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

The end of governance reforms at FIFA?

The main sports governance story that surfaced in the press (see here and here) during the last month is related to significant personal changes made by the FIFA Council within the organization’s institutional structure. In particular, the FIFA Council dismissed the heads of the investigatory (Mr Cornel Borbély) and adjudicatory (Mr Hans-Joachim Eckert) chambers of the Independent Ethics Committee, as well as the Head (Mr Miguel Maduro) of the Governance and Review Committee. The decision to remove Mr Maduro was taken arguably in response to his active role in barring Mr Vitaly Mutko, a Deputy Prime Minister of Russia, from sitting on the FIFA Council due to an imminent conflict of interests. These events constitute a major setback to governance reforms initiated by the football’s world governing body in 2015. For a more detailed insight into the governance reforms at FIFA, we invite you to read the recent blog written by our senior researcher Mr Antoine Duval.

The CAS award in Real Madrid CF v. FIFA

At the end of the month, the CAS finally published its award delivered in the arbitration procedure between the Spanish club Real Madrid CF and FIFA regarding the transfer of minor football players. Mr Michele Bernasconi, sitting as a Sole Arbitrator, partially upheld the appeal filed by Real Madrid CF against the decision rendered by the FIFA Appeal Committee on 8 April 2016. The Sole Arbitrator reduced the ban (registering new players both on a national and international level) imposed on the Spanish club by the FIFA Appeal Committee from two to one entire transfer period. Moreover, Real Madrid CF is now obliged to pay CHF 240,000 instead of the original fine amounting to CHF 360,000. 

UEFA incorporates human rights and anti-corruption criteria into bidding requirements

UEFA has recently made available the Bid Dossier Template for the 2024 European Championship that will be held either in Germany or Turkey. Amongst other things, the two remaining candidates shall describe in their bid dossiers a global strategy for integrating the United Nations Guiding Principles on Business and Human Rights in order to protect, respect and fulfil universal human rights, including child rights and the rights of workers. On this occasion, UEFA President Mr Aleksander Čeferin stated that ‘it was imperative […] to introduce specific articles on the respect and protection of human rights in the bidding requirements for all our competitions.’ By incorporating human rights criteria into bidding requirements, UEFA joins the International Olympic Committee and FIFA in their efforts to tackle human rights abuses associated with mega sporting events.

The return of Claudia Pechstein: Bundesverfassungsgericht edition

Claudia Pechstein is back! For those who have already forgotten the case, this is a dispute involving a German Speed Skater and Olympic gold medallist challenging the validity of a CAS award imposing a doping ban (for greater detail see our previous blogs here and here, and the article by Antoine Duval and Ben van Rompuy). Nothing less than the survival of the CAS, at least as we know it, is at stake. While Claudia Pechstein lost in front of the Bundesgerichtshof, the decision was harshly criticized (here and here) and she decided to challenge the ruling in front of the German Bundesverfassungsgericht (constitutional court). Since last month, we know that the Bundesverfassungsgericht will hear and decide the claim, this as such is already a sign that the judges deem the case worthy of consideration and should be cause for concern for those wishing to keep the CAS as it currently is. The silver lining for CAS might be in the Bundesverfassungsgericht’s Solange jurisprudence, which could find a new expression in this peculiar context (as suggested here), it would preserve the CAS’s existence while forcing it to change.

Sports Law Related Decisions

• CAS – Award delivered in the arbitration between Arijan Ademi and UEFA
• CAS – Award delivered in the arbitration between IAAF and All Russia Athletics Federation & Vladimir Mokhnev
• CAS – Award delivered in the arbitration between Real Madrid and FIFA
• Supreme Court of Spain – Decision concerning the Spanish cyclist Roberto Heras

Official Documents and Press Releases

• CAS – CAS maintains the temporary bans imposed on six Russian athletes until 31 October 2017, at the latest
• CAS – CAS reduces the sanctions of football players Enrique Luis Triverio and Pablo Cesar Aguilar Benitez
• European Commission – State Aid: Commission approves Slovak support of EUR 36 million for the construction of the national football stadium in Bratislava
• European Commission – The Council approves the new work plan for sport
• Federal Constitutional Court of Germany – Pechstein's constitutional complaint to be heard in 2017
• FIBA – FIBA’s mid-term congress ratifies new headgear rule
• FIFA – Circular no. 1583: Amendment to Article 78 of the FIFA Disciplinary Code
• FIFA – FIFA welcomes outcome of NCP mediation process on workers’ welfare in Qatar
•  FIFA – Member associations release reports on intermediaries
• FIFA – Outcome of second meeting of Governance Committee
• FIFA – Suspension of the Malian FA lifted
•  IOC – Joint statement following the meeting of IOC President, Professor Richard McLaren and WADA President
• Tennis Integrity Unit – Junn Mitsuhashi banned for life for match-fixing offences
• UEFA – Bid Dossier Template for EURO 2024
• WADA – WADA Foundation Board takes decisive action on the Way Forward for the Agency and for Clean Sport

In the news

Doping

• Andy Brown Russia’s National Anti-Doping Plan denies institutional doping
• Andy Brown Spanish police dismantle new sports doping ring
• Michael Pavitt Russia in danger of missing Pyeongchang 2018 as International Paralympic Committee maintain suspension
• Michael Pavitt Russian race walker Trofimov handed four-year ban
  

Football

• Murad Ahmed FIFA ousts governance chief in ‘night of long knives’
• The Associated Press FIFA says blackface in Sochi parade was ‘inappropriate’
• BBC Sport Gothenburg v AIK: ‘Match-fixing attempt’ leads to Swedish fixture postponement
• Simon Bradley FIFA chief Infantino seeks ‘absolute power’ after ousting ethics heads
• Children Win UEFA incorporates human rights and anti-corruption criteria into bidding requirements
• Simon Evans FIFA’s chief ethics investigator and ethics judge replaced
• Graham Dunbar Two more members leave FIFA governance panel
• Nizaar Kinsella The laws of the transfer market could be rewritten with landmark court case in Italy
• James Lynch FIFA’s chance to show they put people ahead of money is now
•  Francine McKenna Will PwC throw the red card on its Swiss firm over FIFA
• Liam Morgan Palestine threaten to take FIFA to CAS after ‘illegal’ postponement of vote by Infantino
• Tariq Panja and Gaspard Sebag Soccer star homes raided in money-laundering investigation

Other

• Amnesty International Qatar: Abuse of migrant workers remains widespread as World Cup stadium hosts first match
• Graham Dunbar Swim body monitoring VP’s alleged role in FIFA bribery case
• Daniel Etchells American tennis player Kryvonos given 10-year ban for match-fixing
• Richard Martin Cycling: Authorities ordered to pay Heras compensation after appeal fails
• Dave Zirin and Jules Boykoff Los Angeles residents start to organize against the Olympic bid

Academic Materials

• Mark James Sports Law 3^rd edition
• Nancy Leong Against Women’s Sports

Blogs

Asser International Sports Law Blog

• Antoine Duval The Reform of FIFA: Plus ça change, moins ça change?
• Serhat Yilmaz and Antoine Duval What Pogba’s transfer tells us about the (de)regulation of intermediaries in football
• Branislav Hock Nudging, not crushing, private orders: Private ordering in sports and the role of States
• Saverio Spera Exploring the Validity of Unilateral Extension Options in Football – Part 2: The view of the DRC and the CAS

