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

 
ISLJ Annual Conference on International Sports Law

On 26 and 27 October, the T.M.C. Asser Institute in The Hague will host the first ever ISLJ Annual International Sports Law Conference. This year’s edition will feature panels on the Court of Arbitration for Sport, the world anti-doping system, the FIFA transfer regulations, human rights and sports, the labour rights of athletes, and EU law and sport. We will also welcome the following distinguished keynote speakers:

•    Miguel Maduro, former Advocate General at the European Court of Justice and former head of FIFA’s Governance Committee
•    Michael Beloff QC, English barrister known as one of the ‘Godfathers’ of sports law
•    Stephen Weatherill, Professor at Oxford University and a scholarly authority on EU law and sport
•    Richard McLaren, CAS arbitrator, sports law scholar and former head of the World Anti-Doping Agency’s (WADA) investigation into the Russian doping scandal
  

You will find all the necessary information related to the conference here. Do not forget to register as soon as possible if you want to secure a place on the international sports law pitch! [Please note that we have a limited amount of seats available, which will be attributed on a ‘first come, first served’ basis.]

The CAS award in Atlético de Madrid v. FIFA

On 1 June 2017, the CAS communicated that it had rendered an award in the arbitration procedure between the Spanish club Atlético de Madrid and FIFA regarding the transfer of minor football players. The CAS Panel confirmed the transfer ban imposed on Atlético de Madrid by the FIFA Appeal Committee in its decision of 8 April 2016. This means that, unlike Real Madrid CF whose ban was reduced by the CAS from two to one entire transfer period, Atlético de Madrid remains banned from registering players both nationally and internationally for two complete and consecutive transfer periods. However, the CAS Panel found that not all of the alleged violations of the FIFA regulations concerning the registration of minor football players could be upheld. As a result, Atlético de Madrid is now obliged to pay CHF 550,000 instead of the original fine amounting to CHF 900,000. The award is not yet available.

The CAS award in ACF Fiorentina v. Mohamed Salah and Chelsea FC

This three-party dispute emerged from a loan agreement concluded between Chelsea FC and ACF Fiorentina in early 2015. Accordingly, the Egyptian international Mohamed Salah was loaned from Chelsea FC to ACF Fiorentina for the period between 2 February 2015 and 30 June 2015, with the option to extend the loan period for twelve more months from 1 July 2015 to 30 June 2016, if certain conditions were fulfilled. In July 2015, the player decided to remain at Chelsea FC while the representatives of the Italian club demanded his return to Florence. In August 2015, Salah joined A.S. Roma on a season-long loan from Chelsea FC.

Soon after the commencement of the 2015/2016 season, ACF Fiorentina lodged a complaint with FIFA, alleging that the player breached the loan agreement without just cause, and that Chelsea FC induced him to do so. The Italian club requested a compensation of EUR 32 million and sporting sanctions against both Chelsea FC and Salah. On 26 May 2016, the FIFA Dispute Resolution Chamber rejected the complaint (‘FIFA DRC Decision’). Disappointed with this decision, ACF Fiorentina filed an appeal with the CAS on 11 October 2016.

In the shadow of Salah’s recent transfer from A.S. Roma to Liverpool FC, the CAS announced on 30 June 2017 that it had dismissed ACF Fiorentina’s appeal and confirmed the FIFA DRC Decision. The award is not yet available.

FIFA’s Human Rights Policy

The amount of work done by international sports federations to strengthen their human rights compliance increases every month. In June 2017, the world’s governing body of football published FIFA’s Human Rights Policy, a document clarifying FIFA’s approach to the implementation of its human rights commitment in accordance with the United Nations Guiding Principles on Business and Human Rights. Simultaneously, FIFA also published its Activity Update on Human Rights mapping the most significant steps taken by the world’s governing body of football over the past twelve months to mitigate human rights risks with which it is repeatedly involved.

Sports Law Related Decisions

• European Commission – State Aid: Denmark support to local sports associations
• European Commission – State Aid: United Kingdom Horserace Betting Levy
• European Court of Justice – Opinion of Advocate General Szpunar in the case between the English Bridge Union Limited and Commissioners for Her Majesty’s Revenue & Customs

Official Documents and Press Releases

• Athletics Integrity Unit – A letter to athletes from the Chair of the Athletics Integrity Unit
• CAS – The CAS confirms the transfer ban imposed on Club Atlético de Madrid for breaches of the FIFA rules regarding the transfer of minors
• CAS – The CAS dismisses the appeal filed by Russian boxer Misha Aloyan
• CAS – The CAS dismisses the appeal of ACF Fiorentina in relation to the transfer of Mohamed Salah to Chelsea FC
• CAS – The CAS registers an appeal filed by the Palestine Football Association
• FIFA – Activity Update on Human Rights
• FIFA – Human Rights Policy
• FIFA – Statement on CAS decision relating to Atlético de Madrid
• FIFA – Statement on Human Rights Watch report on Russia
• FIFA – Statement on recent media coverage regarding the ‘Garcia Report’
• Michael J. Garcia and Cornel Borbély – Report on the inquiry into the 2018/2022 FIFA World Cup bidding process
• Human Rights Watch – Red card: Exploitation of construction workers on World Cup sites in Russia
• IOC – Beijing 2022 advances its sustainability and legacy plans
• IOC – Former United Nations Secretary-General Ban Ki-Moon proposed to head IOC’s Ethics Commission
• ITF – Decision in the case of Yuri Schwanke de Andrade
• Play the Game – Report on Autonomy in National Olympic Committees 2017
• UEFA – CFCB update on break-even monitoring for 2016/2017
• UEFA – Comprehensive bidding regulations approved for all finals and final tournaments
• UEFA – Salzburg and Leipzig admitted into UEFA Champions League
• WADA – Proposed International Standard for Code Compliance by Signatories – Version 1.0
• WADA – WADA permits RUSADA to plan and coordinate testing under the supervision of international experts and the UK Anti-Doping Agency
• WADA – WADA suspends UCLA Laboratory accreditation for specific prohibited substances

