On the 24^th June 2014 the Spanish Audiencia Nacional issued its ruling on a hotly debated sports law topic: The whereabouts requirements imposed to athletes in the fight against doping. This blog aims to go beyond the existing commentaries (here and here) of the case, by putting it in the wider context of a discussion on the legality of the whereabouts requirements.                                                                          

I.              The Facts

In 2013, the Spanish High Council for Sports (Consejo Superior de Deportes) adopted resolution 1648/2013 providing two forms (Annex I and Annex II) for athletes to complete in order to fulfil their whereabouts requirements, in the view of implementing the existing Spanish laws against doping.[1]

The key legal provisions underlying this resolution read as follows (translation ASSER[2]):

Article  5 of Ley Orgánica 7/2006, de 21 de noviembre, de protección de la salud y de lucha contra el dopaje en el deporte.

3. In the view of conducting the controls referred to in the first paragraph with the greatest efficiency possible, the athletes, the teams, trainers (coaches) and managers should facilitate, in accordance with the established regulations, the gathering of the data necessary for the localisation of the habitual whereabouts of the athletes, in a way that permits to carry out the doping tests. 

Article 43 of 641/2009 Real Decreto 641/2009, de 17 de abril, por el que se regulan los procesos de control de dopaje y los laboratorios de análisis autorizados, y por el que se establecen medidas complementarias de prevención del dopaje y de protección de la salud en el deporte.

1. The athletes with a licence enabling them to participate in official competition on national level should, in accordance with the following paragraphs, facilitate the transmission of the data that permit the localisation of the habitual whereabouts of the athletes through completion of the specific form established by Resolution of el Presidente del Consejo Superior de Deportes.

3. The athletes subjected to the Individualized Plan have a specific duty to complete the form established by Resolution of el Presidente del Consejo Superior de Deportes.

Article 45 of 641/2009 Real Decreto

1. The athletes subjected to the Individualized Plan have to provide trimestral information on their habitual whereabouts, to this end they should complete the form approved by Resolution of el Presidente del Consejo Superior de Deportes, including in any case the following minimum information:

a) A postal address where the athlete can receive correspondence for notification purposes related to doping tests.

b) A clause signed by the athlete, by which he agrees to communicate the data provided to other anti-doping organizations, pursuant to article 36 de la Ley Orgánica 7/2006.

c) For each trimester, in case of an absence longer than 3 days from the habitual residence, the athlete must provide the full address of his residence or whereabouts.

d) The details, including the name and address, of the training locations of the athlete, as well as his training calendar for the trimester, and the minimum schedule of availability necessary for conducting the doping controls.

e) The trimestral competition calendar, specifying the locations, dates and types of competitions in which he is due to compete.

Spanish athletes are thus divided into two categories: those subjected to an individualized plan under article 45 of the Real decreto and those not subjected to an individualized plan. Accordingly, the Council’s resolution provides two types of obligatory forms, one for athletes not included in the individualized plan covering only the usual place(s) of training (Annex I) and one for athletes included in the individualized plan covering the usual place(s) of training but also the unusual places of training (Annex II). Those forms must be completed and communicated to the national anti-doping agency before the beginning of each trimester.

It is the legality of this resolution, which was challenged by the Spanish Association of Professional Cyclists in front of the Audiencia Nacional , that lead to the ruling adopted 24 June 2014.  

II.            The Ruling

As a preamble, the judges recognized that “the efficiency of the fight against doping would be seriously impeded if no adequate mechanism existed to monitor effectively the whereabouts obligation of the athletes”. However, the Court also considered that “both legal texts refer to the habitual localization of the athlete in order to enable the testing”. Annex I does not go beyond what is necessary to assert this usual localization. Annex II, reserved for athletes subjected to an individualized plan, however, “besides indicating the location of the habitual training whereabouts, also include the request to provide information that should facilitate the ‘occasional localization’… which means that the athletes subject to this annex are (also) subject to a permanent localization obligation”.

