrogenism Regulations do not – at least not from a legal viewpoint ­ purport to decide whether someone is female or not. Ironically, this shift in approach that was to take away from sports authorities the controversial power to assign a ‘gender’ to an individual for purposes of taking part in its competitions is precisely what has brought those authorities into the dilemma of having to introduce corrective factors in the name of a level playing field.

Indeed, the Regulations seek to police a divide based on an issue of law (whether someone is a female ‘as a matter of law’) through a corrective factor that relies on a biological parameter, which is an issue of fact (the person’s level of testosterone); an approach that is bound to lead to a sense of unfairness in borderline situations. Undoubtedly, one major flaw in the system was that the corrective factor had the effect of excluding athletes from the category into which they fit as a matter of law, without offering them the option to compete in the category in which the corrective factor would place them. The IOC Medical & Scientific Commission statement subsequently issued (see below, in the concluding remarks) encourages a solution whereby legally female athletes who fail to meet the requirements of Hyperandrogenism Regulations would be authorized to compete in the male category. This solution would at least have the merits of removing this blatant inconsistency of the system. However, one can legitimately wonder if, de facto, it would not have the same effect of excluding hyperandrogenic women from elite competition entirely.

To entirely reframe the approach to sex categories in sport – without the mixture of legal and biological corrective factors chosen in the Hyperandrogenism Regulations – would suppose one of the following:

1. redefining the definition of ‘sex’ for purposes of sports categories based only on biological criteria, i.e. the level of testosterone or other biological factors deemed appropriate,
2. abandoning the use of corrective factors, and referring to an individual’s sex exclusively as a matter of law, or
3. abandoning any form of sports category related to sex and/or gender altogether.

It seems predictable that any of these options would imply some sort of compromise and entail new legal challenges. In particular, it is important to note that even if one should simply abandon any regulation on hyperandrogenism (or, more generally, on intersex matters), the question of how to legally define a ‘female’ would remain. In particular, the CAS panel in the Chand matter noted that whether someone is a male or female “is a matter of law”[17]. This immediately raises a follow-up question, namely: “what law?”. And, of equal importance, how does the applicable law approach this question? Options could range from self-identification to reliance on a complex set of scientific criteria, with each solution bringing its own challenges. Relying exclusively, as has been suggested[18], on the manner in which a person was raised and/or perceives him-/herself within society might prove difficult to crystallize into a firm legal criterion.

Even as sports regulations strives towards fairness and removing barriers to ‘pure’ competition, it must be recognized that the best that sports organizations can aim for in this context is to strike a reasonable balance between seeking a level playing field and celebrating natural advantages. On a deeper level, it also supposes a discussion as to how lawyers can and/or may make decisions that will profoundly affect individuals when science appears unable to provide the data needed to make sound legal choices.

Concluding remarks

Perhaps the most striking aspect of the Chand matter ­ as revealed by its aftermath ­ is the limited impact a CAS award addressing abstract legal issues can exert in practice.

The Chand award did not end the hyperandrogenism debate. In November 2015 – over four months after the Chand award was published ­ the IOC Medical & Scientific Commission, after holding a Consensus Meeting on Sex Reassignment and Hyperandrogenism, reaffirmed its position by insisting on the need to have rules in place “for the protection of women in sport and the promotion of the principles of fair competition”. The statement also encourages the IAAF, with support of other sports organizations, “to revert to CAS with arguments and evidence to support the reinstatement of its hyperandrogenism rules”. The IOC’s reaction to the interim award rendered shows that little progress was made in resolving the dispute over the validity of the Hyperandrogenism Regulations. As an only sign of a shift in its position, the statement recommends that “to avoid discrimination, if not eligible for female competition the Athlete should be eligible to compete in male competition”.[19] The new IOC position, which in effect represents a step towards considering the testosterone threshold as the only decisive criterion for determining the boundary between male and female athletes, immediately triggered critical reactions – both as to the modalities of its adoption and as to its contents – on part of circles close to Dutee Chand’s defence and opposed to regulations on hyperandrogenism.

Thus, the CAS award does not seem to have altered either camp’s position. This may be in part a side effect of the panel’s decision to opt for an interim award, but also demonstrates more generally the limitations on the power of law, regulatory bodies and judicial authorities to resolve disputes of such scientific and ethical dimension.