In the news

Doping

• AP News Ukrainian race walker Olena Shumkina banned for doping
• Andy Brown Spanish Court rejects argument that blood tests violate privacy
• Andy Brown Urine samples at Moscow lab still under Russian protection
• Nick Butler Weightlifting given December deadline to address doping problems by IOC
• Canadian Centre for Ethics in Sport Cycling Athlete Suspended for the Presence of Testosterone
• Martha Kelner Russia’s entire 2014 World Cup squad face FIFA doping investigation
• Samuel Petrequin French anti-doping officials worried about cocaine use
• Reuters Three Russian runners banned for four years after Beijing retests
• Rebecca R. Ruiz IOC Chief says Russia will face sanctions, despite new anti-doping efforts

Football

• BBC News Paul Pogba: Man Utd cleared by FIFA over deal but Juventus face charges
• Festus Chuma FIFA investigates Magogo, Ugandan football chief
• David Conn FIFA’s anti-corruption efforts criticised after speedy clearing of Gianni Infantino
• David Conn Jorge Mendes and Wolves: How deep does the agent’s influence run?
• Graham Dunbar Swiss prosecutors confirm about 25 FIFA investigations
• Karen Freifeld and Joshua Franklin Julius Baer battles FIFA corruption fallout as ex-banker set to plead guilty
• Tom Hays Ex-banker pleads guilty to US charge in FIFA probe
• Marina Hyde FIFA lets Qatar 2022 sail on, its moral lines in the sand still on the horizon
• Paul Nicholson China’s FA ushers in transfer tax, doubling cost of imported foreign players
• Ben Rumsby Garcia report into FIFA’s bidding process that awarded World Cups to Russia and Qatar is leaked
• Rory Smith FIFA pulls back the curtain, but will it ever see the light?
• The Times of India Banned Jerome Valcke gets October CAS appeal date
• Tirana Times Skenderbeu stripped of championship title over match-fixing

Other

• Jules Boykoff Los Angeles has the perfect chance to push back against a troubled IOC
• Nick Butler Barelli criticises FINA vice-President Ramsamy before CAS hearing
• Daniel Etchells Cost of Rio 2016 Olympics rises to $ 13.2 billion - $ 3.5 billion over budget
• Sean Ingle British bobsleigh team told: Keep quiet about bullying or miss Olympics
• Mari Yamaguchi Tokyo Olympics cost twice the initial estimate: Why?

Academic Materials

• Borja García and Henk Erik Meier Global Sport Power Europe? Efficacy of the European Union in Global Sport Regulation
• Peter Millward World Cup 2022 and Qatar’s Construction Projects: Relational Power in Networks and Relational Responsibilities to Migrant Workers
• Matt Mitten Why and How the Supreme Court Should Have Decided O’Bannon v. NCAA
• James Montague The Billionaires Club: The Unstoppable Rise of Football’s Super-rich Owners
• Tom Serby Sports Corruption: Sporting Autonomy, Lex Sportiva and the Rule of Law

Blog 

Asser International Sports Law Blog

• Tomáš Grell The Olympic Games and Human Rights – Part I: Introduction to the Host City Contract
• Tomáš Grell The Olympic Games and Human Rights – Part II: Human Rights Obligations Added to the Host City Contract: Turning Point or Empty Promise?

Law in Sport

• Daniel Burgess An explanation of interim injunctions in sports litigation
• Miguel Liétard Fernández-Palacios The role of the UEFA Ethics and Disciplinary Inspector in disciplinary proceedings
• Paul J. Greene and Tomislav Kasalo Key challenges facing athletes in contaminated supplement cases: A review of the Arijan Ademi decision
• Joseph M. Hanna The National Hockey League (NHL) trying to eject two retired players from concussion lawsuit
• Saurabh Mishra A short analysis of FIBA’s decision to permit the use of headgear
• Raj Pahuja Why the eSports industry needs to be aware of local laws in order to be successful in the Middle East

Others

• Andreas Selliaas Could CAS verdict shoot down Kuwaiti suspensions?

Upcoming Events

• 31 August-1 September – EU Sports Law and Policy Summer School, Business and Law Building, Edge Hill University, Ormskirk, the United Kingdom
• 26-27 October – ISLJ Annual Conference on International Sports Law, T.M.C. Asser Institute, The Hague, the Netherlands (Early bird fee until 15 September!)
• 26-30 November – Play the Game 2017: Riding Waves of Change, Eindhoven, the Netherlands

Editor's note
Piotr is an intern at the ASSER International Sports Law Centre.

Introduction

On 24 July the Court of Arbitration for Sport (CAS) issued its decision in the proceedings brought by the Indian athlete Ms. Dutee Chand against the Athletics Federation of India (AFI) and the International Association of Athletics Federations (IAAF) in which she challenged the validity of the IAAF Regulations Governing Eligibility of Female with Hyperandrogenism to Compete in Women’s Competition (Regulations). The Regulations were established in 2011 as a response to the controversies surrounding South African athlete Caster Semenya (see e.g. here, here, and here), and for the purpose of safeguarding fairness in sport by prohibiting women with hyperandrogenism, i.e. those with excessive levels of endogenous (naturally occurring) testosterone, from competing in women athletics competitions. Owing to the subject-matter that the Regulations cover, the case before the CAS generated complex legal, scientific and ethical questions. The following case note thus aims at explaining how the Panel addressed the issues raised by the Indian athlete. It follows a previous blog we published in December 2014 that analysed the arguments raised in favour of Ms. Chand.