Law in Sport

• Phil Bonner Are England’s current home grown player requirements sufficient to produce an elite national team?
• William Clerk The rebalancing of power: The need for greater transparency in sports tribunals
• Daniel Geey What a hard ‘red, white and blue’ Brexit may mean for domestic football
• Philip Hutchinson and Tiran Gunawardena Betting in football: Was the FA’s decision on Joey Barton a fair one?
• Stephen Ridgway The 4 key issues facing sports media rights lawyers in 2017: From Head Counsel, Sky Sports
• Lucien Valloni and Stéphanie Oneyser Player contracts: How contractual stability can override a liquidated damages clause
  

Others

• Andy Brown Pressure builds to secure fair athlete rights and representation
• Matt Hart ‘This does not sound legal’: Inside Nike’s Oregon project
• Bonita Mersiades The past is not another country for FIFA
• Léonard Stoyanov Switzerland to become more attractive for international arbitration

Upcoming Events

• 29-30 June – Sport & EU 12^th Annual Conference, Molde University College, Molde, Norway
• 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 (Registration is now open here!)
• 26-30 November – Play the Game 2017: Riding Waves of Change, Eindhoven, the Netherlands

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

The Headlines

International Sports Law Journal (ISLJ) Conference 2019

The T.M.C. Asser Institute and the Asser International Sports Law Centre held the third International Sports Law Journal (ISLJ) Conference on October 24-25. The Conference created a forum for academics and practitioners to discuss, debate and share knowledge on the latest developments of sports law. It featured six uniquely themed panels, which included topics such as ‘Transfer systems in international sports’ and ‘Revisiting the (in)dependence and transparency of the CAS’ to ‘The future of sports: sports law of the future’. The ISLJ Conference was also honored to have two exceptional keynote speakers: Moya Dodd and Ulrich Haas. To kick off the conference, Moya Dodd shared her experiences from an athlete’s perspective in the various boardrooms of FIFA. The second day was then launched by Ulrich Haas, who gave an incredibly thorough and insightful lecture on the importance, function and legal basis of association tribunals in international sport. For a detailed overview of this year’s ISLJ Conference, click here for the official conference report.

The Asser International Sports Law Centre was delighted to have been able to host another great edition of the ISLJ Conference and is thankful to all the participants and speakers who made this edition such a success.

Moving towards greater transparency: Launch of FIFA’s Legal Portal

On October 31, FIFA announced that it was introducing a new legal portal on its website that will give greater access to numerous documents that previously were kept private. FIFA explains that this is in order to help increase its transparency, which was one of the key ‘Guiding Principles’ highlighted in FIFA 2.0: The Vision for the Future released in 2016. This development comes as many sport governing bodies face increasing criticism for the opacity of its judicial bodies’ decisions, which can have tremendous economic and societal impacts. The newly available documents will include: ‘decisions rendered on the merits by the FIFA Disciplinary Committee and the FIFA Appeal Committee (notified as of 1 January 2019); decisions rendered on the merits by the FIFA Ethics Committee (notified since 1 January 2019); decisions rendered on the merits by the FIFA Players’ Status Committee and the FIFA Dispute Resolution Chamber; non-confidential CAS awards in proceedings to which FIFA is a party (notified since 1 January 2019); list of CAS arbitrators proposed by FIFA for appointment by ICAS, and the number of times they have been nominated in CAS proceedings’. The list of decisions from all the aforementioned bodies are updated every four months, according to their respective webpages. However, time will ultimately tell how consistently decisions are published. Nevertheless, this move is a major milestone in FIFA’s journey towards increasing its transparency.

Hong Kong Protests, Human Rights and (e)Sports Law: The Blizzard and NBA controversies

Both Blizzard, a major video game developer, and the NBA received a flurry of criticism for their responses to persons expressing support for the Hong Kong protests over the past month. On October 8, Blizzard sanctioned Blitzchung, a professional Hearthstone player who expressed support of the Hong Kong protest during a post-match interview, by eliminating the prize money he had won and suspending him for one year from any Hearthstone tournament. Additionally, Blizzard will cease to work with the casters who conducted the interview. With mounting disapproval over the sanctions,  J. Allen Brack, the president of Blizzard, restored the prize money and reduced the period of ineligibility to 6 months.

The NBA controversy started when Daryl Morey, the general manager of the Houston Rockets, tweeted his support for the protests in Hong Kong. The tweet garnered much attention, especially in China where it received a lot of backlash, including an announcement from CCTV, the official state broadcaster in China, that it was suspending all broadcasts of the NBA preseason games. In attempts to appease its Chinese audience, which is a highly profitable market for the NBA, Morey deleted the tweet and posted an apology, and the NBA responded by saying that the initial tweet was ‘regrettable’. Many scolded these actions and accused the NBA of censorship to which the NBA Commissioner, Adam Silver, responded that the NBA remains committed to freedom of expression.

Both cases highlighted how (e)sport organizations may be faced with competing interests to either guarantee greater protection of human rights or to pursue interests that perhaps have certain financial motivations.

Major International Sports Law Decisions

• Bundeskartellamt - Decision pursuant to Section 32b GWB (English version)

Official Documents and Press Releases

CAS

• CAS – The CAS expands
• CAS - The hearing in the CAS arbitration procedure between WADA, Sun Yang and FINA to be held in public on 15 November 2019
• CAS - IBU joins CAS Anti-Doping Division

FIFA

• FIFA - FIFA announces latest disciplinary sanctions for incidents during FIFA World Cup™ qualifying
• FIFA - FIFA Council meeting agenda now available
• FIFA - FIFA Council unanimously appoints China PR as hosts of new Club World Cup in 2021
• FIFA - FIFA launches new legal portal

IAAF

• IAAF – New IAAF Athletes' Commission members announced

IOC

• IOC - IOC to Propose Long-term Storage of Samples to Supplement the Pre-games Anti-doping Testing Programme for Tokyo 2020
• IOC - IOC Adapts to a Changing Landscape and Streamlines Its Operations
• IOC – Solidarity and Political Neutrality Vital to the Universality of the Olympic Games, President Bach Tells ANOC General Assembly
• IOC – United Against Manipulation of Competitions: IOC Welcomes a String of New Measures at the International Forum for Sports Integrity

UEFA

• UEFA - UEFA Emergency Panel decision on Kosovo/Russia

WADA

• WADA - WADA suspends accreditation of Athens Laboratory
• WADA - WADA publishes three new Technical Letters
• WADA - WADA update regarding RUSADA Code Compliance
• WADA - WADA declares the International Taekwon-Do Federation non-compliant with World Anti-Doping Code
•  WADA - WADA shares outcomes from National Anti-Doping Organization Advisory Group Meeting
• WADA - WADA publishes proposed drafts of the 2021 World Anti-Doping Code and International Standards
• WADA - WADA publishes Independent Observer Team Report from 2019 European Games
• WADA - WADA publishes amended Technical Document for Sport Specific Analysis
• WADA – WADA removes Mauritius National Anti-Doping Organization from non-compliance list
• WADA - WADA Compliance Review Committee update
• WADA - WADA update regarding RUSADA Code Compliance
• WADA - WADA and Fonds de Recherche du Québec to fund three projects researching the use of artificial intelligence for anti-doping