[1] For a more detailed analysis of the Chand award, see M Viret and E Wisnosky, Controlling “Femaleness” in Sports: Regulatory challenges at the intersection of health, performance and identity, in A Duval and A Rigozzi, eds., Yearbook of International Sports Arbitration, to be published.

[2] CAS 2014/A/3759, Dutee Chand v. AFI & IAAF, 24 July 2015.at [27]­[28]. As reported in the award, the text of the Decision Letter read in relevant part: “Based on your medical reports received from Sports Authority of India and a copy of the same has already been handed over to you by SAI in person, you are hereby provisionally stopped from participation in any Competition in athletics with immediate effect.

To be eligible for participation, you are further advised to follow the annexed IAAF guidelines”. [27]. Ms. Chand stated that the letter incorrectly enclosed the IAAF Sex Reassignment Regulations rather than the Hyperandrogenism Regulations [28].

[4] Hyperandrogenism Regulations, art. 6.5(i).

[5] Hyperandrogenism Regulations, art. 6.5(ii).

[6] Dutee Chand initially submitted two requests for relief, namely that a.) “[T]he Hyperandrogenism Regulation[s] be declared invalid and void; and, b.)[T]he Decision Letter [note: rendered by the AFI against Ms. Chand] be set aside and she be declared eligible to compete (Chand award at [104]).

[7] CAS’ consultation proceedings were abrogated in the 2012 review of the CAS Code.

[8] Chand award at [36]

[9] “The ‘Digest of CAS Awards 1986-1998’ recorded the emergence of a lex sportiva through the judicial decisions of the CAS. It is true that one of the interests of this court is to develop a jurisprudence that can be used as a reference by all the actors of world sport, thereby encouraging the harmonisation of the judicial rules and principles applied within the sports world.” (CAS Digest II, Reeb, p. xxix).

[10] A detailed analysis of the CAS panel’s reasoning can be found in Viret and Wisnosky 2016.

[11] For more details, see Viret and Wisnosky 2016, on the lack of clear distinction between issues of fact (which parties can agree upon) and issues of law, such as the burden and standard of proof and scientific validity (which is for a hearing panel to decide) in the Chand award.

[12] Chand award at [536].

[13] J Paulsson, Assessing the Usefulness and Legitimacy of CAS, SchiedsVZ 2015, pp. 263-269, p. 269.

[14] G Kaufmann-Kohler and A Rigozzi, International Arbitration: Law and Practice in Switzerland, Oxford University Press, Oxford 2015, paras 7.105-7.106.

[15] See Chand award at [442]. In particular, the Athlete accepted the burden of proof with respect to the “issue of scientific basis” of the Hyperandrogenism Regulations, a burden that the CAS panel considered had equally not been discharged.

[16] Chand award at [510]

[17] Chand award at [510].

[18] See e.g. M Genel, J L Simpson and A de la Chapelle, The Olympic Games and Athletic Sex Assignment, Journal of the American Medical Association, Published online August 04, 2016.

[19] IOC (2015) IOC Consensus Meeting on Sex Reassignment and Hyperandrogenism November 2015

FIFA’s freshly adopted TPO ban entered into force on 1 May (see our Blog symposium). Though it is difficult to anticipate to what extent FIFA will be able to enforce the ban, it is likely that many of the third-party investors will try to have recourse to alternative solutions to pursue their commercial involvement in the football transfer market. One potential way to circumvent the FIFA ban is to use the proxy of what has been coined “bridge transfers”. A bridge transfer occurs when a club is used as an intermediary bridge in the transfer of a player from one club to another. The fictitious passage through this club is used to circumscribe, for example, the payment of training compensation or to whitewash a third-party ownership by transforming it into a classical employment relationship. This is a legal construction that has gained currency especially in South American football, but not only. On 5 May 2015, in the Racing Club v. FIFA case, the Court of Arbitration for Sport (CAS) rendered its first award involving directly a bridge transfer. As this practice could become prevalent in the coming years we think that this case deserves a close look.