The judges considered that this “permanent localization duty” is “submitting the athlete to a permanent control during all the days and hours of the year, thereby exceeding what can be considered “habitual or frequent”. The measure is disproportionate and contrary to the right to privacy, and is not mandated by law, even when considering the special duties that an athlete bears as holder of a sporting licence. It is especially so when subjected to a differentiated plan, since it could be analogized to a measure of penal character requiring a permanent localization that can only be imposed as a consequence of a criminal offence. Therefore, such a permanent localization duty entails an interference that is contrary to the essence of the right to privacy”. 

Thus, the Court considered that the resolution was contrary to the right to privacy and was going beyond the wording enshrined in article 5.3 of the Ley Orgánica. Hence, it is to be considered null and void and a new resolution needs to be devised.

III.           Whereabouts Requirements in the World Anti-Doping Code

So, is this just a Spanish case, relevant only to the national context, or does it reveal a wider problem with the whereabouts requirements imposed by the World anti-doping Code?

Surely, this is first and foremost a national case. However, the laws at stake were all adopted to transpose the World Anti-Doping Code at the national level and to conform to the UNESCO Convention on Doping.[3] Consequently, grasping the scope of the requirements imposed in this regard by the WADA Code is crucial to assessing the potential wider impact of this decision.  

Article 2.4 of the WADA Code 2009 foresees that the following constitutes an anti-doping rule violation:

2.4 Violation of applicable requirements regarding Athlete availability for Out-of-Competition Testing, including failure to file required whereabouts information and missed tests which are declared based on rules which comply with the International Standard for Testing. Any combination of three missed tests and/or filing failures within an eighteen-month period as determined by Anti-Doping Organizations with jurisdiction over the Athlete shall constitute an anti-doping rule violation.  

To this end article 5.1.1 of the WADA Code 2009 provides that each Anti-Doping Organization shall:

5.1.1 Plan and conduct an effective number of In- Competition and Out-of-Competition tests on Athletes over whom they have jurisdiction, including but not limited to Athletes in their respective Registered Testing Pools. Each International Federation shall establish a Registered Testing Pool for International-Level Athletes in its sport, and each National Anti- Doping Organization shall establish a national Registered Testing Pool for Athletes who are present in that National Anti-Doping Organization’s country or who are nationals, residents, license-holders or members of sport organizations of that country. In accordance with Article 14.3, any Athlete included in a Registered Testing Pool shall be subject to the whereabouts requirements set out in the International Standard for Testing.

Finally article 14.3. of the WADA Code 2009 indicates that:

14.3 Athlete Whereabouts Information

As further provided in the International Standard for Testing, Athletes who have been identified by their International Federation or National Anti-Doping Organization for inclusion in a Registered Testing Pool shall provide accurate, current location information. The International Federations and National Anti- Doping Organizations shall coordinate the identification of Athletes and the collecting of current location information and shall submit these to WADA. This information will be accessible, through ADAMS where reasonably feasible, to other Anti-Doping Organizations having jurisdiction to test the Athlete as provided in Article 15. This information shall be maintained in strict confidence at all times; shall be used exclusively for purposes of planning, coordinating or conducting Testing; and shall be destroyed after it is no longer relevant for these purposes. 

These whereabouts requirements are further fleshed out in the International Standard for Testing 2012. Article 11.3 of the Standard deals with the Whereabouts Filing Requirements and foresees that: 

11.3.1 On a date specified by the Responsible ADO that is prior to the first day of each quarter (i.e. 1 January, 1 April, 1 July and 1 October, respectively), an Athlete in a Registered Testing Pool must file a Whereabouts Filing with his/her IF (if the Athlete has been included in its international Registered Testing Pool) or his/her NADO (if the Athlete has been included in its national Registered Testing Pool) that contains at least the following information:

a. complete mailing address where correspondence may be sent to the Athlete for formal notice purposes. Any notice or other item mailed to that address will be deemed to have been received by the Athlete five working days after it was deposited in the mail;

[…]

d. for each day during the following quarter, the full address of the place
where the Athlete will be residing (e.g. home, temporary lodgings, hotel, etc);

e. for each day during the following quarter, the name and address of each location where the Athlete will train, work or conduct any other regular
activity (e.g. school), as well as the usual time-frames for such regular activities; and

f. the Athlete’s competition schedule for the following quarter, including the name and address of each location where the Athlete is scheduled to compete during the quarter and the date(s) on which he/she is scheduled to compete at such location(s).

