Editor’s note: Josep F. Vandellos is an international sports lawyer associated to RH&C (Spain). He is also a member of the Editorial Board of the publication Football Legal and a guest lecturer in the ISDE-FC Barcelona Masters’ Degree in Sports Management and Legal Skills.

Article 6 of Annexe IV (Training compensation) of the FIFA-RSTP (Ed. 2016) contains the so-called “Special Provisions for the EU/EEA” applicable to players moving from one association to another inside the territory of the European Union (EU) or the European Economic Area (EEA).
The provisions regarding training compensation result from the understanding reached between FIFA and UEFA with the European Union in March 2001[1], and subsequent modifications introduced in the FIFA-RSTP revised version of 2005 to ensure the compatibility of the transfer system with EU law.[2]
This blog will focus on the exception contained in article 6(3) Annexe IV of the FIFA-RSTP. According to this article, when “the former club” fails to offer a contract to the player, it loses its right to claim training compensation from the players’ new club, unless it can justify that it is entitled to such compensation. Instead, the right of “previous clubs” to training compensation is fully preserved irrespective of their behaviour with the player.[3] From a legal standpoint, such discrimination between the “former club” and the “previous clubs” raises some questions that I will try to address in this paper.
For that purpose, the author will depart from the restrictive interpretation of article 6(3) adopted by the FIFA Dispute Resolution Chamber (DRC) and continue with a substantive assessment of the rule, firstly by looking at its purposive aim and secondly, by evidencing the potential negative impact on players’ mobility and its inherent anticompetitive effects. 

A. Article 6(3) Annexe IV of the FIFA-RSTP (Ed. 2016)

Article 6(3) of the FIFA-RSTP reads as follows: “3. If the former club does not offer the player a contract, no training compensation is payable unless the former club can justify that it is entitled to such compensation. The former club must offer the player a contract in writing via registered post at least 60 days before the expiry of his current contract. Such an offer shall furthermore be at least of an equivalent value to the current contract. This provision is without prejudice to the right to training compensation of the player’s previous club(s).”[4]
In summary, as a general rule, the former club of the player loses its right to claim training compensation if it fails to offer the player a contract in the terms described by the article, or cannot demonstrate a legitimate interest.
So far, the DRC has been consistent in interpreting that the obligation to offer the player a contract lies exclusively with the former club of the player as opposed to the previous clubs. In other words, the previous club is entitled to ask for training compensation when the player signs the first professional contract[5] no matter whether they offered the player a contract or showed bona fide interest in retaining him.
At first glance, this rigid interpretation might appear controversial in light of the more pragmatic approach towards the formal requirements of article 6(3) adopted in the CAS award 2009/A/1757 between MTK Budapest v. FC Internazionale Milano SpA[6]. In this case, in order to conclude that MTK Budapest was still entitled to request training compensation despite not having offered the player a contract in the terms indicated in the regulation, the adjudicating Panel emphasized that “[the] aims of sporting justice shall not be defeated by an overly formalistic interpretation of the FIFA Regulations which would deviate from their original intended purpose”.[7]
The DRC has thus systematically admitted claims of previous clubs against clubs that have registered professional players for the first time (e.g. DRC decision of 17 May 2016[8]) without delving into whether such clubs are indeed entitled to training compensation or not.
In an attempt to defy such dogmatic approach to the issue, I question whether the different references made in Annexe IV of the FIFA RSTP to the “former club”[9] could and should instead be interpreted more extensively, so as to include all former clubs (thus including previous clubs) where a player has been registered. Firstly, by having a look at the systematic context of the rule and its purposive interpretation[10], and secondly, by taking into consideration the potential competitive disadvantages between European clubs resulting from the regulation.
As to the rationale of the rule, the FIFA DRC jurisprudence (vid. e.g. DRC Decision of 27 April 2006 ref. no. 461185[11]) indicates that “the spirit of and purpose of article 6 para 3 of Annexe 4 of the RSTP, 2016 edition, is to penalise clubs which are obviously not interested in the players’ services as a professional, no matter if the club would have to offer the player an employment contract for the first time or a renewal due to the expiry of an already existing contract.”[12]
It appears therefore, contrary to the spirit of the rule that a club that has shown no interest in keeping the player as a professional, a roster or for its academy, can at a later stage request to be rewarded for the training of that player, irrespective of whether it was the former club, strictly speaking, or the former former club, so to speak (i.e. the previous club in the RSTP exact wording).
One could easily argue at this point, and I would subscribe to it, that at very young ages it is either legally prohibited for training clubs to offer a contract, or unreasonable to require clubs to offer contracts to all its players in order to safeguard their potential right to training compensation.  This was highlighted by the CAS Panel in the CAS award 2006/A/1152 ADO Den Haag v. Newcastle United FC[13] which was the appeal against the above cited DRC Decision of 27 April 2006.
However, nothing prevents training clubs to at least show a genuine interest in retaining the player as an amateur by formally offering him to continue training with them or even through a simple positive evaluation of the player. In order to alleviate the unreasonable burden that such obligation would suppose on training clubs, a solution could be to require the genuine interest at least, for players as from the season of their 16^th birthday. This would coincide with the age when in most EU countries players are legally allowed to sign employment contracts, and form a strict sportive perspective, the age from when training compensation is calculated in full according to article 5(3) of Annexe IV.
The final reference in article 6(3) (i.e. “This provision is without prejudice to the right to training compensation of the players’ previous club(s)”) helps to ground this interpretation. It is difficult to justify from a legal standpoint, why previous clubs should be exempted (as they, in fact, are) from observing the same rules and obligations as the former clubs, especially considering the principle of free movement of workers in the EU. The right to claim training compensation is, being redundant, “without prejudice to the right (…) of the players’ previous club(s)”. Previous clubs should therefore, demonstrate as well their entitlement to training compensation by evidencing a genuine interest in the player, such as former clubs do. 
To illustrate the situation, consider the case were an EU football club omits to offer one of its players (e.g. 18 years old) a professional contract in the terms of article 6(3) of Annexe IV, and that player further registers as an amateur with another EU club for one season. That second club also fails to offer the player (now 19 years old) a professional contract. After two seasons as an amateur, the player, finally signs a professional contract with a third EU club at the age of 20 years. The current interpretation of the exception leads to conclude that the first club, which failed to offer the player a professional contract, perhaps because he was simply not sufficiently interesting to retain, would now be reinstated in the right to claim training compensation, while the former club, under identical circumstances and reasons would be deprived from it.
Within those parameters, de lege ferenda the exception of article 6(3) could reasonably be extended to those previous clubs that failed to show the so-called bona fide interest. This way, by failing to show real interest in keeping a player, the previous clubs would be also prevented from asking training compensation upon the first registration of the player as a professional, to the same extend as the former club when it fails to offer the player a contract, in the terms indicated by the exception.
Turning now the attention, to EU law, the conclusions on why article 6(3) Annexe 4 current interpretation seems unfair and should be reformulated, point towards the same direction. 
 