I. Facts and procedure

Fernando Ortiz is an Argentine professional football player who entered into an employment contract with Vélez Sarsfield, valid until 30 June 2012. After the expiration of the contract, Ortiz signed an employment contract with the Uruguayan team, Institución Atlética Sud América on 11 July 2012, valid until 30 June 2017. Institución was playing in the Second Division in Uruguay at that time. A week later, on 20 July 2012, Ortiz was transferred from Institución back to Argentina. Institución and Racing Club, Ortiz’ new club, agreed a transfer fee (which was not disclosed). The first instalment should be made before 24 July 2012. Ortiz’ new employment contract was valid until 30 June 2014. Both transfers were duly registered in the FIFA Transfer Matching System (TMS). First, on 23 July 2012, the Argentine Federation (AFA) provided the Uruguayan Federation (AUF) the International Transfer Certificate (ITC). After the transfer from Institución to Racing, the AUF sent the same paperwork to the AFA on 3 August 2012. At that time, no payments were made.

Meanwhile, in view of the number of similar transfers, AFA and the Argentine Tax Authorities agreed that the players concerned would not be allowed to play in the Argentine league. This resulted in the parties (Institución, Ortiz and Racing) concluding a Rescission Agreement of the transfer contract, stating that they had “nothing to claim from each other”.[1] This agreement was not uploaded at that time in the TMS. On 23 November 2012, the FIFA TMS body sent a letter[2] to Racing asserting that they were not aware of any proof of payment of the transfer fee, and that this transfer could constitute an infringement of the TMS rules. Racing replied[3] by enclosing the rescission agreement and confirming that no payments were to be made. On June 2013, FIFA TMS opened disciplinary proceedings against Racing, claiming a violation of articles 3 and 9.1 of Annexe 3 RSTP[AD1] . In response Racing blamed Ortiz for trying to benefit himself from such operation and argued that the club had a true sporting interest in signing Ortiz and did not receive any economic benefit out of the transfer. On 14 August 2013, the FIFA TMS body submitted the disciplinary proceeding to the FIFA Disciplinary Committee (FIFA DC) for a proper investigation of the facts.

In its decision of 5 March 2014, the FIFA DC analysed the two transfers and concluded that they lacked a sporting objective. Even if, from a formal point of view, the first of the two transfers did not involve Racing directly, the FIFA DC considered, taking into account the chronological unfolding of the transfers, that the transfer of Ortiz to Institución would not make sense (according to the playing level of Institución and Ortiz), if his subsequent transfer to another club, in this case Racing Club, was not already planned. Accordingly, the FIFA DC found that the two “parts of the operation” cannot be considered separate. Hence, the whole bridge transfer scheme was deemed known to all parties involved. Thus, the FIFA DC concluded that Racing was involved in the operations carried out and therefore liable to face sanctions.[4]

Moreover, the FIFA DC drew attention to the effects the rescission agreement should have had in a rational context. Indeed, in a normal constellation, one would have expected Ortiz to return to Institución, instead the fact that he stayed on to play at Racing corroborated the non-sporting interest of the transfer. The FIFA DC considered that the aim of the TMS rules is to create transparency (Article 1 Annexe 3 RSTP) in players’ international transfers. In the view of the FIFA DC, Racing, however, used the TMS fraudulently to give a sporting appearance to such a transfer. Therefore, Racing is found to have infringed Articles 3(1)[5] and 9.1(2)[6] Annexe 3 FIFA RSTP, since the transfer was conducted through the TMS for illegitimate purposes and it did not act in good faith. As a consequence of this infringement, the Argentine club was fined CHF 15,000 and warned in accordance with the FIFA Disciplinary Code.[7] In the same proceedings, the Uruguayan club was sanctioned with a transfer ban for two complete and consecutive transfer periods and a fine of CHF 40,000.

Racing Club decided to appeal the decision to the CAS. The Argentine club based its appeal[8] on the grounds that there is no legal basis in the FIFA Regulations to sanction the club for correctly registering a transfer without a sporting reason in the FIFA TMS system.  

II. Commentary

First, we need to explicate in greater details the functioning and purposes of bridge transfers. Before, tackling the substance of the award rendered by the CAS.

A.    What is a bridge transfer?

As explained by Ariel Reck[9] (who was Racing’s lawyer in the present case), a bridge transfer has three main characteristics:

• A bridge transfer is made for no apparent sporting reason, there is a non-sporting purpose underlying the move.

• Secondly, there are three clubs involved in this triangular structure: on the one hand the club where the player was firstly registered (club of origin); secondly, the so-called ‘bridge club’, which will usually be a club of a lower level than the player involved and the final club of destination, i.e. the club where the player was intended to play for from the beginning. The lack of balance between the player and the bridge club is usually evident.

