Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Call for Papers - How football changed Qatar (or not): Transnational legal struggles in the shadow of the FIFA World Cup 2022 - Deadline 6 January 2023

The FIFA World Cup 2022 in Qatar is now well under way, yet the relentless public debates around Qatar’s human rights record, be it regarding the rights of LGBTQ+ or the rights of migrant workers who built the infrastructure that underpin the competition, is not dying down. In fact, the whole build-up towards the event has been defined by an intense public scrutiny of Qatar, with civil society organizations and international labor unions engaging in continuous advocacy to report on and improve the living and working conditions of migrant workers active on Qatar’s many building sites. This issue also attracted attention and critique from both the international media and public authorities all around the globe. In fact, the question of Qatar’s (lack of) compliance with internationally recognized human rights and core labor standards caused so much negative publicity and external pressure that a number of legislative and institutional reforms were initiated, officially aimed at improving the rights and standing of migrant workers in Qatar. While it is highly disputed whether these reforms have led to actual changes on the ground or should be seen only as window-dressing, it remains clear that the global public attention brought to Qatar by its hosting of the FIFA World Cup 2022 has forced the Qatari authorities to engage legislative reforms and pay at least lip service to the concerns raised.

In spite of the fact that this issue continues to play a major role in the transnational public discourse, it received until now relatively scant attention in the academic literature, specifically in the international/transnational legal field. Yet, the debates around the Qatar 2022 World Cup are in practice mobilizing a range of legal arguments connected to the interpretation and application of international human rights law and international labor law, as well as activating international (at the ILO) or transnational (at the Swiss OECD National Contact Point) legal processes. Furthermore, they raise well-known questions regarding the compliance of states with international legal commitments and connect with debates on the universality of human rights and their translation in particular social contexts. In short, we believe there is room for a multi-disciplinary engagement with the legal processes and social mobilizations triggered by Qatar’s successful bid to host the FIFA World Cup 2022 and their impacts on local social and legal rules and institutions. Hence, Qatar’s journey towards the FIFA World Cup 2022 constitutes an interesting case study to investigate more generally the transnational social and legal mechanisms which underpin the concretization of international (human rights/labor) law in a particular context and give it a specific reality.

We invite paper submissions from different methodological backgrounds (e.g. law, anthropology, sociology, history, public policy) which engage with the many entanglements of Qatar with international (human rights and labor) law in the context of the organizing and hosting of the FIFA World Cup 2022. The papers will be first discussed in a digital workshop that will take place on 15 and 16 February 2023. Please note that we have an agreement with the German Law Journal (Open access journal on comparative, European and international law published by Cambridge University Press) to publish a selection of the papers.

If you wish to participate in the workshop and the ensuing publications, please send an abstract of max. 300 words and a CV to a.duval@asser.nl by 6 January 2023. The selected participants will be informed by 9 January 2023. Extended abstracts (2000 words) will be due on 6 February 2023.


Supported by German Law Journal

 

New Event! Governing European football: What role for the European Union? - 16 December - Brussels

Join us for a round table co-organized by GLawNet and the Asser Institute at the Campus Brussels of the Maastricht University (Avenue de Tervueren 153, 1150 Brussels) just one day after the publication of the Opinion of Advocate General Rantos in the European Super League (ESL) case. The discussion between academics and stakeholders will focus on the role played by the EU, as well as the role it ought to play, in determining the way football is organised and governed.


In 2021, the announcement of the creation of a breakaway European Super League (ESL), as well as the drama of its early demise, stunned the world.  Since then, the company behind the ESL and UEFA (as well as FIFA) are locked into a legal battle that will soon come to an end at the Court of Justice of the European Union (CJEU). Following the preliminary questions raised by a Spanish court, the CJEU will weigh in on whether UEFA and FIFA breached EU competition law with their attempts to thwart the emergence of the ESL. It will not be the first time that the governing bodies of football, both Swiss associations, face scrutiny before the EU courts - many will remember the 1995 Bosman ruling. However, this time around various stakeholders and observers are calling for the EU to not only referee this particular dispute, but to as well start playing a stronger governance role by regulating European football.


Programme:

15:00 – 15:05 Opening: Mariolina Eliantonio (Maastricht University)

15:05 – 16:30 - Roundtable: Governing European Football: What role for the European Union?
Moderator: Carlo Colombo (Maastricht University)

16:30 Reception


This is an In-Person event only and will take place at the Campus Brussels of the Maastricht University (Avenue de Tervueren 153, 1150 Brussels). If you wish to attend, please register HERE.


Supported by undefined

Time to focus on freedom of expression: Rainbows, armbands, and FIFA’s commitment to human rights - By Prof. Mark James (Manchester Metropolitan University)

Editor's note: Mark James is Professor of Sports Law at Manchester Metropolitan University and the author of a leading Sports Law textbook.


The opening days of the FIFA World Cup Qatar 2022 have already resulted in a number of issues of interest to sports lawyers and human rights lawyers, with FARE’s Piara Powar claiming that this is the most political major sporting event that he has attended. Both FIFA and the local organisers have been active in their suppression of expressions of support for LGBTQIA+ rights by players, fans and journalists alike, calling into question once again the legality of restricting free speech by sporting rules and regulations.