B. Article 6(3) Annexe IV of the FIFA RSTP and EU competition law

The Bosman ruling and its most recent successor, the Bernard ruling, stand out as constant reminders that EU Law applies to the realm of European club football insofar as it constitutes an economic activity in the sense of Article 2 of the Treaty.[14] It is nowadays unarguable that football is a real economic activity and that the regulations adopted by its governing bodies must respect EU Law as long as they apply in the territory of the EU, or in case the player concerned has a European passport and is transferring to an EU Member State. Only rules which are “inherent to sport” such as the rules of the game, and other “practices likely to be exempted” meaning, those activities not necessarily linked to sport but which are worth of protection, could potentially fall outside the remit of EU competition law (the sporting exception) as pointed out by the “Helsinki Report on Sport” in 1999. However, the decision in the Meca-Medina case went even further, overcoming the traditional distinction between rules of purely sporting nature from others, to determine that rules cannot be of purely sporting nature when they have economic repercussions, and consequently, making it possible to explore new legal avenues to test regulations that in principle may seem outside the scope of EU competition law (such as the doping regulations in Meca-Medina).
According to Bosman[15] and Bernard, training compensation is a practice worth of protection, but it is undeniable that its rules have strong economic implications, for they are expressly meant to financially reward[16] football clubs involved in the training and education of players when these move to other clubs. For that reason, they fall under the remit of EU Law.
The legitimate aim of the training compensation system is also embraced by legal scholars. For example, while delving into the aftermath of the Bosman case and the agreement reached between FIFA and the EU Commission in 2001, S. Weatherill remarked that “(…). Sport has special features that deserve respect. In accordance with Bosman, it should be regarded as legally permissible for football to devise an internal taxation system to transfer money into the hands of nursery clubs, as part of a scheme for sustaining a larger number of clubs than would survive in ‘pure’ market conditions and to diminish gaps in economic strength between clubs.”[17]
However, it is my firm belief that Annexe IV of the FIFA RSTP has in many ways gone beyond the indications in Bosman, the Helsinki Report[18] and later in Bernard. In this last case, the Court referred to a system meant to compensate[19] and not reward training; and it is precisely that difference regarding the foundations of the system implemented by FIFA that leads to disproportionate results when the amounts to pay as training compensation are superior to the real costs incurred by the training clubs.[20]
All these issues jeopardize free mobility within the EU[21], for they restrict the chances of clubs to recruit players, and have an impact on the commercial relations between clubs and players in the sense of Article 101. By way of example, a Romanian football club registering a 21-year old player trained in Romania as a professional for the first time, would end up paying the training club a significantly lower amount of training compensation than a Hungarian club of the same category, wishing to sign that same player. The reason for that is that whilst in the first scenario the Romanian club would be subject to the internal training compensation mechanism; in the second scenario, the Hungarian club would be subject to the FIFA regulations that impose higher training compensations.
With these premises in mind, the testing of article 6(3) Annexe IV of the FIFA RSTP under EU competition law seems appropriate, although the application of EU competition law in this type of cases will probably remain an exception.[22]
In short, Article 101 TFEU[23] prohibits agreements, decisions of associations and concerted practices which may affect trade between Member States and have as their object or effect the prevention, restriction or distortion within the internal market.[24] Saskia King, explaining the so-called “objective criterion”[25], has highlighted that “when determining whether an agreement restricts competition under Article 101(1) TFEU, ‘object’ expresses a true alternative to ‘effect’ and as such requires separate consideration”. Therefore, if the object of the agreement is anticompetitive, there is no need to look behind the effects.
A primary aspect of competition law is the identification of the relevant market where a possible anticompetitive practice takes place. In the present context, the relevant market is the transfer market of football players, that is, the market on which the offer and supply of players meets and clubs compete against each other to recruit the best players.[26] Geographically speaking, the market is limited to the territory of the Member States of the EU.
Assuming also, that the FIFA RSTP (ed. 2016) qualifies as a “decision by an association of undertakings”[27] and that the rules of training compensation have an appreciable affect in trade between Member States[28] since any change of clubs for players under the age of 23 requires the payment of a training compensation[29]; the questions left to answer are therefore, whether or not article 6(3) of Annexe IV of the FIFA-RSTP (Ed. 2016), in its current formulation is (1) likely to prevent, restrict or distort competition in the EU transfer market of football players under Article 101(1) TFEU and more importantly, (2) whether the restrictive effects are proportionate and “[reasonably] necessary for the organization and proper conduct of sport?”[30]
As to the first question, it is my view that both the object and the effects produced by, article 6(3) restrict and distort competition between clubs, for they discriminate former clubs vis-à-vis previous clubs with regard to their right to claim training compensation. Additionally, the compensation limits the ability of clubs to take on players acting as free agent.
As to the second question, the Meca-Medina case –though in a different context[31]- offered valuable guidance to test the compatibility of rules of sports associations with EU competition law: “42. Not every agreement between undertakings or every decision of an association of undertakings which restricts the freedom of action of the parties or of one of them necessarily falls within the prohibition laid down in Article 81(1) EC. For the purposes of application of that provision to a particular case, account must first of all be taken of the overall context in which the decision of the association of undertakings was taken or produces its effects and, more specifically, of its objectives. It has then to be considered whether the consequential effects restrictive of competition are inherent in the pursuit of those objectives (Wouters and Others, paragraph 97) and are proportionate to them.”
Following the Meca-Medina reasoning, and focusing on the rationale behind article 6(3) Annexe IV, in the CAS award 2006/A/1152 ADO Den Haag v. Newcastle United FC, the CAS Panel corrected the view of the original DRC decision of 27 April 2006. Specifically, it remarked that the aim of the rule is “to ensure that no player, whether amateur or professional, in whom the training club has no interest, is impeded to accept the offer of another club because he carries some sort of ‘compensation price tag”[32] rather than to penalize clubs failing to offer a contract to their amateur players. The unquestionably legitimate goal of “the exception to the exception” - as the Panel calls article 6(3) - is thus to limit the obstacles to the free mobility of players aforementioned.
However, as to “whether the consequential effects restrictive of competition are inherent in the pursuit of those objectives and are proportionate to them” there cannot be a positive answer. To me it is doubtful whether the anticompetitive effects produced by establishing different conditions between former clubs and previous clubs are inherent or a necessary consequence to ensure the objective of rule (i.e. contributing to free mobility). I believe the contrary to be true. (i.e. uently,conditions ctive of the rule, tt of EU Law. by scholars.r compensation. in the application of such principle. nsatI bI be The effects generated by the current interpretation of article 6(3) collide with the aim of the rule (i.e. protecting free mobility), for reinstating previous clubs in their rights to claim training compensation irrespective of their behaviour vis-à-vis the player, compromises free movement within the EU and creates unfair competitive advantages for previous clubs.
In conclusion, my suggestion is to rethink, the current formulation of article 6(3) (if not the entire training compensation system) and correct its detrimental effects by preventing all previous clubs that fail to offer players a professional contract or to show bona fide interest as from the season in which a player turns 16 years old from requesting training compensation. It is certainly not the role of the CAS to do so, but the responsibility of the EU Commission to take an active lead to ensure full compliance of football regulations with EU law. 

[1] See FIFA Executive Committee, “Commentary on the Regulations for the Status and Transfer of Players”, Annex 4 (29 June 2005) at page 124.

[2] European Commission Press Release of 5 March 2001, “Outcome of discussions between the Commission and FIFA/UEFA on FIFA Regulations on international football transfers”.

[3] A bona fide and genuine interest in keeping the player must be demonstrated before the DRC cf. Arbitration CAS award 2009/A/1757 MTK Budapest v. FC Internazionale Milano S.p.A., award of 30 July 2009.

[4] FIFA Regulations on the Status and Transfer of Players, article 6(3) Annexe IV.

[5] In cases of subsequent transfer, the club entitled to claim training compensation will always be the “former club”.

[6]“17. As noted earlier, it is the 2005 Regulations which apply in the present case. At the same time, however, FIFA itself has clarified that the aim of the revisions introduced in 2005 was simply to “facilitate the evidence of a contract offer being made”. In its Decision, the DRC stated that “...when revising the Regulations it was decided to integrate in the 2005 edition of the Regulations some formal preconditions in order to facilitate the evidence that a contract offer was effectively made...This is the actual aim of the relevant formalities”. Consequently, the Panel does not interpret the 2005 revisions to the Regulations as constituting a substantive or material alteration to the 2001 regulatory regime because, as FIFA has said, the changes introduced related only to matters of form, and not of substance.”

[7] See para. 31 of the award. Although, the transfer structure used in this case could qualify as a bridge transfer used for the purpose of circumventing the FIFA regulations on transfer compensation.

[8] Decision of the Single Judge of the Sub-committee of the DRC case Budapest Honved FC (Hungary) v. AFC ASA 2013 Targu Mures (Romania) ref. TMS 243. Unpublished.

[9] See also FIFA RSTP, article 2 para. 2 of Annex IV.

[10] See the CAS award 2007/A/1363 TTF Liebherr Ochsenhausen v/ETTU, award of 5 October 2007 para 12 page 8: “10. By interpreting rules and regulations of associations, the starting point and the predominant element of construction is the wording (literal interpretation). Other elements such as the systematic context, the purpose and the history of the rule may contribute to the correct understanding of the meaning of the rule. This principle is accepted in both civil and common law and it has been constantly applied by CAS panels. It is also embedded in the law of Luxembourg (see, e.g., Art. 1156 of the Code Civil of Luxembourg) and the parties have not argued otherwise.” Emphasis added.

[11] Decision not published.

[12] De Weger, The Jurisprudence of the FIFA Dispute Resolution Chamber, Asser Press, 2^nd Edition, 2016. Page 401.

[13] See para. 22 of the CAS award 2006/A/1152 ADO Den Haag v. Newcastle United FC, award of 7 February 2007.

[14] See also Case 36/74, Walrave and Koch v UCI, ECLI:EU:C:1974:140.

[15] Case C-415/93, Union Royale Belge des Sociétés de Football Association and Others v Bosman and Others, ECLI:EU:C:1995:463, paras. 106-110.

[16] See FIFA Executive Committee, “Commentary on the Regulations for the Status and Transfer of Players”, article 1(2) and Annex 4 para. 1 (Objectives), page 112.

[17] S. Weatherill, European Sports Law Collected Papers, Asser Press, 2^nd Edition (2014), pages 218 and 219.

[18] See Report from the Commission to the European Council of 10 December 1999 with a view to safeguarding current sports structures and maintaining the social function of sport within the Community framework – The Helsinki Report on Sport - para. 4.2.1.3: The Report refers to a system of objectively calculated payments that are related to the costs of training.

[19] Case C-325/08, Olympique Lyonnais SASP v Olivier Bernard and Newcastle UFC, ECLI:EU:C:2010:143, paras. 44 and 45.