11.3.2 The Whereabouts Filing must also include, for each day during the following quarter, one specific 60-minute time slot between 6 a.m. and 11 p.m. each day where the Athlete will be available and accessible for Testing at a specific location. 

The question whether a specific type of information is to be included in the Whereabouts Filing is key to the Spanish ruling. The WADA Standard mentions only the “the name and address of each location where the Athlete will train, work or conduct any other regular activity (e.g. school), as well as the usual time-frames for such regular activities”. This is further broken down in the comment to article 11.3.1(e) of the Standard, where it is specified that “[T]his requirement applies only to regular activities, i.e. activities that are part of the Athlete’s regular routine”. Furthermore, the WADA Guidelines for implementing an effective athlete whereabouts program provide at article 3.5 (p.19) that “an activity is only ‘regular’ if it is done as part of a standard schedule/in accordance with a routine pattern or practice”.

One can deduce from the above review of the WADA provisions that the Spanish system was even going beyond what WADA requires in terms of information to be communicated in the framework of the whereabouts requirements. Accordingly, the Court considered that the incriminated Annex II goes beyond what is necessary to fulfil the objective of the anti-doping fight, if the global anti-doping watchdog is not confident that such information is needed. It would be a stretch, therefore, to interpret this judgment as an immediate threat for the WADA Code. Its wording seems rather to be in line with the Code’s own provisions.  

IV.          The Controversy Over Whereabouts Requirements

Anyhow, this case fuels the on-going controversy over the conciliation of whereabouts requirements with the right to privacy of athletes. The Court’s view that submitting an athlete to a permanent control of his whereabouts is contrary to her right to privacy might speak against a requirement to provide “for each day during the following quarter, the full address of the place where the Athlete will be residing (e.g. home, temporary lodgings, hotel, etc)” or “for each day during the following quarter, the name and address of each location where the Athlete will train, work or conduct any other regular
activity (e.g. school)”. The proportionality of such, little less intruding, requirements could be put to the test as well. In fact, in its second opinion on the WADA Code, Article 29 Data Protection working party of the EU, specified that “the information to be provided concerning the whereabouts and the time slots for controls should be clearly determined by taking into account the requirements of the principles of necessity and proportionality with respect to the purposes of out of competition testing, and avoiding the collection of information that might lead to undue interference in athletes’ private lives or reveal sensitive data on athletes and/or third parties”. In this regard, it “considers it to be proportionate to require personal data regards to the specific 60-minute time slot and to require filling in the name and address of each location where the athlete will train, work or conduct any other regular activity”. But, it called onto WADA to “reconsider requesting that the residence on each day of the following quarter (even temporary lodging) should be filled in (article 11.3.1 under d. of the International Standard for Testing) as this would appear to be questionable”.[4]

This controversy also has a philosophical flavor as scores of legal and social science scholars have been discussing the issue over the years. Some laments the “lack of concern given to athletes’ privacy”[5], the fact that “athletes are now just as likely to be punished for taking prohibited substances as they are for being bad at paperwork”[6], or “a State of Exception”[7] for elite athletes. Leading them to wonder: “[W]ith respect to the ‘whereabouts’ policy we must ask whether human rights are genuinely violated?”[8]

Undeniably, WADA’s Athlete Committee is supporting staunchly the whereabouts requirements[9], but its members do not represent in any democratic, nor legitimate, way the affected athlete population. However, in the face of the impossible task of enforcing a harmonized global surveillance of the implementation of the whereabouts requirements[10], recent social-science surveys have shown that athletes doubt the necessity, proportionality and efficacy of such controls.[11]

The case at hand is a great opportunity to reflect on the foucauldian turn of the anti-doping fight. In practice it is looking more and more like a panopticon, devised to optimize the surveillance of athletes, while irremediably failing to do so.[12] In turn, each new failure triggers calls for a reinforcement of the surveillance’s means and scope, thus, overlooking the deeper socio-economic roots of doping. In this context, the judgement of the Spanish High Court is reaffirming a healthy, and reasonable, limit to a potential disciplinary overreach. An overreach, which, in many eyes, raises a more fundamental question: “is it worth the cost?”[13]

[1] Especially the Ley Orgánica 7/2006, de 21 de noviembre, de protección de la salud y de lucha contra el dopaje en el deporte and the Real Decreto 641/2009, de 17 de abril, por el que se regulan los procesos de control de dopaje

[2] I thank Oskar Van Maren for his translating skills.