There have been two major flashpoints to date. First, seven European federations had asked FIFA for permission for their captains to wear armbands supporting the ‘OneLove’ campaign. FIFA’s response was to refuse, resulting in the German players covering their mouths for their pre-match photographs in protest at their being silenced. There are several grounds on which FIFA would seek to support its position:

  •  Law 4.5 of the Laws of the Game prohibits any playing equipment from carrying any political, religious or personal slogans, statements or images.
  • Regulation 4.3.1 of FIFA’s Equipment Regulations and Regulation 27.1 of the FIFA World Cup 2022 Regulations prohibits clothing or equipment that includes political, religious, or personal slogans, statements, or images, or otherwise does not comply in full with the Laws of the Game.
  • Regulation 33.3 of the FIFA World Cup 2022 Regulations prohibits the display of political, religious or personal messages or slogans of any nature in any language or form by players and officials.
  • Regulation 13.8.1 of FIFA’s Equipment Regulations states that for FIFA Final Competitions, the captain of each Team must wear the captain’s armband provided by FIFA (all Regulations available in the FIFA Legal Handbook 2022).

Although the DFB is considering a challenge to FIFA’s refusal to allow its captain to wear the OneLove armband, which would ultimately be heard before CAS, it is unlikely to succeed in the face of the strict requirements of the above Laws and Regulations. However, what could cause more difficulty for both FIFA and CAS is if the DFB frames its case as a challenge to the compliance of the rules that restrict players’ freedom of expression with Article 3 of FIFA’s Statutes, which states that ‘FIFA is committed to respecting all internationally recognised human rights.’ Article 3, together with the additional detail provided by FIFA’s Human Rights Policy, ensures that freedom of expression as defined in Article 19 of the Universal Declaration of Human Rights and Article 10 of the European Convention on Human Rights are limitative rules that can be applied directly to FIFA’s activities, as has been argued by Bützler and Schöddert. Further, if the affected players and associations can define themselves as human rights defenders, then Article 11 of FIFA’s Human Rights Policy states that, ‘FIFA will respect and not interfere with the work of … human rights defenders who voice concerns about adverse human rights impacts relating to FIFA.’ Any challenge using this approach would be the first real test of the enforceability of the human rights protections to which FIFA claims to be committed. It would also be a test of CAS’s ability to require adherence to the human rights commitments made by ISFs and to prove that they are more than simple window-dressing.

Secondly, members of The Rainbow Wall, a contingent of LGBTQIA+ rights-supporting Welsh fans, were prevented from entering the Ahmed bin Ali stadium whilst wearing bucket hats incorporating a rainbow into its design. No explanation for why was given, however, FIFA and the local organisers would argue that openly supporting LGBTQIA+ rights with the aim of promoting legal change in a country where homosexuality is illegal is a political statement on apparel and therefore entry into the stadium wearing the rainbow hat is in breach of the Regulation 3.1.23 of the Stadium Code of Conduct. A similar argument could be used to justify preventing US journalist Grant Wahl from entering the stadium wearing a t-shirt incorporating a rainbow into its design and Danish journalist Jon Pagh from wearing the OneLove armband. However, it must be stressed that no such explanation for the prohibitions applied to these garments was provided to any of the affected fans or journalists. It must also be recognised that the opinion that promoting LGBTQIA+ rights is a political expression is highly contested. In a statement from FIFPRO, the opposing view was stated succinctly: ‘We maintain that a rainbow flag is not a political statement but an endorsement of equality and thus a universal human right.’

It is clear that, as with Rule 50 of the Olympic Charter, the chilling effect that FIFA’s Regulations have on players’ and fans’ freedom of expression is likely to be unlawful, as has been discussed at length both on this blog and on the Verfassungsblog Debate on Freedom of Expression in the Olympic Movement. Instead of revisiting these arguments, which are taken to apply to FIFA’s actions at Qatar 2022, two additional issues related to the FIFA Statutes are explored here.

Articles 3 and 4 of FIFA’s Statutes state that:

3 Human rights

FIFA is committed to respecting all internationally recognised human rights and shall strive to promote the protection of these rights.

4 Non-discrimination, equality and neutrality

4.1 Discrimination of any kind against a country, private person or group of people on account of race, skin colour, ethnic, national or social origin, gender, disability, language, religion, political opinion or any other opinion, wealth, birth or any other status, sexual orientation or any other reason is strictly prohibited and punishable by suspension or expulsion.

FIFA is a long-time supporter of pride events and in its press release for Pride Month 2022 stated:

[The] FIFA World Cup Qatar 2022™ will be a celebration of unity and diversity – a joining of people from all walks of life – regardless of race, ethnicity, religion, age, disability, sex characteristics, sexual orientation, gender identity and expression – everybody will be welcome.

Claims that all staff involved in the Qatar 2022 including public and private security forces, would be trained on how to accomplish their tasks in a non-discriminatory manner, seem not to have been operationalised effectively.

This begs the question whether FIFA is in breach of its own Statutes by refusing to allow players to express themselves freely on armbands and failing to protect fans’ freedom of expression by wearing rainbows. At the very least, FIFA should have ensured that a protective LGBTQIA+ regime in the stadiums and the fan zones during the World Cup was implemented to enable the ‘celebration of unity and diversity’ it claims that Qatar 2022 should be. FIFA’s actions in Qatar call into question its claims to be an inclusive and supportive leader on anti-discrimination and human rights, and is likely to see a backlash from the LGBTQIA+ community that it claims to support when it engages with Pride 2023; accusations of hypocrisy and virtue signalling are guaranteed.