[20] As an example of this disproportionality, a simple comparison between the training costs established for Cat. III UEFA clubs (30.000 Euro per) with the training costs established for internal transfers by the Romanian Football Football Federation (5.000 RON per year equivalent to 1.107 Euro).

[21] Training compensation rules were recently tested against EU law, and in particular with regard to the freedom of movement of workers, by TAS-CAS in the Riverola case (CAS award 2014/A/Bologna FC 1909 SpA v. FC Barcelona). The award is not public, but a full comment and legal analysis is published in: Luca Smacchia, “The Riverola case: how the enforcement of FIFA rules may restrict the freedom of movement for workers within the EU”, Football Legal, #5 (June 2016), pages 20-24.

[22] See e.g. Ben Van Rompuy, “Sport and EU Competition Law: New developments and unfinished business”, Asser International Sports Law Blog (22 May 2015).

[23] Article 101 TFEU: “The following shall be prohibited as incompatible with the internal market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market, and in particular those which: (…) (d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;”

[24] “The distinction between "restrictions by object" and "restrictions by effect" arises from the fact that certain forms of collusion between undertakings can be regarded, by their very nature, as being injurious to the proper functioning of normal competition.” - Commission Staff Working Document of 25 June 2014, Guidance on restrictions of competition “by object” for the purpose of defining which agreements may benefit from the De Minimis Notice, page 3.

[25] Saskia King, “Agreements that restrict competition by object under Article 101 (1) TFEU: Past, present and future”, PhD Thesis – The London School of Economics and Political Science (2015), Page 28.

[26] “The combined investment of summer and winter transfer windows in the top five European leagues was almost €3.4 billion. That was up by 29 per cent versus last season and again a record high ever.” - Soccerex Transfer Review Winter Edition 2016, Prime Time Sport, page 4.

[27] See, for example, Case T-193/02, Piau v. Commission, ECLI:EU:T:2005:22, para. 69: “As regards, first, the concept of an association of undertakings, and without it being necessary to rule on the admissibility of the arguments put forward by an intervener which go against the claims made by the party in support of which it is intervening, it is common ground that FIFA's members are national associations, which are groupings of football clubs for which the practice of football is an economic activity. These football clubs are therefore undertakings within the meaning of Article 81 EC and the national associations grouping them together are associations of undertakings within the meaning of that provision.”

[28] For an in-depth economic data analysis see, e.g., FIFA T.M.S., Global Transfer Market 2012 Highlights, pages 14 and 15 – Overall Market Activity - and pages 23 and 24 - Player Age.

[29] David Nilsson, “The Revised FIFA Regulations for the Status and Transfers of Players’ Compatibility with EU competition law – the Transfer System revised”. Master Thesis. Faculty of Law - University of Lund, (September 2006).

[30] Supra, 30.

[31] Doping rules under EU competition law.

[32] See para. 20 page 7 of the award: “The Panel does not share the DRC’s view that the purpose of the first sentence of Article 6 para. 3 is to penalise clubs which do not offer professional terms to their amateur players. Rather, in the Panel’s opinion, the purpose of the above provision is to ensure that no player, whether amateur or professional, in whom the training club has no interest is impeded to accept the offer of another club because he carries some sort of “compensation price tag”.

Editor's note: Daniela Heerdt is a PhD candidate at Tilburg Law School in the Netherlands. Her PhD research deals with the establishment of responsibility and accountability for adverse human rights impacts of mega-sporting events, with a focus on FIFA World Cups and Olympic Games.

About three years ago, the Fédération Internationale de Football Association (FIFA) adopted a new version of its Statutes, including a statutory commitment to respect internationally recognized human rights. Since then, FIFA undertook a human rights journey that has been praised by various stakeholders in the sports and human rights field. In early June, the FIFA Congress is scheduled to take a decision that could potentially undo all positive efforts taken thus far.

FIFA already decided in January 2017 to increase the number of teams participating in the 2026 World Cup from 32 to 48. Shortly after, discussions began on the possibility to also expand the number of teams for the 2022 World Cup hosted in Qatar. Subsequently, FIFA conducted a feasibility study, which revealed that the expansion would be feasible but require a number of matches to be hosted in neighbouring countries, explicitly mentioning Bahrain, Kuwait, Oman, Saudi Arabia and the United Arab Emirates (UAE). One does not have to be a human rights expert to be highly alarmed by this list of potential co-hosting countries. Nevertheless, the FIFA Council approved of the possibility to expand in March 2019, paving the way for the FIFA Congress to take a decision on the matter. Obviously, the advancement of the expansion decision raises serious doubts over the sincerity of FIFA’s reforms and human rights commitments.

The Human Rights Climate in Potential Co-hosts

The list of human rights issues commonly linked to the potential co-hosts is long.[i] All of them uphold severe restrictions on the freedom of expression and regularly silence activists. Women face discrimination under the law of a number of these countries, and the rights of migrant workers are not adequately protected, leading to abusive situations and forced labour.[ii] Arbitrary arrests and unfair trials and sentencing are widespread in Oman.[iii] Bahrain has a habit of detaining, torturing and deporting human rights defenders and Kuwait refuses to recognize the 100,000 Bidun living in the country as Kuwaiti citizens, leaving them stateless. The latest add-on to Saudi Arabia’s appalling human rights track record is the mass execution of 37 individuals, which proceeded against vociferous criticism from other states and human rights organizations about the lack of due process and allegations of torture having been used to obtain confessions of those convicted and executed. Furthermore, even the highest football official cannot have missed the allegations on Saudi officials being involved in the murder of the journalist Jamal Khashoggi in the Saudi consulate in Turkey in October 2018. Finally, the active involvement of and alleged attacks on civilians launched by Saudi Arabia and the UAE in the Yemen war can also not be ignored.

In addition to these structural human rights issues spread in the region, a number of these countries have been involved in very recent football-related human rights cases. In January 2019, a British football fan, Ali Ahmad, has been detained for three weeks and suffered torture by UAE security officials for wearing a Qatari football jersey to an Asian Cup match between Qatar and Iraq. In February 2019, Hakeem al-Araibi, a football player from Bahrain, now living as refugee in Australia, has been released from Thai prison after his arrest in November 2018. The Thai authorities acted upon an arrest warrant issued by Bahrain, where Hakeem had been convicted in absentia to 10 years in prison for an incident dating back to November 2012. The official allegations were vandalism of a police station, but there is clear evidence that discharges Hakeem of these allegations. Most likely, he became a target of Bahraini government and football officials that identified and persecuted Bahraini football players that were involved in anti-government protests during the Arab Spring in 2012.

The Mismatch with FIFA’s Standing Human Rights Commitments

This brief overview presents just a fraction of the extremely negative human rights track record of the countries that FIFA is considering as potential co-hosts for the 2022 World Cup. In case one of these countries will indeed host a World Cup match, FIFA risks to throw away all efforts that it carefully put into building up its human rights profile in the past three years. After the inclusion of human rights into its Statutes, FIFA created a Human Rights Advisory Board in March 2017, adopted a human rights policy in May 2017, and launched a complaint mechanism for human rights defenders and media representatives in the run-up to the 2018 World Cup in Russia.

Most importantly, in October 2017 FIFA integrated human rights requirements in its bidding requirements for the World Cup following John Ruggie’s recommendation to “set explicit human rights requirements of Local Organising Committees in bidding documents for tournaments and provide guidance on them”.[iv] The revised bidding requirements expect bidders to conduct all bidding and hosting activities in line with internationally recognized human rights.[v] Furthermore, bidders are required to submit a public commitment to respect human rights and a human rights strategy, together with a report on stakeholder engagement in developing the policy.[vi] The new requirements applied for the first time to the bidding process for the 2026 World Cup and while the 2022 World Cup had been awarded before, the new standard forms an integral part of FIFA’s human rights system by now and therefore should be considered in the recent expansion plans.

Interestingly, the feasibility study on the expansion of the 2022 World Cup mentions human rights at several points: in the context of requirements regarding stadiums (p. 32 & 46), as part of requirements for additional infrastructure and sites (p. 46), and as one of the necessary government guarantees to be submitted to FIFA (p.68). Receiving such guarantees from the respective government might not pose a problem. Instead, the real issue at stake is whether FIFA truly cares about its human rights commitments when considering if these guarantees turn out to be nothing but empty words on a piece of paper? FIFA risks failing its commitments by letting any of the proposed countries co-host the World Cup without having done a proper human rights risk assessment.

Despite this risk, the expansion seems to be more likely to happen than not. FIFA President Gianni Infantino appears to be convinced that the expansion can contribute to solving the diplomatic crisis that is ongoing in the region and stated on record that a preliminary survey showed that 90% of the member associations are in favour of the expansion. Indeed, the decision lies in their hands. They make up the members of the FIFA Congress, FIFA’s supreme body for decision-making, and each member association has one vote. While a number of associations and confederations already publicly announced their support of the expansion, there is still hope that other member associations or confederations remind FIFA of its human rights responsibilities and commitments by voting against it.