[3] Here one should look specifically at the preamble of the Ley Organica 7/2006 and of Real Decreto 641/2009, 1462/2009 and 1744/2011

[4] This provision is still included in the new 2015 version of the International Standard for testing and investigations at I.3.1.(d), p.88

[5] Sarah Teetzel (2007) Respecting privacy in detecting illegitimate enhancements in athletes, Sport, Ethics and Philosophy, 1:2, 159-170

[6] Niall Trainor, The 2009 WADA Code : A more proportionate deal for athletes ?, Entertainment and Sports law journal, June 2010, §65

[7] Lev Kreft (2009) The Elite Athlete – In a State of Exception?, Sport, Ethics and Philosophy, 3:1, 3-18

[8] Lev Kreft (2009) The Elite Athlete – In a State of Exception?, Sport, Ethics and Philosophy, 3:1, 3-18 p.12

[9] One example amongst many WADA Athlete Committee Meeting April 3–4, 2008, p.2

[10] See the Report to WADA Executive Committee on Lack of effectiveness of Testing Programs, 18 may 2012; Dag Vidar Hanstad , Eivind Å. Skille & Sigmund Loland (2010) Harmonization of anti-doping work: myth or reality?, Sport in Society: Cultures, Commerce, Media, Politics, 13:3, 418-430; Dikic N, Samardzic Markovic S, Mc Namee M, ‘On the efficacy of WADA’s Whereabouts policy: between filing failures and missed tests’ Deutsche Zeitschrift für Sportmedizin ‘Jahrgang 62, nr. 10 (2011), 324-328

[11] Dag Vidar Hanstad , Eivind Å. Skille & Sigmund Loland (2010) Harmonization of anti-doping work: myth or reality?, Sport in Society: Cultures, Commerce, Media, Politics, 13:3, 418-430, p.420; Diane Valkenburga, Olivier de Honb, Ivo van Hilvoordea, Doping control, providing whereabouts and the importance of privacy for elite athletes’, International Journal of Drug Policy xxx (2014) xxx–xxx

[12] This logic of surveillance is highlighted by  I. Waddington (2010), Surveillance and control in sport: A sociologist looks at the WADA whereabouts system. International Journal of Sport Policy and Politics 2: 255–74. And Hanstad, D.V., and S. Loland. ‘Elite Level Athletes’ Duty to Provide Information on their Whereabouts: Justifiable Anti-doping Work or an Indefensible Surveillance Regime?’ European Journal for Sport Sciences 9 (2009): 3–10.

[13] I. Waddington (2010), Surveillance and control in sport: A sociologist looks at the WADA whereabouts system. International Journal of Sport Policy and Politics 2: 255–74

On October 24^th and 25^th 2019, the T.M.C. Asser Institute and the International Sports Law Centre hosted the International Sports Law Journal (ISLJ) Conference for a third year in a row, bringing together a group of academics and practitioners from around the world. This year’s conference celebrated the 20^th year of the International Sports Law Journal, which was originally started by Robert Siekmann. Over the past 20 years, the ISLJ has aimed to be a truly international journal that addresses global topics in sports law while keeping the highest academic standards.

With this background, the conference facilitated discussions and exchanges over six differently themed panels on international sports law’s most pertinent issues and gave participants wide opportunities to engage with one another. Additionally, this year’s edition also had the great honor of hosting two distinguished keynote speakers, Moya Dodd and Ulrich Haas, who were able to share their wealth of experience and knowledge with the conference participants.

The following report aims to give an overview of the ISLJ Conference 2019 to extract and underline the fundamental ideas raised by the different speakers.