The Facts

Since 2012 Ms. Chand has been a resident at the National Institute of Sports, a training facility operated by the Sports Authority of India (SAI).[1] In 2013 the Indian Ministry of Youth Affairs and Sport introduced the Standard Operative Procedure which became binding on the SAI.[2] The purpose of the measure was to establish rules governing investigations, diagnosis and assessment of eligibility to compete of female athletes with hyperandrogenism.[3] According to Ms. Chand, in mid-2014 she was asked by the Director of the AFI to undergo a doping test.[4] During a meeting with Dr. Mendiratta, the Chairperson of the AFI’s Medical Commission, the athlete was informed that she needed to undertake a routine medical examination.[5] She was then subjected to an ultrasound scan instead of a blood test.[6] While denying that the medical examination had anything to do with gender determination or hypernadrogenism testing, Dr Mendiratta admitted that a number of athletes expressed their concerns regarding Ms. Chand’s appearance, and questioned whether she should be permitted to compete in female athletics competitions.[7] After additional tests at the SAI’s training camp, Ms. Chand was notified that she would neither be allowed to compete in the World Junior Championships, nor would she be eligible for selection for the Commonwealth Games due to high levels of testosterone detected in her body.[8] The information subsequently reached the media, thus compromising the confidentiality of the athlete’s case.[9] At the end of August 2014 Ms. Chand received a letter from the AFI informing her that she has been provisionally suspended from participating in any athletics events with immediate effect.[10] On 26 September 2014 the athlete filed an appeal against the decision asking the CAS to declare the Regulations invalid and void, and to set aside the AFI’s decision.[11] Even though the decision to suspend Ms. Chand was taken by the AFI, both the IAAF and the AFI agreed to the submission of the dispute to the jurisdiction of the CAS[13] which then addressed the following issues:

I.      Do the Regulations discriminate against certain female athletes on the basis of a natural physical characteristic and/or sex?

II.    Should the Regulations be declared invalid on the basis that there is insufficient scientific evidence to uphold them?

III.  Should the Regulations be regarded as disproportionate?

IV.  Are the Regulations invalid because they are a form of unauthorised anti-doping sanction?[14]

Decision of the CAS

As a preliminary point the CAS addressed the issue of the burden and the standard of proof. Concerning the former, the parties agreed that the onus of proof as to the validity of the Regulations lies with Ms. Chand, and that in case the instrument is found to be prima facie discriminatory the burden will shift to the IAAF to establish that the Regulations are justified and proportionate.[15] If the IAAF was to succeed in establishing that the measure is justified and proportionate it was then for the athlete to disprove the grounds for the justification.[16] Ms. Chand also accepted that she bears the burden of proof as to the scientific basis for the Regulations and the issue of its validity.[17] Moreover, referring to the decision in Pistorius[18], the Panel indicated that the balance of probabilities was to be the appropriate standard of proof.[19] However, the Panel indicated that the ‘standard to justify discrimination of a fundamental right, which includes the right to compete as recognised in the Hyperandrogenism Regulations, should be to a level higher than that of the balance of probabilities’.[20]

Subsequently, and in connection to the issue of discrimination, the parties and the CAS agreed that the Regulations place restrictions on the eligibility of certain female athletes to compete on the basis of a natural physical characteristic.[21] Moreover, the instrument required female athletes to undergo testing for levels of endogenous testosterone, an obligation that does not apply to male athletes. Therefore, the Regulations were regarded by the CAS as prima facie discriminatory.[22] Consequently, it was for the IAAF to prove that the measures were necessary, reasonable, and proportionate for the purpose of establishing a level playing field for female athletes (the third issue).[23]

On the question regarding the scientific basis for the Regulations the parties agreed that lean body mass (LBM) contributes to increased sports performance, however, disagreed on the question of the effect of testosterone in generating LBM.[24] The Panel thus deemed it necessary to firstly look at the issue of the relationship between testosterone and athletic performance, and secondly, the difference between endogenous and exogenous testosterone. Concerning the former, the athlete’s expert tried to convince the Panel that on the basis of a study by Healy et al, which compared 24 variables between elite male and female athletes such as hormone levels and body fat,[25] no correlation between testosterone levels and LBM can be established.[26] It was further argued, without support in clinical or scientific data however, that the difference in LBM ratios in males and females should not be attributed solely to testosterone, but also to sociological and biological factors including the growth hormone.[27] It was also submitted, again as a mere hypothesis, that if testosterone was the key determinant of athletic performance, men with low testosterone should not be capable of successfully competing in sporting events.[28] In their response the IAAF’s experts criticized the above-mentioned study pointing at its methodological limitations (failure to use state-of-the-art methods for measuring testosterone),[29] the fact that the samples were not taken for medical purposes,[30] the timing of the blood samples (those were taken after competitions when testosterone levels in men are likely to be decreased),[31] and the lack of a discussion on the correlation between testosterone and LBM.[32] In this regard the Panel noted that, contrary to the athlete’s experts, the IAAF’s experts, relying on inter alia the Harper study, specifically addressed the relationship between testosterone and LBM. The IAAF’s experts thus established evidence for testosterone being the key factor underlying the difference in male and female athletes’ performance.[33] Moreover, the Panel agreed with the IAAF’s experts that ‘outliers’, i.e. athletes with abnormal levels of testosterone, should not be taken into account for the purpose of establishing the average testosterone levels of male and female athletes.[34] Consequently, the CAS decided that by failing to sufficiently address the issue of the relationship between testosterone and LBM, Ms. Chand did not present a case that testosterone is not a material factor in determining athletic performance.[35]

The relevance of the second sub-issue was due to the fact that the athlete and her experts agreed that exogenous testosterone has performance enhancing effects.[36] Also here the Panel was faced with contradicting evidence and testimonies. Ms. Chand’s experts indicated that the 2005 Sader study established that exogenous and endogenous testosterone may have opposite effects.[37] Furthermore, on the basis of the research done by Crewthler et al it was argued that both ‘types’ of testosterone do not necessarily lead to the same results in terms of muscle growth enhancement.[38] The IAAF’s experts did not accept these arguments. They described the Sader study as flawed in terms of the methodology used (e.g. lack of specification as to whether the subjects themselves were hyperandrogenic),[39] and submitted that the research done by Crewthler et al has not only been misrepresented since it focused on examining the short-term effects of exogenous and endogenous testosterone, but also that its findings were inconclusive.[40] Furthermore, the IAAF referred to the Cardinale and Stone study which examined both the testosterone levels and jumping abilities of female volleyball players and sprinters, and where the correlation between endogenous testosterone and performance has been established.[41] The counter argument by the athlete’s experts that the difference between sprinters and volleyball players may be due to the different nature of the two sports was considered by the Panel as a speculation and a hypothesis which cannot trump the established data and was thus rejected.[42] As a result, the CAS ruled that, based on the current scientific knowledge, it is not possible to conclude with certainty whether a difference between exogenous and endogenous testosterone exists.[43] Hence, as the burden of proof was on the athlete, she failed to prove the existence of such a difference which in turn led the CAS to conclude that there is a scientific basis for the use of testosterone as the determining factor under the Regulations.[44]