[i] For an overview of human rights issues linked to these countries, see Human Rights Watch (2019), “World Report 2018”. 

[ii] See for example Human Rights Committee CCPR/C/BHR/CO/1 (2018), “Concluding observations on the initial report of Bahrain”.

[iii] Human Rights Council A/HRC/29/25/Add.1 (2015), “Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai – Mission to Oman”, para 20 ff.

[iv] John G. Ruggie (2017), “’For the Game. For the World’ FIFA & Human Rights”, p. 32.

[v] FIFA (2017), “FIFA REGULATIONS for the selection of the venue for the final competition of the 2026 FIFA World Cup™”, Regulation 8.1 (ii).

[vi] Ibid., Regulation 8.2.

I. Literature

1. Antitrust/Competition Law and Sport

G Basnier, ‘Sports and competition law: the case of the salary cap in New Zealand rugby union’, (2014) 14 The International Sports Law Journal 3-4, p.155

R Craven, ‘Football and State aid: too important to fail?’ (2014) 14 The International Sports Law Journal 3-4, p.205

R Craven, ‘State Aid and Sports Stadiums: EU Sports Policy or Deference to Professional Football’ (2014) 35 European Competition Law Review Issue 9, 453

2. Intellectual Property Rights in Sports law / Betting rights/ Spectators’ rights/ Sponsorship Agreements

Books

W T Champion and K DWillis, Intellectual property law in the sports and entertainment industries (Santa Barbara, California; Denver, Colorado; Oxford, England: Praeger 2014)

J-M Marmayou and F Rizzo, Les contrats de sponsoring sportif (Lextenso éditions 2014) 

Articles

M Bambaci, ‘Algunas consideraciones sobre la inclusión de la liga Argentina de fútbol en los videojuegos. A propósito de la aparición de jugadores aficionados y la explotación comercial de su imagen’ (2014) Revista de Derecho del Deporte Número 8

A L Dias Pereira, ‘Media rights and online betting in football matches under Portuguese law’ (2014)14 The International Sports Law Journal 3-4, p.167

M M García Caba, ‘A propósito de la reciente jurisprudencia comunitaria sobre los derechos audiovisuales futbolísticos: ¿hacia una reinterpretación del interés general del fútbol Español?’ (2014), 511

D A Heitner and AWilmot, ‘Score a Touchdown, Kiss Your Tattoo, and Get Sued for Copyright Infringement?’ (2014) 21 Jeffrey S. Moorad Sports Law Journal Issue 2, 299

S N Horner, ‘DMCA: Professional Sports Leagues' Answer to Protecting Their Broadcasting Rights Against Illegal Streaming’ (2014) 24 Marquette Sports Law Review Issue 2, 435

A Lelyukhin, ‘The European Court of Justice (ECJ) confirmed Member States’ discretion to determine free to view sporting events. Note on Case T-385/07, Fédération Internationale de Football Association (FIFA) v European Commission, Judgement of General Court (Seventh Chamber), 17 February 2011’ (2014) 6 Sport& EU Review Issue 2, 14 (Upcoming)

J T Wendt and P C Young, ‘Protecting spectator rights: reflections on the General Law of the Cup’ (2014) 14 The International Sports Law Journal 3-4, p.179

 3. Labour Law and Sport/Free movement law in Sport/Players’ Agents 

Books-Bulletins

M Colucci and F Hendrickx, ‘Regulating employment relationships in professional football’, Michele Colucci and Frank Hendrickx (eds.) European Sports Law and Policy Bulletin Issue 1-2014

S Weatherill, European sports law: collected papers (The Hague, The Netherlands: T.M.C. Asser Press 2014) 

Articles

A Brandt and others ‘An Inside Look at the World of Agents: Past Present, and Future: Panels 1 & 3’ (2014) 21 Jeffrey S. Moorad Sports Law Journal Issue 2, 259

C Daugherty Rasnic and R Resch, ‘Missing the puck at the bargaining table: the 2012–2013 National Hockey League labor dispute with some comparisons to European law’ (2014) 14 The International Sports Law Journal 3-4, p.192 

S Davidson and M Štefko, ‘Institutionalised Exploitation of U.S. College Basketball and Football Players: A Case for Protection of Employees’ Rights’ (2014) (Forthcoming)

P Disseldorp, ‘De jeugd heeft de toekomst? Over de houdbaarheid van UEFA’s home grown player rule naar Europees recht’ (2014) Tijdschrift voor Sport & Recht (TvS&R) Issue 2

T Martin, ‘The case against strengthening the home grown player rule’ (2014) African Sports Law and Business Bulletin Issue 2/2014, 51

4. Corruption in Sport 

E Barak and D Koolaard, ‘Match-fixing. The aftermath of Pobeda – what have the past four years brought us?’ (2014) TAS/CAS Bulletin 1/2014, 5

L Colantuoni, ‘Match-fixing in international sports: recent issues and TAS/CAS cases’ Papers from 19th IASL Congress, Bali 2013 (2014) 10 International Sports Law Review (ISLR), Pandektis Issues 3-4

A Di Giandomenico, ‘Toward a European regulation on sports fraud? Legal criticalities’ Papers from 19th IASL Congress, Bali 2013 (2014) 10 International Sports Law Review (ISLR), Pandektis Issues 3-4

M Kudzai Chiweshe, ‘The problem with African football: Corruption and the (under development of the game on the continent’ (2014) African Sports Law and Business Bulletin Issue 2/2014, 27

C Ordway, ‘Why this Australian supported Germany to win the World Cup’ (2014) 6 Sport& EU Review Issue 2, 6 (Upcoming)

J Tsabora, ‘Cleansing the game: mapping and tackling state-induced corruption trends in African football’ (2014) African Sports Law and Business Bulletin Issue 2/2014, 13  

5. Doping

N Ayanda Majozi, ‘Doping, are there only a few good apples in the barrel?’ (2014) African Sports Law and Business Bulletin Issue 2/2014, 41

A Duval, ‘Cocaine, doping and the court of arbitration for sport’ (December 2014) The International Sports Law Journal (available online)

A Nemes, ‘What did the Lance Armstrong case teach to the world’s doping controllers?’ Papers from 19th IASL Congress, Bali 2013 (2014) 10 International Sports Law Review (ISLR), Pandektis Issues 3-4

A Olmeda and J  Rodriguez García, ‘El código mundial antidopaje 2015’ (2014) Revista Aranzadi de derecho de deporte y entretenimiento, 289

E de La Rochefoucauld, ‘WADA Code Review Summary’ (2014) TAS/CAS Bulletin 1/2014, 36

J Viejo, ‘El caso de Marta Domínguez: el pasaporte biológico’ (2014) Revista Aranzadi de derecho de deporte y entretenimiento, 247

J T Wendt, ‘Toward harmonization in anti-doping regulation in equestrian sport’ (2014) 10 International Sports Law Review (ISLR), Pandektis Issues 3-4

E Atienza-Macias, ‘Doping and health protection: A review of the current situation in the Spanish legislation’ (2014) 10 International Sports Law Review (ISLR), Pandektis Issues 3-4

6. Human Rights in Sport

F Faut, ‘The prohibition of political statements by athletes and its consistency with Article 10 of the European Convention on Human Rights: speech is silver, silence is gold?’ (2014) 14 The International Sports Law Journal 3-4, p. 253

T Galaz, ‘Bargaining for the Next Gay Player: How Can Jason Collins Help to Develop the National Basketball Association into a More Inclusive Workplace?’ (2014) 21 Jeffrey S. Moorad Sports Law Journal Issue 2, 461

J Liljeblad, ‘Foucault, justice, and athletes with prosthetics: the 2008 CAS Arbitration Report on Oscar Pistorius’ (December 2014)

M Noland and K Stahler, ‘What Goes into a Medal: Women's Inclusion and Success at the Olympic Games’ (2014) (Forthcoming)

O A Shevchenko, ‘Role of human rights and decent work in sports’ Papers from 19th IASL Congress, Bali 2013 (2014) 10 International Sports Law Review (ISLR), Pandektis Issues 3-4 

7. Sports Arbitration and Alternative Dispute Resolution (ADR)

I Blackshaw, ‘Settling Sports Disputes by CAS Mediation’ (2014) TAS/CAS Bulletin 1/2014, 25

L Beffa and O Ducrey, ‘Review of the 2012 Case Law of the Swiss Federal Tribunal Concerning Sports Arbitration’ (2014) Causa Sport : die Sport-Zeitschrift für nationales und internationales Recht sowie für Wirtschaft Issue 1, 3

L Beffa and O Ducrey, ‘Review of the 2013 Case Law of the Swiss Federal Tribunal Concerning Sports Arbitration’ (2014) Causa Sport : die Sport-Zeitschrift für nationales und internationales Recht sowie für Wirtschaft Issue 3, 212

M Duthie, ‘Experience of a sports lawyer in mediation’ (2014) TAS/CAS Bulletin 1/2014, 31