Day 1:

Opening Speech: Moya Dodd

The conference was kickstarted by Moya Dodd, a former FIFA Council member and current ICAS member, who gave an engaging presentation on her experiences as an athlete in boardrooms of FIFA. After retiring from the Australian National Team, she began to become involved in sport governance, starting as a member of the AFC Executive Committee. She eventually made her way to the FIFA Executive Committee where she made it a priority to represent groups who did not have a voice in FIFA’s governance. In this vain, she launched a task force for women, which helped spearhead reforms that brought gender issues into light. Ms. Dodd also explained how she worked hard to keep connections with persons outside of the sports governing structures in order to represent them from the inside. In the end, she explained how the experience playing sports helped develop skills that became invaluable in the boardroom. This includes, teamwork skills, constantly striving to improve oneself, valuing persons for their capabilities, and the ability to deal with setbacks. This discussion led particularly well into the first panel of the conference, which took a magnifying glass to the role of athletes in sports governance.

Panel 1: Where is the athletes’ voice? The (il)legitimacy of international sports governing bodies

Antoine Duval and Marjolaine Viret began the first panel of the conference by exploring the athletes’ voice in the fight against doping and particularly within WADA. They explained that in order for the World Anti-Doping Code (WADC) and WADA to be considered legitimate, the actors most affected by its policies, athletes, would need to be participating meaningfully and have a real input in the decision-making process. This input requires an actual reflection in the regulatory output of WADA, and it entails not only consulting with athlete stakeholders but that representatives have voting powers on both the code revision process and the administrative bodies of WADA. Their study examines to what extent the current operation of WADA is in line with these ideals by examining the role of athletes in WADA’s bodies and its actual regulatory output.

Mark Conrad studied the issue from a wider lens by explaining how the current representation of athletes in sports governing bodies is inadequate and why there needs to be a fundamental rethinking of the current athlete committee model. This model, he explains, is ineffective in truly representing athletes’ interests, since their mandates are not clearly defined and greatly rely on the good favor of the federations’ management. As an alternative model, he presented a collective bargaining approach, which already is widespread in North America, in which athlete unions would represent athletes’ interests in a bargaining process with the sports governing bodies. Such a model would give the athletes ‘real’ representation by relying on their strength in numbers and by negotiating agreements that would entitle them to specific rights. These agreements could cover salary standards, salary controls, free agency, drug testing and many other aspects of the employment relationship. He concluded by discussing the general pros and cons of such a model but that overall, since athletes would actually have an effective representation, it would overcome any of the negative effects of such a model.

Panel 2: Criminal law and sports – criminal law of sports

The day’s conversation then shifted from sports governance structures to the application of criminal law in sports. Björn Hessert kicked off the panel with a presentation on the cooperation and reporting obligations in sport investigations. He began by illustrating the catch-22 situation in which athletes may find themselves during an investigation. On the one hand, they are required to ‘cooperate fully’ with the investigation authorities, including providing self-incriminating evidence, or face sanctions. If they choose not to cooperate, then they also receive sanctions. This state of affairs may have had a direct impact on the skyrocketing number of sanctions over the past few years involving reporting and cooperation violations. Hessert argued that this situation could be significantly improved by introducing fundamental procedural rights found in criminal law systems to these investigations, such as the right to remain silent and the privilege against self-incrimination. These rights are found in article 6 (1) and (2) of the European Convention on Human Rights (ECHR). Such a regime would force sports governing bodies to be creative in finding new strategies to investigate and prosecute alleged sports rule violations.

After Hessert’s presentation on procedural rights in sports investigations, Jan Exner took the podium to discuss the proportionality of the sanctions in the anti-doping code. He began by giving an overview of the characteristics of the sanctions in the WADC, which include a fixed sanction framework and limited flexibility for panels hearing alleged doping rule violations. He explained that due to the rigid sanction framework of the WADC, panels hearing a doping dispute are unable to go below limits set therein and that in certain exceptional cases, these sanctions may be disproportionate. Exner then illustrated some of the negative effects of the current system in which CAS panels hearing similar factual circumstances end up with delivering different sanctions. Such a predicament, Exner argues, goes against any equality of outcome of the proceedings. In the end, he contended that there should be a revised sanction framework that would allow hearing panels to go below the limits set in the WADC as long as certain criteria are met in order to ensure that the sanction is proportionate to the rule violation.