With no resolution to the debate at the time of writing, Articles 3 and 4 could provide players and fans with the opportunity to demonstrate their support for human rights and anti-discrimination causes. At the Sochi 2014 Winter Olympics, Athlete Ally developed the ‘Principle 6 Campaign.’ Instead of criticising directly Russia's so called anti-gay laws, which are currently in the process of being extended, athletes promoted Principle 6 of the Olympic Charter, which at the time stated that, ‘Any form of discrimination with regard to a country or a person on grounds of race, religion, politics, gender or otherwise is incompatible with belonging to the Olympic Movement.’ The eventual outcome of this campaign was the addition of sexual orientation to the list of characteristics protected by Principle 6. Unlike at Sochi 2014, there is no need to campaign for a change to either of Articles 3 or 4 of the FIFA Statutes; instead, activists want to ensure that they are being applied. An immediate response for both players and fans would be for them to quote specifically from Articles 3 and 4, as it would be extremely difficult for FIFA to claim that they are making political or personal statements when promoting FIFA’s own foundational values. A creative reminder of what FIFA claims to stand for could enable player and fan activism to continue throughout the tournament, and beyond, whilst affected players and associations can develop a compelling case for the restrictions on freedom of expression to be struck out by CAS, the Swiss Federal Tribunal and/or the European Court of Human Rights.

New Event - Zoom In - Sports Governing Bodies and the Russian invasion of Ukraine - The end of neutrality? - 12 October - 16.00-17.30 CET

Sport is often presented by Sports Governing Bodies (SGBs), and in particular the International Olympic Committee, as apolitical. A neutral endeavor, which ignores the whims of politics and keeps national governments at arm’s length. In short, it is thought of as an autonomous sphere of transnational society wishing to remain unaffected by the political turbulences out there. In fact, many SGBs enforce strict rules banning political speech by individuals, and in the spaces, subjected to their contractual power. Moreover, FIFA, for example, regularly issues effective sanctions against states which are perceived as threatening the autonomy of the governance of football on their territory. Hence, this apolitical ideal of international sports is not only a founding myth of the Olympic Movement, it is actively pursued by SGBs through their private regulatory powers and has hard consequences for athletes, clubs, sport officials alike.


Yet, on 24 February, Russia decided to invade Ukraine, in what has become the most important land war in Europe since the implosion of ex-Yugoslavia. This invasion was quickly followed by condemnations from the IOC and many other SGBs, leading in many cases, most prominently by UEFA and FIFA, to the exclusion of Russian teams and athletes from international sporting competitions. This reaction is difficult to square with the neutrality and autonomy of sport so vigorously defended by the international SGBs until recently. It raises also many questions of double standards: why did this illegal invasion lead to sporting consequences and not others? Furthermore, the Court of Arbitration of Sport recently released two orders (available here and here) concerning UEFA and FIFA’s decisions to exclude Russian national teams and clubs from their football competitions, which outline the legal strategies pursued by the SGBs to reconcile the public urge to exclude Russia(ns) from international sporting competitions, and their commitments to political neutrality.

We are very happy to welcome three outstanding scholars to discuss these issues with us from different methodological perspectives.

Speakers:

  • Prof. Carmen Pérez (Universidad Carlos III de Madrid), who wrote a blog on the reactions of SGBs to Russia’s invasion
  • Dr. Daniela Heerdt (Asser Institute and Centre for Sports and Human Rights), who is the co-author of a blog mapping the reactions of SGBs to Russia’s invasion
  • Carole Gomez (University of Lausanne and Institut de Relations Internationales et Strategiques), who has been interviewed numerous times by international media on the issue (see here and here)

Moderators:

Register for free HERE!


ISLJ Conference 2022 - Transnational sports law and governance in turbulent times - Early Bird Registration Ends Tomorrow!

On 25 and 26 October 2022, the Asser Institute in The Hague will host the 2022 edition of the International Sports Law Journal (ISLJ) Conference. The ISLJ is the leading academic journal in transnational sports law and governance and is proud to provide a platform for transnational debates on the state of the field. 2022 has put a number of complex issues and disputes on the top of the transnational sports law agenda, which will be at the heart of the conference.


Sports governing bodies react to Russia's invasion of Ukraine
First, Russia’s brutal invasion of Ukraine in February triggered a swift and decisive reaction by a wide range of international sports governing bodies (SGBs), leading in particular to the exclusion of Russian teams and athletes from many international sporting competitions, including most prominently the FIFA World Cup 2022 in Qatar. These reactions have shown, once again, that sport is far from immune from the turbulences of international relations and raise the question of its alleged neutrality and apolitical nature. To engage with these issues, we have invited Prof. Jonathan Grix (Metropolitan Manchester University) to deliver a keynote speech and will dedicate a specific panel to discussing the intersection between transnational sports law and international law/relations.

Monopoly of sports governing bodies
Second, the organization of international sports is also currently threatened by challenges to the traditional monopoly position of international SGBs raised under EU antitrust law. Early July 2022, the Grand Chamber of the Court of Justice of the European Union heard two crucial cases (International Skating Union and Superleague) concerning the compatibility of the rules of international SGBs aimed at sanctioning athletes and clubs who participate in unauthorized third-party competitions. Dr. Van Rompuy (Leiden University), the driving force behind the ISU case, will be discussing with us the potential impact of competition law on the governance of sport and what to expect from the pending decisions of the CJEU. Additionally, we will host two panels dedicated to the application of competition law to sports governance, both at an international and national level.

Human rights and mega-sporting events
Third, with both Beijing and Qatar hosting mega-sporting events this year, it is difficult to ignore the human rights issues raised by international sporting competitions. A fast-growing social movement aimed at urging the SGBs to abide by their human rights responsibilities has been developing around the activism of some NGOs and the creation of the Centre for Sport and Human Rights (CSHR). The CEO of the CSHR, Mary Harvey, will be joining us to share her thoughts on the role of sports lawyers and sports law academics in this discussion. Her intervention will be followed by a panel dedicated to the intersections between human rights and transnational sports law and governance.

Trans and queer participation in sporting competitions
Finally, the question of the participation of transgender athletes in sporting competitions has become an extremely contentious issue of debate in recent years, especially in the United States. Furthermore, International SGBs, such as FINA recently, have started to impose specific requirements to the participation of trans athlete in international competitions. Our closing panel will take a fresh look at this question by foregrounding the way in which trans and queer participation in sporting competitions has been accommodated in South Asia.

