Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

The Headlines 

2024 and 2028 Olympic Games to be held in Paris and Los Angeles respectively

On 13 September 2017, the Session of the International Olympic Committee (IOC) held in Lima, Peru, elected Paris and Los Angeles as host cities of the 2024 and 2028 Olympic Games respectively. On this occasion, the IOC President Thomas Bach said that ''this historic double allocation is a 'win-win-win' situation for the city of Paris, the city of Los Angeles and the IOC''. The idea of a tripartite agreement whereby two editions of the Olympic Games would be awarded at the same time was presented by a working group of the IOC Vice-Presidents established in March 2017. Both Paris and Los Angeles have pledged to make the Olympic Games cost-efficient, in particular through the use of a record-breaking number of existing and temporary facilities. In addition to economic aspects, it will be worthwhile to keep an eye on how both cities will address human rights and other similar concerns that may arise in the run-up to the Olympic Games. 

FIFA President accused of interfering with the work of the FIFA Governance Committee

On 13 September 2017, Miguel Maduro, a former Chair of the FIFA Governance Committee who was summarily dismissed in May 2017, appeared in the UK House of Commons to give testimony on the undue influence that FIFA's President Gianni Infantino allegedly exerted over the work of the Governance Committee. Most importantly, Maduro claimed that Infantino attempted to interfere with the Governance Committee's decision to bar Vitaly Mutko, a Deputy Prime Minister of Russia, from sitting on the FIFA Council. The former Chair of the Governance Committee commented that Infantino ''chose to politically survive'' and carried on to assert that FIFA has a ''deeply embedded structure that is extremely resistant to independent scrutiny, transparency and accountability''. FIFA denied Maduro's accusations, stating that ''exchanges between the administration and FIFA's committees […] are logical and even desirable, so for these exchanges to be portrayed as undue influence is factually incorrect''.

The CAS award in Jersey Football Association v. UEFA

In its press release of 28 September 2017, the CAS communicated that it had delivered an award in the dispute between the Jersey Football Association (JFA) and UEFA which emerged from the JFA's application for UEFA membership submitted in December 2015. The CAS set aside the decision rendered by the UEFA Executive Committee on 1 September 2016 in which the JFA's application for UEFA membership was rejected, and ordered that the respective application be forwarded to the UEFA Congress for consideration. In view of the CAS, it is the UEFA Congress and not the UEFA Executive Committee that is competent to consider membership applications. It should be stressed, however, that the CAS dismissed the JFA's request to ''take all necessary measures to admit the JFA as a full member of UEFA without delay'', noting that the UEFA Congress has discretionary powers to admit new members. In this regard, the CAS further held that, on the basis of the evidence provided, it appeared that the JFA did not satisfy the requirements for UEFA membership laid down in Article 5(1) of the UEFA Statutes.

Official Documents and Press Releases

• CAS – The CAS rules on the case Jersey Football Association v. UEFA
• Human Rights Now – Letters demanding that Olympic authorities end rainforest destruction and human rights abuses connected to Tokyo 2020 Olympics construction
• Human Rights Watch – Qatar: Take urgent action to protect construction workers
• IOC – Declaration of the IOC Executive Board in Lima
• IOC – IOC Athletes' Commission Strategy
• IOC – IOC makes historic decision by simultaneously awarding Olympic Games 2024 to Paris and 2028 to Los Angeles
• IOC – Report of the IOC 2028 Evaluation Commission
• UEFA – 13^th Extraordinary UEFA Congress decisions
• UEFA – Keeping competitive balance – Aleksander Čeferin
• UEFA – Nations League regulations approved
• UEFA – UEFA President reflects on a rewarding year of progress
• WADA – 2018 List of Prohibited Substances and Methods
• WADA – 2018 Summary of major modifications and explanatory notes
• WADA – Proposed International Standard for Code Compliance by Signatories – Version 2.0
• WADA – Tanzania ratifies UNESCO Anti-Doping Convention
• WADA – WADA launches Phase II of stakeholder consultation on Compliance Standard
• WADA – WADA provisionally suspends accreditation of Paris Laboratory

In the news

Doping

• Associated Press Russian doping whistleblower faces arrest if he returns
• Sean Ingle Anti-doping agencies call on IOC to ban Russia from 2018 Winter Olympics
• Tariq Panja IOC investigation of Russian doping might soon yield penalties
• RT News McLaren denies he 'dropped charges' of state involvement in doping in Russia
• Swimming World Court of Arbitration for Sport reduces sanctions on Canadian swimmer William Brothers

Football

• Ed Aarons FIFA and UEFA accused of being 'enablers' of tax evasion in football by MEPs
• CIES Football Observatory Balance sheets for transfer operations: From Monaco to Paris St-Germain
• David Conn FIFA's Infantino accused of interfering with governance committee decisions
• David Conn FIFA President Gianni Infantino accused of bad governance by former committee member
• Paul Ferguson Irish FA to ask FIFA for money back after poppy u-turn
• FIFPro Danish women's World Cup conflict explained
• Rob Harris Spanish league wants UEFA to investigate Man City's spending
• Steve Menary Tebas calls for European Union probe into Neymar transfer
• Tariq Panja FIFA President Gianni Infantino faces new ethics complaint
• Tariq Panja Former FIFA official's testimony could raise new ethics questions
• John Percy Leicester City submit appeal to FIFA in bid to complete £25 million Adrien Silva signing
• Ben Rumsby Chelsea face second FIFA investigation in eight years over youth transfer policy
  

Other

• BBC News Sergey Bubka: Athletics Integrity Unit looking into payment to ex-IAAF treasurer
• Tim Daniels Prosecutors allege Brazil's Olympic Committee conspired to buy IOC votes
• Marina Hyde IOC selective blindness continues but Rio 2016 scandal looks all too familiar
• Liam Morgan IOC admit votes may have been bought by Diack in Olympic Games bidding process
• Sebastian Smith Brazil police say Rio Olympics were bought in corrupt scheme

Academic Materials

• Antoine Duval and Oskar van Maren The Labour Status of Professional Football Players in the European Union: Unity in/and/or Diversity?

Blog

Asser International Sports Law Blog

• Christopher Flanagan The Evolution of UEFA's Financial Fair Play Rules – Part 1: Background and EU Law
• Christopher Flanagan The Evolution of UEFA's Financial Fair Play Rules – Part 2: The Legal Challenges
• Tomáš Grell FIFA's Human Rights Agenda: Is the Game Beautiful Again?

Law in Sport

• Jack Anderson and Neil Partington Duty of care in sport: The case for a sports ombudsman in the UK
• Hazar El-Chamaa The lifecycle of an international athlete: Part 2 – Key immigration issues when entering the UK
• Laura Dadswell The lifecycle of an international athlete: Part 3 – Key UK income tax points for non-residents
• Tim Meakin, Tim Walker and Richard Davies Confidential data leaks: What are the vicarious liability risks for sports organizations?
• John Mehrzad Who has jurisdiction over international football transfer disputes?
• Michael Savva An update on Financial Fair Play – Case study: The Neymar transfer
• Gavin Stenton The lifecycle of an international athlete: Part 4 – Dealing with branding and image rights

Others

• James M. Dorsey Tackling the elephant in the room: The incestuous and inseparable relationship between sports and politics
• Simon Kuper Soccer's culture of corruption
• Nick De Marco New regulation of football intermediaries

Upcoming Events

• 26-27 October – ISLJ Annual Conference on International Sports Law, T.M.C. Asser Institute, The Hague, the Netherlands [We have only a couple of seats left, register now!]

Editor’s note: Thomas Terraz is a third year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.