Ruby Panchal closed the panel by shining a light on match-fixing. She argued that sports governing bodies have been so concerned with doping that match fixing has not been sufficiently addressed. Much like how anti-doping rules have been significantly developed over time, anti-match-fixing laws also need to be made far more robust. Panchal explained that certain factors essential for the development of lex sportiva will be essential in the growth of this field. These factors include the validity of unilateral action clauses, a growing relationship between sports governing bodies and state courts, the creation of evidentiary processes in disciplinary proceedings, and co-operation between sports governing bodies and investigative authorities. Panchal closed her talk by examining the approach of the Convention on the Manipulation of Sports Competitions (Macolin Convention) in addressing this regulatory void. While the Convention takes a ‘hopeful approach’, the question remains open as to how effective it will be in combatting match-fixing.

Panel 3: Transfer systems in international sports

The last panel of day one of the conference took a deep dive into transfer systems in international sports. Jan Łukomski opened the panel by studying the finalization of international football transfers and professional football players’ contracts. There are many kinds of agreements that could be potentially involved in the transfer of a football player, including offers, pre-contracts, definite contracts, that have significantly different legal effects. For example, the CAS explained in CAS 2008/A/1589 MKE Ankaragücü Spor Külübü v. J. that the difference between a pre-contract and a contract ‘is that the parties to the ‘precontract’ have not agreed on the essential elements of the contract or at least the “precontract” does not reflect the final agreement’. This is just one example of a growing CAS case law on issues of contractual validity of football contracts. In the end, Łukomski explains that often times disputes on contractual validity stems from ‘mistakes’ that were made by clubs and players during the negotiation process.

Following the examination of the transfer system in football, Xavier Mansat gave the participants a small peek into the archaic transfer model currently in place in volleyball. He took the audience on a journey of the transfer of one volleyball player by emphasizing all the different steps and actors participating in the process. Mansat also elucidated the various administrative and transfer fees that are taken out at every step by the involved actors. He closed the panel by explaining that the current system is in the process of being challenged by a new stakeholder group, Association des Clubs Professionels de Volleyball (ACPV) and that it is likely that some of the components in the current transfer framework are incompliant with EU law.

Day one ended with an opportunity for the conference participants to unwind over a dinner in the charming harbor of Scheveningen.

Day 2:

Keynote lecture: Ulrich Haas

Day two of the ISLJ Conference was launched by a lecture from Ulrich Haas, who gave an in-depth lecture on the nature and function of association tribunals in international sport. Haas underlined that while association tribunals are the most important dispute resolution mechanism in practice, legal literature on them is scarce. The sheer volume of the decisions made by association tribunals is staggering. In the case of FIFA, the decisions are around 10000-11000 per year. After having demonstrated the incredible importance of association tribunals to the functioning of sports governance, he outlined their legal basis, which is based in the freedom of association (in Switzerland and Germany). Austria, on the other hand, makes association tribunals mandatory. Haas then began to unpack the differences between authoritarian decision-making, used by association tribunals, compared to other forms of alternative dispute resolution, such as mediation, conciliation, and arbitration. Interestingly, he concluded that while all these differences can serve as indications of whether a body is an association tribunal or an arbitration panel, there is no set international standard to make this determination. Hence, there is a need to refer to national law in order to fill this void. In conclusion, Haas endorsed a procedural law approach over a substantive law approach to determine the appeals status of an association body’s decision.

Panel 4: Rethinking sports arbitration

The first panel of day two of the ISLJ Conference took to rethinking the current framework of sports arbitration. Veronica Lavista was first to go and presented her findings on the influence of international dispute settlement on sports. She took an empirical approach to her study by going through CAS’ case law and placing the arbitrators in those cases into different categories based on their background, such as a sports law, corporate law, or international law specialist. Based on this determination, Lavista was then able to identify that the makeup of the panel had an appreciable influence on the extent certain legal issues were discussed in the award. Lavista also underlined some of the overlaps between international dispute resolution and the CAS, including the voluntary nature of their jurisdiction, the use of ad hoc panels, and the explosion of case law over the past few decades.