M Grabowski, ‘Both Sides Win: Why Using Mediation Would Improve Pro Sports’ (2014) 5 The Harvard Journal of Sports and Entertainment Law (JSEL) Number 2, 190

D Mavromati, ‘The Panel’s right to exclude evidence based on Article R57 para. 3 CAS Code: a limit to CAS’ full power of review?’ (2014) TAS/CAS Bulletin 1/2014, 48

G von Segesser, Schellenberg Wittmer, ‘Admitting illegally obtained evidence in CAS proceedings – Swiss Federal Supreme Court Shows Match-Fixing the Red Card’  Kluwer Arbitration Blog (17 October 2014) 

Book Reviews

A Duval, ‘The “Swiss Army Knife” of CAS arbitration’ (November 2014) The International Sports Law Journal (available online)

8. Lex Sportiva/ Sports Governance

B Barquero, ‘Fundamentos a favor de una postura amplia en torno a la operatividad del fuero de atracción en la Ley de Salvataje de Entidades Deportivas en Crisis’ (2014) Revista de Derecho del Deporte Número 8

A Brand, ‘Changes and Challenges of Sports Policy in Europe – Sport & EU Conference Report’ (2014) 6 Sport& EU Review Issue 2, 28 (Upcoming)

M E Boyd, ‘Riding the Bench – A Look at Sports Metaphors in Judicial Opinions’(2014) 5 The Harvard Journal of Sports and Entertainment Law (JSEL) Number 2, 245

S Boyes, ‘Sports Law: Its History and Growth and the Development of Key Sources’ (2013) 21 Sport & Law Journal Issue 3

J de Dios Crespo and S Santorcuato, ‘The union of European football associations (“UEFA”) financial fair play’ (2014) African Sports Law and Business Bulletin Issue 2/2014, 56

C Pérez González, ‘Crónica sobre cuestiones relativas al derecho internacional y de la Unión Europea del deporte.’ (2014) Revista Aranzadi de derecho de deporte y entretenimiento, 549

N Grow, ‘Regulating Professional Sports Leagues’ (2015) 72 Washington and Lee Law Review (Forthcoming)

V Kapogianni, ‘The cornerstone of the frontierless sports law’ (2014) 10 International Sports Law Review (ISLR), Pandektis Issues 3-4

T Meakin, ‘The evolving legal issues on Rugby Neuro-trauma’ (2013) 21 Sport & Law Journal Issue 3

D P Panagiotopoulos, ‘General principles of law in international sports activities and lex sportiva’ Papers from 19th IASL Congress, Bali 2013 (2014) 10 International Sports Law Review (ISLR), Pandektis Issues 3-4

I V Ponkin and A I Ponkina, ‘On correlation of lex sportiva and sports law’ Papers from 19th IASL Congress, Bali 2013 (2014) 10 International Sports Law Review (ISLR), Pandektis Issues 3-4

A A Solovyev, ‘The sports laws systematization models’ Papers from 19th IASL Congress, Bali 2013 (2014) 10 International Sports Law Review (ISLR), Pandektis Issues 3-4

K Vieweg, ‘Lex sportiva and the fairness principle’ Papers from 19th IASL Congress, Bali 2013 (2014) 10 International Sports Law Review (ISLR), Pandektis Issues 3-4

H Xiang, ‘Reflections on several basic issues of sports law concepts’ Papers from 19th IASL Congress, Bali 2013 (2014) 10 International Sports Law Review (ISLR), Pandektis Issues 3-4

9. Domestic Sports Law Issues

Articles

J Anderson, ‘Village greens, commons land and the emergence of sports law in the UK’ (2014) 14 The International Sports Law Journal 3-4, p. 218

F Colin, ‘La confirmation de l’intérêt généralement limité de l’exercice du recours en rectification d’erreur matérielle devant le Conseil d’État, appliqué en droit du sport Note sous CE, 5 mars 2014’ (2014) 36 CDS, 64

F Dousset and Elodie Brunner, ‘La rémunération accessoire : un élément d’appréciation du contrat de travail ? Note sous CA Toulouse, ch. soc. 4, sect.1, 15 mai 2014’ (2014) 36 CDS, 89

N Grossman, ‘What is the NBA?’ (2015)  25 Marquette Sports Law Review, Marquette Law School Legal Studies Paper No. 14-27 (Forthcoming)

M M Heekin and B W Burton, ‘Bias in the College Football Playoff Selection Process: If the Devil is in the Details, That's Where Salvation May Be Found’ (2014) 24 Marquette Sports Law Review Issue 2, 335

C Hinson, ‘Assessing the Scope of State University Sovereign Immunity: A Commentary on the Vexing Dispute over UCF Athletics Association, Inc.’ (2014) 24 Marquette Sports Law Review Issue 2, 419

J T Holden, ‘North American sports leagues and gambling policy: a comparative analysis’ (2014) 14 The International Sports Law Journal 3-4, p. 242

Mgr. M Kralik, ‘Civil liability of sports participants in the Czech Republic’ (2014) 10 International Sports Law Review (ISLR), Pandektis Issues 3-4

S Martin, ‘La limite des pouvoirs disciplinaires d’une fédération sportive Note sous CE, 28 avril 2014’ (2014) 36 CDS, 165

K C Omuojine, ‘Dispute Resolution in Nigerian football: the need for a national dispute resolution chamber’ (2014) African Sports Law and Business Bulletin Issue 2/2014, 20 

N Partington, ‘Legal liability of coaches: a UK perspective’ (2014) 14 The International Sports Law Journal 3-4, p.232

G Rabu, ‘L’impact de la loi relative à la consommation dans le sport’(2014) 36 CDS, 15

G Rabu, ‘L’illicéité de l’interdiction conventionnelle du recours au contrat à durée indéterminée Note sous Cass. soc., 2 avril 2014’ (2014) 36 CDS, 95

G Rabu, ‘La négociation des contrats de cession de droits TV soumise au droit des pratiques restrictives de concurrence Note sous Cass. com., 20 mai 2014’ (2014) 36 CDS, 183

F Razano, ‘Keeping Sport out of the courts: the national soccer league dispute resolution chamber- a model for sports dispute resolution in South Africa and Africa’ (2014) African Sports Law and Business Bulletin Issue 2/2014, 2

F Razano and F Majani, ‘Club licensing in African football- are we there yet?’ (2014) African Sports Law and Business Bulletin Issue 2/2014, 34

L Richard, ‘La disposition qui soumet le joueur à des indemnités de rupture prohibitives est contraire à la Constitution belge Note sous Cour du travail d’Anvers, 6 mai 2014’ (2014) 36 CDS, 102

J Wolohan, ‘Sports betting in the United States: Past, Present and Future’ Papers from 19th IASL Congress, Bali 2013 (2014) 10 International Sports Law Review (ISLR), Pandektis Issues 3-4

W Xiaoping, ‘The consideration of revision of Chinese sports law a tentative analysis on proposals to legislation of professional sport’ Papers from 19th IASL Congress, Bali 2013 (2014) 10 International Sports Law Review (ISLR), Pandektis Issues 3-4

R Yavner, ‘Minor League Baseball and the Competitive Balance: Examining the Effects of Baseball’s Antitrust Exemption’ (2014) 5 The Harvard Journal of Sports and Entertainment Law (JSEL) Number 2, 266

 T Yong, ‘The concept of sports law in China’ Papers from 19th IASL Congress, Bali 2013 (2014) 10 International Sports Law Review (ISLR), Pandektis Issues 3-4  

10. Olympic Games

V Postlethwaite, ‘Sochi 2014 Winter Olympics and the controversy of the Russian Propaganda Laws: is the IOC buckling under the pressure of its own incoherence in thought?’ (2014) 14 The International Sports Law Journal 3-4, p. 264

Book Reviews

K L Jones, ‘Adam Lewis QC and Jonathan Taylor: Sports: Law and Practice’ (2014) 14 The International Sports Law Journal 3-4, p.275 

II. Recent Developments in European Sports Law 

A. EU Press Releases

New milestone in the fight against match-fixing (Brussels 18 September 2014) 

Taxation: Commission refers The Netherlands to the Court over VAT exemption for water sport activities (Brussels 25 September 2014)

Studies on betting-related match-fixing now available (Brussels 17  September 2014) : 1)EAC/16/2013 Study on risk assessment and management and prevention of conflicts of interest in the prevention and fight against betting-related match fixing in the EU 28 (T.M.C. Asser Instituut / Asser International Sports Law Centre, July 2014) and 2) Study on the sharing of information and reporting of suspicious sports betting activity in the EU 28 (Oxford Research and VU Amsterdam) 

B. Council of Europe Conventions

Council of Europe Convention on the Manipulation of Sports Competitions (adopted on 9 July 2014 and opened for signatures on 18 September 2014)

C. EU Commission Decisions

C (2014)7378, Commission decision adopting the arrangement for cooperation between the European Commission and UEFA (Brussels 14 October 2014) http://ec.europa.eu/sport/news/2014/docs/uefa2014_en.pdf

D. UN Resolution

Resolution A/69/L.5 of 16 October 2014 on Sport for Development and Peace http://www.un.org/ga/search/view_doc.asp?symbol=A/69/l.5.