1.     Introduction

Christmas has come very early this year for the EU sports law world in the form of the Court of Justice of the European Union’s (CJEU) judgment in TopFit eV, Daniele Biffi v Deutscher Leichtathletikverband eV by exclusively analyzing the case on the basis of European citizenship rights and its application to rules of sports governing bodies that limit their exercise. The case concerned an Italian national, Daniele Biffi, who has been residing in Germany for over 15 years and participates in athletic competitions in the senior category, including the German national championships. In 2016, the Deutscher Leichtathletikverband (DLV), the German Athletics Federation, decided to omit a paragraph in its rules that allowed the participation of EU nationals in national championships on the same footing as German citizens. As a result, participation in the national championship was subject to prior authorization of the organizers of the event, and even if participation was granted, the athlete may only compete outside of classification and may not participate in the final heat of the competition. After having been required to compete out of classification for one national championship and even dismissed from participating in another, Mr. Biffi and TopFit, his athletics club based in Berlin, brought proceedings to a German national court. The national court submitted a request for a preliminary ruling to the CJEU in which it asked essentially whether the rules of the DLV, which may preclude or at least require a non-national to compete outside classification and the final heat, are contrary to Articles 18, 21 and 165 TFEU. Articles 18 and 21 TFEU, read together, preclude discrimination on the basis of nationality against European citizens exercising their free movement. The underlying (massive) question here is whether these provisions can be relied on by an amateur athlete against a private body, the DLV.

Covered in a previous blog, the Advocate General’s (AG) opinion addressed the case from an entirely different angle. Instead of tackling the potentially sensitive questions attached with interpreting the scope of European citizenship rights, the opinion focused on the application of the freedom of establishment because the AG found that participation in the national championships was sufficiently connected to the fact Mr. Biffi was a professional trainer who advertised his achievements in those competitions on his website. Thus, according to the AG, there was a sufficient economic factor to review the case under a market freedom. The CJEU, in its decision, sidelined this approach and took the application of European citizenship rights head on.

The following will dissect the Court’s decision by examining the three central legal moves of the ruling: the general applicability of EU law to amateur sport, the horizontal applicability of European citizenship rights, and justifications and proportionality requirements of access restrictions to national competitions.

2.     Applicability of EU Law to Amateur Sport

The CJEU has long made the distinction that sporting activity falls under the scope of EU law “in so far as it constitutes an economic activity.”[1]  Since this ruling in the 1974, treaty revisions, the natural development of the CJEU’s case law, and the increasing economic interests involved in sport has meant that defining the boundaries of EU law’s application to sport has become increasingly difficult. These borderline cases can especially arise when an amateur athlete is barred from a competition, since amateur athletes prima facie do not have an economic interest. For example, the CJEU in the Deliège case explored the extent to which amateur athletes may enjoy market freedoms. The Court ruled that amateur athletes may come within the scope of EU law when the exercise of their sporting activity is sufficiently connected to an economic sphere. In this case, an amateur athlete’s sponsorship contracts and grants were considered to be sufficient economic activity to fall within the scope of the freedom to provide services.[2] Amateur athletes in this case still needed to demonstrate that they had a minimum economic interest that was being affected by a sport rule. Sporting rules lacking economic effect would thus fall outside the scope of the market freedoms.

The TopFit ruling changes this understanding because Mr. Biffi is an amateur athlete and instead of invoking the market freedoms, he decided to rely on his European citizenship rights. These rights derive from being a citizen of the Union and do not require the exercise of an economic activity to be applicable. Indeed, Article 21 TFEU gives the free movement of persons a whole new dimension where an economic interest is no longer a prerequisite to fall under the aegis of the fundamental freedoms.[3] The CJEU confirmed this reality in Baumbast when it declared that the introduction of Union citizenship “has conferred a right, for every citizen, to move and reside freely within the territory of the Member States” regardless of their status as economically active or nonactive.[4] Thus, the Court in TopFit states, in reference to other cases, that one’s exercise of their free movement under their European citizenship, includes the “access to leisure activities” and that Article 21 (1) TFEU also intends “to promote the gradual integration of the EU citizen concerned in the society of the host Member State.”[5] It then extends this reasoning to sport by relying on Article 165 TFEU, the Article which explicitly introduced sport into the Treaties, which “reflects the considerable social importance of sport” and that the practice of an amateur sport helps “to create bonds with the society of the State” or “to consolidate them.”[6] The Court goes even further to unequivocally state that this is the “case with regard to participation in sporting competitions at all levels.”[7] On this basis, it is possible for amateur sportspersons to rely on Article 18 and 21 TFEU.[8] Therefore, the Court has confirmed that EU law, through rights derived from European citizenship, may apply to restrictions of free movement that arise from ‘all levels’ of amateur sport, basically extending the reach of EU law applicability to all types of sports activity on the territory of the EU, provided by public authorities or (as we will see in the next section) by private ones.  

3.     Horizontal Applicability of European Citizenship Rights

The next issue that materializes from the ability of amateur sports persons to rely on European citizenship rights is whether these rights may be invoked against private entities, the sport governing bodies. Indeed, sports throughout the European Union is primarily governed by a network of private associations integrated in the famous pyramid of sports. Treaty articles may be relied upon horizontally, meaning against other private parties, by individuals so long as the relevant article is “sufficiently clear, precise and unconditional to be invoked by individuals.”[9] AG Tanchev rightly argued in his opinion that giving Article 21 TFEU horizontal direct effect would be a “significant constitutional step” by being the “first time this century that a provision of the Treaty has been selected to join the small number of provisions having the quality of horizontal direct effect.”[10] In particular, the AG explains that Article 21 TFEU has always been used in relation to disputes arising between an individual and the State and giving horizontal direct effect to Article 21 TFEU could damage legal certainty.[11] 

Regardless, the Court in TopFit was not dissuaded and decided to allow Mr. Biffi to rely on Articles 18 and 21 TFEU against the DLV, a private entity. It explains that the fundamental objectives of the European Union “would be compromised if the abolition of barriers of national origin could be neutralised by obstacles” emanating from private entities.[12] The Court then goes on to elaborate that this principle applies “where a group or organisation exercises a certain power over individuals and is in a position to impose on them conditions which adversely affect the exercise of the fundamental freedoms.”[13] Such an interpretation of the horizontal direct effect of Article 21 TFEU is in line with the ‘relatively’ limited horizontal direct effect already described by De Mol for Article 18 TFEU that “concerns private relations in which one party is weaker than the other party.”[14] Thus, in order for one to invoke Article 21 TFEU horizontally, it is necessary to scrutinize the nature of the relationship and power (im)balance between the parties. The more asymmetrical the relationship, the more likely Article 21 TFEU may be relied on horizontally. On the whole, TopFit confirms that not only may Article 21 TFEU have horizontal direct effect but that perhaps this horizontal effect is not completely unlimited, although it is questionable what the practical consequences of this distinction actually entails.

In the sporting context, however, the message is clear: non-economic sporting activity, such as amateur level sports with zero economic benefits derived from it, falls under the scope of EU law and Article 21 TFEU may be invoked by EU citizens against the private associations which are more often than not ruling sports at a local, regional and national level in the Member States. In short, all (economic and non-economic) sports activity is now subjected to the control of EU law (in particular with regard to anti-discrimination).

4.     Justifications and Proportionality of Access Restrictions to National Competitions

After having found that Mr. Biffi may rely on his European citizenship rights against the DLV, the Court quite readily finds that there has been a restriction to this right. It asserts that the DLV’s rules could result in non-German athletes receiving less investment from their clubs since they may not participate in the national championships in the same manner as German athletes. Consequently, “athletes of other Member States would be less able to integrate themselves” in their club and the wider society of the Member State, and the effects of this “are likely to make amateur sport less attractive for EU citizens.”[15] However, a restriction on a fundamental freedom may be justified if it pursues a legitimate objective and meets the proportionality requirements. The Court goes on to entertain several justifications put forward by the DLV and firmly rejects each as an illegitimate objective. These rejected justifications include: “the argument that the public expects that the national champion of a country will have the nationality of that country”; that the national champion is used to represent his country in the international championship (it was clear that this was not the case for those competing in the senior category); and a “need to adopt the same rules for all age categories” (since it was obvious the DLV had adopted different rules in regards to national selection depending on the age category).[16] In the end, the Court only accepts one justification concerning preventing the participation of non-nationals in the final heat specifically due to the nature of eliminatory heats in some sports. It recognizes that the participation of a non-national may prevent a national from “winning the championship and of hindering the designation of the best nationals.”[17]

Having found a legitimate justification, the Court moves on to considerations of proportionality and reasons that “non-admission of non-nationals to the final must no go beyond what is necessary”, and it recalls the fact that the exclusion of non-nationals is only recent.[18] In other words, the Court essentially finds it rather strange that a sudden rule change became necessary to prevent the participation of non-nationals in the finals and, in light of this, finds the means to be unnecessary and generally disproportionate to the aim sought.