• The last feature is the short period of time that the player is engaged with the bridge club. Frequently, such a player does not play any game at all with this club.

There are three important reasons why football clubs enter into a triangular agreement that constitutes a bridge transfer:

1. The bridge transfer helps to reduce the cost of training compensation or payments to be made under FIFA’s solidarity contribution mechanism.

2. The bridge transfer allows the use of a club to circumvent the FIFA rule that prohibits TPO.[10]

3. The bridge transfer is used to evade taxes.

1.   Reducing training compensation

As far as the reduction of the value of the training compensation is concerned, it should be noted that there is already an award dealing with this matter, though without making an explicit reference to the notion of “bridge transfer”. In 2009, CAS rendered an award in a dispute between MTK Budapest and FC Internazionale. In this case, Inter was interested in signing a Hungarian player from MTK Budapest. After negotiations between the two clubs broke down, the player entered into a professional contract with a Maltese club. Yet, after nine days at the Maltese club, the player was transferred to Inter. According to the FIFA’s training compensation rules[11], if the player would have been transferred directly from MTK Budapest to the Italian club, the payable amount to the Hungarian team, for the three seasons that the player was trained by MTK Budapest, would have been €160,000.[12] The Panel, found this transfer to be irrational and considered that the training efforts of MTK Budapest should in any case be rewarded. Therefore, it decided that Inter should pay a training compensation to the Hungarian team.

On the other hand, by means of a comparable manoeuvre, the solidarity mechanism can also be manipulated. The RSTP provisions on the solidarity mechanism are only applicable to international transfers (Article 1(1) RSTP). The transfers between two clubs of the same association are “governed by specific regulations issued by the association concerned” (Article 1(2) RSTP). Thus, one can reduce the amount of the solidarity contribution via a bridge construction. The first (international) transfer is concluded for a low amount, which would be subject to the solidarity contribution. Later, a second (national) transfer is concluded for the real amount.[13]

2.   Circumventing the FIFA TPO ban

Another purpose for the use of bridge transfers is to circumvent the FIFA rules prohibiting agents (or intermediaries) or other third parties to acquire economic rights from players. This is “a way to anchor a players economic rights to a club”[14] instead of a mere third party (agent or a company). By controlling a club, the former third-party owners are able to continue investing in players while making sure that this investment is at least formally in conformity with the RSTP. With this mechanism, a third party, who controls a club (a bridge club), also enjoys the legal protection awarded by the FIFA RSTP to clubs, for example, in case of breach of the contract without just cause (17 RSTP).

 3.   Reducing Taxes

Bridge transfers are also designed to reduce taxes or hide the financial beneficiary of the amounts.[15] Bridge clubs, in these cases, are based in “tax heavens”. Consequently, two transfers need to be concluded: One from the team of origin to the bridge club, and the other one from the bridge club to the club of destination. If the bridge transfer is made with the sole purpose of reducing taxes, the fee for the first transfer would be low because this transfer fee is highly taxed. The second transfer would be concluded for a higher amount and the fee will be taxed at a low rate.

Secondly, a bridge transfer could also be used to disguise a compensation for a player (this mechanism is generally used by free agents) or payments to third parties. Usually, players who move to a new club as free agents tend to receive higher salaries than players who have been transferred to another club while still on a contract with their old club. In order to prevent the payment of high income taxes, a player and a bridge club agree to share the transfer payment made by the club of destination. Thus, the bridge club is rewarded for taking part in the bridge transfer; this reward is usually limited to a small share of the total transfer sum.[16]

The third alternative is the configuration at play in the Racing case. In Uruguay, clubs are considered cultural institutions and according to the Article 69 ‘Constitución Nacional’ (National Constitution), they are exempted from paying taxes, even on transfers of players. The clubs take the legal form of either ‘Sports Association’ or ‘Sociedad Anónima Deportiva’ (Public limited sports company), the latter being considered a cultural institution as well. A recent Uruguayan judgment[17] extended the tax exemption to the ‘Socidades Anónimas Deportivas’. However, since bridge transfers have no sporting interest and are aimed at an economic profit derived from reducing the tax burden, the Uruguayan court also held that bridge transfers are not to be tax exempted.  

