The IOC has trumpeted it worldwide as a « historical milestone »: the United Nations has recognised the sacrosanct autonomy of sport. Indeed, the Resolution A/69/L.5 (see the final draft) adopted by the General Assembly on 31 October states that it  “supports the independence and autonomy of sport as well as the mission of the International Olympic Committee in leading the Olympic movement”. This is a logical conclusion to a year that has brought the two organisations closer than ever. In April, UN Secretary General Ban Ki-moon appointed former IOC President, Jacques Rogge, Special Envoy for Youth Refugees and Sport. At this occasion, the current IOC President, Thomas Bach, made an eloquent speech celebrating a “historic step forward to better accomplish our common mission for humanity” and a memorandum understanding was signed between the UN and the IOC. This is all sweet and well, but is there something new under the sun?

A beautiful friendship

As the IOC points out itself, it has always had a friendly institutional relationship with the UN. There is a good deal of solidarity of kin between the two transnational organisations. The UN has been keen on shoring up the Olympic truce. In fact, since 1993, it has adopted no less than 24 resolutions supporting sport (and the Olympic Games) as a means to promote education, health, development and peace. However, this year’s resolution goes beyond the previous resolutions. The text includes the usual references to the use of sport to foster peace and development, but it also celebrates in unequivocal terms the work and the autonomy of the Olympic movement. This is music to the IOC’s ears and resonates with its repeated calls on States to respect the autonomy of the “lex olympica”. The IOC has already stretched the interpretation of the resolution and claims “boycotts are incompatible with this UN request for respect of the values of sport”. Nevertheless, one must keep her feet on legal earth. This resolution by the General Assembly (GA) has no legally binding value on the UN Member States, it is merely encouraging them to act upon it. International legal scholars have endlessly debated the potential legal effects of UN resolutions, and they agree on one thing: Resolutions by the GA are not per se legally binding.[1] To be so, they must be capable of creating obligations on their addressees, or recognized as customary international law, both very unlikely in our case. Thus, this resolution should be interpreted as a declaration of friendship, which could have a practical impact (or not) on the work of national courts, depending on their willingness to acknowledge the UN resolution. In practice, it is just another sign (after the UEFA-EU arrangement) that international organisations tend to side politically (and usually uncritically) with the IOCs of this world.

A liaison dangereuse

Being good friends with the IOC guarantees good shots of the UN Secretary General holding the torch, but it might not be in the best interest of the UN, nor of the world’s citizens. The Olympic Games’ capacity to trigger an Olympic peace of some sort has been largely discredited by the invasion of Crimea and the proxy war fuelled by Russia in Ukraine, just days after the Winter Olympic Games in Sochi came to a close. The Secretary General of the UN himself stated in a recent (20 October 2014) report to the General Assembly that “[s]adly, there is no evidence of any initiative by warring parties either to unilaterally observe the Olympic Truce or to promote its mutual observation”. The Olympic truce myth has been a collective exercise of wishful prophesizing with no self-fulfilling effect in sight.

Furthermore, the UN General Assembly reaffirms “that any form of discrimination is incompatible with belonging to the Olympic movement”, but the latest Games in Sochi have also shown that the IOC is not sanguine, to say the least, in fighting discriminatory laws adopted by Olympic host countries. In fact, exactly on this matter, the IOC has announced already that it does not “have a mandate to impose measures on sovereign States outside its own fields”. This is surprising, as the IOC seems to consider it has a mandate to impose (via the host city contract) a string of measures on sovereign States covering core public policies (tax, infrastructure or intellectual property rights). Why does it not include the fight against all sorts of discrimination in the "fields" it deems its own? The latest draft of the Host city contract for the 2022 Winter Games comprises a reference to the “prohibition of any form of discrimination”, but it is still deprived of real legal teeth.

This relationship between the IOC and the UN is more of a liaisons dangereuse than a “beautiful friendship”. The UN should be weary to associate itself too closely with an institution characterised by a lack of transparency, internal democracy and accountability. Sure, one could hope that this friendship would lead the IOC to reform itself, but its readiness to do so is rather enhanced by public outrage and the threats of legal challenges than warm accolades. There is a regrettable paradox here: While the global citizenry is loudly contesting the IOC and FIFA, it is à la mode for international organisations to align themselves politically with them.