III. Case Law

1. TAS/CAS

CAS 2014/A/3630 Dirk de Ridder v. International Sailing Federation (ISAF)

CAS 2014/A/3665/3666/3667 Luis Suarez / FC Barcelona / Uruguayan Football Association / FIFA 

CAS 2014/A/3518 Zamalek Sporting Club v. Accra Hearts of Oak Sporting Club

CAS AG 14/03 Tai Cheau Xuen v. Olympic Council of Asia

CAS 2014/A/3516 George Yerolimpos v. World Karate Federation

CAS AG 14/02 Pg Mohammed Nasir Pg Anak Jaafar v. Brunei Darussaalam National Olympic Council

CAS AG 14/01 Rahul Kumar & Saket Wali v. ASF & OCA & WSF

CAS 2014/A/3694 Roman Kreuziger v. UCI

CAS 2013/A/3417 FC Metz v. NK Nafta Lendava

CAS 2013/A/3389 Virach Chanpanich v. The Football Association of Thailand

TAS 2014/A/3475 Charline Van Snick c. Fédération Internationale de Judo (FIJ) (Doping)

CAS 2013/A/3062 Kevin Sammut v. UEFA

2. FIFA Dispute Resolution System 

Labour Disputes

Decision of the Dispute Resolution Chamber, Club K, from country A v. Player Q, from country P (30 July 2014)

Decision of the Dispute Resolution Chamber, Club S, from country A v. Player P, from country A and Club B, from country T (30 July 2014)

Decision of the Dispute Resolution Chamber, Player D, from country R v. Club X, from country T and Club Y, from country T as intervening party (30 July 2014)

Decision of the Dispute Resolution Chamber, Player P, from country X v. Club Y, from country S (30 July 2014)

Decision of the Dispute Resolution Chamber, Player W, from country T v. Club A, from country U (30 July 2014)

Decision of the Dispute Resolution Chamber, Player R, from country E v. Club C, from country M and Club W, from country G as intervening party (30 July 2014)

Decision of the Dispute Resolution Chamber Judge, Player R, from country B v. Club A, from country R (27 August 2014)

Decision of the Dispute Resolution Chamber Judge, Player R, from country T v. Club A, from country L (27 August 2014)

Decision of the Dispute Resolution Chamber, Player G, from country N v. Club I, from country E (20 August 2014)

Decision of the Dispute Resolution Chamber Judge, Player B, from country G v. Club F, from country C (27 August 2014)

Decision of the Dispute Resolution Chamber Judge, Player B, from country H v. Club Z, from country I (27 August 2014)

Decision of the Dispute Resolution Chamber, Player J, from country U v. Club S, from country E and Club Y (20 August 2014) (in Spanish)

Decision of the Dispute Resolution Chamber, Player M, from country A v. Club L, from country G and Club T, from country A as intervening party (20 August 2014)

Decision of the Dispute Resolution Chamber, Player M, from country I v. Club P, from country R (28 August 2014)

Decision of the Dispute Resolution Chamber Judge, Player D, from country N v. Club S, from country H (27 August 2014)

Decision of the Dispute Resolution Chamber, Player K, from country G v. Club K, from country T (20 August 2014)

Decision of the Dispute Resolution Chamber Judge, Player D, from country N v. Club S, from country H (27 August 2014)

Decision of the Dispute Resolution Chamber, Player K, from country G v. Club K, from country T (20 August 2014)

Decision of the Dispute Resolution Chamber, Player B, from country C v. Club K, from country T (28 August 2014)

Decision of the Dispute Resolution Chamber, Player F, from country A v. Club O, from country C and Club L, from country S as intervening party (20 August 2014)

Decision of the Dispute Resolution Chamber Judge, Player M, from country A v. Club X, from country X (20 August 2014) (in Spanish)

Decision of the Dispute Resolution Chamber Judge, Player E, from country P v. Club A, from country C (27 August 2014) (in Spanish)

Decision of the Dispute Resolution Chamber Judge, Player S, from country C v. Club O, from country C (20 August 2014)

Decision of the Dispute Resolution Chamber, Player I, from country M v. Club A, from country K (20 August 2014) 

Disputes about the Training Compensation

Decision of the Dispute Resolution Chamber, Club L, from country P v. Club T, from country S regarding training compensation in connection with the player M (30 July 2014)

Decision of the Dispute Resolution Chamber, Club V, from country N v. Club M, from country T regarding training compensation in connection with the player O (30 July 2014)

Decision of the Dispute Resolution Chamber Judge, Club X, from country U v. Club A, from country A regarding training compensation in connection with the player O (20 August 2014) (in Spanish)

Decision of the Dispute Resolution Chamber, Club A, from country A v. Club X, from country M regarding training compensation in connection with the player B (28 August 2014) (in Spanish) 

Solidarity Contribution Disputes

Decision of the Dispute Resolution Chamber Judge, Club S, from country B v. Club G, from country I regarding solidarity contribution in connection with the transfer of the player C (27 August 2014)

Decision of the Dispute Resolution Chamber, Club A, from country B v. Club D, from country U and Club G, from country B as intervening party regarding solidarity contribution in connection with the transfer of the player D (20 August 2014)

Decision of the Dispute Resolution Chamber, Club J, from country B v. Club D, from country U and Club V, from country B as intervening party regarding solidarity contribution in connection with the transfer of the player O (20 August 2014)

Decision of the Dispute Resolution Chamber Judge, Club W, from country G v. Club K, from country T regarding solidarity contribution in connection with the transfer of the player Y (27 August 2014)

Decision of the Dispute Resolution Chamber Judge, Club E, from country G v. Club K, from country T regarding solidarity contribution in connection with the transfer of the player Y (27 August 2014)

Decision of the Dispute Resolution Chamber Judge, Club S, from country G v. Club K, from country T regarding solidarity contribution in connection with the transfer of the player Y (27 August 2014)

Decision of the Dispute Resolution Chamber Judge, Club B, from country G v. Club K, from country T regarding solidarity contribution in connection with the transfer of the player Y(27 August 2014) 

3. National Courts Decisions

Swiss Federal Tribunal Decision 4A_324/2014, Fenerbahçe Spor Kulübü v Union des Associations Européennes de Football (UEFA) (16 October 2014)

United States Courts of Appeals for the Ninth Circuit, NCAA Student-Athlete name & likeness litigation (No 10-15387)

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 3: Proof of intent (or lack thereof) under the 2015 World Anti-Doping Code
Day 4: Ensuring proportionate sanctions under the 2015 World Anti-Doping Code

Editor's Note
Marjolaine Viret: An attorney-at-law at the Geneva bar, specialising in sports and health law. Her doctoral work in anti-doping was awarded a summa cum laude by the University of Fribourg in early 2015. She gained significant experience in sports arbitration as a senior associate in one of Switzerland’s leading law firms, advising clients, including major sports federations, on all aspects of anti-doping. She also holds positions within committees in sports organisations and has been involved in a variety of roles in the implementation of the 2015 WADC. Her book “Evidence in Anti-Doping at the Intersection of Science & Law” is scheduled for publication in 2015.

Emily Wisnosky: An attorney-at-law admitted to the California bar, she currently participates in the WADC 2015 Commentary research project as a doctoral researcher. She also holds an LLM from the University of Geneva in International Dispute Settlement, with a focus on sports arbitration. Before studying law, she worked as a civil engineer.

Introduction

Doping often results from the illegitimate use of a therapeutic product. As a result, many Prohibited Substances and Methods are pharmaceutical innovations that are or have been developed to serve legitimate therapeutic purposes. Much is being done within the anti-doping movement to coordinate efforts with the pharmaceutical industry in order to prevent abuse of drugs that have been discontinued or are still in development phase. Conversely, at the other end of the range, some Athletes may require legitimate medical treatment and wish to receive that treatment without being forced to give up their sports activities.

This post takes a cursory look at how the World Anti-Doping Code (“WADC” or “Code”) tackles these issues and provides a summary of the main changes that affect the modalities for Athletes to receive medical treatment after the 2015 revision. The first part discusses the avenues open to an Athlete to compete while under treatment, namely by applying for a Therapeutic Use Exemption (“TUE”) or, in some cases, navigating the provisions governing conditionally prohibited substances. The second part addresses the consequences in case an Athlete should fail to take the proper avenues. The post closes with observations regarding the current system in light of one of the pillars of the anti-doping movement: the Athlete’s health.