On the issue of proportionality the CAS underlined that it was of the view that endogenous testosterone is a key biological indicator of the difference between males and females.[45] It also noted that there are two categories of competitions, namely male and female, and that they cover all athletes wishing to compete.[46] However, the CAS also pointed out that it is contrary to the fundamental principles of Olympism to prevent some women from competing as a consequence of the natural and unaltered state of their body.[47] As a consequence, the Regulations could stand only if the IAAF could prove that the measures were necessary and proportionate for achieving the goal of safeguarding fair competition. And since the Regulations were based on a premise that women with hyperandrogenism enjoy a significant performance advantage, the degree of the advantage became the key issue in assessing the proportionality of the measure.[48] Here, the CAS relied on expert testimonies in order to assess both the quantitative and qualitative effects of high levels of testosterone on female athletes. Concerning the former, the CAS concluded that there is currently no evidence as to the exact effect of hyperandrogenism on female athletes’ performance.[49] Regarding the latter, the Panel found that medical examinations of female athletes are similarly not capable of providing sufficient data to illustrate what degree of competitive advantage results from endogenous testosterone over the level of 10 nmol/L that has been accepted as the threshold for the purpose of the Regulations.[50] Hence, the CAS was not able to conclude that hyperandrogenic female athletes enjoy a substantial competitive advantage.[51]  Excluding them from competing unless they agree to take medication or undergo a treatment cannot be regarded as a necessary and proportionate means of safeguarding fairness.

Lastly, the CAS rejected the athlete’s contention that the Regulations constitute an impermissible doping sanction. The Panel indicated that anti-doping sanctions seek only to punish the use of external substances by athletes and endogenous testosterone cannot be regarded as such.[52] Moreover, the CAS indicated that the Regulations provide for eligibility rules, and thus, have not been established to regulate prohibited conduct and to impose sanctions for violations, and do not involve any reprimand or censure.[53] Also, athletes banned on the basis of hyperandrogenism can resume competing as soon as they comply with the eligibility criteria.[54] Finally, the Panel noted that the Regulations do not purport to modify, supplement, or expand the WADA’s list of prohibited substances.[55] Consequently, the athletes last ground of appeal was rejected by the CAS.

Conclusion

The Dutee Chand affair has not quite reached the global climax experienced at the time of the Pistorius award in 2008. Yet, similar complex scientific facts and assessments are at play in evaluating whether high levels of endogenous testosterone provide such a competitive advantage to a women that she should be deprived of her fundamental right to compete in sporting competitions. The complexity of the matter is reflected in the length of the award (161 pages). In that regard the Pistorius decision was much shorter (14 pages). The arbitrators decided to comprehensively reflect the current state of scientific knowledge and debate over the role of high endogenous testosterone in providing a competitive edge to female athletes. This is a commendable feat of transparent decision-making by a Court and enables commentators and scientist to critically engage with the assessment made. On the scientific side of the case, the CAS arbitrators sided with IAAF. They recognise that high endogenous testosterone might provide a competitive advantage to Ms. Chand. Yet, and this is the important final twist in the decision, this does not imply that anything goes to deprive these athletes of their right to compete. Indeed, this right to compete is deemed so fundamental (obviously in line with what sport is in the end about) that a drastic restriction to it, as the one imposed on Ms. Dutee Chand, can only be justified if it is absolutely necessary and proportionate. In other words, the right to compete trumps policy decisions of international federations when these decisions are not sufficiently grounded in supporting reasons and facts. This is where the burden of proof shifts back onto the IAAF: is a high endogenous testosterone level susceptible to give an athlete such a competitive advantage that the fairness of the races be jeopardised? The IAAF has two years to demonstrate this assertion, in the meantime it will have to tolerate Ms. Chand in its competitions and we will get the opportunity to see whether or not she will outrageously dominate the world’s best runners.

[1] CAS 2014/A/3759 Dutee Chand v Athletics Federation of India and the International Association of Athletics Federations (Dutee Chand), para 8

[2] Ibidem, para 9

[3] Ibidem

[4] Ibidem, para 11

[5] Ibidem

[6] Ibidem

[7] Ibidem, para 12

[8] Ibidem, paras 15-16

[9] Ibidem, paras 17-20

[10] Ibidem, para 27

[11] Ibidem, para 75

[12] Ibidem, paras 106, 114, 358

[13] Ibidem, paras 424, 428-430, 436

[14] Ibidem, para 32

[15] Ibidem, para 441

[16] Ibidem, para 445

[17] Ibidem, paras 442-443

[18] CAS 2008/A/1480 Oscar Pistorius v the International Association of Athletics Federations

[19] Dutee Chand, paras 446-447

[20] Ibidem, para 443

[21] Ibidem, paras 448-450

[22] Ibidem, para 448

[23] Ibidem, para 449

[24] Ibidem, para 454

[25] Ibidem, para 137

[26] Ibidem, para 455

[27] Ibidem, paras 156, 460-461

[28] Ibidem, para 465

[29] Ibidem, para 456

[30] Ibidem, paras 151, 461

[31] Ibidem, para 456

[32] Ibidem

[33] Ibidem, paras 459, 462, 469

[34] Ibidem, para 467-468, 494

[35] Ibidem, paras 498-499

[36] Ibidem, para 490

[37] Ibidem, para 475

[38] Ibidem, para 478

[39] Ibidem, para 476

[40] Ibidem, para 478

[41] Ibidem, para 480

[42] Ibidem, para 481

[43] Ibidem, paras 479, 488

[44] Ibidem, paras 488, 498-499

[45] Ibidem, para 511

[46] Ibidem, para 512

[47] Ibidem, para 513

[48] Ibidem, para 517

[49] Ibidem, para 521

[50] Ibidem, para 530

[51] Ibidem, paras 524, 527, 532, 534-535

[52] Ibidem, para 543

[53] Ibidem, para 544

[54] Ibidem

[55] Ibidem, para 545

Editor’s note: Kester Mekenkamp is an LL.M. student in European Law at Leiden University and an intern at the ASSER International Sports Law Centre. This blog is, to a great extent, an excerpt of his forthcoming thesis, which he shall submit in order to complete his master’s degree.