Other

• AthletesCAN - Open Letter to IOC President Thomas Bach
• Human Rights Watch - Marathoners Wilt in Qatar’s Oppressive Heat
• Human Rights Watch - Iran: Stadium Seating Cap Endangers Women
• Human Rights Watch – For NBA's Quandary over China, Stand with Human Rights
• International Judo Federation - Final Suspension for Iran Judo Federation
• International Shooting Sport Federation - CAS confirm seven International Federations have signed up to Anti-Doping Division
•  International Shooting Sport Federation - Decisions of the ISSF Executive Committee
•  International Table Tennis Federation - World Table Tennis, Governance and Sustainability key topics at recent ITTF Executive Committee meeting.
• Team GB - BOA and Athletes' Commission publishes Tokyo 2020 Rule 40 Guidelines
• TIU (Tennis Integrity Unit) - CAS Upholds Sanction in the Case of Patricio Heras
• UCI (Union Cycliste Internationale) - UCI Statement on Kristijan Koren and Borut Bozic
• UCI (Union Cycliste Internationale) – The UCI explores new avenues in bid to step up fight against doping in cycling
• US Olympic Committee - U.S. Olympic & Paralympic Committee Updates Domestic Athlete Marketing Guidance For Olympic And Paralympic Games Tokyo 2020
• World Archery Federation - Communication of Sanctions: Jonathan Giocondi of France

In the News

Football

• Tariq Panja - Iranian Women Allowed to Attend Soccer Game for First Time Since 1981
• Maryam Shojaei - FIFA Must Pressure Iran to Let Women Attend Soccer Matches
• Keith Bradsher and Tariq Panja - In China, FIFA’s Focus Is Soccer, Not Human Rights

Doping

• Tariq Panja - Russian Doping Chief Says Thousands of Drug Tests Were Manipulated
• Nicole Perlroth and Tariq Panja - Microsoft Says Russians Hacked Antidoping Agency Computers
• Sara Germano and Joshua Robinson - Nike CEO Mark Parker Was Briefed by Banned Coach on Doping Efforts
• Barney Ronay - Sebastian Coe’s stance on Salazar displays a very British hypocrisy

Other

• Stephen Farrand - Velon starts legal battle with UCI via European Commission anti-trust complaint
• Annie Kelly, Niamh McIntyre and Pete Pattisson - Revealed: hundreds of migrant workers dying of heat stress in Qatar each year
• Steve Menary - Mega-events and human rights: Where do we draw the line?
• John Branch  - N.B.A.-China Spat Shows Sports Isn’t (and Shouldn’t Be) Just About Games
• Daniel Victor - Blizzard Sets Off Backlash for Penalizing Hearthstone Gamer in Hong Kong

Academic Materials

International Sports Law Journal

• Marjolaine Viret - Using interdisciplinary tools to improve anti-doping: Utopia or necessity?

SSRN

• Johan Lindholm - The Court of Arbitration for Sport and the Nordics
• Gina Warren - Mega Sports Events Have Mega Environmental and Social Consequences

Blog

Law in Sport

• Ashley Cukier - How did Liverpool FC escape league cup expulsion for fielding an ineligible player?
• Tiran Gunawardena and Rustam Sethna - An overview of FIFA’s ‘Phase 2’ reforms – agents, loans and clearing house
• Guo Cai - Why understanding diplomacy is the No.1 rule for navigating the Chinese sports market (a Chinese perspective on the Rockets/NBA fallout)
• Philip Hutchinson - Meat contamination and what it means for athletes: A review of Badminton World Federation v Ratchanok Intanon
• Julian Moore - Protecting exclusivity in sports data rights: are courtsiding spotters a step too far for UK football fans?

Upcoming Events

• 22 November - Centre for Sports Law Research and Policing Research Unit - Policing Football Event, Ormskirk, UK
• 26 November - Seminar on EU Sport Diplomacy: Perspectives of Cooperation with International Organisations, Strasbourg, France
•  28 November - CIArb Kenya Annual Lecture - Promoting Sports Arbitration in Africa, Nairobi, Kenya
• 26-27 March 2020 – 14^th Conference of the PSA Sport & Politics Group, Etihad Stadium, Manchester, UK
• 18-19 June 2020 – Sport & EU 2020 Annual Conference

During the 2023/2024 academic year, the Asser International Sports Law Centre will dedicate special attention to the intersection between transnational sports law and governance and gender. This online discussion is the first of a series of (online and offline) events which will explore the way in which international SGBs and the CAS define the gender divide in international sports, police gender-based abuses, and secure gender-specific rights to athletes.

Caster Semenya, a South-African runner and Olympic champion, was dominating her favorite distance, the 800m, for a number of years, when in 2018 the World Athletics (then known as IAAF) adopted a new set of regulations (colloquially known as the DSD Regulations), which imposed new conditions to the eligibility of athletes for certain female competitions, such as the 800m. Semenya, who has a condition known as differences in sex development (DSD), was forced to decide between subjecting to a specific medical treatment aimed at diminishing the level of testosterone in her body or stopping competing on her preferred distance. As she refused to undergo any medical treatment to regain eligibility, she decided to challenge the legality of World Athletics DSD Regulations before the CAS in Lausanne. While the CAS acknowledged that the Regulations were discriminatory and were disregarding the legal sex of Semenya in the name of a so-called sporting sex, the arbitrators also considered that this discrimination was justified and proportionate. Semenya’s challenge against the award was rejected by the Swiss Federal Tribunal (SFT) in August 2020. As a last resort, she decided to lodge an application with ECtHR against Switzerland.

On 11 July 2023, the ECtHR released its judgment in the much-awaited Caster Semenya v. Switzerland case. In short, the Strasbourg Court sided with Semenya and concluded that Switzerland failed to comply with its positive obligations stemming from the European Convention on Human Rights. The ruling is an important milestone in the interaction between the CAS and (European) human rights law. It will likely affect the place of human rights (and in particular the ECHR) at the CAS, the intensity of the supervision exercised by the SFT, as well as the justification of the regulatory decisions of the SGBs. We look forward to discussing these with our two speakers, who have followed closely the case and already blogged (here and here) about the judgment:

• Dr. Lena Holzer is Assistant Professor in Gender, Race and the Law at the University of Cambridge and the author of ‘What Does it Mean to be a Woman in Sports? An Analysis of the Jurisprudence of the Court of Arbitration for Sport’.
• Dr. Michele Krech is Harry A. Bigelow Teaching Fellow, Lecturer in Law at the University of Chicago she is the author of ‘The Misplaced Burdens of ‘Gender Equality’ in Caster Semenya v IAAF: The Court of Arbitration for Sport Attempts Human Rights Adjudication’ and ‘To Be a Woman in the World of Sport: Global Regulation of the Gender Binary in Elite Athletics’.

The online discussion will be introduced and moderated by Dr. Antoine Duval and Dr. Daniela Heerdt, and will include short presentations by the speakers and a Q&A with the audience.