1.     Obtaining Clearance to Compete – Therapeutic Use Exemptions and Conditional Prohibitions

Amendments to Procedural Requirements for Granting a TUE

An Athlete undergoing medical treatment that involves a Prohibited Substance must seek a TUE from the competent Anti-Doping Organisation (“ADO”). The 2015 regime preserves the “national vs international” distinction that existed under the previous rules. The basic principle is that International-Level Athletes request TUEs from their International Federation, while National-Level Athletes request TUEs from their National Anti-Doping Organisation (“NADO”)[1]. During the consultation process leading to the 2015 Code, recommendations were made for an international independent TUE Committee that would grant TUEs in a centralised manner. No such system has been introduced at this point, but the 2015 revision does take steps to ease the procedural burden and enhance clarity for those Athletes whose competition schedule would require multiple TUEs (e.g. those transitioning from national-level competition to international-level competition). In particular the 2015 Code:

§  Provides a streamlined process for Athletes seeking international recognition of a national-level TUE. These Athletes are now relieved from having to go through a whole new application process if they already have the benefit of a TUE granted by their NADO: they can have the TUE “recognised” by the International Federation, which “must” grant such recognition if the TUE is in compliance with the International Standard for Therapeutic Use Exemptions (“ISTUE”).

§  Encourages the automatic recognition of TUEs. ISTUE 7.1 newly encourages International Federations and Major Event Organizers to declare automatic recognition of TUEs, at least in part – e.g. those granted by certain selected other ADOs or for certain Prohibited Substances.

Another key procedural change reflected in the 2015 revision is an increased storage time for application data, in accordance with the extended statute of limitation period for initiating anti-doping proceedings from 8 to 10 years (revised WADC 17). During the TUE process, the application must include the diagnosis as well as evidence supporting such diagnosis[2]. This sensitive medical data is newly stored for 10 years under the revised 2015 regime for the approval form (versus 8 years under the 2009 regime). All other medical information must be kept for eighteen months from the end of the TUE validity[3].

Amendments to Substantive Requirements for Granting a TUE

The requirements to receive a TUE have been slightly adapted in the revised 2015 ISTUE, but not in a manner that would significantly alter the assessment. In short, the TUE Committee must find that the following four criteria are fulfilled:

1. Significant impairment to the Athlete’s health if the substance or method were withheld,
2. Lack of performance enhancement beyond a return to a normal state of health through the use of the substance or method,
3. Absence of any other reasonable therapeutic alternative, and
4. Necessity for use not a consequence of prior use without a valid TUE.

With regards to the manner in which these criteria operate, the 2015 revision:

§  Places the burden of proof on the Athlete. The 2015 ISTUE received an explicit addition that confirms and codifies the interpretation of the CAS panel in the recent ISSF v. WADA award (Article 4.1, in initio): “An Athlete may be granted a TUE if (and only if) he/she can show that each of the following conditions is met” (emphasis added). While a welcome addition for legal predictability, the hurdle for the Athlete to overcome is high and can lead to nearly insurmountable evidentiary situations, such as in ISSF v. WADA regarding beta-blockers in shooting and lack of additional performance-enhancement[4].

§  Remains silent as to the standard of proof. The requisite standard of proof to establish these substantive criteria is still not explicitly stated. Although the issue was left undecided in ISSF v. WADA, the solution most in line with the WADC and general principles of evidence seems the “balance of probability”-standard, as per the general provision for establishing facts related to anti-doping rule violations (WADC 3.1)[5].

§  Newly allows retroactive TUEs for “fairness” reasons. As a rule, TUEs must be obtained prior to using the Prohibited Substance or Method (ISTUE 4.2). Exceptionally, a TUE may be granted with retroactive effect, which mostly concerns lower-level Athletes for whom the applicable anti-doping rules accept such possibility (WADC 4.4.5), or for emergency situations (ISTUE 4.3). The 2015 ISTUE contains a new possibility to grant a retroactive TUE if WADA and the relevant ADO agree that “fairness” so requires. The scope of this new exception remains unclear. A recent award rejected an Athlete’s plea that (s)he did not “timeously” request a TUE based on ignorance of the system[6]. One may wonder whether fairness related reasons could offer a solution for situations of venire contra proprium factum, i.e. when the Athlete received assurance from a competent ADO that the substance or method was not prohibited^[7] and the latter could thus reasonably be considered estopped from pursuing a violation based on a subsequent positive test.

Transparency for Conditionally Prohibited Substances

Only minor changes were made in the 2015 revision in the context of conditionally prohibited substances. Some categories of Prohibited Substances are widely used to treat minor conditions, including in the context of sports medicine. Moreover, their effects on the Athlete may depend on the mode of use. Thus, the Prohibited List prohibits the following substances only conditionally:

§  Beta-2 agonists (class S.3) – e.g. Salbutamol, the active ingredient of “Ventolin” –widespread against asthma in endurance sports. “Limits of use” have been determined that are deemed to reflect an acceptable therapeutic use of the substance^[8].

§  Glucocorticoids (class S.9)^[9], which have been the subject of debates for their use in sports medicine, are prohibited only when administered by certain routes (oral, intravenous, intramuscular or rectal). A contrario all other routes of application are permitted.

These categories require adjustments for establishing an anti-doping rule violation compared to the standard regime, as the finding of a violation calls for information beyond the mere detection of the substance. Unless a distinctive trait for dosage or route of administration can be identified directly during Sample analysis^[10], the information must be gathered during results management and generally supposes explanations from Athletes regarding the causes that led to the findings. In particular, for these types of substances, the 2015 Code:

§  Applies a different burden of proof. Whereas the burden is on the Athlete to show that the criteria for a TUE are realised (see above), or to demonstrate the origins of the analytical findings to obtain a reduced sanction (WADC 10), for S.3 and S.9 substances proving dosage and/or route of administration is part of the requirements for a violation. A specific allocation of the burden to the Athlete is only provided in the Prohibited List for findings of Salbutamol and Formoterol above a certain Threshold. In all other situations, it ought to be sufficient for the Athlete to present credible explanations (e.g. listing the substance on the Doping Control form[11]) that the Prohibited Substance originated from an authorised Use. The burden of proof ought then to be on the ADO to convince the hearing panel to a comfortable satisfaction (WADC 3.1) that a prohibited Use occurred.

§ Prefers short-cut procedures and transparency. The International Standard for Laboratories (“ISL”) introduces the “Presumptive Adverse Analytical Finding” to promote procedural economy by allowing a laboratory to enquire with the Testing Authority whether a TUE exists prior to the confirmation step of the A Sample for a S.3 or S.9 class substance (normally the presence of a TUE is determined after report of the Adverse Analytical Finding, during the initial review by the ADO). The revised 2015 regime maintains this pragmatic solution, but seeks to foster transparency in order to avoid this short cut from being abused by ADOs to stop cases from going forward. The 2015 ISL makes it explicit that any such communication and its outcome must be documented and provided to WADA (ISL 5.2.4.3.1.1)[12].

2.     Sanctions for Legitimate Medical Treatment without a TUE

An Athlete who is undergoing legitimate medical treatment that involves a Prohibited Substance, but does not have a TUE might – if tested – return an Adverse Analytical Finding. As mentioned above, an anti-doping violation cannot be invalidated for reasons of legitimate medical treatment, save in exceptional circumstances where the system allows for a retroactive TUE or for authorized Use of S.3 & S.9 class substances. Thus, Athletes will typically first turn to the options in the sanctioning regime to reduce or eliminate the sanction for Fault-related reasons. The success of this effort varies considerably from case-to-case, with no clear pattern emerging in the CAS jurisprudence.

The 2015 WADC has not improved the clarity of the situation for violations involving legitimate medical treatment, unless contamination is involved. In the 2009 WADC, if Athletes were “fortunate” enough to have inadvertently Used a Specified Substance then the Panel had the flexibility to settle on a sanction ranging from a reprimand and no period of Ineligibility, up to a two-year period of Ineligibility; if the Prohibited Substance was non-Specified, the shortest period of Ineligibility available was one year. This raises questions of fairness, since violations under similar factual circumstances, and with similar levels of fault are punished with very different sanctions.[13] The 2015 WADC remedied this disparate treatment when the violation involves a Contaminated Product.[14] No analogous exception to receive a facilitated reduction in the case of legitimate medical treatment is available, even though similar policy arguments could also be lodged in this context.

Before Athletes can seek to establish a Fault-related reduction, newly under the 2015 WADC they must first avoid a finding that the violation was committed “intentionally”. This prospect poses interpretational issues for medications[15]. According to the definition in WADC 10.2.3, “the term ‘intentional’ is meant to identify those Athletes who cheat.” However, the core of the definition defines “intentional” conduct as encompassing both knowing and reckless behaviour[16]. Since the violations considered in this post involve the knowing administration of a medication, it can be expected that Athletes will rely on the reference to “cheating” to argue that their conduct falls outside of this definition[17]. If they were to succeed with this line of argumentation before hearing panels, then their basic sanction starts at a two-year period of Ineligibility that is subject to further reduction for Fault-related reasons[18]. If they were to fail, they face a strict four-year period of Ineligibility, which would inevitably raise proportionality concerns for this type of violation.