Online participation available
For the first time this year, we will allow online participation to the conference for an affordable price. Our aim is to internationalise and diversify further our audience and to reach people who in light of the current challenges, be it Covid-19 or climate change, are not in a position to come in person to The Hague.

Programme
Download the full programme.

Register HERE! (Early Bird Registration is available only until 1 October, 23:59CET)

A personal reflection on the Summer Programme on Sports Governance and Human Rights - By Pedro José Mercado Jaén

Editor’s note:Pedro is an intern at the Asser Institute and currently studying the Erasmus Mundus Master Degree in Sports Ethics and Integrity (KU Leuven et al.) He was one of the participants of the first edition of the Summer Programme on Sports Governance and Human Rights.


In early September, the first Summer Programme on the Governance of Sport and Human Rights took place at the Asser Institute. During one week, various experts in the field presented different lectures to a very diverse group of participants with a wide range of professional backgrounds. Being a participant myself, I would like to reflect on this one-week course and share what I learned. More...



Can Formula 1 drive to protect human rights? A case study of the Bahrain GP - By Pedro José Mercado Jaén

Editor's Note: Pedro is an intern at the Asser Institute and currently studying the Erasmus Mundus Master Degree in Sports Ethics and Integrity (KU Leuven et al.) He worked as a research fellow for the Centre for Sport and Human Rights, and his primary research interests lie in the fields of International Human Rights and sport. 


I.               Introduction

“I can’t do everything and I can’t do it alone. I need allies.” These are the words of the seven-time Formula 1 (F1) world champion, Lewis Hamilton. He was urging more support to advocate for the protection of human rights in the countries visited by Formula 1. During the last years, Hamilton together with Sebastian Vettel, have become the leaders of a movement demanding accountability and greater awareness of the impact of F1 on society.

The inclusion of the Bahrain GP on the F1 racing calendar for the first time in 2004 ignited concerns, which have grown with the inclusion of Abu Dhabi in 2007, Russia in 2014, Azerbaijan in 2017, and Saudi Arabia and Qatar in 2021. The inability and lack of commitment of state authorities to protect and respect human rights, the ineffectiveness of judicial procedures and the systematic repression of political opposition are some of the factors that make these countries prone to human rights violations. Academics and CSOs regularly argue that F1, by signing multi-million dollar contracts with these countries, is complicit in sportswashing. Those pulling the sport’s strings deny these accusations and claim that human rights are at the centre of their agenda when they visit these countries. They claim F1 can drive the improvement of human rights standards in a particular country. However, reality tells a different story. The Bahrain GP has been running for more than a decade and the situation in the country has only worsened, without any signs of F1 contributing to the improvement of the protection of human rights there.

This blog aims to provide an overview of the human rights challenges F1 is facing when hosting a Grand Prix. For this purpose, a case study of the Bahrain GP, one of the longest-running on the modern/current F1 calendar, will be carried out. This will allow us to examine in detail the historical evolution of the GP, the complaints from civil society organisations and the reaction of the Federation Internationale de l’Automobile (FIA) and other stakeholders to the ongoing allegations of human rights violations.More...



Call for papers - ISLJ Conference on International Sports Law - Asser Institute - 25 and 26 October 2022

 

Call for papers

ISLJ Conference on International Sports Law

Asser Institute, The Hague

25 and 26 October 2022


The Editors of the International Sports Law Journal (ISLJ) invite you to submit abstracts for the ISLJ Conference on International Sports Law, which will take place on 25 and 26 October 2022 at the Asser Institute in The Hague. The ISLJ, published by Springer and TMC Asser Press, is the leading academic publication in the field of international sports law. The conference is a unique occasion to discuss the main legal issues affecting international sports and its governance with renowned academic experts.


We are delighted to announce the following confirmed keynote speakers:

  • Jonathan Grix (Professor of Sport Policy and Politics at Manchester Metropolitan University), and
  • Mary Harvey (CEO at the Centre for Sport and Human Rights),
  • Ben Van Rompuy (Assistant Professor at Leiden University).


We welcome abstracts from academics and practitioners on all issues related to international sports law and governance. We also welcome panel proposals (including a minimum of three presenters) on a specific issue. For this year’s edition, we specifically invite submissions on the following themes and subthemes:

  • International sports law and governance in times of conflict:
    • The emergence of the idea(l) of political neutrality of SGBs and its translation in legal/governance practice
    • The intersection between public international law and international sports law and governance in the context of international conflicts
    • The role of sports diplomacy/conditionality in the context of international conflicts
    • International sports law and the Russian invasion of Ukraine

  • Human rights and mega sporting events (MSEs)
    • The adverse or positive impact of MSEs on (specific) human rights
    • The influence of human rights commitments on the organisation of MSEs
    • The effects of MSEs on human rights in organising countries
    • The responsibilities and strategies of SGBs to ensure respect of human rights at MSEs
    • The role and responsibilities of states in ensuring respect of human rights in the context of MSEs

  • Competition law and challenges to the governance monopoly of SGBs
    • The impact of competition law on SGBs and their governance
    • The limits of competition law on effecting change in the governance of sport
    • The specific modalities of application of competition law to sports governance
    • The legitimacy of competition authorities in challenging SGBs


Please send your abstract of 300 words and CV no later than 1 July 2022 to a.duval@asser.nl. Selected speakers will be informed by 15 July.

The selected participants will be expected to submit a draft paper by 10 October 2022. Papers accepted and presented at the conference are eligible for publication in a special issue of the ISLJ subject to peer-review. Submissions after this date will be considered for publication in later editions of the Journal.