[1] On this question in general, see K. Hailbronner and E. Klein, Commentary of Article 10 of the UN Charter in B. Simma (ed.), The Charter of the United Nations : A Commentary, Oxford University Press, 2002, p.257-275

Editor's Note: Marjolaine is a researcher and attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences. Her interests focus on interdisciplinary approaches as a way of designing effective solutions in the field of anti-doping and other science-based domains. Her book “Evidence in Anti-Doping at the Intersection of Science & Law” was published through T.M.C Asser Press / Springer in late 2015. She participates as a co-author on a project hosted by the University of Neuchâtel to produce the first article-by-article legal commentary of the 2021 World Anti-Doping Code. In her practice, she regularly advises international federations and other sports organisations on doping and other regulatory matters, in particular on aspects of scientific evidence, privacy or research regulation. She also has experience assisting clients in arbitration proceedings before the Court of Arbitration for Sport or other sport tribunals.

Since the spectre of the EU General Data Protection Regulation (‘GDPR’) has loomed over the sports sector,[1] a new wind seems to be blowing on anti-doping, with a palpable growing interest for stakes involved in data processing. Nothing that would quite qualify as a wind of change yet, but a gentle breeze of awareness at the very least.

Though the GDPR does mention the fight against doping in sport as a potential matter of public health in its recitals,[2] EU authorities have not gone so far as to create a standalone ground on which anti-doping organisations could rely to legitimise their data processing. Whether or not anti-doping organisations have a basis to process personal data – and specifically sensitive data – as part of their anti-doping activities, thus remains dependent on the peculiarities of each national law. Even anti-doping organisations that are incorporated outside the EU are affected to the extent they process data about athletes in the EU.[3] This includes international sports federations, many of which are organised as private associations under Swiss law. Moreover, the Swiss Data Protection Act (‘DPA’) is currently under review, and the revised legal framework should largely mirror the GDPR, subject to a few Swiss peculiarities. All anti-doping organisations undertake at a minimum to abide by the WADA International Standard for Privacy and the Protection of Personal Information (‘ISPPPI’), which has been adapted with effect to 1 June 2018 and enshrines requirements similar to those of the GDPR. However, the ISPPPI stops short of actually referring to the GDPR and leaves discretion for anti-doping organisations to adapt to other legislative environments.

The purpose of this blog is not to offer a detailed analysis of the requirements that anti-doping organisations must abide by under data protection laws, but to highlight how issues around data processing have come to crystallise key challenges that anti-doping organisations face globally. Some of these challenges have been on the table since the adoption of the first edition of the World Anti-Doping Code (‘WADC’) but are now exposed in the unforgiving light of data protection requirements.

Who is who and who does what?

It is hardly a scoop for those familiar with the World Anti-Doping Program to state that its structures are complex, relying on an intricate network of private entities as well as public (or quasi-public) agencies, each subject to their own applicable laws. The World Anti-Doping Program has always struggled with reconciling its objectives of global harmonisation with the sovereignty and diversity of national laws. National Anti-Doping Organisations (‘NADO’s) operate at the national level; they are in charge of doping issues across all sports in one country and are endowed with more or less extensive enforcement powers depending on their country’s regulatory approach to the sport sector. By contrast, international federations claim exclusive governance over one sport worldwide, uniformly and without regard to national borders but have to do so with the instruments available to private entities based on contractual or similar tools of private autonomy.

Over time, the WADC has been repeatedly updated to strike a balance between the two (national versus international) spheres and avoid positive or negative conflicts of competence. Provisions seek to clarify attributions in areas where international- and national-level competences collide, such as roles in Therapeutic Use Exemption (‘TUE’) management, testing authority, or results management responsibilities.[4] Even as it is, there is no safeguard to prevent disputes from arising about the proper authority to investigate and initiate proceedings for doping.[5]

Data processing activities are not exempted from the difficulties that accompany the complexity of anti-doping. If anything, these difficulties are rather exacerbated by data protection laws. In particular, the GDPR seeks to create a framework within which data subjects can easily recognise when data is being processed about them, by whom and to what aim(s), and whom to turn to in order to exercise their rights. This forces anti-doping organisations to be precise and unambiguous about their respective roles and attributions among themselves and chiefly towards the data subjects, the athletes subject to doping control.