Registration is available for free at: https://www.asser.nl/education-events/events/?id=4325

On 26 and 27 October 2023, the Asser Institute in The Hague will host the 2023 edition of the International Sports Law Journal (ISLJ) Conference. The ISLJ is the leading academic journal in transnational sports law and governance and is proud to provide a platform for transnational scholarly exchanges on the state of the field. The conference will address a number of complex issues and disputes at the top of the transnational sports law agenda. In particular, we will zoom in on three main topics:

How football governance is (re)shaped by EU law

Since the Bosman ruling of the European Court of Justice (CJEU) in 1995, it has been obvious to football fans around the world that the European Union (EU) has a considerable influence on the governance and regulation of professional football. This year, 2023, provides us a striking reminder of this fact with (at least) two fundamental judgments of the Grand Chamber of the CJEU expected in the Superleague case and the UEFA’s home-grown players rule. Additionally, two further cases, which are challenging FIFA’s transfer system and its agent regulations, remain pending before the Luxembourg court. We will be looking closely at this relationship between EU law and the governance football through two panels (featuring senior and junior researchers) and a keynote lecture delivered by one of the finest observers of this encounter: Prof. Stephen Weatherill (Oxford University).

Autonomy and neutrality in the transnational governance of sports 

The invasion of Ukraine by Russia has postponed (once again) the end of history and revived within the Olympic Movement fundamental debates dating back to the Cold War and South-African Apartheid. Can the Olympic Movement stay neutral in the face of a clear violation of international law by Russia and of war crimes being committed by its armed forces? What should the consequences be in terms of the participation of Russian athletes and teams in international sporting competitions? If they are allowed to participate, under what conditions should they be competing? All these questions are ultimately connected to the definition and practice of the autonomy and neutrality of sport vis-a-vis international law and politics and will be at the heart of the another set of presentations at the ISLJ conference and a digital bridge with the Symposium on Sport & Neutrality organised in Lillehammer by the Inland Norway University of Applied Sciences.

The transnational regulation of gender by sports governing bodies

Our third focus area for this year’s conference will be the regulation and governance of gender boundaries by SGBs. The recent and ground-breaking decision of the European Court of Human Rights in the Semenya case crystallises the contemporary importance of questions related to the division between genders in the context of international sports. Furthermore, the ongoing and heated debates on the participation of transgender athletes in female competitions are also highlighting the importance of the decisions taken by SGBs in this regard. We will be hosting a specific Panel tackling these issues and will be welcoming Prof. Silvia Camporesi (University of Vienna and King’s College London) for a keynote lecture connecting the legal debates with ethical and philosophical considerations.

More information and registration HERE

Download the full programme

Online participation available

Following the success of last year's webinar option, we are once again allowing online participation to the conference at an affordable price. Thus, we hope to internationalise and diversify our audience and to reach people who are not in a position to travel to The Hague.

We look forward to welcoming you in person in The Hague or digitally to this new iteration of the ISLJ conference.

Editor's note: Roger Pielke Jr. is a professor at the University of Colorado Boulder

The decision this week by the Swiss Federal Tribunal not to revisit the arbitral decision of the Court of Arbitration for Sport (CAS) in the case of Caster Semenya was not unexpected, but it does help to expose a major design flaw in international sports governance. Specifically, the institutions that collectively comprise, create and enforce “sports law” appear incapable of addressing flawed science and violations of basic principles of medical ethics.

While different people will have different, and legitimate, views on how male-female competition classifications might be regulated, the issues highlighted involving science and ethics are not subjective, and are empirically undeniable. In normal systems of jurisprudence, procedures are in place to right such wrongs, but in sports governance processes in place prevent such course corrections. And that is a problem.

The empirical flaws in the science underpinning the IAAF (now World Athletics) Semenya regulations are by now well understood, and have been accepted by WA in print and before CAS (I was an expert witness for Semenya, and was present when IAAF accepted responsibility for the flawed research). You can read all the details here and in the CAS Semenya decision. I won’t rehash the flawed science here, but the errors are fatal to the research and obvious to see.

One key part of the comprehensive institutional failures here is that the journal which originally published the flawed IAAF research (the British Journal of Sports Medicine, BJSM) has, inexplicably, acted to protect that work from scrutiny, correction and retraction. Normally in the scientific community, when errors of this magnitude are found, the research is retracted. In this case, the BJSM refused to retract the paper, to require its authors to share their data or to publish a critique of the IAAF analysis. Instead, upon learning of the major errors, the BJSM published a rushed, non-peer reviewed letter by IAAF seeking to cover-up the errors. All of this is non-standard, and a scandal in its own right.

The violation of basic principles of medical ethics required by the implementation of the WA Semenya regulations is also not contested. Both WA and the IOC have claimed to uphold the World Medical Association’s Helsinki Declaration on medical and research ethics. Yet, the WMA has openly criticized the WA regulations as unethical and asked doctors not to implement them. In response, WA has stated that it will help athletes who wish to follow the regulations to identify doctors willing to ignore medical ethics guidelines.

Flawed science and ethical violations are obviously issues that go far beyond the case of Caster Semenya, and far beyond sport. In any normal system of jurisprudence such issues would prove readily fatal to regulatory action, either in the first instance of proposed implementation or via review and reconsideration.

Sport governance lacks such processes. At CAS, the panel claimed that matters of scientific integrity and medical ethics were outside their remit. The SFT is allowed to reconsider a CAS decision only on narrow procedural grounds, and thus also cannot consider matters of scientific integrity or medical ethics. So far then, the flaws in the WA regulations – sitting in plain sight and obvious to anyone who looks, have not been correctable.

This leaves the world of sport governance in a compromised position. Some may look past the scientific and ethical issues here, perhaps judging that barring Semenya from sport is far more important that correcting such wrongs. 

Regardless of one’s views on sex and gender classification in sport, the WA regulations and the processes that produced and have challenged them reveal that sports governance has not yet entered the 21^st century. Science and ethics matter, and they should matter in sport jurisprudence as well.  It is time to correct this basic design flaw in international sport governance.

Editor's note: Kevin Gerenni is Assistant Professor in Public International Law (Facultad de Derecho de la Universidad de Buenos Aires) and LLM Candidate 2021 in Public International Law at the London School of Economics.

Even though the decision rendered by the SFT in the Semenya Case was foreseeable, the Tribunal did put forward some concerning reasoning in terms of public policy (“ordre public”) and human rights. In case Semenya decides to challenge the Swiss state before the ECtHR, one can expect the case to shake some grounds at the ECtHR, which would be faced with the question of the application to sport not of fair trial guarantees (as in Mutu & Pechstein) but of substantial human rights provisions such as the prohibition of discrimination on the basis of sex (Article 14 ECHR) and the right to private life (Article 8 ECHR).

Under Swiss law, the reasons that may lead to the annulment of an arbitral award are enumerated in art. 190 of the Swiss Private International Law Act (PILA). Semenya’s strongest case relied on art. 190(2)(e): the award’s incompatibility with public policy. Naturally, this point concentrated most of the SFT’s attention. In order to analyze the compatibility of the CAS award with Swiss public policy, the SFT focused on three main potential breaches of human rights: prohibition of discrimination, personality rights, and human dignity. In doing so, it put forward certain observations that differ with European human rights standards and the ECtHR’s jurisprudence. The purpose of this short article is to analyze those discrepancies and, consequently, Semenya’s prospects of success before the Strasbourg Tribunal.