Next, it also recalls that participation of non-nationals was also subject to the authorization of the organizers and had resulted in Mr. Biffi’s complete exclusion in one competition. The Court explains that such an authorization scheme must “be based on objective and non-discriminatory criteria which are known in advance” to be justified. In regard to proportionality, it finds that “total non-admission” of a non-national athlete to the national championship in this circumstance to be disproportionate because due to the DLV’s own admission, there were ways for athletes to compete in the competition, either in the preliminary heats and/or outside classification. None of the DLV’s justifications were able to survive the proportionality requirements.

However, this does not mean that there could never be a legitimate justification that can meet the proportionality requirements. Interestingly, before it examined any of the DLV’s submitted justifications, the Court essentially gave a hint to sport governing bodies wishing to introduce nationality restrictions to the organization of their national competitions. It states that it is legitimate to limit the award of the national title to a national of the relevant Member State because the nationality requirement is an essential feature of holding the title.[19] Thus, it seems the Court would readily accept a restriction to the ability of non-national athletes to actually win the title.

5.     Conclusion

The CJEU took full advantage of the case before it by demonstrating how a lack of an economic interest does not give sport governing bodies full reign to prevent amateur athletes seeking to further integrate themselves in their host Member State’s society through amateur sport. It also signals the Court’s willingness to observe and take into consideration the specific characteristics of the sport and competition structure in question. Additionally, TopFit has opened exciting new judicial avenues for the exercise and enforcement of European citizenship rights against powerful private entities. In particular, sport governing bodies should pay close attention to the TopFit ruling because it further illustrates how they may exercise their regulatory autonomy provided they follow the analytical framework imposed by the CJEU in its control of discriminatory restrictions to market freedoms and European citizenship rights.

[1] Case 36-74 B.N.O. Walrave and L.J.N. Koch v Association Union cycliste internationale, Koninklijke Nederlandsche Wielren Unie and Federación Española Ciclismo [1974] ECR 1974 –01405 para 4.

[2] Joined Cases C-51/96 and C-191/97 Christelle Deliège v Ligue francophone de judo et disciplines associées ASBL, Ligue belge de judo ASBL, Union européenne de judo [2000] ECR I-02549 para 51.

[3] See Section III, Ferdinand Wollenschlager, ‘A New Fundamental Freedom beyond Market Integration: Union Citizenship and its Dynamics for Shifting the Economic Paradigm of European Integration’ [2011] European Law Journal 1.

[4] Case C-413/99 Baumbast and R v Secretary of State for the Home Department [2002] ECR I-08091 para 81 and 83.

[5] Case C-22/18 TopFit e.V. Daniele Biffi v Deutscher Leichtathletikverband e.V. [2019] ECLI:EU:C:2019:497 para 31-32.

[6] ibid para 33-34.

[7] ibid para 34.

[8] ibid para 35.

[9] Case C-438-05 International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti [2007] ECR I-10779 para 66; see also Paul Craig and Gráinne de Búrca, EU Law: Text, Cases, and Materials (6^th edn, OUP 2015) 192.

[10] Case C-22/18 TopFit e.V. Daniele Biffi v Deutscher Leichtathletikverband e.V. [2019] ECLI:EU:C:2019:181, Opinion of AG Tanchev, para 56 and 100.

[11] ibid para 101 and 103.

[12] TopFit (n 5) para 38.

[13] ibid para 39.

[14] Mirjam de Mol, ‘The Novel Approach of the CJEU on the Horizontal Direct Effect of the EU Principle of Non-Discrimination: (Unbridled) Expansionism of EU law?’ [2011] Maastricht Journal of European and Comparative Law 109.

[15] TopFit (n 5) para 46-47.

[16] ibid para 54 and 56-57.

[17] ibid para 61.

[18] ibid para 62

[19] ibid para 50.

Editor's note: This report compiles the most relevant legal news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. 

The Headlines

IOC Athlete Commission releases its Rule 50 Guidelines for Tokyo 2020

The IOC Athlete Commission presented its Rule 50 Guidelines for Tokyo 2020 at its annual joint meeting with the IOC Executive Board. It comes as Thomas Bach had recently underlined the importance of political neutrality for the IOC and the Olympic Games in his New Year’s message. Generally, rule 50 of the Olympic Charter prohibits any political and religious expression by athletes and their team during the Games, subject to certain exceptions. The Guidelines clarify that this includes the ‘field of play’, anywhere inside the Olympic Village, ‘during Olympic medal ceremonies’ and ‘during the Opening, Closing and other official ceremonies’. On the other hand, athletes may express their views ‘during press conferences and interview’, ‘at team meetings’ and ‘on digital or traditional media, or on other platforms. While rule 50 is nothing new, the Guidelines have reignited a debate on whether it could be considered as a justified restriction on one’s freedom of expression.

The IOC has made the case that it is defending the neutrality of sport and that the Olympics is an international forum that should help bring people together instead of focusing on divisions. Specifically, Richard Pound has recently made the argument that the Guidelines have been formulated by the athletes themselves and are a justified restriction on free expression with its basis in ‘mutual respect’. However, many commentators have expressed their skepticism to this view (see here, here and here) citing that politics and the Olympics are inherently mixed, that the IOC is heavily involved in politics, and that the Olympics has often served as the grounds for some of history’s most iconic political protests. All in all, the Guidelines have certainly been a catalyst for a discussion on the extent to which the Olympics can be considered neutral. It also further highlights a divide between athlete committees from within the Olympic Movement structures and other independent athlete representation groups (see Global Athlete and FIFPro’s statements on rule 50).

Doping and Corruption Allegations in Weightlifting 

The International Weightlifting Federation (IWF) has found itself embroiled in a doping and corruption scandal after an ARD documentary was aired early in January which raised a wide array of allegations, including against the President of the IWF, Tamás Aján. The documentary also included hidden camera interviews from a Thai Olympic medalist who admits having taken anabolic steroids before having won a bronze medal at the 2012 London Olympic Games and from a team doctor from the Moldovan national team who describes paying for clean doping tests. The IWF’s initial reaction to the documentary was hostile, describing the allegations as ‘insinuations, unfounded accusations and distorted information’ and ‘categorically denies the unsubstantiated’ accusations. It further claims that it has ‘immediately acted’ concerning the situation with the Thai athletes, and WADA has stated that it will follow up with the concerned actors. However, as the matter gained further attention in the main stream media and faced increasing criticism, the IWF moved to try to ‘restore’ its reputation. In practice, this means that Tamás Aján has ‘delegated a range of operation responsibilities’ to Ursual Papandrea, IWF Vice President, while ‘independent experts’ will conduct a review of the allegations made in the ARD documentary. Richard McLaren has been announced to lead the investigation and ‘is empowered to take whatever measures he sees fit to ensure each and every allegation is fully investigated and reported’. The IWF has also stated that it will open a whistleblower line to help aid the investigation.