This final blog aims to provide some broader perspective, by sketching first the grander scheme in which Article 19 RSTP – FIFA's provision on the protection of minors – operates. Thereafter, the focus will shift towards testing Article 19 RSTP, thereby keeping in mind the previous blogs (Part 1: The Early Years and Part 2: The 2009 reform and its aftermath), against EU free movement law.  

Putting Article 19 RSTP into perspective: The bigger picture

After having investigated the nuts and bolts of FIFA’s provision on the protection of minors in the first two parts of this blog, it might be useful to address its bigger picture.

Article 19 RSTP and its accompanying provisions regulate only a small share of the targeted activity. There is, unfortunately, also an illegal world. Circumvention of the prohibition is allegedly commonplace.[1] Visas and passports can be falsified.[2] Work permits can be obtained on the basis of jobs arranged by clubs.[3]

In any event, a larger dynamic constituted out of a multitude of intertwined forces is at play. Globalization and professionalization are important factors contributing to stardom in football. Football idols, especially those originating from non-European countries, like Messi, Neymar, Suarez, Drogba and Eto’o, symbolised a world of opportunity for millions of children in the developing world eager to follow that same path to global fame.[4] In many parts of South America and Central and West-Africa, where families are driven by the impetus to improve their daily lives and clubs eager to cash FIFA’s training compensation money, an entire training industry emerged with the sole objective of exporting young talents to European clubs.[5] A horrifying example of the (ultimate) consequences this process can generate was seen in 2007: A fishing trawler washed up on a Tenerife beach carrying 130 young African men, of which 15 were made to believe that they would attend trials at Olympique Marseille and Real Madrid.[6] Add to the mix a group of agents focused almost exclusively on harvesting young boys for the international football market, and one can easily understand the extreme difficulty faced by FIFA to rein these practices.[7]

It is evident that the case of minors wanting to transfer internationally is closely related to a broader set of socio-economic difficulties faced by an extremely unequal world. Wars, famine, drought, corruption and the severe economic disparity[8] between the developing and developed world are determinants that can simply not be ignored. National laws applicable to asylum, migration and trade are also part of the equation. The subject of this blog hence opens up a doorway to global complexity. A true protection of minors will therefore undoubtedly require a broader approach than solely measures concerning the world of football. Yet, FIFA’s article 19 could potentially contribute to improving the fate of some minors in the developing world. The question is, does it in practice?  

Arguments supporting the prohibition of international transfers of minors

Former FIFA and UEFA presidents, Blatter, Platini, and Johansson, have all promoted an absolute forbiddance of international transfers of minors.[9] Although such a total ban was never introduced, the 2001 “Commission-condoned” FIFA transfer rules for the first time included a section dedicated to the enhancement of the protection of minors.[10] An accompanying FIFA circular stipulated that the new transfer rules imposed strict conditions “in order to provide a stable environment for the training and education of players”.[11] Moreover, it stated that the abuses, which were frequent in the past, had to be curbed. [12] Crucial in this is “protecting the appropriate and stable development of a minor as a whole”, which includes the training and education of these players.[13]

Another argument supporting Article 19 is its objective to tackle human trafficking. By strictly limiting the possibility for international transfers of minors, it takes the wind out of the traffickers’ sails. The significance of this aim was acknowledged by the European Parliament and the Commission.[14]

The thought behind the prohibition, being open to exception only in specific cases, is that minors are vulnerable, especially when moving to foreign countries. It tries to prevent football from breaking up families and “allows [minor football players] to remain within their country of origin and family networks for longer and hence reduces the psychological and cultural problems associated with adjusting to foreign climes”.[15] FIFA hereby acknowledges that “[w]hile international transfers might, in specific cases, be favourable to a young player’s sporting career, they are likely to be contrary to the best interests of the vast majority of players as minors”.[16] Poli came to a similar conclusion (concerning migration of football players in general) by stating that “the few examples of upward career paths mask the many cases of failure and are sufficient to convince young people and their families that it is worth giving oneself body and soul to football, often to the detriment of school training or an apprenticeship”.[17] 

Arguments against the prohibition of international transfers of minors

There is an opposite narrative that calls Article 19 RSTP’s rationale partially into question.[18] It can be argued that for certain countries (keeping in mind the abovementioned), with respect to the aim of protecting young football players against potential abuse and exploitation through the appropriate and stable development in training and education, minors are in reality not served by staying in their home State.[19] Furthermore, it can be contended that migration by young football players from a developing country to a developed one can be a “viable livelihood strategy to lift an individual and therefore vicariously their family out of poverty”.[20] Paradoxically a measure “with the aim of protecting minors … may, in fact, reduce opportunities for youth living in developing countries”.[21] Moreover, one must beware of an ethnocentric judgement. The argument has been raised that even in cases where third world immigrants had failed with respect to their sporting careers, they considered themselves to have succeeded, “thanks to football”, since they could come to Europe and stay.[22] It becomes a positive “escape”, which stands in contradiction with the whole idea underlying Article 19 RSTP.[23] As we will see in the coming sections, this discussion is key to the evaluation of the compatibility of FIFA’s rule with EU law. 

The Compatibility of Article 19 RSTP with EU free movement law

Applicability

For the purpose of this blog it is assumed that EU free movement law is applicable to Article 19 RSTP in relation to minor football players with an EU nationality. EU minors below the age of 16 might be able to rely on the EU citizenship rights and the free movement right of their parents. Furthermore, it can be reasonably argued that, by referring to inter alia Lawrie Blum[24], EU minor football players of 16 and above can be deemed workers in the sense of the free movement of workers. 

Free movement law aspects

A few aspects that could be deemed restrictive of EU Free movement rights deserve some attention. These are separated into situations concerning either the rights of the minor football player itself, or the rights of their parents.

Article 19(2)(b), the “EU and EEA-rule”, is explicitly created in order for the provision as a whole to meet the requirements of EU free movement law.[25] Yet, the free movement of minors is restricted by the fact that they can only transfer to a club within another Member State once additional criteria concerning football training, education and living arrangements are complied with.[26] These extra criteria, intrinsically, make it harder for minor football players to move to a foreign club. Furthermore, EU minors below the age of 16 are unable to rely on this exception. As already mentioned at the beginning of the blog, this particular age group is unlikely to perform economic services against remuneration in the sense of a “worker” under Article 45 TFEU. Nonetheless, one could envisage that under-16 EU minors could be able to rely on their citizenship rights enshrined in Article 21 TFEU (together with Art. 34(2) of the EU Charter of Fundamental Rights) as non-economically active EU migrants.