I.               The scope of Swiss public policy versus ECHR guarantees

To begin with, the SFT distinguished between Swiss public policy and the scope of the ECHR provisions:

“An award is incompatible with public policy if it disregards essential and widely accepted values which, according to the views prevailing in Switzerland, should constitute the foundation of any legal system” (para. 9.1).[1]

“This is the place to specify that the violation of the provisions of the ECHR or of the Constitution does not count among the grievances restrictively enumerated by art. 190(2) PILA. It is therefore not possible to directly invoke such a violation. (…) Thus, the plea alleging a violation of public policy is not admissible insofar it simply tends to establish that the award in question is contrary to the various guarantees drawn from the ECHR and the Constitution.” (para. 9.2).

Contrary to this interpretation, the ECtHR has referred to the fundamental role of the ECHR in specifying the reach of a European public policy. In Loizidou v. Turkey (Preliminary Objections), it stated:

“(…) the Court must bear in mind the special character of the Convention as an instrument of European public order (ordre public) for the protection of individual human beings and its mission (…) "to ensure the observance of the engagements undertaken by the High Contracting Parties" ” (para. 93).      

In that same judgment, it remarked the value of the ECHR as “a constitutional instrument of European public order (ordre public)” (para. 75). Similar understandings can be found in Bosphorus v. Ireland and Avotiņš v. Latvia, among others. As a consequence of this preeminent position that the ECHR holds, certain interests of the State must be outweighed by the Convention’s role in the field of human rights (Bosphorus at para. 156).

II.             The concept of “horizontal effect” in human rights violations

The SFT continued with the analysis of the prohibition of discrimination, for which it partially rest upon an argument that evidently collides with European human rights criteria. Although the Tribunal also concluded that the “relationship between an athlete and a global sports federation shows some similarities to those between an individual and a State” (para. 9.4), it did argue that under Swiss law the prohibition of discrimination does not have a direct horizontal effect. The SFT considered that:

“Although the SFT has consistently held that the prohibition of discrimination is a matter of public policy (…) it has done so, primarily, in order to protect the individual vis-à-vis the State. In this respect, it may be noted that, from the point of view of Swiss constitutional law, the case law considers that the guarantee of the prohibition of discrimination is addressed to the State and does not, in principle, produce a direct horizontal effect on relations between private persons. (…) It is therefore far from obvious that the prohibition of discrimination by private individuals is one of the essential and widely recognized values which, according to the prevailing conceptions in Switzerland, should form the basis of any legal system.” (para. 9.4).

The ECtHR has a long tradition of deeming States responsible for not preventing or sanctioning human rights violations between private persons, which means that the ECHR also applies horizontally. Since its 1981 ruling Young, James and Webster v. the UK, the Court has repeatedly held that the responsibility of a State is engaged if a violation of one of the Convention’s rights is the result of non-observance by that State of its obligation under Article 1 to secure those rights and freedoms to everyone within its jurisdiction.[2]

In Pla and Puncernau v. Andorra, the Court held the State responsible for the rulings of its domestic courts, which did not redress an individual from the discrimination inflicted by another private person. The Court, referring to its duties, clearly affirmed that:

“In exercising the European supervision incumbent on it, it cannot remain passive where a national court’s interpretation of a legal act, be it a testamentary disposition, a private contract, a public document, a statutory provision or an administrative practice appears unreasonable, arbitrary or, as in the present case, blatantly inconsistent with the prohibition of discrimination established by Article 14 and more broadly with the principles underlying the Convention.” (para. 59).

Finally, in this same vein in Identoba and Others v. Georgia, the ECtHR sanctioned the State by explaining that the difference in treatment leading to discrimination can source from a purely private action, which in this particular case included attacks to a transgender person.

III.           The necessity and proportionality of the DSD regulations

Throughout its ruling, the SFT followed the reasoning advanced by the CAS to determine that the IAAF (today “World Athletics”) DSD regulations were not in violation of fundamental human rights. With a view to analyzing a recourse to the ECtHR, I will focus on the discrimination and human dignity sections of the ruling (for a remarkably-detailed insight of the SFT’s core findings please refer to  Marjolaine Viret’s recent blog).

In assessing the necessity of the DSD regulations –pursuant to the alleged legitimate aim of fair competition– the SFT considered that “female athletes are disadvantaged and deprived of chances of success when they have to compete against 46 XY DSD athletes. The statistics speak for themselves.” (para. 9.8.3.4). A fact that does not seem to be getting attention is the “800 Metres Women” all-time records table, which lists three women with a better time than Caster Semenya. None of these three women were reported to be DSD athletes. Also, the scientific articles that supposedly demonstrate unequivocal advantage for DSD athletes have been denounced as flawed (for example, by Pielke Jr., Tucker & Boye). Nevertheless, the SFT invoked the ECtHR’s FNASS and Others v. France to shockingly conclude that “the search for a fair sport represents an important goal which is capable of justifying serious encroachments upon sportspeople’s rights”[3] (para. 9.8.3.3).

In addition, the SFT assessed the proportionality of the regulations vis-à-vis the potential gender identity implications. The SFT primarily relied on the allegedly-mild side effects caused by the hormonal treatment: “no different in nature from the side effects experienced by thousands, if not millions, of other women of type XX” (para. 9.8.3.5).

Referring to gender identity (stemming from human dignity), the SFT argued that:

“It must be made clear that the sentence does not in any way seek to question the female sex of the 46 XY DSD athletes or to determine whether they are sufficiently “female”. It is not a question of knowing what a woman or an intersex person is. The only issue to be resolved is whether it is contrary to human dignity to create certain rules of eligibility, for the purposes of sporting equity and equal opportunity, applicable only to certain women who enjoy an insurmountable advantage arising from certain innate biological characteristics. (…) In some contexts, as specific competitive sport, it is permissible that biological characteristics may, exceptionally and for the purposes of fairness and equality of opportunity, overshadow a person’s legal sex or gender identity.” (para. 11.1).

The SFT struggles to highlight that Semenya’s “female sex” is not under question. However, the DSD regulations, implemented in competitions that are divided into the male/female binary, denote that Semenya’s innate sex is not female enough as to compete in female events. On the other hand, she is allowed to compete in male events.

The ECtHR has a growing jurisprudence relating to discrimination on the basis of sex which, especially linked to gender identity, leads to violations of the ECHR Articles 14 and 8. In the 2002 leading case Goodwin v. the UK which dealt with Article 8 ECHR violations, the Court remarked that:

“It is not apparent to the Court that the chromosomal element, amongst all the others, must inevitably take on decisive significance for the purposes of legal attribution of gender identity for transsexuals.” (para. 82).