Major International Sports Law Decisions

European Court of Human Rights - Judgment Ali Riza and Others v. Turkey - system for settling football disputes must be reformed

Official Documents and Press Releases

FIFA

• FIFA - Infantino elected to International Olympic Committee
• FIFA - FIFA develops new and enhanced integrity resources for member associations and confederations
• FIFA - FIFA and hosts Qatar present joint FIFA World Cup™ Sustainability Strategy
• FIFA - FIFA reports show further upward trend in both men’s and women’s transfer markets
•   FIFA - Reform proposals concerning football agents’ regulations

IOC

• IOC – IOC Session Receives Updates on Anti-Doping Activities
• IOC – IOC Statement on Notice of Intervention in the CAS Case of WADA and RUSADA
• IOC – The IOC and the Olympic Games – Addressing Climate Change
• IOC – President Bach Re-Emphasises Importance of Solidarity Model and Political Neutrality at IOC Session
• IOC – IOC Executive Board and IOC Athletes’ Commission Discuss Major Topics at Annual Joint Meeting
• IOC – Statement by the IOC Regarding the Situation of the IWF

WADA

• WADA - WADA files official request with Court of Arbitration for Sport to resolve RUSADA dispute
• WADA - WADA launches its new ‘Testing Center’ – a ‘Next Gen’ ADAMS module that will help strengthen testing programs worldwide
• WADA - WADA provisionally suspends approved status of Moscow Laboratory
• WADA - WADA Executive Committee appoints new Standing Committee Chairs, receives update regarding RUSADA compliance case
• WADA - WADA statement on German documentary concerning the International Weightlifting Federation

Other

• Athletics Integrity Unit - Athletics Integrity Unit Board refers RusAF charges to the World Athletics Council and recommends considering expulsion of the federation.
• Athletics Integrity Unit - World Athletics v Michelle-Lee Ahye
• Athletics Integrity Unit – Decision of the Athletics Integrity Unite in the case of Ms Kateryna Tabashnyk
• EU Athletes - Statement on Bye-law 3 to Rule 40 of the Olympic Charter
• Fédération Equestre Internationale (FEI) – Prohibited substance cases under FEI human anti-doping rules
• Fédération Internationale de Volleyball (FIVB) – FIVB Commits to Further Investments in its Athletes
• FIFPRO – FIFPro Underlines Commitment to Player Activism
• Global Athlete – Global Athlete Statement in Response to IOC President Thomas Bach’s New Year’s Message
• Global Athlete – Statement based on the new ARD Documentary “Secret Doping – the Lord of the Lifters”
• Global Athlete – Global Athlete Calls on UK Anti-Doping to Provide More Transparency in its Refusal to Allow WADA to Retest Anti-Doping Samples
• Global Athlete – Athletes Call for IWF President to Stand Down and Submit to Full Investigation
• International Canoe Federation - ICF decision on Laurence Vincent Lapointe
• International Tennis Federation – Provisional suspension imposed on Nicolas Jarry
• International Tennis Federation – ITF President David Haggerty Elected IOC Member
• International Weightlifting Federation – IWF rejects ARD allegations
• International Weightlifting Federation – IWF Acts Decisively to Restore Reputation
• International Weightlifting Federation – IWF Executive Board Appoints Richard H. McLaren to Lead Investigation into ARD Allegations
• Tennis Integrity Unit – Lifetime Ban and $200,000 Fine for Joao Olavo Soares de Souza After Conviction on Match-Fixing Charges
• Tennis Integrity Unit – Tennis Integrity Unit Publishes Annual Review for 2019
• Tennis Integrity Unit – Jonathan Kanar Suspended and Fined After Admitting to Corruption Offence
• UCI - The UCI commits to developing cyclo-cross and reinforcing the fight against doping
• UKAD – UKAD Statement regarding the reanalysis of athlete samples and WADA
• UNI Global Union - ILO affirms: athletes must be protected by fundamental principles and rights at work
• UNI Global Union - ILO finds professional athletes face widespread workplace challenges
• World Archery – Beginners’ Guide to Rule 50 for Archery at the Tokyo 2020 Olympic Games
• World Athletics - World Athletics modifies rules governing competition shoes for elite athletes
• World Athletics - World Athletics to postpone World Athletics Indoor Championships Nanjing 2020
• World Athletics - Charges brought by the AIU against RusAF for breach of the anti-doping rules

In the News

Football

• Rob Harris - One deal agents can’t reach in transfer window is with FIFA
• David Conn - Revealed: the scale of Manchester City’s FFP breaches before 2014 Uefa deal
• Tim Wigmore - Exclusive: Doubts raised over whether Premier League clubs can sign young Europeans after January Brexit deadline
• Tariq Panja - La Liga Chief Claims Saudi Arabia Is Using Sports to ‘Whitewash’ Reputation

Doping

• Sean Ingle - Claims of Russian doping deal as trial begins of former IAAF president Diack
• Sean Ingle - IOC concerned by ‘very serious’ doping allegations in weightlifting

Other

• Sean Ingle - World Athletics gives seal of approval for controversial Nike Vaporfly shoes
• Graham Dunbar - IOC details rules on political protests at Olympics
• Tariq Panja - Olympic Protest Rules: Tweets Are Fine, Kneeling Is Not
• Richard Hinds - The Olympics is a politically potent event, and it is an absurd pretence that 'politics and sport don't mix'
• Dave Zirin - John Carlos Responds to the New Olympics Ban on Political Protest
• Jules Boykoff - The Olympics are political. The IOC ban denies reality — and athletes their voice.

Academic Materials

ASSER International Sports Law Series

• Bart van der Sloot, Mara Paun and Ronald Leenes - Athletes’ Human Rights and the Fight against Doping: A Study of the European Legal Framework    

Other

• Mariusz Motyka-Mojkowski and Dennis Cukurov - Restrictions of Sport Sponsorship from a Competition Law Perspective—Recent Example from Germany

Blog

Asser International Sports Law Blog

• Thomas Terraz - Balancing Athletes’ Interests and The Olympic Partner Programme: the Bundeskartellamt’s Rule 40 Decision

Law in Sport

• Ben Koh and Tracey Holmes - Are you being heard? How the Sun Yang public hearing exposes a gap in athletes’ rights
• Toni Roca and Xavi Fernández - Tackling bridge transfers in football: An important ruling from the Royal Spanish Football Federation
• Jonathan Bellamy - An overview of FIFA’s new data protection regulations
• Jonathan Collins - Switching nations: why FIFA’s definition of ‘nationality’ is causing confusion

Sports Integrity Initiative

• Andy Brown - Strict liability in anti-doping is punishing the innocent*
• Andy Brown - Pressure builds on IWF as corruption claims are corroborated

SportLegis

• Despina Mavromati - Ali Riza et al. v. Turkey – European Court of Human Rights Judgment of 28 January 2020

Podcasts

• France Culture - Dakar saoudien, Mondial qatari : un cap pour la péninsule

Upcoming Events

• 05 March 2020 - Mega-sporting events and human rights: What role can EU sports diplomacy play?, Asser Institute, The Hague, The Netherlands
• 17-18 March 2020 – WADA Annual Symposium, SwissTech Convention Center, Lausanne, Switzerland
• 26-27 March 2020 – 14^th Conference of the PSA Sport & Politics Group, Etihad Stadium, Manchester, UK
• 18-19 June 2020 – Sport & EU 2020 Annual Conference, Rijeka and Opatija, Croatia

The book under review is the published version of a PhD thesis defended in 2013 by Andrew Vaitiekunas at Melbourne Law School. A PhD is often taking stock of legal developments rather than anticipating or triggering them. This was definitely not the case of this book. Its core subject of interest is the study of the independence of the Court of Arbitration for Sport (CAS) – an issue that has risen to prominence with the recent Pechstein ruling of January 2015 of the Oberlandesgericht München. It is difficult to be timelier indeed.

The fundamental question underlying Vaitiekunas’ research is: “does CAS have sufficient independence to be a law-maker?”.[1] Indeed, as many in the field, Vaitiekunas considers the CAS as a key institution in the production of a lex sportiva or transnational sports law. Hence, he thinks that “the closer CAS’s standards of independence and impartiality are to those that apply to the judiciary, the stronger may be the claim that CAS’s lex sportiva constitutes law”.[2] Although I am myself sympathetic to the idea of the existence of a lex sportiva, I would be cautious in attributing it mainly to the CAS. Instead, I think that the notion of lex sportiva is rather reflecting the complex legal interaction between the rules (and raw political power) of international Sports Governing Bodies (SGBs) and the CAS’s jurisprudence.[3] Yet, this should not detract from the value of posing the question of CAS independence as a hallmark of its legitimacy.

The book is relatively slow in tackling this question. The author is keen on providing a comprehensive analysis of the general context of his work in Chapter 2 on the CAS and the lex sportiva[4], of his theoretical apparatus in Chapter 3 on the relevant theories of law[5] and of his analytical frame to assess the independence of the CAS in Chapter 4 on independence and impartiality.[6] Although these parts are certainly useful to comprehend the red thread guiding his research, they certainly could have been synthetized and shortened. Any reader interested mainly in the assessment of the independence of the CAS might be tempted to jump directly to Chapter 5 and 6 providing the core of the author's analysis and his most valuable contribution to legal scholarship.