The Asser Institute will cover one night accommodation for the speakers and may provide a limited amount of travel grants (max. 250€). If you wish to be considered for a grant, please indicate it in your submission.

Reactions of International Sport Organisations to the Russian Invasion of Ukraine: An Overview - By Daniela Heerdt & Guido Battaglia

Editor's note:

Daniela is a researcher at the Asser Institute in the field of sport and human rights. She has a background in public international law and human rights law and defended her PhD project entitled “Blurred Lines of Responsibility and Accountability – Human Rights Abuses at Mega-Sporting Events” in April 2021 at Tilburg University. She also works as independent consultant in the field of sport and human rights for the Centre for Sport and Human Rights, or the European Parliament among other clients from the sports ecosystem

As Head of Policy and Outreach, Guido is in charge of the Centre for Sport & Human Rights engagement with governments, international and intergovernmental organisations and sports organisations. He represents the Centre at conferences, events and bilateral dialogues to reach new audiences and partners and raise public awareness and understanding of the Centre’s work .



On February 24, 2022, the Russian military invaded Ukrainian territory. What followed was an escalation of the war, day by day, causing thousands of victims and forcing millions of people to flee. On March 2, the UN General Assembly overwhelmingly adopted a resolution deploring "in the strongest possible terms" Russia's aggression against Ukraine by a vote of 141 to 5, with 35 abstentions. On March 29, Russian and Ukrainian representatives met in Istanbul for another round of negotiations. No ceasefire has been agreed and hostilities continue.

Many states, international organizations and corporations quickly took measures in response to this invasion. Hundreds of companies decided to withdraw from Russia. Some countries decided to strengthen economic sanctions against Russia and Belarus and to provide military and economic help to Ukraine. Many civil society actors mobilised to organize and provide humanitarian support for Ukraine. Interestingly, international sports organisations like the International Olympic Committee (IOC), the Fédération Internationale de Football Association (FIFA), World Athletics and many other international federations, issued statements condemning the invasion and imposed bans and sanctions on Russian and Belarussian sports bodies and athletes.

This blog post provides an overview of the measures adopted by a number of international sports federations (IFs) that are part of the Olympic Movement since the beginning of the war and analyses how they relate to the statements issued by the IOC and other sanctions and measures taken by international sports organisations in reaction to (geo)political tensions and conflict.

More...





Asser International Sports Law Blog | Blog Symposium: Ensuring proportionate sanctions under the 2015 World Anti-Doping Code. By Mike Morgan

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Blog Symposium: Ensuring proportionate sanctions under the 2015 World Anti-Doping Code. By Mike Morgan

Introduction: The new WADA Code 2015
Day 1: The impact of the revised World Anti-Doping Code on the work of National Anti-Doping Agencies
Day 2: The “Athlete Patient” and the 2015 World Anti-Doping Code: Competing Under Medical Treatment
Day 3: Proof of intent (or lack thereof) under the 2015 World Anti-Doping Code

Editor's note
Mike Morgan is the founding partner of Morgan Sports Law LLP. His practice is focused exclusively on the sports sector. He advises on regulatory and disciplinary issues and has particular experience advising on doping and corruption disputes.

Mike acted on behalf of National Olympic Committees at three of the last four Olympic Games and has represented other sports bodies, clubs and high profile athletes in proceedings before the High Court, the FIFA Dispute Resolution Chamber, the American Arbitration Association and the Court of Arbitration for Sport.

 

I. Introduction

According to the World Anti-Doping Agency (“WADA”), the 2015 World Anti-Doping Agency Code (the 2015 Code), which came into effect on 1 January 2015,  is a “stronger, more robust tool that will protect the rights of the clean athletes[1]. Among the key themes of the revised Code, is the promise of “longer periods of Ineligibility for real cheats, and more flexibility in sanctioning in other specific circumstances[2].

While Article 10 of the 2015 Code unquestionably provides for longer periods of ineligibility, the validity of WADA’s claim that the harsher sanctions will be reserved for “real cheats” depends partly on how one defines the term “real cheat”, and partly on how the 2015 Code’s mechanisms for reducing sanctions are to be interpreted.

This blog reflects on the totality of the context from which the current sanctions regime arose.  That is important because Article 10 will have to be applied in a manner consistent with that context in mind if the 2015 Code is to become the tool promised by WADA and if it is to avoid the scrutiny of the courts.


II. Context

A.   Katrin Krabbe

In the lead up to the adoption of the first version of the WADA Code (the “2003 Code”), there was considerable debate as to what length of sanction could lawfully be imposed on an athlete for a first violation[3].

The decision finally to settle on a two-year ban for first offences was heavily influenced by the findings of the Munich Courts in the case of Katrin Krabbe, that a suspension exceeding two years was disproportionate[4]:

(a)           The Regional Court held that a two-year suspension imposed on an athlete for a first offence “represents the highest threshold admissible under fundamental rights and democratic principles”.[5]

(b)           The High Regional Court held that the three-year ban imposed by the IAAF “was excessive in respect of its objective. Such a rigid disciplinary measure as a sanction for a first sports offence is inappropriate and disproportionate”.[6]

And so it came to pass that a first violation under Article 10.2 of the 2003 Code would be punished with a two-year sanction. Various legal opinions procured by WADA between 2003 and 2008 affirmed the position that a two-year sanction for a first violation (1) was a significant incursion on the rights of the individual affected; and (2) was likely the limit of the severity that could be imposed in the absence of aggravating circumstances[7].


B.   Specified Substances

The 2003 Code proved somewhat inflexible, which resulted in two-year bans for unintentional and minor anti-doping rule violations. One of the starkest examples of that inflexibility arose in CAS OG 04/003 Torri Edwards v IAAF & USATF.