It is true that Goodwin involved the rights of a trans person, not intersex.[4] However, as the European Commission points out in its Trans and intersex equality rights in Europe – A comparative analysis, the judgment was the inception of States obligation to legally recognize preferred gender in Europe. Similar conclusions in favor of gender identity would later appear, among others, in Y. Y. v Turkey, Van Kück v. Germany and Identoba and Others v. Georgia (this last one dealing with Article 14 ECHR). In Garçon and Nicot v. France the Court underpinned that “the right to respect for private life under Article 8 applies fully to gender identity, as a component of personal identity. This holds true for all individuals.” (para. 95). Later in that judgment, it rendered a particularly relevant observation for Semenya’s case:

“Medical treatment cannot be considered to be the subject of genuine consent when the fact of not submitting to it deprives the person concerned of the full exercise of his or her right to gender identity and personal development, which, as previously stated, is a fundamental aspect of the right to respect for private life.” (para. 130).

It must be noted that this paragraph pertains particularly to the world of sport. “Personal development” is a fundamental part of the Principles of the Olympic Movement, as this article by Durántez Corral et al. indicates.

Conclusions

The reasoning behind the above paragraphs supports Semenya’s case before the ECtHR and would give her a serious chance to prevail in Strasbourg. Even though it is true that the Court has mostly endorsed the lex sportiva system with its judgments FNASS, Platini and Mutu & Pechstein, the latter did aim at certain fair trial deficiencies and triggered concrete changes. Could Semenya’s case be stronger? Yes, for instance if Switzerland had ratified Protocol No. 12 ECHR or if the former IAAF were based in Switzerland instead of Monaco (an issue which the SFT took care to highlight).

On the other hand, the judges could additionally resort to extremely relevant reports in the field of intersex rights, namely the Council of Europe’s document on eliminating discrimination against intersex people, or refer to the categorical document against DSD regulations written by three UN experts. Needless to say, these instruments support the athlete’s claims even further.

The scenario is set for Semenya to create considerable turmoil if she decides to take the case to Strasbourg, where the ECtHR will have to engage –once again and deeper this time– with lex sportiva and Switzerland’s role in ensuring that sports governing bodies comply with human rights. Or, will it look the other way?

*All translations of the SFT’s decision done by the author from French, except where otherwise noted.

[1] Translation done by Marjolaine Viret for her blog article “Chronicle of a Defeat Foretold: Dissecting the Swiss Federal Tribunal’s Semenya Decision”, available here.

[2] See Spielmann, D.; “Chapter 14: The European Convention on Human Rights, The European Court of Human Rights” in Human Rights and the Private Sphere: A Comparative Study (p. 430); Eds. Oliver, D. &  Fedtke, J.; Routledge; 2007. 

[3] Translation done by Marjolaine Viret for her blog article “Chronicle of a Defeat Foretold: Dissecting the Swiss Federal Tribunal’s Semenya Decision”, available here.

[4] As shown in the excerpt, the judgment did address the relevance (or the lack of it) of the “chromosomal element” in defining a person’s gender.

Editor's note: Marine Montejo is a graduate from the College of Europe in Bruges and is currently an intern at the ASSER International Sports Law Centre.

On 14 July 2016, the Belgian competition authority refused to grant provisional measures to the White Star Woluwe Football Club (“The White Star”), which would have allowed it to compete in the Belgian top football division. The club was refused a licence to compete in the above mentioned competition first by the Licences Commission of the national football federation (“Union Royale Belge des Sociétés de Foootball Association” or “URBSFA”) and then by the Belgian court of arbitration for sports (“Cour Belge d’Arbitrage pour le Sport” or “CBAS”). The White Star lodged a complaint to the national competition authority (“NCA”) and requested provisional measures. The Belgian competition authority rendered a much-overlooked decision (besides one commentary) in which it seems to accept the reviewability of an arbitral award’s conformity with EU competition law (articles 101 and 102 TFEU). 

1. Licencing mechanism in football and EU competition law

In April 2016, the White Star won the 2015-2016 Belgian’s football second division championship (until then known as the “Proximus League”, but as of the 2016-2017 season renamed “Division 1B” or “D1 B”) and, as such, was, on sporting grounds, expected to accede to the top division (“Division 1A” or “D1 A”, but previously called “Jupiler ProLeague”).

However, in order to be allowed to compete in the D1 A championship (as well as for the D1 B), all professional football clubs have to obtain a licence under the URBSFA’s regulation (“federal regulation”). This licence is granted if the club complies with of the following criteria:

• Article 406 provides for the so-called ‘continuity obligation’ which, in a nutshell, aims at ensuring the financial stability of the club for the entire season to come.

• Article 407 draws up a list of general conditions by which all professional clubs have to comply with.

• Articles 408 and 410 provide for specific conditions for either D1 A and D1 B clubs.

On 12 April 2016, the URBSFA Licences Commission (“Commission des Licences”) refused to grant the D1 A or the D1 B licences to the White Star to the effect that the club did not comply with the general conditions provided in article 407. According to the Licenses Commission, the club suffers from chronical financial problems (including unpaid debts) and it had no guarantees of having access to its stadium for the upcoming season as no agreement had been reached at the time with the municipality. The White Star appealed the decision to the CBAS, which rendered its arbitral award on 6 May (award published on 13 May). The arbitral tribunal annulled the first decision of the Licences Commission, insofar as at the time of the hearing the White Star provided further evidence that it complied with the general conditions. However, the CBAS finally decided not to grant the licence, because the club’s financial stability was not ensured and, as a consequence, it did not comply with the ‘continuity obligation’ provided in article 406. The arbitral tribunal highlights the club’s chaotic financial situation in its award[1] and concluded that the club could not be granted either a D1 A or D1 B licences. Consequently, the club should be relegated to the third division and be subject to amateur status.

The White Star sought provisional measures before the NCA in order to be granted a professional licence and participate in the D1 A 2016-2017 championship. To grant an interim measure, the NCA has to make a prima facie assessment of the alleged infraction which, in this case, relates to the licencing system. The question is whether a refusal to grant a licence to a football club, which would allow it to participate in the first division infringes competition law. Without prejudice to the final decision, the NCA recalled that the licence system at stake had already been assessed and found compatible with EU competition law provisions in previous decisions.[2] Furthermore, the NCA indirectly assessed[3] the modification of the system that was decided in 2015 by the Belgian federation, which provides for stronger control over financial conditions and continuity obligations. It is widely acknowledged that a licencing system has a restrictive effect because it limits access to football competitions. Without said licence, a club cannot enter the relevant market. However, those effects were found to be inherent to the organisation of sport competitions (Meca Medina, C-519/04, 18/07/2006) and proportionate to its objective, i.e. to make sure that all clubs are able to sustain their participation in the competition, as a financial default of one club during the season would threaten the position of the competition and of the others clubs. Subsequently, the Belgian competition authority decided that it was not established prima facie that there was a breach of competition law provisions either with regard to the ‘continuity obligation’ or its application. 