The GDPR draws a distinction between two major categories of entities that process personal data: an entity can be characterised either as a data ‘controller’, or as a data ‘processor’. A controller is defined as an entity which “alone or jointly with others, determines the purposes and means of the processing of personal data”. A processor is an entity “which processes personal data on behalf of” a controller.[6]

The distinction may seem rather straightforward at first sight: the controller has a personal or commercial interest in the data processing and decides which data to collect, from whom, and through what means. At the other end of the spectrum, a ‘typical’ processor receives documented instructions from a controller and merely implements these instructions with no autonomy of decision or an autonomy limited to technical issues and logistics. However, interrelationships are often much more subtle in reality with considerable room for borderline situations: multiple controllers may need to agree on their (joint) controllership of the data while operating alongside entities that may act in part as processors, in part as controllers of their own right for different aspects of the data processing.[7]

In anti-doping, more than half a dozen entities may be involved in a routine doping control activity, between test planning and the outcome of a disciplinary process. All of these will either collect or gain access to athlete data, including sensitive data, as illustrated by the following: an international federation decides to conduct blood testing on an athlete from its registered testing pool but delegates sample collection to the NADO of the country in which the athlete is currently residing. To do so, the NADO has access to the athlete’s whereabouts filings through the ADAMS database, managed by the World Anti-Doping Agency (‘WADA’). The NADO itself carries out sample collection through a private service provider with its dedicated blood control officers and decides to use the opportunity to order, in addition, the collection of urine samples from the athlete. Upon sampling, the athlete is asked to fill in the doping control form in front of the doping control personnel, which includes disclosing several ongoing medication courses in the dedicated box. Samples are then transported, in a de-identified (‘coded’) form, by private courier from the country of collection to the international federation’s usual WADA-accredited laboratory in a different country.

Assuming the laboratory reports an adverse analytical finding in the blood sample, the international federation requests a full documentation package from the laboratory and verifies whether a Therapeutic Use Exemption on the record could be related to the adverse analytical finding. Upon notification of the results and public announcement of the immediate provisional suspension, the athlete requests the analysis of the B sample, thereby de facto lifting the code on the A sample where the laboratory is concerned. The athlete submits a series of explanations regarding the possible causes for the adverse analytical finding, including a report from his treating physician regarding a medical condition that might account for the findings. The international federation may send the laboratory documentation package and athlete explanations to external experts for additional input and then hands over the file to its external anti-doping tribunal members. Most data will at some point have to pass through the ADAMS database and be stored within that database for up to ten years. However, it may also be communicated by other (electronic or physical) means among anti-doping organisations and their service providers and experts.

Once the disciplinary decision is issued, its main elements are publicly disclosed by the international federation on its website, and the decision shared with WADA and any NADO having jurisdiction over the athlete. The NADO further decides to send the negative urine sample for long-term storage and possible reanalysis to the WADA-accredited laboratory that provides its storage facilities.

The above description represents an imaginary but ultimately rather standard situation for anti-doping organisations. It does not seem too far-fetched to identify that the international federation at the very least acts as a controller of the athlete data processed. However, a NADO who receives instructions to collect samples and also decides to collect additional data (and additional biological materials) on its own and for its own purposes, potentially acts as both a processor and controller depending on the data at stake. A number of processors and sub-processors are involved in the process as service providers, while the qualification of external experts may have to be assessed on a case-by-case basis. WADA offers the ADAMS database as an IT infrastructure for data storage and sharing for the international federation and NADO but also uses the data to fulfil its own obligations and purposes under the WADC, such as exercising its appeal rights or verifying compliance of the anti-doping organisations with their duties. Arguably, at the very least there will be three controllers of data (international federation, NADO, and WADA) in addition to multiple processors and sub-processors.

Characterising the role of each entity as a ‘controller’ or as a ‘processor’ is far from being of academic interest only. The two types of entities have distinct responsibilities and requirements for lawful processing. Appropriate contractual arrangements need to be set up among the entities involved, and data subjects must be informed of these in a comprehensible manner allowing them to exercise their rights. Controllers have primary responsibility for dealing with data subject requests and responding to supervisory authorities and have a more extensive scope of liability across the entire scope of data processing. By contrast, processors are, in essence, only liable for their own processing activities and merely undertake to support the controllers in their obligations towards data subjects and authorities.[8]

There is one other important difference that carries special significance in the context of anti-doping: a processor who acts under instructions can rely on the processing contract with the controller responsible for the data as a lawful basis for processing.[9] By contrast, if two or more parties qualify as controllers in their own right, each controller needs to secure its individual lawful basis with respect to the data subjects. The requirement of lawful processing is entwined with the discussion around the validity of ‘consent’ to anti-doping regulations.

Lawful basis and problematic character of consent

Processing of personal data under the GDRP requires a lawful basis. As relevant to our topic, three types of legitimising grounds co-exist: i.) grounds rooted in private autonomy (consent or necessity for performance of a contract with the data subject), ii.) grounds relying on public interest or overriding interests of the controller (e.g. pursuing a legal claim), or iii.) a specific basis in Union or national law, e.g. for performance of a substantial public interest or public health task.[10] Not all grounds enter into consideration for every category of data; special categories of data – also known as ‘sensitive’ data under the DPA – have a more limited number of valid processing grounds.[11] Obviously, a major part of data processed as part of doping control qualifies as sensitive data as it relates to health,[12] including the data gathered through analysis of doping control samples or collected as part of TUE applications.