B.    The Racing case: FIFA’s interpretative bridge too far

1.     The argument of the parties

Racing Club argued in front of CAS that neither Article 3(1), nor Article 9.1(2) of Annexe 3 FIFA RSTP could constitute a sufficient legal basis to impose sanctions in case of a bridge transfer. Basically, “neither the Regulations nor the TMS generates a new substantive law”.[18] No provision states that transfers with a purely economic purpose violate any FIFA provision, which “precludes any sanction based on such concept”.[19] Racing Club also pleaded the ‘principle of estoppel’. As neither FIFA nor the FIFA TMS have sanctioned bridge transfers in the past, Racing Club is of the opinion that the FIFA DC is estopped from sanctioning them in the case at hand.

FIFA recognises that “although (the FIFA regulations) are not applicable to the present matter, (they) present an unambiguous view of what falls within the scope of the Regulations in general terms”.[20] The body argues that this loophole might be covered by the association’s usual practice or, if not, by the rules that they would lay down if they were acting as legislators. Also, FIFA argues that the FIFA Disciplinary Code (FDC) has to be read in accordance with the language used, the grammar and syntax of the provisions, the historical background and the regulatory context. In other words, FIFA pleads that the Panel must sanction the club interpreting the FIFA rules by analogy, if the wording of articles 76 FDC[21] and 62 FIFA Statutes[22] in connection with the TMS rules invoked is not sufficient to ground the decision of the FIFA DC.

2.     The decision of the Panel

In the view of the Panel, the FIFA DC was competent to render a decision in this matter. However, this decision must be grounded on a legal basis found in the FIFA regulations. The key question in the present case is whether Articles 3(1) and 9.1(2) Annexe 3 FIFA RSTP can constitute such a legal basis.

Therefore, taking into account that Racing was sanctioned for having violated the provisions of Annexe 3 by having entered untrue or false data and/or having misused the TMS for illegitimate purposes in bad faith by concluding a “bridge transfer”, the Panel must decide whether the transfer breached these provisions, and if it did so, whether the sanction is proportionate according the TMS rules.

The Panel considers that it is “undisputed that the present case involves a transfer structure which, […], is to be considered as a “bridge transfer”.[23] The Panel considers that Racing Club could not ignore that it was involved in a bridge transfer and was not acting in good faith when arguing that the transfer via Institución was conducted exclusively on the basis of a sporting interest. However, this does not imply per se that Racing acted in bad faith as far as the TMS registration of the Player’s transfer from Institución to Racing is concerned.[24] Indeed, FIFA had to satisfy its burden of proof and demonstrate to the comfortable satisfaction of the Panel that Racing Club had entered untrue or false data and/or misused the TMS for illegitimate purposes. In this regard, the Panel finds that “insufficient evidence is available to prove that the Appellant must be assumed not to have acted in good faith in connection with Player’s transfer registration in the TMS”, as “it has not been proven that the Appellant has registered misleading or false information in the TMS”.[25]

If FIFA is to outlaw the recourse to bridge transfers it must do so in an express fashion. In other words, “the parties involved, in conformity with the principle of legality, shall be provided with specific guidelines in order to know how to act when international transfers of players take place”.[26] Critically, “the lack of such clear and specific set of rules does not justify, in the eyes of the Panel, the “secondary use” of the TMS rules for these purposes”[27]. The principle of legality implies that a sanction must be based on a previously existing legal rule. The CAS had emphasized this principle at various instances in its earlier jurisprudence.[28] Consequently, the Panel found that the “bridge interpretation” used by the FIFA DC to sanction Racing for taking part in a transfer construct qualified as a bridge transfer was going too far and could not be followed. In short, “the current TMS rules represent neither an appropriate nor an effective tool for combating and/or sanctioning bridge transfers”.[29] Hence, the arbitrators decided to reduce the sanction imposed to a mere reprimand.