The surprising aspect of the decision is that the NCA envisaged an alternative and less restrictive measure by integrating the White Star into the second division without it being requested by the club in its complaint. Both D1 A and D1 B licences were refused because after the 2015 modification of the regulation, the criteria for both divisions converged in order to professionalize the second division. This means that if the D1 A licence is refused, the probability is relatively high that the other licence (D1 B) will be refused as well and that the club will be relegated to the third division. The NCA concluded that this arrangement was inherent to the modification of the regulation and that it was not, prima facie, a disproportionate restriction. The decision also stated that the balance between the White Star’s interests and those of other clubs would be compromised if no breach is found in the final decision.[4] 

2. Sports arbitral awards and EU competition law, an uneasy relationship

The most interesting part of the decision is on the interaction between EU competition law and sports arbitration. The Belgian football federation’s regulation provides for the exclusive competence of the CBAS to appeal the Licences Commission’s decision (article 421). The arbitration tribunal then has the duty to conduct a further factual and legal examination of the case. The award is still amenable to an action for annulment in front of the First Instance Tribunal (“Tribunal de Première Instance”). The possible grounds are listed exhaustively in article 1717§2 of the Belgian Judicial Code (“Code Judiciaire Belge”). This procedure is not unknown in sports law and is rather similar to the system in force at the Court of Arbitration for Sport (“CAS”) in appeal procedures following a sports federation’s decision where the regulation of the body concerned expressly provides for it. Judicial review of the CAS award is also available before the Swiss Federal Tribunal on a very limited number of grounds. 

Challenges to arbitral awards concerning sports matters on EU competition law grounds is not a novelty either. In the past, the European Commission (“Commission”) and the Court of Justice of the European Union (“CJEU”) received complaints on EU competition law grounds involving arbitral awards rendered by the CAS. All these cases have one thing in common: both the Commission and the CJEU decisions did not refer directly to the arbitral award and went on instead to examine whether the rules of the sport governing body (“SGB”) on which the awards were grounded were compatible with EU competition law provisions. Already with the Meca Medina case the CJEU limited its assessment to FINA (International Swimming Federation) anti-doping regulations. The same approach was used by the Commission in the ENIC case referring to the UEFA rule on multiple ownership of football clubs (COMP/37 806 ENIC Plc/UEFA, 25/06/2002) and the Cañas case regarding the ATP anti-doping code (COMP/39471, Certain joueurs de tennis professionnels v. Agence mondiale antidopage, ATP et CIAS, 12/10/2009). In those three cases, the SGB’s rules were found compatible with EU competition law provisions as long as they are proportionate to their objective, which was deemed the case in such instances. However, if the rule at stake had been found in breach of articles 101 or 102 TFEU, the award would be contrary to EU competition law as well.

The Court and the Commission are reluctant to give way to challenges against arbitral awards based on competition law provisions.[5] In Meca Medina, the Commission and the Court both criticized the applicants’ choice to submit a complaint based on EU competition law while they did not appeal the CAS award in front of the Swiss Federal Tribunal.[6] In Cañas, the Commission endorsed CAS as a legitimate independent institution whose role as a sport arbitral institution is comparable to that of national courts.[7] It is particularly striking that the Commission is reluctant to be seen as an alternative appeal mechanism against CAS awards[8], and here probably lies the explanation as to why it restricts its assessment to the SGB’s rule and leaves the arbitral award aside.

3. The White Star decision, a new twist in the debate

The Belgian competition authority faces the same type of challenge in the White Star case in which the arbitral award was an appeal of the Belgian football federation’s decision based on the federal regulation providing for a licence mechanism and, as a consequence, restricting the access for the club to the market of top division football matches. Had the NCA followed the Commission and the CJEU practice, it would have ignored the award and directly assessed the SGB’s rule under EU competition law. 

Yet, the Belgian competition authority did not leave the award aside. To apply EU competition law provisions to that case, the NCA did not have any difficulty in considering that the football federation is an association of undertakings (nothing new and revolutionary here), and quickly concluded that the CBAS is neither an undertaking nor an association of undertakings following the Commission assessment in Cañas[9]. However, and the innovative aspect of the decision lies here, it considers that the interpretation of the URBSFA regulation enacted by the football federation, an association of undertakings and as such bound by competition law provisions, may be a restrictive practice even though the CBAS is not in itself subject to competition law.[10] The licensing requirements provided by the federal regulation are subject to competition law scrutiny because the URBSFA is an association of undertakings. The arbitral award annulled and replaced the URBSFA Licences Commission’s decision[11], as the CBAS has unlimited jurisdiction to review the case on appeal. As a consequence, the only decision still existing is the arbitral award. Therefore, it seems that the Belgian competition authority considers that the effect of the award is to implement the URBSFA’s regulation which means that the arbitral award is ‘detached’ from the arbitral tribunal and deemed attributable to the football association and, as a consequence, may potentially constitute a restrictive practice[12]. The new and important aspect of the decision being that the NCA will then review both the URBSFA regulations and its interpretation by the CBAS in its arbitral award, meaning that the Belgian competition authority will also assess the arbitral award. 

An explanation for this innovative argumentation is probably the fact that this case is a request for interim measures related to an individual decision, i.e. the arbitral award. The Belgian NCA, contrary to the established practice of EU institutions in similar cases, did not deal with it as an indirect challenge to the award via the URBSFA regulation. The NCA justifies its reasoning by saying that it must protect the effectiveness (“effet utile”) of later decisions on the merits of the case.[13] It therefore recalls that its role is to enforce competition law provisions which are a matter of public policy based on the CJEU’s Eco Swiss (C-126/97) decision. This case concerns an action for annulment in commercial arbitration, but its findings can be extended to sports arbitration. Following the Eco Swiss jurisprudence, the responsibility for reviewing compliance with European public policy rules lies with the national courts of the Member States and not with the arbitrators. This means that it is for the judges to decide whether an arbitral award is in conformity with EU competition law and set it aside if it breaches these provisions. 

The Belgian competition authority extended that jurisprudence to its own assessment of the compatibility of the URBSFA regulation with EU competition law.[14] Hence, if it had considered the regulation in breach of EU competition law, the award itself would have been found contrary to the same provisions and set aside. This means that, in the end, the NCA would have the ability to set aside the arbitral award without the interference of a (national) court in the meaning of the Eco Swiss judgment. Indeed, if the SGB’s rules are contrary to articles 101 or 102 TFEU, then the award is too.[15] The NCA decision will, consequently, lead to the annulment of the arbitral decision which, in turn, will not be enforced. This is also important in the light of the Belgian competition authority decision that is, while attributing the award to the SGB, also allowing a control on the interpretation of the licensing rules by the CBAS.

Nonetheless, the Belgian competition agrees with the CJEU and the Commission regarding the competition law arguments raised against the arbitral procedure. The White Star challenged the ‘forced’ appeal procedure in front of the CBAS provided by the federal regulation as well as the independence and impartiality of the CBAS on competition law grounds. The CBAS invoked the findings in the recent Pechstein case (Bundesgerichtshof, KZR 6/15, 07/06/2016), very similar to the one at stake, to argue that the procedural characteristics in sports arbitration had already been found compatible with EU competition law. At the EU level, the Commission already considered that a forced arbitration clause would only constitute a breach of EU competition law if it supports a restrictive practice, but not on its own (see Cañas, p. 41). The Belgian competition authority, in turn, considers that there is not a prima facie competition law breach because of the possibility to appeal the arbitral award to the Tribunal of First Instance, a national court.[16] The argumentation on this point is limited. However, one should remember that this is an interim measure decision and the NCA is only checking prima facie restrictions. 