Next up, Daniela Mirante and Artur Flaminio da Silva offered a case study in the Portuguese context of sports arbitration to argue that perhaps switching to a mandatory arbitration scheme would alleviate many of the issues currently present in the ‘voluntary’ arbitration model. Portugal created a permanent sport arbitration center in the Portuguese Court of Arbitration for Sport (TAD), which has a mandatory jurisdiction for ‘all sports disputes related to administrative law’. After underlining many of the issues plaguing the TAD, such as institutional independence and arbitrators’ impartiality, the confidentiality of the awards, and the high costs of arbitration, they explained the advantages of mandatory sports arbitration. First, it would get rid of the concept of consent, which they argue is a fiction since athletes must consent to arbitration or else not be able to participate in the sport. It would also reduce the time needed to render a decision since there would be less room for parties to challenge the jurisdiction of arbitration panels. They concluded that mandatory arbitration definitely could be a future path for sports arbitration but that it would have to follow a different path than the current Portuguese model.

To close the panel, Massimiliano Trovato brought forth his three ‘radical’ proposals to ensure the legitimacy of the CAS. Before unveiling the three proposals, Trovato gave a brief historical overview of the CAS and its relationship with the Olympic Movement to contextualize his arguments. He highlighted the interactions between the two and how certain individuals have held top positions in the CAS bodies and other sports governing bodies, like the IOC, leading to potential conflicts of interest. At this point, Trovato revealed his first proposal that article S4 and S6 of the CAS Statutes be amended to make the ICAS into a body ran by the arbitrators themselves, since they have both the ability and expertise to run the CAS for the interests of all the parties involved. Second, Trovato argued that the closed-list system of arbitrators be abolished under article S14 and move towards an open system. The quality of the arbitrators, Trovato explained, could still be assured by introducing certain minimum eligibility requirements for the arbitrators. The third proposal Trovato presented was that Article R65 be altered to make sports governing bodies responsible for the costs of arbitration, not the parties.  Shifting the burden would make sports governing bodies more disciplined and would help compensate for the fact that athletes are essentially forced into arbitration.

Book L(a)unch: The Court of Arbitration for Sport and its Jurisprudence: An Empirical Inquiry Into Lex Sportiva by Johan Lindholm

During lunchtime, the conference participants were treated to a very special book launch from the ISLJ’s chief editor, Johan Lindholm. His book, The Court of Arbitration for Sport and its Jurisprudence: An Empirical Inquiry Into Lex Sportiva, is an exhaustive and thorough empirical study into the CAS’ jurisprudence, its arbitrators, and its parties. Covering a period of 30 years (1984-2014), the book tries to unpack some of the most often raised arguments against the CAS and puts these claims to the ultimate test. For example, whether particular arbitrators are more likely to be chosen by certain parties. Furthermore, the book, through impressive data visualization graphics, illustrates a variety of intriguing data samples, including what kind of cases the CAS has deliberated and to what extent the CAS can call itself a global international sports tribunal.

Panel 5: Revisiting the (in)dependence and transparency of the CAS

Following the book l(a)unch, the next panel treated conference participants to a fascinating debate on the (in)dependence and transparency of the CAS. Velislava Hristova launched the panel by exploring the intersection between human rights and sports arbitration and in particular, the right to a public hearing in sport cases. She used the ECtHR case of Mutu and Pechstein v. Switzerland to illustrate the topic. Before jumping into the legal issues, Hristova gave an overview of the nearly 10-year legal history of the Pechstein Saga. She explained that the case boiled down to four main issues: whether Article 6 (1) ECHR (right to a fair and public hearing) could be applicable to sports arbitration, whether Pechstein waived this right, whether the CAS is sufficiently independent and impartial, and whether the lack of a public hearing in this case actually violated Article 6 (1). Next, Hristova analyzed the findings of the ECtHR on these four issues and explained how the ECtHR concluded that while the right to a public hearing is not absolute, the lack of a public hearing in Pechstein’s case was a violation because of the compulsory nature of sports arbitration, the fact that a public hearing was requested, the ‘nature and complexity’ of the case, and since the factual background had been contested. In the end, athletes, arbitrators and the CAS will have to take this landmark ruling into account moving forward.