This is not to say that the Panel endorses the recourse to bridge transfers. Instead, it clearly states that it “concurs entirely with the Respondent (FIFA) that measures should be applied against bridge transfers when such transfers are conducted for the purpose of engaging in unlawful practices, such as tax evasion, or to circumvent the rules concerning, for instance, the payment of training compensation or solidarity contributions, or to assure third party's anonymity in relation to the relevant authorities”.[30]

Yet, the basic rule of law principle requiring that FIFA must first devised clearly positivized rules on the basis of which it can then adopt the required sanctions must be respected. This is a bold move by the Panel in light of the bad reputation of bridge transfers. FIFA, as any public or private authority, cannot free itself from the duty of acting in the framework of the regulations it has adopted. The decision is an important reminder of the limits faced by the discretionary power of International Sports Governing Bodies when CAS Panels review their disciplinary decisions. These Bodies do not have an absolute discretion to exercise the disciplinary power that they derive from their statutes. This power is checked by reference to the same legal principles restricting State power in a national context. Thus, it is the duty of FIFA to make sure that it disposes of an appropriate legal basis to act. Consequently, in the (near) future, instead of jumping an interpretative bridge too far, it is advisable that FIFA adopts specific rules to tackle the potential ethical and legal challenges posed by the surging use of bridge transfers.

[1] CAS 2014/A/3536 Racing Club Asociación Civil v. FIFA, paragraph 2.9

[2] Ibid, paragraph 2.10

[3] Ibid, paragraph 2.13

[4] Ibid, paragraph 2.19

[5] “All users shall act in good faith.”

[6] “Sanctions may also be imposed on any association or club found to have entered untrue or false data into the system or for having misused TMS for illegitimate purposes.”

[7] Articles 10.c) and 15 for the fine and Articles 10.a) and 13 for the warning.

[8] CAS 2014/A/3536 Racing Club Asociación Civil v. FIFA, paragraph 7.2.2

[9] World Sports Law Report – April 2014, by Ariel Reck.

[10] CAS 2014/A/3536 Racing Club Asociación Civil v. FIFA, paragraph 7.3.2(o)

[11] Article 20 and Annexe 4 FIFA Regulations on the Status and Transfer of Players.

[12] CAS 2009/A/1757 MTK Budapest v. Internazionale Milano, paragraph 24.

[13] Ariel Reck, “What is a ‘bridge transfer’ in football”.

[14] Ibid.

[15] Ibid.

[16] “El otro triángulo de las Bermudas: los pases fantasmas a Uruguay y Chile”, 18 August 2012, Perfil.com

[17] Tribunal Contencioso Administrativo (Uruguay), fallo no. 301, 16 abril 2015.

[18] CAS 2014/A/3536 Racing Club Asociación Civil v. FIFA, paragraph 7.2.2.d)

[19] Ibid.

[20] CAS 2014/A/3536 Racing Club Asociación Civil v. FIFA, paragraph 7.3.2.k)

[21] “The FIFA Disciplinary Committee is authorised to sanction any breach of FIFA regulations which does not come under the jurisdiction of another body.”

[22] “1.The function of the Disciplinary Committee shall be governed by the FIFA Disciplinary Code. The committee shall pass decisions only when at least three members are present. In certain cases, the chairman may rule alone. 2. The Disciplinary Committee may pronounce the sanctions described in these Statutes and the FIFA Disciplinary Code on Members, Clubs, Officials, Players, intermediaries and licensed match agents. 3. These provisions are subject to the disciplinary powers of the Congress and Executive Committee with regard to the suspension and expulsion of Members. 4. The Executive Committee shall issue the FIFA Disciplinary Code.”

[23] Ibid, para.9.11

[24] Ibid, par. 9.14

[25] Ibid, para.9.15

[26] Ibid, par. 9.18

[27] Ibid.

[28] "In the Panel’s opinion, this provision of the Olympic Charter is to be properly read in accordance with the “principle of legality” (“principe de légalité” in French), requiring that the offences and the sanctions be clearly and previously defined by the law and precluding the “adjustment” of existing rules to apply them to situations or behaviours that the legislator did not clearly intend to penalize. CAS arbitrators have drawn inspiration from this general principle of law in reference to sports disciplinary issues, and have formulated and applied what has been termed as “predictability test”. Indeed, CAS awards have consistently held that sports organizations cannot impose sanctions without a proper legal or regulatory basis and that such sanctions must be predictable. In other words, offences and sanctions must be provided by clear rules enacted beforehand." CAS 2008/A/1545 Andrea Anderson, LaTasha Colander Clark, Jearl Miles-

Clark, Torri Edwards, Chryste Gaines, Monique Hennagan, Passion Richardson v. International Olympic Committee (IOC), award of 16 July 2010, para.30. See also CAS 2011/A/2670 Masar Omeragik v. Macedonian Football Federation (FFM),  award of 25 January 2013, para.8.13.

[29] Ibid. Para.9.19

[30] Ibid, para.913