The Fault-related reductions in the 2015 WADC, like those in the 2009 WADC, rest in an interpretive grey area for violations arising from legitimate medical use. A sanction can be reduced for Fault-related reasons if the Athlete can establish a factual scenario that is accepted to reflect No Fault or Negligence, or No Significant Fault or Negligence. On one hand, it is well-established that medications often contain Prohibited Substances, thus panels expect a high-level of diligence from an Athlete to avoid a violation arising from medications. Thus, these types of violations often are committed with a high level of negligence at least bordering on “significant” and at times approaching “reckless”[19]. As to the level of Fault, CAS panels are not consistent. One CAS panel found that a legitimate medical Use of a Prohibited Substance that could have been (and eventually was) excused by a TUE can implicate only a low-level of Fault[20], whereas others have come to the opposite conclusion, holding that the (alleged) “legitimate therapeutic use” of a medication was “irrelevant”, and contributed to the Athlete’s significant level of Fault[21]. In light of these different characterisations, it is difficult to predict how a panel would sanction these violations under the 2015 Code.

Conclusion – Remember Health Considerations behind Anti-Doping

Athletes do not have it easy when it comes to reconciling necessary medical treatment with high-level competition in sport. The conditions for claiming the right to compete despite Use of a Prohibited Substance or Method are stringent, and the procedure at times burdensome. There is no doubt that the system must strictly monitor any possible abuse of medical treatment as a cover up for doping attempts. Nevertheless, this system should not escalate into penalising Athletes who had a legitimate need for treatment and resorted in good faith to such treatment, especially since in many cases the performance-enhancing effects of the Use of a Prohibited Substance or Method are hypothetical at most.

The current system requires considerable Athlete transparency in matters related to their health. The TUE process is not the only context in which Athletes may have to reveal information about medical conditions and/or ongoing treatment for these conditions. Apart from the disclosure of medication and blood transfusion that Athletes are required to make on the Doping Control form, the anti-doping proceedings themselves may bring to light information about medical conditions affecting the Athlete. This may occur either because the Athlete is bound to reveal information to build a defence, or because the detection system itself may uncover collateral data indicating a pathology – known or unknown to the Athlete[22].

In return for these expectations, the anti-doping movement must keep in mind one of its key stated goals – the protection of the Athlete’s health – when regulating matters implicating legitimate medical treatment. This protection must include efforts to avoid the Athlete inadvertently committing an anti-doping rule violation while under therapeutic treatment, which may include more systematic labelling of medication with explicit warnings. The attentiveness to the Athlete’s health, however, could go beyond these efforts and exploit the data collected as part of Doping Control also for the benefit of the Athlete. The current regime already allows for suspected pathologies detected on the occasion of Doping Control to be communicated to the Athlete on certain specific aspects[23]. As Athletes agree to disclose large parts of their privacy for the sake of clean sport, it might be desirable to explore paths through which clean sport might wish to pay these Athletes back by providing them and their physicians with an additional source of data on health matters, an aspect of Athlete’s lives that is always on the brink of being endangered in elite sports.

[1]             Article 4.4.4 further addresses the right for Major Event Organisations to provide specific requirements for their Events ; for more details, see Rigozzi A, Viret M, Wisnosky E, Does the World Anti-Doping Code revision live up to its promises? Jusletter, 11 November 2013, n° 173 et seq.

[2]             See e.g. ISTUE, Annex 2.

[3]             See WADA International Standard for the Protection of Privacy and Personal Information, Annex A.

[4]             See Rigozzi A, Viret M, Wisnosky E, The ISSF v. WADA CAS Award: Another Therapeutic Use Exemption Request for Beta Blockers Shot Down, Anti-Doping Blog, 10 August 2015.

[5]             Ibid.

[6]             CAS 2014/A/3876, Stewart v. FIM, April 27, 2015. See, for a detailed analysis, see our comment on the Stewart CAS Award in Rigozzi A, Viret M, Wisnosky E, Switzerland Anti-Doping Reports, International Sports Law Review (Sweet & Maxwell), Issue 3/15, p.61 et seq, also available online at: wadc-commentary/stewart

[7]             The Prohibited List is an “open list”, which means that simply consulting the list does not always provide a conclusive answer as to whether a particular substance or method is prohibited. Prohibited Methods (“M” classes) need by their very nature to be described in somewhat general scientific terms that always leave a certain room for interpretation (see e.g. CAS 2012/A/2997, NADA v. Y). For substances (“S” classes), the precision of the description of the prohibition under the Prohibited List varies depending on the substance at stake.

[8]             Not to be confused with a Threshold concentration in the Sample. Only Salbutamol and Formoterol currently have a form of Threshold with a Decision Limit (in TD2014DL), beyond which the finding is presumed not to result from a therapeutic use and the Athlete needs to produce an administration study to invalidate the Adverse Analytical Finding.

[9]             New terminology under the 2015 Prohibited List. Up to the 2014 List, “glucocorticosteroid”.

[10]           In particular by finding Metabolites that differ depending on the route of administration. A solution codified e.g. in the revised TD2014MRPL, Table 1, for the glucocorticoid budesonide.

[11]           The standard Doping Control Form and ISTI 7.4.5 (q) invite Athletes to disclose all recent medication, supplements and blood transfusions (for blood sampling). On the legal implications of this disclosure, see Viret M, Evidence in Anti-Doping at the Intersection of Science & Law, p. 573 et seq.

[12]           On the imprecise use of the term TUE, see Viret M, Evidence in Anti-Doping at the Intersection of Science & Law, p. 379 et seq. ADOs would rely in practice on Athlete declarations on the Doping Control Form. The 2015 WADA Results Management Guidelines encourage ADOs to contact the Athlete to enquire about the route of administration if there is no TUE on the record (Section 3.4.2.2).

[13]           See also our comment on the Stewart CAS award in Switzerland Anti-Doping Reports, International Sports Law Review (Sweet & Maxwell), Issue 3/15, p.61 et seq.

[14]           A new provision (WADC 10.5.1.2) allows for these types of violations to be subject to a flexible zero-to-two year period of Ineligibility, regardless of the type of substance involved.

[15]           “Intentional” violations draw a four-year period of Ineligibility, whereas non-“intentional” violations start with a two-year basic sanction. Only non-intentional violations are subject to further reduction for Fault-related reasons. See, more generally, on intentional doping, the contribution by Howard Jacobs in this Blog Symposium.

[16]           Article 10.2.3 ab initio: “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.”

[17]           For a discussion of the expected role of the term “cheat” in establishing that a violation was “intentional”, see Rigozzi A, Haas U, Wisnosky E, Viret M, Breaking Down the Process for Determining a Basic Sanction Under the 2015 World Anti-Doping Code, International Sports Law Journal, June 10, 2015. On a related note, an argument akin to those made in the Oliveira/Foggo line of cases under the 2009 Code could also arise here: If Athletes do not have actual knowledge that their medications contain a Prohibited Substance, would purposefully consuming the product still be considered “intentional”?

[18]           Article 10.2.1 places the burden of proof to establish that the violation was not “intentional” on the Athlete if the violation did not involve a Specified Substance, and on the Anti-Doping Organisation to establish that the violation was “intentional” if the violation did involve a Specified Substance.

[19]           See, e.g. CAS 2014/A/3876, Stewart v. FIM, April 27, 2015, para. 79; See also, CAS 2012/A/2959, WADA v. Nilforushan, April 30, 2013, para. 8.21. In rare cases, Athletes have been able to establish No Fault or Negligence under very specific circumstances. See, e.g. CAS 2005/A/834, Dubin v. IPC, February 8, 2006.

[20]           See, e.g. CAS 2014/A/3876, Stewart v. FIM, April 27, 2015, para. 84 where the CAS panel held that the Athlete’s level of Fault must be considered “light” where he was prescribed the medication by a doctor and later obtained a TUE. See also CAS 2011/A/2645, UCI v. Kolobnev, February 29, 2012, paras. 87-90, which does not specifically address the possibility of obtaining a TUE, but confirmed a first instance decision (after weighing a list of factors) that a Prohibited Substance taken for purposes unrelated to sport performance, and upon medical advice fell at “the very lowest end of the spectrum of fault”.

[21]           See, e.g. the ITF Independent Anti-Doping Tribunal, ITF v. Nielsen, June 5, 2006, that found that it not relevant “whether the player might have been granted a therapeutic use exemption”. See also CAS 2008/A/1488, P. v. ITF, August 22, 2008, para. 19, which found it of “little relevance to the determination of fault that the product was prescribed with ‘professional diligence’ and ‘with a clear therapeutic intention’”. These cases were both referenced in CAS 2012/A/2959, WADA v. Nilforushan, April 30, 2013, para. 8.20.

[22]          See, as a prominent example, the Claudia Pechstein saga with respect to the explanations – doping or rare pathology? - for her abnormal blood values.

[23]           See the Guidelines for Reporting & Management of Human Chorionic Gonadotrophin (hCG) and Luteinizing Hormone (LH) Findings in male athletes, as well as the recommendations for ABP expert review in the Athlete Biological Passport Operating Guidelines.