Chapter 5 reviews in detail the well-known favourable assessment by the Swiss Federal Tribunal of the independence of the CAS.[7] Yet, the most important and interesting aspect of the chapter is that it already engages in a critical assessment of this jurisprudence. When discussing the impact of the post-Gundel Paris reform agreement, Vaitiekunas concludes that “a number of facets of the reform indicate continuing links, albeit indirect between the Olympic governing bodies and CAS, thus undermining the perception that CAS is truly an independent arbitral body”.[8] He notes that “[w]hether ICAS members are appointed from within or outside the membership of the top sports bodies, they ultimately owe their appointment to these bodies”.[9] He criticizes the CAS arbitrator list as it “does not indicate who nominated the individual arbitrators, leaving an athlete at risk of choosing an arbitrator nominated by the very IF [International Federation] against which they are taking CAS proceedings”.[10] In any case, “the appointment [as CAS arbitrator] can be seen as occurring under the control of the Olympic governing bodies through their members or delegates in ICAS”.[11] Interestingly, this reasoning is analogue to the one used by the Oberlandesgericht München in its Pechstein ruling.[12] Unsurprisingly, Vaitiekunas is also extremely critical of the SFT’s judgment in the Lazutina case endorsing the independence and the legitimacy of the CAS post-Gundel.[13] He argues that the SFT “appears almost as an apologist for CAS”[14] and criticizes its “non-objective approach to statements by people close to CAS”.[15] Moreover, he denounces a “formalistic approach in assessing CAS’s independence from the IOC”.[16] Indeed, by privileging formal factors, such as the ICAS formal legal independence, “the SFT implicitly chose not to lift ICAS’s veil to consider who has the real powers behind ICAS”.[17] Importantly in light of the Pechstein case, he attacks the fact that “the SFT limited its analysis concerning CAS’s institutional independence solely to CAS’s independence from the IOC and did not consider CAS’s independence from the Olympic governing bodies collectively”.[18] Finally, he reiterates his critique against the closed list system, arguing that “the very process for the nomination and selection of arbitrators to the list creates an appearance of bias in favour of the Olympic governing bodies”.[19] 

Henceforth, Chapter 6[20] vows to pitch CAS’s independence against judicial independence standards discussed in Chapter 4. Coming from Chapter 5, the suspense as to the outcome of the assessment is relatively limited, it is clear ex ante that the author is doubtful of the independence of CAS. He assesses first the individual independence of the arbitrators, referring to four main criteria: 

"The four main recognised safeguards of a judge’s personal independence under judicial independence norms are security of tenure in a judge’s appointment, restrictions on the removability of a judge, adequate and secure remuneration for judicial service and immunity from legal action in the exercise of judicial functions."[21]

Furthermore, he contends that an arbitrator must fulfil a yardstick of substantive independence implying “a judge to be free from any inappropriate connections or influences".[22] In this regard, he argues “all CAS arbitrators […] owe their presence on the closed list to the Olympic governing bodies, thereby creating the appearance of a lack of independence from them”.[23] Finally, regarding the institutional independence of the CAS, Vaitiekunas suggests three main focal points: the structural links, the administrative links and the financial links. The structural links of the CAS are perceived as the main hindrances to CAS’s independence. This is because, “[g]iven the mutual ties and links which the IOC, the IFs and the NOCs […] have under the Olympic Charter, these bodies may appear to have influence collectively on ICAS”.[24] His conclusions is sans appel: “The potential influence that the Olympic governing bodies may be perceived to exercise over ICAS and the CAS secretary general is inconsistent with judicial independence norms which require judicial matters to be exclusively within the responsibility of the judiciary”.[25]

This highly sceptical view regarding the independence of CAS, leads him to propose a set of potential reforms.[26] His first recommendation is to implement “a restructuring of ICAS to ensure that it is institutionally independent”.[27] This would imply that “appointments to ICAS should exclude members of the IOC, executive members of the IFs, NFs and NOCs and their employees and anyone recently in these roles”.[28] Moreover, “the CAS code should be amended to prohibit the appointment of Olympic governing body associates or athlete associates as CAS arbitrators”.[29] Regarding the funding of ICAS and CAS, he suggests “the imposition of a levy on the broadcasting rights to or sponsorships of major sports events”.[30] In order to secure CAS arbitrators individual independence, he is in favour of appointing them “on a tenured basis to a specified retirement aged”.[31] He also recommends, “that arbitrators be appointed randomly to cases or on a predetermined basis”.[32] Eventually, he advises “to provide arbitrators with greater security in remuneration by appointing them on a fixed salary, like judges, payable regardless of whether and how many cases they are appointed to arbitrate”.[33] Vaitiekunas is convinced that if his recommendations were implemented, “CAS would be a true sports court, rather than an arbitral tribunal”.[34] 

The final chapter 7 of the book dedicated to CAS’s independence from external judicial review is a bit of a mystery to the reviewer. Vaitiekunas offers a relatively succinct but rigorous comparative study of the various national (and European) judicial avenues where CAS awards can be reviewed. He concludes rightly that CAS awards can be subjected to the control of national courts and European Institutions. However, his assumption that “CAS awards must be independent from review or intervention by state courts, such that they operate as final authority in the resolution of sports disputes”[35] and especially the consequence he derives from it, denying to lex sportiva any status as a legal order seems to be flawed.[36] Indeed, in no legal context, national or otherwise, is a judicial decision absolutely final. National courts’ judgments are often contested when their recognition is asked in another country, this does not entail that national law is not law. Similarly, the subjection of the judgments of the highest national courts of the EU Member States to the preliminary reference mechanism in place under EU law should not lead us to deny any legal value to national law. We are living in a pluralist legal age ruled by complex transnational legal assemblages and lex sportiva fits very well into this picture. Nonetheless, on this point I share the view of the author of this book, the question of the legitimacy of both the rulemaking bodies of lex sportiva (read FIFA or the IOC) and its adjudicative bodies (read the CAS) is of great importance. In fact, their illegitimacy, and here I differ from Vaitiekunas’ argument, should not mainly imply their non-existence as law-making bodies, but the need for a reform (or even a revolution) in the way they operate.

This book is precious, because it highlights very well the challenges ahead in our transnationalizing legal world. Democratizing international (or transnational in this case) judicial bodies is key, if the ideal and democratic function of an independent justice for world citizens is to be sustained.[37]  We need to understand that transnational private bodies are in the business of exercising a kind of public authority and should live up to analogous accountability and legitimacy standards than the one that have been progressively developed in the framework of the nation-states for national courts. The CAS is one of those, and the pending Pechstein case is a necessary itch to reflexively trigger a much-needed reform of its internal structure and functioning. Which precise form this reform will take is not crucial. What is essential, however, is that it ensures that CAS arbitrators be seen as rendering sporting justice at a personal (if not geographical) distance from those who are adopting and enforcing the rules of the lex sportiva. This book is an important critical contribution in that direction.

[1] Vaitiekunas A (2014) The Court of Arbitration for Sport: Law-Making and the Question of Independence. Stämpfli Verlag, Berne, p 2.

[2] Ibid, p 3.

[3] Duval A (2013) Lex Sportiva: A Playground for Transnational Law. European Law Journal 19: 822-842.

[4] Ibid, pp 7-50.

[5] Ibid, pp 51-83.

[6] Ibid, pp 85-120.

[7] Ibid, pp 121-177.

[8] Ibid, p 142.

[9] Ibid, p 146.

[10] Ibid, p 150.

[11] Ibid, p 151.

[12] See supra n 1, Oberlandesgericht (OLG) München [2015], paras 3b, bb, 3aaa and bbb.

[13] Supra n 2, Vaitiekunas, pp 168-174.

[14] Ibid, p 169.

[15] Ibid.

[16] Ibid, p 171.

[17] Ibid.

[18] Ibid.

[19] Ibid, p 174.

[20] Ibid, pp 179-200.

[21] Ibid, p 184.

[22] Ibid, p188.

[23] Ibid, p 189.

[24] Ibid, p 191.

[25] Ibid, p 193.

[26] Ibid, pp 197-199.

[27] Ibid, p 197.

[28] Ibid, p 198.

[29] Ibid.

[30] Ibid, p 199.

[31] Ibid.

[32] Ibid.

[33] Ibid.

[34] Ibid.