Antonio Rigozzi further delved into the issue of the (in)dependence of the CAS by not only looking at the Pechstein case but also the Swiss Federal Tribunal’s (SFT) decision in the Seraing case and how these rulings could potentially impact the CAS. Concerning the Seraing case, he explained how the SFT had to determine whether the CAS is structurally independent, which differs from the Lazutina case because the SFT had to determine whether it was independent from FIFA, not the IOC. In the end, the SFT did not find it necessary to depart from its analysis in the Lazutina case and deemed the CAS to be independent so long there were no overriding reasons indicating that FIFA is given special treatment. Furthermore, the SFT noted that the CAS had made significant efforts to strengthen its independence by improving its structure and functioning. Rigozzi finished by drawing some conclusions from the Pechstein and Seraing cases. First, the Pechstein case has made public hearings at the CAS an inevitability now that Article 6 (1) ECHR is fully applicable to its proceedings, and the CAS will have to improve the optics concerning its rules on the appointment of the president of the panel. Secondly, the SFT in the Seraing made clear that while CAS could be further ‘perfected’, it was not the proper institution to take on such a project. Instead, it placed the responsibility in the hands of the Swiss legislator, and it is yet to be seen whether they will actually take the initiative to introduce change.

The panel was brought to a close by Tom Seamer, who plunged into the issue of the independence and impartiality of CAS arbitrators. He argued that there could be two main areas of improvement in this regard, the ICAS and the appointment of arbitrators. Concerning the ICAS, only minor changes would be necessary to drastically improve the status quo, such as ensuring that its president be neutral and has no connections with any sports governing body, athlete or clubs. Secondly, Seamer supported the contention that certain arbitrators are repeatedly nominated by the same parties and often make decisions in favor of that particular party. He explained that in order to test this theory, one must only look at the period in which the particular arbitrator was on the approved CAS list and then determine the proportion of cases they were called upon by a particular party during that same period. Seamer closed by asserting more needed to be done in order to tackle these issues, while acknowledging some of the challenges ahead.

Panel 6: The future of sports: sports law of the future

The last panel of the conference took the opportunity to look forward into the future of sports law and discussed the growing fields of e-sports and extreme sports. On e-sports, Cedric Aghey tackled the issue of e-sports governance and how it could be potentially integrated into the current sports governing structures, since currently there is an unharmonized e-sport structure. At the moment, e-sports relies on a variety of stakeholders operating at different levels, such as games publishers, e-sports governing bodies, and investors. In order to address this situation, Aghey argued that the e-sports definition should be narrowed only to video games that seek to emulate ‘traditional’ sports. This would allow for a rather seamless integration of these e-sports into the already existing sports federations. For example, FIFA would absorb its FIFA e-sport counterpart.

Nick Poggenklaas also presented on e-sports but instead took a wider definition of e-sports by not only limiting e-sports to games based on ‘traditional’ sports. He contended that the current regulatory framework present in e-sports is inadequate to sufficiently protect minors from the negative aspects of sport. This issue is particularly pertinent, since minors make an exceptionally large share of the e-sport athletes, which is especially worrying since there have been cases of doping and sexual and financial abuse. Such cases question whether enough is being done to really combat these problems. Thus, Poggenklaas put forth several proposals that could substantially improve the situation of minor’s rights in e-sports. He submitted that by creating an overarching e-sport governing body that would manage an abuse hotline, minors would be subject to a more rigid regulatory regime that would at least provide them with the opportunity and means to raise their concerns. Furthermore, Poggenklaas believes that the creation of players unions and further parent involvement would also help to ensure that minors’ interests are sufficiently protected.

Lastly, Angela Busacca examined extreme sports and the kind of civil liability applicable to these activities. She first described the elements and different classifications of extreme sports under Italian law. For instance, extreme sports have a component of risk and require a certain interaction with nature. They can also be placed on a scale ranging from sports that have a set of pre-defined rules to those where there are no pre-defined rules and consequently giving a free range for the athlete’s actions. In addition, extreme sports are categorized by those that have a clear governance organizational structure to those who do not have a defined structure. All these aforementioned components can have an impact on the establishment of civil liability and whom is responsible in case of an accident.

Conclusion

After two intense days of discussion and debate of international sports law’s most pressing topics through six differently themed panels, two keynote lectures, eighteen invited speakers, and many other highlights, the ISLJ Conference 2019 came to a close. The Asser International Sports Law Centre was honored to have been able to host another successful edition. On behalf of the organizers, we would like to thank all the speakers and participants who made this conference such a success and look forward to seeing you all back at the Institute soon!