The traditional way for international sports organisations to impose their rules on their ultimate addressees, i.e., the individual athletes, has been through contract, quasi-contractual chains of submission, or other instruments involving a declaration of consent. The validity of consent on the part of those who submit to anti-doping regulations is a recurring matter for debate, in particular as its informed and voluntary character is generally described at best as limited and more frequently as purely illusory. The issue has been scrutinised in particular with respect to submission to proceedings before the Court of Arbitration for Sport (‘CAS’),[13] which the WADC imposes as a legal remedy in international doping disputes. While acknowledging the ‘constrained’ nature of the athlete’s consent, the Swiss Supreme Court accepts the validity of arbitration clauses in sports regulations in the name of the needs for swift and competent resolution of sport disputes. It has, however, imposed certain limits on the extent to which an athlete can entrust their fate to the sports resolution system. As decided in the Cañas v. ATP case, an athlete cannot validly waive in advance the right to challenge the CAS award in front of the Supreme Court in disciplinary matters.[14] In Pechstein v. Switzerland, the European Court of Human Rights (‘ECtHR’) was asked to discuss the status of an arbitration clause in the context of doping proceedings. It reached the same conclusion that the only choice offered to the athlete was either to accept the clause in order to be able to make a living by practising her sport at a professional level or to refuse it and completely give up on practising at such level. As a result of this restriction on the athlete’s professional life, it was not possible to argue that she accepted the clause ‘in a free and unequivocal manner’.[15]

In both cases, the findings were ultimately of little consequence for the sports sector. The Swiss Supreme Court only reviews CAS awards through an extremely narrow lens so that the power to set strategic jurisprudence in sports matters remains with the CAS panels, whether or not athletes retain their rights to challenge the award. Similarly, in the Claudia Pechstein matter, the only shortcoming found in the ruling was the lack of an option for a public hearing in CAS proceedings. Absence of genuine consent has thus been – expressly or implicitly – compensated for by courts through procedural safeguards, in an effort to ensure that athletes still benefit overall from a system of justice broadly compliant with Article 6 of the European Convention on Human Rights.

Data protection issues create a greater challenge here, since the GDPR explicitly requires consent to be ‘freely given’, in addition to being informed.[16] The same is true under the Swiss DPA.[17] The GDPR does not accommodate compensatory mechanisms to account for the ‘fictional’ character of consent in the sports context: consent that is not optional is not free, and consent that is not free is not valid. Importantly, free consent also presupposes that consent can be withdrawn at any time as easily as it was given and without significant detrimental consequences for the data subject.[18]

I will not delve here into how anti-doping organisations can fulfil the requirement of ‘informed consent’, which as per the GDPR requires “intelligible and easily accessible form, using clear and plain language”.[19] The template information notices (here and here) proposed by WADA currently in effect inform athletes, in essence, that their data may be processed based on various legal grounds, may be accessed by various entities around the world according to various data protections laws, which may offer them various levels of protection, and that they may have various rights and obligations under these laws. It is questionable whether explanations in this form would satisfy the requirements for informed consent. Still, adequate information appears at least achievable with appropriate and individualised legal drafting supported by a data protection specialist. The question of free consent is a much more delicate one since it is not in the hands of anti-doping organisations to give athletes a genuine choice in this respect.

In spite of the potential financial implications, one could argue that consent is freely given where the athlete can choose at any time to withdraw consent to data processing, with the sole consequence of losing the benefit of the services attached to the ‘contractual’ relationship with their sports authorities, i.e. the right to participate in sports competitions. This would, for example, suppose that an athlete notified of a testing attempt could elect to either submit or instead declare immediate retirement from sport without any further consequences. Under the current rules, however, such withdrawal of consent would trigger disciplinary sanctions, which may include ineligibility or fines depending on the sport, and in any event, will have a significant impact on the athlete’s reputation. The templates proposed by WADA explicitly warn athletes about these consequences, as well as the fact that anti-doping organisations may retain and continue processing their data in spite of any withdrawal (see here and here). In fact, the WADC provides that the results management and disciplinary process may be initiated or may continue in spite of the athlete announcing their retirement from sport.[20]

To this day, one is still awaiting a realistic proposal that would allow consent to anti-doping regulations to be genuinely freely given. Most stakeholders would agree that there is no viable manner of making compliance with anti-doping rules optional for athletes without undermining the very notion of a level playing field.[21] Unlike the relatively benign implications that lack of genuine consent had for the sport dispute resolution system so far, the impossibility of creating the prerequisites for free consent to anti-doping regulations is far more consequential in the data protection context. Indeed, it precludes reliance on consent as a reliable lawful basis that can be used globally by international sports governing bodies to secure the lawfulness of their data processing. This is the case unless courts would be willing to go against the explicit wording of data protection laws and tolerate ‘forced’ consent as a lawful basis in the context of sport.