Finally, the Belgian competition authority did not quite reply to the CBAS argument stating that preliminary measures would endanger the uniformity and organisation of sports arbitration if granted in that case. It recalled that in a previous case of interim relief regarding a CBAS sentence, a judge declared of its own motion that it had no jurisdiction to hear the case (Première instance du Hainaut, Division de Mons, 09/05/2016), but the Tribunal of First Instance did have jurisdiction by law. The question is whether the NCA created a third alternative of recourses against arbitral awards in addition to the one in front of the First Instance Tribunal. The NCA made sure to state that it is not an appeal body[17] and, as such, its only preoccupation is to scrutinize that competition law provisions are applied. Therefore, the NCA did not create an alternative way of appeal, but the attribution of an arbitral award to a sport federation is a notable move. The CBAS argues in its conclusions[18] that the judge in the proceeding detailed in article 1717 of the Belgian Code of Justice is as competent as the NCA to hear EU competition law arguments in the case of an appeal (where the Eco Swiss judgement applies). 

The CBAS argument is not entirely convincing. If this decision appears to be as important, it is because the NCA will, in most cases, have a greater capacity than a judge to decide if there is a competition law breach. On another hand, a question is raised about the extent of the control of the judge over public policy arguments in the case of a legal action against the enforcement of an arbitral award. For example, the French Cour de Cassation requires a control limited to a manifest error of assessment (Cour de Cassation, Chambre civile 1, of 13 October 1981, 80-11.098, Publié au bulletin). Indeed, in the Belgian case the NCA will exercise a more stringent control than just the identification of a flagrant infringement of competition law provisions. To add to the debate, in a recent case[19] Advocate General Whatelet defended a stronger control of the judge over the compatibility of arbitral awards with EU competition law.[20] The CJEU did not endorse this position but did not reject it either. The question whether arbitral awards and the rules they are based on will become subject to greater scrutiny under articles 101 and 102 TFEU is still pending. 

Consequently, the Belgian competition authority extended the EU competition law control over sports arbitration to cover the specific interpretation of the SGB’s regulations by an arbitral tribunal. As a consequence, and if this reasoning is confirmed, lawyers might be able to challenge an arbitral award directly with the national competition authorities if it appears to interpret the SGB’s regulations in contradiction with EU competition law.

It should be noted that this procedure is only about provisional measures, but the legal reasoning used by the Belgian competition authority shakes the already shaky grounds of sports arbitration. After the Pechstein and SV Wihelmshaven cases in German courts, sports arbitration is anew put to the test based on EU law considerations. The Belgium decision went unnoticed because it is in French and the regulations at stake were not deemed contrary to competition law. However, if more national competition authorities follow a similar reasoning, more challenges of arbitral awards in sport matters will necessarily arise. The question that remains open is whether the Commission itself will welcome such a change or not.

[1] « Force est de constater qu’il s’agit là d’un ensemble de faits précis, graves et concordants qui remettent fondamentalement en cause l’affirmation selon laquelle la continuité du club peut être assurée pour la saison 2016-2017 », Cour Belge d’Arbitrage pour le Sport, 13/05/2016, p.23.

[2] See for example decision 2004-E/A-25, 04/03/2004.

[3] The NCA organises an informal procedure with the ProLeague, the Belgian professional football teams’ association, to monitor the sale of the media rights from 2005. In this framework the NCA had to examine the modification of the football federation’s regulation in 2015. See, for further explanation, Autorité Belge de la Concurrence, 14/07/2016 points 22-62, p. 65-69.

[4] « … la balance des intérêts de la Requérante et des autres clubs risque d’être compromise au cas où une infraction ne serait pas établie », Autorité Belge de la Concurrence, 14/07/2016 point 81, p. 177.

[5] For an in-depth analysis, see Antoine Duval, “The Court of arbitration for sport and EU Law: Chronicle of Encounter”, (2015) 22, Maastrich Journal of European and Comparative Law, 2, p. 224-255.

[6] Supra, p. 251.

[7] Supra, p. 252.

[8] Supra, p. 253.

[9] « (…) Le rôle du TAS est comparable à celui d’un tribunal. Il rend des décisions arbitrales qui ont généralement la même force que des jugements de juridictions de droit commun. L’exercice de ces activités de jugement, ainsi que l’administration et le financement de ces activités par le CIAS, ne peuvent être considérés comme constituant une activité économique (…) Par conséquent, il semble difficile de qualifier le CIAS (ou le TAS) (…) d’entreprises ou d’associations d’entreprises au sens de l’article 81 et/ou 82 du traité CE. », COMP/39471, Certain joueurs de tennis professionnels v. Agence mondiale antidopage, ATP et CIAS, 12/10/2009, point 23.

[10] « […] Le Collège ne considère dès lors pas manifestement déraisonnable de penser que l’Autorité puisse constater qu’une interprétation d’un règlement qui entre dans le champ d’application des règles de concurrence, constitue une pratique restrictive même sans qu’elle ne soit sanctionnable dans le chef de l’instance qui l’a interprété […] », Autorité Belge de la Concurrence, 14/07/2016 point 53, p. 172.

[11] « Met à néant la décision prononcée par la Commission des Licences de l’ASBL URBSFA… », Cour Belge d’Arbitrage pour le Sport, 13/05/2016, p. 32.

[12] See supra 10 and « (…) [Le Collège] peut dès lors apprécier dans le cadre de cette procédure en matière de mesures provisoires, prima facie, la conformité avec le droit de la concurrence du Règlement fédéral et de son application et effets dans la mesure où le refus de licence continue à produire ses effets, même si la décision de la commission de l’URBSFA est formellement remplacée par la sentence arbitrale de la CBAS. », Autorité Belge de la Concurrence, 14/07/2016 point 53, p. 172.

[13] « […] de protéger dans le cadre de cette procédure en matière de mesures provisoires l’effet utile de la décision à prendre dans le cadre de la procédure de fond. […] », Autorité Belge de la Concurrence, 14/07/2016 point 53, p. 172.

[14] « Le Collège fait remarquer qu’une autorité de concurrence est chargée de la mise en œuvre de règles d’ordre public. […] », Autorité Belge de la Concurrence, 14/07/2016 point 52, p. 172.

[15] See Duval, p. 251.

[16] Autorité Belge de la Concurrence, 14/07/2016 point 62, p. 174.

[17] « Elle n’est pas une instance d’appel pour entendre des recours contre une décision attaquée », Supra, point 52, p. 172.

[18] Autorité Belge de la Concurrence, 14/07/2016 point 119, p. 146.

[19] Opinion of Advocate General Wathelet, 17/03/2016, Case C‑567/14, Genentech Inc.v Hoechst GmbH, formerly Hoechst AG, Sanofi-Aventis Deutschland GmbH and CJEU, 07/07/2016.

[20] Supra, point 71 “For these reasons, the review by a court of a Member State of whether international arbitral awards are contrary to European public policy rules cannot be conditioned by whether or not this question was raised or debated during the arbitration proceedings, nor can it be limited by the prohibition under national law preventing the substance of the award in issue from being reconsidered.”

Dear readers,

If you missed it (or wish to re-watch it), the video of our third Zoom In webinar from 25 February on the CAS award in the World Anti-Doping Agency v. Russian Anti-Doping Agency case is available on the YouTube channel of the Asser Institute:

Stay tuned and watch this space, the announcement for the next Zoom In webinar, which will take place on 31 March, is coming soon!