[35] Ibid, p 265.

[36] Ibid, p 269 : ”CAS’s lack of final authority, in particular where state public policy or EU law are in question, derogates from CAS’s lex sportiva being an independent legal order“.

[37] For a similar idea applied to international courts, see Von Bogdandy A, Venzke I (2014) In Whose Name? A Public Law Theory of International Adjudication. Oxford University Press, New York.

Editor’s note: Thomas Terraz is a fourth year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.

Since its inception, the Olympic Movement, and in particular the IOC, has tirelessly endeavored to create a clean bubble around sport events, protecting its hallowed grounds from any perceived impurities. Some of these perceived ‘contaminants’ have eventually been accepted as a necessary part of sport over time (e.g. professionalism in sport),[1] while others are still strictly shunned (e.g. political protest and manifestations) and new ones have gained importance over the years (e.g. protection of intellectual property rights). The IOC has adopted a variety of legal mechanisms and measures to defend this sanitized space.  For instance, the IOC has led massive efforts to protect its and its partners’ intellectual property rights through campaigns against ambush marketing (e.g. ‘clean venues’ and minimizing the athletes’ ability to represent their personal sponsors[2]). Nowadays, the idea of the clean bubble is further reinforced through the colossal security operations created to protect the Olympic sites.

Nevertheless, politics, and in particular political protest, has long been regarded as one of the greatest threats to this sanitized space. More recently, politics has resurfaced in the context of the IOC Athletes’ Commission Rule 50 Guidelines. Although Rule 50 is nothing new, the Guidelines stirred considerable criticism, to which Richard Pound personally responded, arguing that Rule 50 is a rule encouraging ‘mutual respect’ through ‘restraint’ with the aim of using sport ‘to bring people together’.[3] In this regard, the Olympic Charter aims to avoid ‘vengeance, especially misguided vengeance’. These statements seem to endorse a view that one’s expression of their political beliefs at the Games is something that will inherently divide people and damage ‘mutual respect’. Thus, the question naturally arises: can the world only get along if ‘politics, religion, race and sexual orientation are set aside’?[4] Should one’s politics, personal belief and identity be considered so unholy that they must be left at the doorstep of the Games in the name of depoliticization and of the protection of the Games’ sanitized bubble? Moreover, is it even possible to separate politics and sport?  

Even Richard Pound would likely agree that politics and sport are at least to a certain degree bound to be intermingled.[5] However, numerous commentators have gone further and expressed their skepticism to the view that athletes should be limited in their freedom of expression during the Games (see here, here and here). Overall, the arguments made by these commentators have pointed out the hypocrisy that while the Games are bathed in politics, athletes – though without their labor there would be no Games – are severely restrained in expressing their own political beliefs. Additionally, they often bring attention to how some of the most iconic moments in the Games history are those where athletes took a stand on a political issue, often stirring significant controversy at the time. Nevertheless, what has not been fully explored is the relationship between the Olympic Games and politics in terms of the divide between the ideals of international unity enshrined in the Olympic Charter and on the other hand the de facto embrace of country versus country competition in the Olympic Games. While the Olympic Charter frames the Games as ‘competitions between athletes in individual or team events and not between countries’, the reality is far from this ideal.[6] Sport nationalism in this context can be considered as a form of politics because a country’s opportunity to host and perform well at the Games is frequently used to validate its global prowess and stature.

To explore this issue, this first blog will first take a historical approach by investigating the origins of political neutrality in sport followed by an examination of the clash between the ideal of political neutrality and the reality that politics permeate many facets of the Olympic Games. It will be argued that overall there has been a failure to separate politics and the Games but that this failure was inevitable and should not be automatically viewed negatively. The second blog will then dive into the Olympic Charter’s legal mechanisms that attempt to enforce political neutrality and minimize sport nationalism, which also is a form of politics. It will attempt to compare and contrast the IOC’s approach to political expression when exercised by the athletes with its treatment of widespread sport nationalism.

1.     Constructing the Political Neutrality of the Olympics

The roots of political neutrality in many ways can be traced back to the Olympic Truce, a tradition that started in Ancient Greece.[7] The idea of creating a temporal space where nations are at peace is in a way an attempt to separate Games from the political squabbles of the world, and this tradition has continued to the modern day.  Pierre de Coubertin envisioned a space ‘to bring the youth of all countries periodically together for amicable trials of muscular strength and agility’.[8] In accomplishing this goal, the Olympic Movement  applies a principle of political neutrality,[9] which includes that the IOC must ‘promote its political neutrality’,[10] ‘oppose any political or commercial abuse of sport and athletes’,[11] requires new members of the IOC to ‘act independently of commercial and political interests’,[12] and NOCs must ‘resist’ political pressures that ‘may prevent them from complying with the Olympic Charter’.[13] Lastly, international sport is deeply grounded in the idea of universality in which a sport, regardless of where it is played, is played by the same rules, meaning that the sport rules (the rules of the game) are not influenced by the politics or decisions of a particular state (i.e. sport autonomy).[14]

Coubertin also saw the Games as a ‘sacred enclosure’ for the athletes of the world,[15] symbolizing the conceptual genesis of the sanitized space within the modern Games. In these early days of the Games, Coubertin also believed that protecting the ‘sacred enclosure’ also meant keeping women out.[16] While women were first able to participate in the 1900 Olympic Games, albeit in a limited way and resistance to their participation continued,[17] politics remained a black sheep. Avery Brundage, IOC President (1952-1972), also persisted in advocating to keep women out of the Games but was especially a staunch defender of ‘two major Olympic ideals, i.e. amateurism and the non-politicisation of sport’.[18] For him it was not just necessary to keep politics out, but to also ‘actively combat the introduction of politics in the Olympic movement’ and was ‘adamant against the use of the Olympic Games as a tool or as a weapon by an organization’.[19] With Brundage leading the IOC, political neutrality was placed front and center and thus Olympic rules began to reflect this new priority. The 1956 Olympic Charter was the first to include the ‘Information for cities which desire to stage the Olympic Games’ which specifically required that invitations ‘must state that no political demonstrations will be held in the stadium or other sport grounds, or in the Olympic Village, during the Games, and that it is not the intention to use the Games for any other purpose than for the advancement of the Olympic Movement’. This would slowly evolve into the current Rule 50: ‘No kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas’. It is interesting to note that the only earlier explicit mention of politics in the Olympic Charter was the 1946 Olympic Charter which was concerned by ‘the nationalization of sports for political aims’ where there would be ‘a national exultation of success achieved rather than the realization of the common and harmonious objective which is the essential Olympic law’.[20] As will be further elaborated in the second blog, it seems as though the IOC has now placed greater priority on enforcing Rule 50 compared to its rules concerning sport nationalism. All things considered, the IOC perceives and projects itself as a neutral entity, which is further confirmed through its governing rules[21] and even its seat in Switzerland further reflects this self-perception.[22]

2.     Failing to Keep Politics Out of the Games

At this point, it is worth exploring some examples that elucidate how politics have continually found a way into the ‘clean’ Olympic bubble through a variety of agents: be it the general public, the athletes, the IOC or states (both the host and participants).

While perhaps often overlooked when discussing politics in the Games, public protests are important to study, especially because there have been many instances of host nations suppressing such public gatherings. For example, in the 2008 Beijing Games, after great international pressure, the Chinese government had set specific zones for Olympic protests. However, protesters were required to submit an application and could be rejected if the protest would ‘harm national, social and collective interests or public order’. In the end, all seventy-seven applications were denied and some of those who applied were arrested, detained and/or put into forced labor.[23] Similarly, at the 2014 Sochi Olympic Games, the IOC proudly welcomed the announcement of special protest areas, despite the fact the zones were placed ‘20 minutes by train from the nearest Olympic venue’ and ultimately only attracted a handful of protesters.[24]

Moreover, in the months leading to the Sochi Games, anti-LGBT laws were passed and a ‘crackdown on civil society unprecedented in the country’s post-Soviet history’ ensued. Despite these repressive measures, athletes stood defiant, and after the IOC made an exception to Rule 50 allowing political expression during press conferences, many athletes used this platform to take a stand.[25] This shows how athletes can sometimes be a critical source for political protest and dissent amidst an atmosphere of suppression, and history has repeatedly demonstrated how athletes can have a vital role in promoting human rights and raising awareness concerning sensitive issues. One simply has to point to the infamous moment when Tommie Smith and John Carlos raised their fists on the podium in protest or when Vera Caslavska turned her head away while the Soviet anthem played. There is little doubt that there has been an extensive history of athlete protest at the Games, and athletes will likely continue raising the problems close to their hearts irrespective of the restrictions they face.