Moreover, under-16 EU minors might be able to rely on the free movement rights of their parents. In short, the reason why an EU national decides to move to another Member State and take up work there is irrelevant under EU free movement law. To the contrary, Article 19 RSTP puts an emphasis on the underlying reason, as the “parents-rule” of Article 19(2)(a) RSTP can only be invoked where the player’s parents move to the country in which the new club is located “for reasons not linked to football”. The CAS has hereby clarified that the family’s move must be entirely disconnected from the transfer of the minor in a new football club. Under the FIFA rule, it is for example insufficient to establish that the move is partially connected to their child’s football activities, although not being the primary aim.[27] Hence, if (a) parent(s) would want to move to another Member State to take up work there for the, sole or partial, reason that their child can play for a club in that country, Article 19 RSTP will deter them from doing so. As such, the contested rule may thus amount to a provision that precludes or deters the parents from leaving their country of origin in order to exercise their right to free movement as workers. 

Is Article 19 RSTP a proportionate measure under EU law?

The previous sections demonstrated that there is some room to argue that Article 19 RSTP could run counter EU Internal Market law, which could form a basis for future challenge to the provision. Regardless of whether this will ultimately be the case, the provision might benefit from some amendments. It goes without saying that the aim is on its face value laudable. Protecting minors against abuses connected to the transfer market must remain a priority. The manner in which this objective has been given practical effect has not been without criticism.

By encouraging minor football players to remain in their home country, the measure is certainly likely to contribute to them enjoying an appropriate and stable development in training and education. Furthermore, by introducing a strict regulatory regime, it lessens the chance of human traffickers using international football transfers as a cover for trafficking purposes. Therefore, it can be argued that the measure is suitable to attain its aim of protecting minors.

It then still has to be assessed whether it passes the test of necessity. As concluded at the time of its inception, an absolute ban on international transfers of minors was deemed too pervasive. The exceptions assured the overall appropriateness and reasonableness of the measure. This test raises in particular the question of existence of less intrusive alternatives. I would argue that there is indeed a less intrusive alternative to the current rule available. It involves a slight amendment of the “parents-rule” and would still attain the aim underlying the overall provision. This is achieved by firstly, omitting the requirement for the parents’ move “not to be linked to football”, and secondly, extending the mandatory obligations of clubs regarding the education and wellbeing of foreign minors, laid down in Article 19(2)(b), to the “parents-rule”. 

Proposed amendment to the “parents-rule”

Article 19(2)(a) RSTP, the “parents-rule”, has shown to be controversial. It has, to give but an example, been stated that this exemption has “effectively made the [entire] rule worthless”. [28] As discussed in the previous blogs, the case law is marred with disputes arising with respect to this exception, wherein the judicial bodies have advocated a strict application of the rule. In brief, the minor must follow its parents and not vice versa. Yet, circumvention of the rule appears to be quite simple.[29] Without implying that this is a sufficient reason for changing the measure, it nevertheless does show that its current form is rather impractical (or hypocritical).

It can be reasonably argued that permitting an international transfer only if the parents move based on “reasons not linked to football” is too stern. There are examples of outcomes being adverse to the interests of the minors concerned, for instance the Acuña case.[30] Even stronger is the appeal by families who have decided to move together to another country in order for the children to pursue their dream of becoming a professional footballer.[31] In the words of the father of a 15-year-old player who was denied to play for FC Barcelona (after they, as a family, had moved from the US to Spain with that particular aim): “Why should FIFA be able to tell our family where it has to live if we want our kid to play [football]?”[32] Indeed, why should families not be able to move out of their own accord, provided that they meet the general criteria for residence within the new country? If for instance a family has enough financial resources to not become a burden on the social welfare systems or both parents find employment within the new country, they obtain the required residence permits, and as a result their child can play for the club of his choosing, it is hard to argue that this is contradictory to the aim of Article 19 RSTP. The CAS has been receptive to this type of arguments in the previously discussed case concerning Atlético Madrid, in which a minor (USA) was allowed to register with the club amongst others because his family was wealthy and its basic financial maintenance was not dependent on the parents’ work.[33] One could rightly contend that less affluent families should equally have the possibility to move together with their child to the country of a new club. Such a move, in particularly when considering a transfer from a club in a developing country to a European club, could be in line with the aim of Article 19 RSTP. Furthermore, the comparison with other sports, i.e. volleyball, hockey, tennis, rugby and athletics, shows that in those sports minors are not explicitly prohibited from moving, together with their parents, to another country in pursuit of their sporting dream.[34] The same can be said, when the children pursue a career in music or dance and the family moves to the place where he or she can learn from the best mentors.

It is no coincidence that the “parents-rule” is the most debated exception of Article 19 RSTP. One can easily agree that it is beneficial (in a vast majority of cases) for minors to keep living with their parents as it enhances their chances of having a stable development. However, does this also have to entail in which country that might be? This author does not believe so and would favour a situation where parents are allowed to move together with their child to another country, whether that is for reasons linked to football or not.

It can be tentatively pleaded that this can be realized, while still reaching the aims of Article 19 RSTP. As abovementioned, this can be achieved by, firstly, omitting the requirement for the parents’ move “not to be linked to football”, and secondly, by extending the mandatory obligations of clubs regarding the education and wellbeing of foreign minors as laid down in the “EU and EEA-rule” (Article 19(2)(b) RSTP), to the “parents-rule”. This alternative measure would warrant the objective of “appropriate and stable development in training and education”, given that the minor and his parents remain a united family and the clubs are additionally made responsible for ensuring that their sporting and academic education is guaranteed. To also attain the anti-human-trafficking aim, this proposed alternative should be safeguarded from abuse by way of legal guardianship (e.g. situations where human traffickers are able to obtain the status of legal guardian of a minor). Therefore the meaning of parents, within the reading of this exception, should constitute solely the biological parents at first. Perhaps it is possible for the PSC subcommittee to devise a suitable test, based on the minor’s best interest, for judging whether anyone other than the biological parents could equally be deemed eligible under this exception.