Edwards had consumed glucose powder that, unbeknownst to her, contained the stimulant nikethamide. A two-year ban was imposed on her on the basis that she could not meet the thresholds for “No Fault” and “No Significant Fault” and despite the fact that she had, in the words of the CAS panel, “conducted herself with honesty, integrity and character, and that she has not sought to gain any improper advantage or to ‘cheat’ in any way[8].

Ms Edwards’ case became a cause célèbre, leading the IAAF to lobby WADA to have nikethamide and other similar stimulants reclassified as Specified Substances. The then vice-president of the IAAF, Dr Arne Lungqvist explained as follows:

I asked Torri Edwards whether she would allow me to use her case as an example of the importance of making some sort of differentiation between those weak stimulants that you can get over the counter by accident, carelessness, negligence or whatever.  We are not after those who are negligent.

WADA acceded to the IAAF’s lobbying and downgraded nikethamide to the Specified Substance list in September 2005. The IAAF Council shortly thereafter reinstated Edwards to competition further to the doctrine of lex mitior. Following Edwards’ reinstatement, Dr Lungqvist explained as follows:

The IAAF wishes to see strong penalties for real cheats. This was a different case, […]  I did not feel comfortable when I had to defend the then-existing rules against her at the CAS hearing in Athens.

I judge that Torri has paid a high price for having inadvertently taken a particular substance at the 'wrong' time, shortly before [the reclassification] and from now on such an intake would result in a warning only. (Emphasis added)

Four years later, WADA went one step further and, with the introduction of the 2009 version of the WADA Code (the “2009 Code”), broadened the list of substances that would be categorised as Specified Substances, promisinglessened sanctions….where the athlete can establish that the substance involved was not intended to enhance performance” under Article 10.4[10].  

The aim was to avoid the likes of the Edwards case. Indeed, a number of cases determined under the 2009 Code which involved the same glucose brand that had landed Edwards with a two-year ban in 2004, resulted in periods of ineligibility ranging between 0 – 6 months[11].


C.   The rise and fall of “aggravating circumstances”

The primary themes of the 2009 Code were, according to WADA, “firmness and fairness”. “Fairness” was to be reflected by the broadening of the Specified Substance list, while “firmness” was intended to manifest itself through the concept of “aggravating circumstances[12].  

The presence of “aggravated circumstances” permitted Anti-Doping Organizations (“ADOs”) to increase periods of ineligibility beyond the standard two-year ban up to a maximum of four years[13].

A legal opinion commissioned by WADA in relation to the “aggravated circumstances” provisions (the “Third WADA Legal Opinion”) noted as follows[14]:

91. […] it is clear that the intention to enhance performance is not in and-of-itself an aggravating circumstance.

92. […] This provision makes it clear that cheating is an important element of the notion of aggravating circumstances. However, the mere fact of cheating alone is not sufficient. Additional elements are required.

93. The essence of the concept of aggravating circumstances is thus a qualified kind of cheating, which involves an additional element. (Emphasis added)

Not only, therefore, was actual cheating required to invoke the provision but there needed to be something more than the mere fact of cheating. Examples provided by the 2009 Code included being part of a doping scheme or using multiple prohibited substances[15]

The “aggravated circumstances” provision was rarely invoked and, when it was, it rarely resulted in the maximum increase[16]. That ultimately led to the removal of the “aggravated circumstances” provision from the 2015 Code and the introduction of standard four-year sanctions, explained as follows by WADA[17]:

There was a strong consensus among stakeholders, and in particular, Athletes, that intentional cheaters should be Ineligible for a period of four years.  Under the current Code, there is the opportunity for a four-year period of Ineligibility for an Adverse Analytical Finding if the Anti-Doping Organization can show “Aggravating Circumstances.” However, in the more than four years since that provision has been part of the Code, it has been rarely used. (Emphasis added)

The decision to double the standard two-year sanctions to four years may have surprised anyone who had ever read the Third WADA Legal Opinion, since that opinion had expressly cautioned as follows:

138. […] one should bear in mind that a four-year ban would most often put an end to an athlete’s (high level) career and thus be tantamount to a life ban. Therefore, an aggravated first offence could de facto be punished as harshly as numerous second offences (Article 10.7.1) and almost all third offences (Article 10.7.3).

139. This could raise problems if the ineligibility period were automatically of four years in the presence of aggravating circumstances. In reality, Art. 10.6 provides for an increased suspension of up to four years, which means that the adjudicating body is afforded sufficient flexibility to take into account all the circumstances to ensure that aggravating circumstances do not systematically result in a four-year period of ineligibility. (Emphasis added)


D.   Proportionality

The principle of proportionality plays an important role in the determination of sanctions applicable in doping matters. The principle pervades Swiss law[18], EU law[19] and general principles of (sports) law[20].  

The CAS itself has consistently measured sanctions imposed on athletes against the principle of proportionality both before the inception of the WADA Code and since.

(a)           Pre-WADA Code: the anti-doping rules of many sports prior to the creation of the WADA Code mandated fixed sanctions without the possibility of reductions. The CAS nevertheless sometimes reduced these sanctions on the basis they were not proportionate.[21]

(b)           Post-WADA Code: The WADA Code introduced mechanisms by which sanctions could be reduced or eliminated.  However, the CAS has made clear that the introduction of these mechanisms does not remove the obligation of disciplinary panels to measure the sanctions applied in any particular case against the principle of proportionality. In CAS 2005/A/830 Squizzato v. FINA, the CAS held that:

10.24 […] the Panel holds that the mere adoption of the WADA Code […] by a respective Federation does not force the conclusion that there is no other possibility for greater or less reduction a sanction than allowed by DC 10.5. The mere fact that regulations of a sport federation derive from the World Anti-Doping Code does not change the nature of these rules. They are still – like before – regulations of an association which cannot (directly or indirectly) replace fundamental and general legal principles like the doctrine of proportionality a priori for every thinkable case.