Politics also permeate the Games through the IOC itself as it is continually faced with political decisions, including the recognition of national Olympic committees,[26] decisions concerning participation of athletes,[27] and the awarding of the Games to a city. The latter has often embroiled the Games in controversies, such as the Salt Lake City bid scandal in which a ‘Special US Senate commission found some 1,375 separate expenditures totaling nearly $3 million’ to try and ‘sway individual IOC members’.[28] The scandal prompted several internal investigations in which ten IOC members ‘either resigned or were expelled’. The current Tokyo Games have not been without controversy as a Japanese businessman admitted to giving gifts to IOC members while lobbying for the Games after having received $8.2 million dollars from the Tokyo bid committee. Taken together, it could be argued that this is a real source of ‘dirty’ politics and a greater threat to the concept of a clean or ‘sacred’ space for the Games. Finally, you’ll find a lot of politics inside the IOC, where some commentators have described the rise to power of IOC Presidents as resembling ‘the ascent of a conventional politician’.[29]

Lastly, countries participating and hosting the Games are also able to introduce politics to the Games through boycotts,[30] hosting the Games to promote internal and geo-political interests, and using one’s performance at the Games for political gain and geo-political posturing. Concerning the first, a decision to boycott is always tied to some political goal, as a boycott usually seeks to instigate political change or send a specific political message, such as disapproval of certain political decisions or even an entire political system. For instance, the 1980 Moscow Olympics had 60 countries, led by the US, boycotting the Games in response to the USSR’s invasion of Afghanistan.[31] Indeed, this kind of political wrangling and posturing heavily plagued the Cold War period. It was also during this time that the ‘Soviet Union and the United States attempted to proclaim the superiority of their political and socioeconomic systems by winning the most Olympic gold medals’.[32] A country’s performance at the Games became an indication of one’s geo-political power status, and the idea that ‘sport for sport’s sake is not a goal; rather it is the means to obtaining other goals’ gained more traction. [33] It could be argued that this trend started even before the Cold War. For instance, at the 1936 Berlin Olympics, the Nazis were obsessed with trying to demonstrate ‘German superiority’, which included the incredibly calculated efforts to make the Games into a propaganda spectacle.[34] In this sense, hosting the Games is a unique way to boost a nation’s image and send political messages on a world stage as a sort of ‘soft power strategy’.[35] This kind of sport nationalism is pure politics, and the IOC has long recognized it, as first enshrined in the 1946 Olympic Charter, as a threat to the fundamental goals of the Olympic Games.

3.     Conclusion

Despite the IOC’s attempts to create a ‘clean’ apolitical bubble, politics are structurally embedded within the Games due to the array of actors representing a variety of interests that are involved in its planning and execution. In this sense, the Games can never truly take place within an impenetrable bubble that is somehow separated from the societal context in which it takes place.  The ‘opposite assumptions, that sport was both “above and below” the political dimensions of social life’ is simply untenable.[36] In spite of this, the IOC maintains strict restrictions, through Rule 50, on the free speech of athletes and of the fans and continues to pedal the myth of a pure and sanitized Olympic Games. Instead, I believe political expression should not be regarded as a sly specter infiltrating itself within the Games, defiling the ‘sacred enclosure’ but rather something innate to any free society. Perhaps, in the end, a more genuine ‘mutual respect’ could be achieved if individuals were authorized to openly express their identity and convictions without fear of reprisal even in the face of deep rooted differences.[37]  Regardless, politics and the Games remain naturally entangled, and the next blog in this series will unravel the double standard of the IOC when addressing sport nationalism and athletes’ political expression at the Games.

[1] For many years, amateurism was a key criterion in order to participate in the Olympics.

[2] See my recent blog on Rule 40 Olympic Charter.

[3] Richard Pound also views the idea of the Games as a sort of ‘bubble’ in which the Games create ‘ a special phenomenon during which, even if the world as a whole is not working well, there is an oasis at which the youth of the world can gather for peaceful competition, free from the tensions which their elders have created and with which they will be required to cope before and after the Games’ (emphasis added).

[4] The full quote is as follows: ‘First, this is not a new rule and, second, it is one wholly consistent with the underlying context of the Olympic Games, during which politics, religion, race and sexual orientation are set aside.’ Richard Pound, ‘Free Speech for Olympic Athletes’ (IOC, 11 February 2020) <www.olympic.org/news/free-speech-for-olympic-athletes> accessed 1 April 2020.

[5] See book written by Richard Pound, ‘Inside the Olympics: A Behind-the-Scenes Look at the Politics, the Scandals and the Glory of the Games’ (Wiley 2006).

[6] Rule 6 Olympic Charter.

[7] Although the extent of this truce is disputed. See Kristine Toohey and Anthony James Veal, The Olympic Games: A Social Science Perspective (CAB International 2007) 19-20.

[8] ‘Peace Through Sport’ (IOC) <https://www.olympic.org/pierre-de-coubertin/peace-through-sport> accessed 1 April 2020.

[9] Fundamental Principles of Olympism, Olympic Charter, point 5.

[10] Rule 2 Olympic Charter.

[11] ibid.

[12] Rule 16 Olympic Charter.

[13] Rule 27 Olympic Charter.

[14] Christopher H Hill, Olympic Politics (Manchester University Press 1996).

[15] Jules Boykoff, Power Games: A Political History of the Olympic Games (Verso 2016) 13.

[16] ‘The Olympic Games must be reserved for men’ – Coubertin quoted in Boykoff (n 15) 17; ‘as to the admission of women to the Games, I remain strongly against it’ – Coubertin quoted in Dikaia Chatziefstathiou and Ian P. Henry, Discourses of Olympism: From the Sorbonne 1894 to London 2012 (Springer 2012) 124.

[17] Boykoff (n 15) 59.

[18] ‘Avery Brundage’ (IOC 2011) <https://stillmed.olympic.org/AssetsDocs/OSC%20Section/pdf/LRes_19E.pdf> accessed 1 April 2020.

[19] Boykoff (n 15) 83.

[20] This was also one of Brundage’s greatest concerns. Boykoff (n 15) 84.

[21] See Rule 2 (5) and (11) Olympic Charter and Rule 16 (1.3) Olympic Charter.

[22] See why Lausanne hosts so much of the Olympic Movement: Rebecca Ruiz, ‘Swiss City Is ‘the Silicon Valley of Sports’’ (The New York Times, 22 April 2016) <www.nytimes.com/2016/04/23/sports/olympics/switzerland-global-sports-capital-seeks-new-recruits.html> accessed 1 April 2020.

[23] Boykoff (n 15) 170; See also ‘China: Police Detain Would-Be Olympic Protesters’ (Human Rights Watch, 13 August 2008) <www.hrw.org/news/2008/08/13/china-police-detain-would-be-olympic-protesters> accessed 1 April 2020.

[24] It is also worth noting that of the two protests, one concerned the difficulties Russians faced who were born into World War Two, and the other was a pro-Putin demonstration. On the protest zone see also David Herszenhorn, ‘A Russian Protest Zone Where Almost No One Registers a Complaint’ (The New York Times, 13 February 2014) <www.nytimes.com/2014/02/14/world/europe/a-russian-protest-zone-where-almost-no-one-registers-a-complaint.html> accessed 1 April 2020.

[25] Boykoff (n 15) 204.

[26] Hill (n 14) 36. For example, concerning the recognition and naming of the Chinese Taipei Olympic Committee.

[27] For example, decisions that affect participation of transgender and intersex athletes definitely have a political element. Simply by taking into account the discrepancy in jurisdictions concerning gender identity, the guidelines acknowledge the international political context in which the guidelines operate. See point 1 (b).

[28] Boykoff (n 15) 151.

[29] Hill (n 14) 2 and 60.

[30] Boykoff (n 15) 128.

[31] ibid 127-128.