In an attempt to contribute to the debate on the protection of minors in football, this blog has proposed a modest reform of Article 19 RSTP. It is believed that such a change would tackle some of the problems withnessed in the past years, without loosing sight of the objectives of FIFA's provision on the protection of minors in football.  

[1] J. Señík and T. Gábris, Minors in Sport. Position Paper on Legal Aspects of Minors in Sports in the Slovak Republic, (2010) International Sports Law Journal, p. 69.

[2] Ed Hawkins, The Lost Boys. Inside Football’s Slave Trade. Bloomsbury (2015), inter alia pp. 135, 162 and 229.

[3] S. Van den Bogaert, Practical Regulation of the Mobility of Sportsmen in the EU post Bosman, Kluwer (2005), p. 240; Supra at 2, p. 165.

[4] Supra at 2, pp. 115-116.

[5] J. Schokkaert, Football clubs’ recruitment strategies and international player migration: evidence from Senegal and South Africa, 17 Soccer & Society (2016), p. 121; The Guardian, “The scandal of Africa's trafficked players”, 6 January 2008,; Supra at 2, pp. 117-129.

[6] The Telegraph, “The dark side of football transfers”, 31 December 2014; Supra at 2, p. 132.

[7] R. Poli, African migrants in Asian and European football: hopes and realities, 13 Sport in Society (2010), p. 1008. For more on player’s agents, see A. Duval and K. Mekenkamp, “De- or Re-regulating the middlemen? The DFB’s regulation of intermediaries under EU law scrutiny at the OLG Frankfurt”, Asser International Sports Law Blog.

[8] J. Schokaert showed, supra at 5, p. 132, in comparison, that an economically higher developed country, such as South Africa as opposed to Senegal, which attracts more money to domestic football and higher wages for football players, resulting in more players to stay in their home country. 

[9] Supra at 1, p. 68.

[10] Art. 12 FIFA RSTP 2001.

[11] FIFA Circular no. 769, 24 August 2001.

[12] N. St. Cyr Clarke, The beauty and the beast: Taming the ugly side of the people’s game, 2011 Columbia Journal of European Law, p. 627.

[13] See Blog 1; Commentary on the Status and Transfer of Players, p. 58.

[14] European Parliament, Report on the future of professional football in Europe (2006/2130(INI)), paras. 33-34; The White Paper on Sport, COM(2007) 391 final, p. 16.

[15] P. Darby, “Out of Africa: The exodus of elite African football talent to Europe”, JLS 2007, p. 453.

[16] FIFA, September 2016, “FAQ Protection of Minors”, 

[17] Supra at 7, p. 1008.

[18] J. Esson, Better Off at Home? Rethinking Responses to Trafficked West African Footballers in Europe, Journal of Ethnic and Migration Studies 2015, pp. 526-527.

[19] M. LoPiccolo, You don't have to go home, but you can't stay here: Problems arising when SIJS meets international adoption, Wisconsin International Law Journal 2015, pp. 200-201.

[20] Supra at 18, p. 521.

[21] M. Mauro, Inclusive sport or institutional discrimination? New FIFA regulations, organized football and migrant youth in Italy, Sport in Society 2016, p. 2.

[22] R. Poli, African migrants in Asian and European football: hopes and realities, 13 Sport in Society (2010), p. 1009.

[23] P. Darby and E. Solberg, Differing Trajectories: Football Development and Patterns of Player Migration in South Africa and Ghana, 11 Soccer and Society (2009), pp. 118–130.

[24] Case 66/85, Lawrie Blum v Land Baden-Württemberg, [1986] ECR 2135, para. 17: the crucial elements are that, for a certain period of time, a person performs services for and under the direction of another person in return for which he receives remuneration.

[25] See blog 1.

[26] Art. 19(2)(b) RSTP: Hereby, it is important to indicate that the CAS in Vada II (TAS 2012/A/2862) has established a workable account for the particular case of players with the nationality of a EU or EEA Member State residing in a non-EU/EEA country, by allowing them to invoke this exception.

[27] TAS 2011/A/2494, FC Girondins de Bordeaux c. Fédération Internationale de Football Association (FIFA), sentence du 22 décembre 2011 (Vada I), paras. 31-38; CAS 2013/A/3140, A. v. Club Atlético de Madrid SAD & Real Federación Española de Fútbol (RFEF) & Fédération Internationale de Football Association (FIFA), award of 10 October 2013 (A. v. Club Atlético de Madrid), para. 8.25.

[28] Supra at 2, p. 246.

[29] KEA, CDES and EOSE, Study on Sports Agents in the Eurropean Union, November 2009, p. 128; Supra at 3, p. 240.

[30] See blog 2.

[31] The New York Times, “An American Boy Wonder in Barcelona”, 7 November 2013.

[32] The New York Times, “Strict Enforcement of FIFA Rules Sidelines Young Players Abroad”, 31 Augustus 2015.

[33] See blog 2; A. v. Club Atlético de Madrid, Supra at  28, para. 8.31.

[34] Supra at 30, pp. 127-129.

It may come as a surprise to laymen, but chess players are subjected to doping testing. Naturally, then, the questions follow as to why they are tested, and if they are really tested (at least, with a level of scrutiny comparable to that which physically-oriented athletes are regularly subjected).

The answer to the first question is two-fold. There is an “official” answer and a “pragmatic” answer. Regarding the ostensible one, rather typical doping terminology is employed: certain substances might enhance performance in chess, and thus, they are prohibited. A layperson might ask: “what substances are these?” One fair guess could be beta-blockers – those medications which help reduce heart rates in times of anxiety and thus contribute to clearer thinking, and which are prohibited inter alia in shooting. That sounds pretty sensible; however (mainly due of the lack of scientific evidence on the actual performance enhancing), beta-blockers are not prohibited in chess.[1] As far as I know, chess players do not use beta-blockers, and I cannot imagine that they ever actually will use them to enhance their performance. Nor do chess players use anabolics, EPO, growth hormones – or any other of the “classical” doping substances. What might be an issue is caffeine because of its stimulant properties, but it was excluded from the list of prohibited substances in 2004.[2]

So what are the substances chess players do use? The reigning world champion Magnus Carlsen drinks freshly squeezed orange juice and many top players drink either water or coffee, or both… This is “doping” for chess players. The aforementioned champion was tested several times and said that “there is not so much point of drugs testing in chess, I must admit. However, if I must, then I must.”[3] In 2008 Dresden Chess Olympiad, Vassily Ivanchuk refused to participate in a doping control and actually no penalties were applied as the whole chess community defended him. The official FIDE (World Chess Federation) statement was that he “apparently failed to understand the instructions, especially since English is not Mr. Ivanchuk’s first language.”[4] Such a “flexible” formulation employed by FIDE suggests that the anti-doping system hardly has a real deterrent effect on elite chess players.