Though the 2015 Code asserts that it “has been drafted giving consideration to the principles of proportionality and human rights[22], that obviously does not mean that proportionality no longer plays a part in the assessment of sanctions for the same reasons propounded by the CAS in Squizzato. Indeed, the 2015 Code itself recognises that it “is intended to be applied in a manner which respects the principles of proportionality and human rights[23]. Moreover, the most recent CAS decisions in which the principle of proportionality was applied concerned the sanctioning regimes of the 2003 and 2009 Code, both of which mandated default sanctions of two years, not four years[24].  The principle of proportionality is, therefore, arguably even more relevant now than it previously was.


III. Comment

While the 2015 Code does have more mechanisms by which to modify the default sanctions than in previous versions of the WADA Code, that is partly because the default sanctions with regards to most of the violations have doubled[25]:


Violation

Default sanction under the 2015 Code for a first offence

Default sanction under the 2009 Code for a first offence

Presence of a Specified Substance (Art. 2.1)

Two years (Art. 10.2.2)

 

Two years (Art. 10.2.1)

Presence of a non-Specified Substance (Art. 2.1)

Four years (Art. 10.2.1)

Two years (Art. 10.2.1)

Use or Attempted Use of a Specified Substance (Art. 2.2)

Two years (Art. 10.2.2)

Two years (Art. 10.2.1)

Use or Attempted Use of a non-Specified Substance (Art. 2.2)

Four years (Art. 10.2.1)

Two years (Art. 10.2.1)

Evading, Refusing or Failing to Submit to Sample Collection (Art. 2.3)

Four years (Art. 10.3.1)

Two years (Art. 10.3.1)

Whereabouts Failures (Art. 2.4)

Two years (Art. 10.3.2)

One to two years (Art. 10.3.3)

Tampering or Attempted Tampering (Art. 2.5)

Four years (Art. 10.3.1)

Two years (Art. 10.3.1)

Possession of a Specified Substance (Art. 2.6)

Two years (Art. 10.2.2)

Two years (Art. 10.2.1)

Possession of a non-Specified Substance (Art. 2.6)

Four years (Art. 10.2.1)

Two years (Art. 10.2.1)

Trafficking or Attempted Trafficking (Art. 2.7)

Four years to life (Art. 10.3.3)

Four years to life (Art. 10.3.2)

Administration  or  Attempted  Administration (Art. 2.8)

Four years to life (Art. 10.3.3)

Four years to life (Art. 10.3.2)

Complicity (Art. 2.9)

Two to four years (Art. 10.3.4)

Elements of this violation previously formed part of the “Administration or Attempted Administration” violation.

Prohibited Association (Art. 2.10)

Two years (Art. 10.3.5)

This violation did not exist under the 2009 Code.

 

Athletes accused of committing a violation under Articles 2.1, 2.2, 2.3 or 2.6 are now in a position in which they are required to meet the Article 10.2 thresholds regarding “intent” simply to get them back to the two-year default sanctions that would have applied under previous versions of the Code[26].

If the 2015 Code is to become the tool promised by WADA and if it is to avoid or survive legal challenges, tribunals will need to ensure that their interpretations of the reduction mechanisms, such as those contained at Article 10.2, do not result in disproportionate sanctions.

The parameters within which the proportionality of a sanction falls to be measured were described as follows by the panel in CAS 2005/C/976 & 986 FIFA & WADA:

139. A long series of CAS decisions have developed the principle of proportionality in sport cases. This principle provides that the severity of a sanction must be proportionate to the offense committed. To be proportionate, the sanction must not exceed that which is reasonably required in the search of the justifiable aim. (Emphasis added)

The evaluation of whether a sanction is proportionate therefore begins with the identification of the “justifiable aim”. According to WADA, the increased sanctions were intended to target “intentional cheats”. That is echoed by the wording of Article 10.2.3 of the 2015 Code, which provides as follows:  

As used in Articles 10.2 and 10.3, the term “intentional” is meant to identify those Athletes who cheat. The term, therefore, requires that the athlete or other Person engaged in conduct which he or she knew constituted an anti-doping rule violation or knew that there was a significant risk that the conduct might constitute or result in an anti-doping rule violation and manifestly disregarded that risk [….] (Emphasis added)

The final sentence emphasised above is, arguably, open to interpretation.  However, the first line identifies the overarching aim of the provision – i.e. “the term ‘intentional’ is meant to identify those athletes who cheat”.

According to the Oxford Dictionary, a “cheat” is a “person who behaves dishonestly in order to gain an advantage” and the act of “cheating” amounts to “a fraud or deception”.  A reasonable inference, therefore, is that athletes who “cheat” are athletes who have acted knowingly and dishonestly to gain an unfair advantage.

Article 10.2 cannot, therefore, be intended to punish careless athletes.  Bearing in mind the limits pronounced by the courts in Krabbe and bearing in mind the “justifiable aim”, any interpretation of the provision that would result in a four-year ban for nothing more than careless – or even reckless, but otherwise honest - conduct would risk inviting the sort of scrutiny exercised by the German courts in the Pechstein[27] and Krabbe cases.

Likewise, the interpretation of the other reduction mechanisms, such as Article 10.5 (“No Significant Fault or Negligence”), will require the same degree of pragmatism.  If the parameters for “No Significant Fault” were to be applied as strictly today as they were in the Edwards case, anti-doping would end up right back to where it was in 2004, when the Code’s sanctioning regime was perceived to be so inflexible that it had to be overhauled in 2009. Assuming that the aim of the 2015 Code is not to take 11 years’ worth of backward steps, tribunals will have to ensure that “No Significant Fault” is interpreted in a manner that fulfils WADA’s promise of “greater flexibility”, particularly in cases involving Specified Substances and Contaminated Products[28].