[32] Andrew Strenk, ‘What Price Victory? The World of International Sports and Politics’ [1979] 445 The Annals of the American Academy of Political and Social Science 128; James Nafziger, 'International Sports Law: A Replay of Characteristics and Trends’ [1992] 86 The American Journal of International Law 489; J. Weston Phippen, ‘The Olympics Have Always Been Political’ (The Atlantic, 28 July 2016) <www.theatlantic.com/news/archive/2016/07/putin-olympic-ban/492047/> accessed 1 April 2020; Boykoff (n 15) 82.

[33] Quoting Erich Honnecker (GDR’s head of state - 1971-1989), Strenk (n 31).

[34] Boykoff (n 15) 69.

[35] Jonathan Grix, ‘Sport Politics and the Olympics’ [2013] 11 Political Studies Review 15.

[36] Lincoln Allison, The Changing Politics of Sport (Manchester University Press 1993) 5.

[37] ‘Rule 50 is a reminder that, at the Olympic Games, restraint is an element of that mutual respect.’ Pound (n 4).

Day 1: FIFA must regulate TPO, not ban it.
Day 2: Third-party entitlement to shares of transfer fees: problems and solutions
Day 3: The Impact of the TPO Ban on South American Football.
Day 4: Third Party Investment from a UK Perspective.
Day 5: Why FIFA's TPO ban is justified.

On 22 December 2014, FIFA officially introduced an amendment to its Regulations on the Status and Transfers of Players banning third-party ownership of players’ economic rights (TPO) in football. This decision to put a definitive end to the use of TPO in football is controversial, especially in countries where TPO is a mainstream financing mechanism for clubs, and has led the Portuguese and Spanish football leagues to launch a complaint in front of the European Commission, asking it to find the FIFA ban contrary to EU competition law.

Next week, we will feature a Blog Symposium discussing the FIFA TPO ban and its compatibility with EU competition law. We are proud and honoured to welcome contributions from both the complainant (the Spanish football league, La Liga) and the defendant (FIFA) and three renowned experts on TPO matters: Daniel Geey ( Competition lawyer at Fieldfisher, aka @FootballLaw), Ariel Reck (lawyer at Reck Sports law in Argentina, aka @arielreck) and Raffaele Poli (Social scientist and head of the CIES Football Observatory). The contributions will focus on different aspects of the functioning of TPO and on the impact and consequences of the ban.

Before the five blogs (starting with the complainant, La Liga, on Tuesday) will be published next week on a daily basis, we have the pleasure to kick off today with a light introduction to TPO. At the end of next week we will synthesise the debate and provide our preliminary take on the ban’s compatibility with EU law.

With this exciting Blog Symposium on one of the hottest sports law topics, we celebrate the first anniversary of the ASSER International Sports Law Blog (last year’s opening blog is here). We hope you will enjoy the read and feel free to comment! 

What is TPO? 

The use of the notion of TPO is often criticized because it misrepresents the situation it purposes to qualify. Indeed, no third-party owns a player, but only a share of the “economic right” linked to the transfer of the player’s “federative right”[1]. This is why, as you will see later next week, some of our authors refuse to use the term and have opted for alternative concepts, such as TPE (third-party entitlements) or TPI (third-party investment). Due to our legal obsession with the written word, we will personally hold onto TPO as it is the notion enshrined in FIFA’s regulations.

Beyond this semantic debate, a plurality of contractual constellations is captured under the umbrella term TPO. What is common to all cases is that a company or an individual provides a football club or a player with money in return for being entitled to a share of a player’s future transfer value. Thus, TPO is enshrined in a separate private law contract between a third-party and a club or a player. The plurality of TPO situations derives from this contractual basis. The parties are free under national private law to creatively draft those contracts as they see fit, each one of them being a specific type of TPO in itself. 

The main aim of the practice is to finance clubs. Often TPO is used to externalise the costs of recruiting a player, sometimes it is used to finance the general functioning of a club. However, the use of TPO is always intimately connected to the drive of professional clubs to diversify their funding sources in order to leverage their competitiveness in national and international competitions. Nowadays, a club like Atletico Madrid would probably not have been able to reach the final of the Champions League or win La Liga without having widespread recourse to it.

What are the problems with TPO?

We do not want to spoil too much of next week’s discussion, but we need to at least mention the possible problems that have been linked with the use of TPO and that might serve as a potential justification for banning it. TPO is first and foremost seen as an intrusion of a third-party in the life of a football club and a player with the potential for an illegitimate influence on the management of the team and the player’s career. The many conflicts of interest that might arise in the shadow of multiple, sometimes contradictory, investments are particularly feared. TPO is also seen as a dubious financing technique used to circumvent the new UEFA Financial Fair Play regulations and to prop up clubs that are chronically in financial troubles. Finally, there is a moral dimension. For example, UEFA president Michel Platini likened TPO to a type of modern “slavery”. In short, should it be acceptable for someone to own a share of an economic right personally attached to a player? Can a player be forced-sold on the basis of a TPO agreement? All these issues will be discussed extensively next week; they are central to the evaluation of the ban’s compatibility with EU competition law. 

Regulating TPO or banning it? That is the question!

TPO has been banned for some time in England, France and Poland, while it was authorized in the rest of the World. The English FA, profoundly traumatized by the Carlos Tévez case, decided to ban the practice as early as 2008. In other countries, particularly Spain, Portugal and South America, TPO has been, and still is, part of the “football culture”. For example, it is estimated that in Brazil’s top division 90% of the players are subjected to a TPO agreement. In these countries TPO is seen as a necessity for national football clubs - not only to compete with clubs in richer countries, but also for professional football to be financially viable. It was no surprise that the leagues and clubs of the abovementioned countries were against a blanket ban of TPO and would rather see it being regulated. They consistently expressed this opposition during the FIFA Congress in June 2014 and the working groups created by FIFA in September 2014 with the aim of tackling the issue. Nonetheless, on 26 September the FIFA executive committee took the decision to ban third-party ownership of players’ economic rights (TPO) with a short transitional period. Following this announcement, the FIFA circular fleshing out the legal details of the ban was published on 22 December. Article 18bis of the Regulations on the Status and Transfers of Players was amended and the Regulations now include a new Article 18ter.[2] These new articles came into force on 1 January 2015 and, after a transition period, TPO will officially be banned as of 1 May 2015.

This total ban raises many practical and legal questions. What is to become of the already signed TPO agreements? Will the ban be fully enforced? Or, will creative schemes arise to circumvent it? Was there a less restricting alternative to attain its objective? And…is it compatible with EU competition law? 

The debate is open!

[1] The legal construction underlying TPO is clearly explained (unfortunately only in Italian) by Leandro Cantamessa in his article, ‘Un Tema Semi-Nuovo di Diritto Sportivo Internazionale: la Third Party Ownership (TPO)’, in L’Europa e lo sport (a cura di) S. Bastianon, G. Giappichelli Editore, 2014, pp.123-134.

[2] Article 18bis(1) will now read : “No club shall enter into a contract which enables the counter club/counter clubs, and vice versa, or any third party to acquire the ability to influence in employment and transfer-related matter its independence, its policies or the performance of its teams.”

Article 18ter:

1.      No club or player shall enter into an agreement with a third party whereby a third party is being entitled to participate, either in full or in part, in compensation payable in relation to the future transfer of a player from one club to another, or is being assigned any rights in relation to a future transfer or transfer compensation.

2.      The interdiction as per paragraph 1 comes into force on 1 May 2015.

3.      Agreements covered by paragraph 1 which predate 1 May 2015 may continue to be in place until their contractual expiration. However, their duration may not be extended.

4.      The validity of any agreement covered by paragraph 1 signed between 1 January 2015 and 30 April 2015 may not have a contractual duration of more than 1 year beyond the effective date.

5.      By the end of April 2015, all existing agreements covered by paragraph 1 need to be recorded within the Transfer Matching System (TMS). All clubs that have signed such agreements are required to upload them in their entirety, including possible annexes or amendments, in TMS, specifying the details of the third party concerned, the full name of the player as well as the duration of the agreement.

6.      The FIFA Disciplinary Committee may impose disciplinary measures on clubs or players that do not observe the obligations set out in this article.