Returning to the legal discourse, we should pose some fundamental questions originally coming from the jurisprudence of European Court of Human Rights. These questions read as follows: Is the anti-doping system restrictive, and is the restrictiveness proportionate to the aim that is being sought to achieve? The answer to the first question is positive: the doping system is undoubtedly restrictive. Testing might not only be unpleasant, but also, some accidental factors must be taken into account, and additional time is needed to grasp the medical instructions in order not to trigger a positive test because of some inadvertently taken substances. Most people might not know it, but ephedrine and its form pseudoephedrine[5] (used to treat nasal and sinus congestion and available as the well-known medicine Theraflu) are prohibited, as is heptaminol [6] which falls into Ginkorfort and/or other herbal products. These medicines are sold in pharmacy without a prescription. So, all the athletes – including chess players – should avoid such substances in-competition and some period before the competition. For instance, although the swimmer Frédérick Bousquet stated that he bought the incriminated medicine from a pharmacy, he was tested positive for the heptaminol in 2010, and handed a two month doping ban. Last but not least, each doping test costs about $400 USD. Therefore, some proportionality test should also be applied, weighing the costs and benefits of the anti-doping fight. Thus, to my mind the anti-doping system within the context of chess is not proportionate to achieve its aim – which is to create a level playing field and a clean game.

Perhaps, leaving the legal discourse aside is necessary to unveil the real (not postulated) aims lying behind the adoption of an anti-doping policy in chess. Indeed, political considerations overruled the proportionality test, and all the more interesting is that the chess community, in turn, “silently” accepted those pragmatic considerations. Guess what? Chess officials as well as players really want to get into the Olympic Games. In other words, the chess community would love being an Olympic sport, and hence, if we must, we would silently accept those unnecessary tests. To my knowledge, only a few players have ever been caught and punished. For instance, the games of two players were forfeited, since they refused to provide a sample to doping control at the Calvia Olympiad 2004.[7] It is quite a telling indicator of the potential gap between anti-doping rules and the practical implementation of those rules. And it is not because chess players are absolutely clean (who knows – perhaps they use cannabis or cocaine not less frequently than other athletes caught). It is because everyone understands that the system is designed not for chess, and therefore, “sensibly” does not strictly implement it.

Regarding the title of the blog post: chess players hardly could be associated with doping, but they are! Chess and doping could be compared to the two ships in the darkness that are just saying “hello” to each other, but not really communicating. Hence, we carry the little burden of some inconvenience related to doping testing, but the sweetness of such burden (that is the utopian hopes for inclusion in the Olympics, which probably will not come into effect in the upcoming decade or so) somehow compensates for such discomfort.

By Salomeja Zaksaite, Postdoctoral researcher[8] at Mykolas Romeris University (Lithuania), and Woman International Chess Master (WIM)

[1] Beta-blockers are prohibited in Archery (WA) (also prohibited Out-of-Competition), Automobile (FIA), Billiards (all disciplines) (WCBS), Darts (WDF), Golf (IGF), Shooting (ISSF, IPC) (also prohibited Out-of-Competition), Skiing/Snowboarding (FIS) in ski jumping, freestyle aerials/halfpipe and snowboard halfpipe/big air, http://list.wada-ama.org/prohibited-in-particular-sports/prohibited-substances/.      

[2] In 2004, WADA took all caffeine products out of the prohibited list, in spite of the fact that some caffeine products, such as Animine, can induce serious heart problems and even death if taken in high dosages (de Mondenard, 2004). Quoted from: Paoli L., Donati A. (2014), The Sports Doping Market. Understanding Supply and Demand, and the Challenges of Their Control. Springer New York Heidelberg Dordrecht London, pp. 8.

[3] Venkata Krishna “Now, even Chess players subjected to dope testing”, 20 November 2013, http://www.newindianexpress.com/sport/Now-even-Chess-players-subjected-to-dope-testing/2013/11/20/article1899989.ece .

[4]Decision of the FIDE Doping Hearing Panel, Wijk aan Zee (NED), 21 January 2009, http://www.fide.com/component/content/article/1-fide-news/3704-decision-of-the-fide-doping-hearing-panel

[5] Ephedrine is classified as a specified stimulant (S6) and is prohibited in-competition in all sports, http://list.wada-ama.org/prohibited-in-competition/prohibited-substances/.

[6] Heptaminol is classified as a specified stimulant (S6) and is prohibited in-competition in all sports, http://list.wada-ama.org/prohibited-in-competition/prohibited-substances/.

[7] Actually, the events at Calvia Olympiad are the most known to the chess community. One of those players wrote a blog post accusing FIDE of somewhat “highly flawed” disciplinary hearing.  Shaun Press “FIDE gets it right on drug testing”, 29 November 2008, http://chessexpress.blogspot.nl/2008/11/fide-gets-it-right-on-drug-testing.html. Yet, of course, there were more attempts to test and sanction chess players for anti-doping violations. For example, 2013 WADA report indicates that there were 3 adverse analytical findings (AAF) within those tested (80 samples were taken), however, to my knowledge, the outcomes of these AAF are not publicly available. 2013 Anti‐Doping Testing Figures Samples Analyzed and Reported by Accredited Laboratories in ADAMS, http://www.wada-ama.org/Documents/Resources/Testing-Figures/WADA-2013-Anti-Doping-Testing-Figures-SPORT-REPORT.pdf, pp. 6.

[8] Postdoctoral fellowship is being funded by European Union Structural Funds project ”Postdoctoral Fellowship Implementation in Lithuania”, www.postdoc.lt.