IV. Concluding Remark

The 2015 Code has the potential to become the fairest WADA Code to date. However, it also has the potential to be the cruelest. Interpreting it in a manner consistent with the totality of the context from which it was conceived is the surest way to ensure that the right version prevails.



[1] https://www.wada-ama.org/en/what-we-do/the-code

[2] https://wada-main-prod.s3.amazonaws.com/wadc-2015-draft-version-4.0-significant-changes-to-2009-en.pdf

[3] See (1) http://library.la84.org/OlympicInformationCenter/OlympicReview/1999/OREXXVI26/OREXXVI26s.pdf; and (2) http://library.la84.org/OlympicInformationCenter/OlympicReview/1999/OREXXVI26/OREXXVI26t.pdf

[4] See Kaufmann-Kohler, G., Rigozzi, A., and Malinverni, G., “Doping and fundamental rights of athletes: comments in the wake of the adoption of the World Anti-Doping Code”, I.S.L.R. 2003, 3(Aug), 39–67 *61

[5] Krabbe v. IAAF et. al., Decision of the LG Munich of 17 May 1995, SpuRt 1995 p. 161, p. 167

[6] Krabbe v. IAAF et. al., Decision of the OLG Munich of 28 March 1996, SpuRt 1996 p. 133, 138

[7] See (1) Legal Opinion on the Conformity of Certain Provisions of the Draft World Anti-Doping Code with Commonly Accepted Principles of International Law, dated 23 February 2003, paragraphs 142 and 143; (2) Legal Opinion on whether Article 10.2 of the World Anti-Doping Code is compatible with the Fundamental Principles of Swiss Domestic Law, dated 25 October 2005, paragraph 3 (b) (aa) at page 26 and paragraph 3. (f) (aa) at page 32; and (3) Legal Opinion on the Conformity of Article 10.6 of the 2007 Draft World Anti-Doping Code with the Fundamental Rights of Athletes, dated 13 November 2007, at paragraphs 33, 114, 138 and 139

[8] See paragraph 5.8 of CAS OG 04/003 Torri Edwards v IAAF & USATF

[9] See IAAF press release dated 22 November 2005

[10] 2009 Code, Article 10.4 (“Elimination or Reduction of the Period of Ineligibility for Specified Substances under Specific Circumstances”)

[11] See (1) CAS 2011/A/2493 Antidoping Switzerland v/ X; (2) CAS 2013/A/3327 Marin Cilic v. International Tennis Federation & CAS 2013/A/3335 International Tennis Federation v. Marin Cilic; (3) AFLD Decision No. 2011-71 dated 7 July 2011; (4) AFLD Decision No. 2009-50 dated 10 December 2009

[12] Article 10.6 of the 2009 WADA Code (Aggravating Circumstances Which May Increase the Period of Ineligibility)

[13] Note that Violations under Articles 2.7 (Trafficking) and 2.8 (Administration) were not subject to the application of Article 10.6 since the sanctions for those violations (four years to life) already allowed discretion for aggravating circumstances

[14] Legal Opinion on the Conformity of Article 10.6 of the 2007 Draft World Anti-Doping Code with the Fundamental Rights of Athletes, dated 13 November 2007

[15] See commentary to Article 10.6 of the 2009 Code

[16] See CAS 2013/A/3080 Alemitu Bekele Degfa v. TAF and lAAF for a detailed assessment by the CAS of the “aggravated circumstances” provision

[17] WADA, Significant Changes between the 2009 Code and the 2015 Code, Version 4.0, 1 September 2013

[18] See paragraph 124 of CAS 2005/C/976 & 986 FIFA & WADA

[19] See paragraphs 47 and 48 of Case C-519/04 P Meca-Medina & Majcen v Commission [2006] ECR I-6991

[20] See paragraph 83 of the First WADA Legal Opinion

[21] See (1) CAS 1996/56 Foschi v. FINA; (2) CAS 2002/A/396 Baxter v. FIS; (3) CAS 2001/A/337 B. / FINA

[22] See page 11 of the 2015 Code - “Purpose, Scope and Organization of the World Anti-Doping Program and the Code

[23] See the Introduction at page 17 of the 2015 Code

[24] See, for instance (1) CAS 2010/A/2268 I. v. FIA; and (2) TAS 2007/A/1252 FINA c. O. Mellouli & FTN

[25] Note that the table only reflects the default sanctions applicable before consideration of any of the mechanisms intended to increase or decrease those sanctions

[26] Note that article 10.2 only applies to those violations. For a detailed assessment of Article 10.2, see Rigozzi, Antonio and Haas, Ulrich and Wisnosky, Emily and Viret, Marjolaine, Breaking Down the Process for Determining a Basic Sanction Under the 2015 World Anti-Doping Code (June 10, 2015). ISLJ, (2015) 15:3-48

[27] See (1) Landesgericht (LG) München, 26. February 2014, 37 O 28331/12; and (2) Oberlandesgericht (OLG) München, 15 January 2015, Az. U 1110/14 Kart

[28] Notably, the concept of “No Significant Fault or Negligence” in previous versions of the Code was limited to ‘‘exceptional circumstances’’. That limitation has been removed in the context of Specified Substances and Contaminated Products under Article 10.5.1 of the 2015 Code. Thus, it should now be easier for athletes to trigger the application of “No Significant Fault” in those types of cases than it previously was. See Section 6.2 of Rigozzi et al for a detailed discussion of the point


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