As the Swiss Federal Council noted in their official communication on the Swiss Sport Act, the questionable validity of athlete consent makes it necessary to create express legal provisions authorising anti-doping organisations to collect and process personal data for anti-doping purposes.[22] Under the GDPR, processing sensitive data relying on an interest of substantial public or public health interest equally requires a legal basis in EU or relevant national law of a member state. Without intervention of national lawmakers to recognise anti-doping as a matter of ‘substantial public interest’ or ‘public health’ interest and identify those entities that are entitled by law to process data together with an appropriate description of the admissible scope and purposes for such processing, sports organisations will continue to rest on shaky ground when it comes to data processing and in particular processing of sensitive data.

Proportionality of treatment

The issue of proportionality is relevant for almost any component of an anti-doping system. It is recognised by CAS panels and courts as an internationally accepted standard,[23] as part of the assessment for deciding whether an encroachment upon individual freedoms is justifiable and justified in any given case. Proportionality is frequently debated in connection with the severity of the disciplinary sanctions set forth in the WADC,[24] but it is also a test that every other aspect of the regulation must stand up to.[25]

An important limb of the proportionality test is the ‘necessity’ of a measure having regard to the rights affected. This aspect was recently addressed by the European Court for Human Rights in the context of French legislation on the whereabouts regime applicable to professional athletes and its compatibility with privacy: “the general‑interest considerations that make them necessary are particularly important and, in the Court’s view, justify the restrictions on the applicants’ rights under Article 8 of the Convention. Reducing or removing the requirements of which the applicants complain would be liable to increase the dangers of doping to their health and that of the entire sporting community, and would run counter to the European and international consensus on the need for unannounced testing.”[26] The ECtHR conducted its assessment with respect to the right to privacy under Article 8 of the European Convention on Human Rights without having regard to specific data protection provisions.

The requirement of proportionality is a pillar of data protection in all its aspects, from the decision to collect the data to its retention. It is enshrined both in the GDPR and in the DPA[27] and is notably also highlighted in the WADA ISPPPI.[28] Concerns about proportionality of the anti-doping system were expressed by EU data protection advisory authorities as early as 2008,[29] and numerous exchanges with WADA have ensued.[30] Various adjustments have been made to the ISPPPI since then with a significant review to adapt the ISPPPI to the GDPR requirements, and a new set of WADA Guidelines adopted in 2018.

Still, the threats on proportionality are bound to be ubiquitous in a context where standardisation is a guiding principle of regulation. For example, the ISPPPI (Annex A) enshrines retention times based on different categories of data (TUE, samples, whereabouts, etc.), but with only two different retention periods overall: 18 months (newly being reconsidered in the draft revised version as 12 months) or 10 years. These have been criticised again in the ongoing stakeholder consultation process as being insufficiently differentiated to be adequate.[31] Indeed, while a column in the Annex formally indicates for each category that the retention time has been chosen based on “necessity” or “proportionality” criteria, Annex A states in limine that the limitation to two retention periods is “for practical reasons”. These justifications cannot be easily reconciled. To properly account for proportionality, anti-doping organisations would need to conduct their own assessment in a more individualised fashion, adapted to their athlete pool and sport. However, as in many other domains of doping control, one wonders how many of them will have the resources, competences and willingness to look beyond WADA prescriptions. Also, since most of the data must be processed through the ADAMS database managed by WADA, anti-doping organisations may have limited effective power over the set-up of the data deletion process.

The proportionality principle is also connected to another fundamental requirement, which is that data processing must remain within the ‘purpose’ defined (‘purpose limitation’ principle). The ISPPPI contains a list of purposes for which anti-doping organisations may process data. However, the ISPPPI gives anti-doping organisations an option to decide to process data for other purposes related to the fight against doping, provided they carry out a documented assessment. The WADA Guidelines propose a template for ‘new purpose assessment’, and indicate that such new purpose could encompass purposes that were not contemplated in the WADC nor perhaps could even be envisaged at the time of collection. The draft revised ISPPPI seems to go even further down this line: “In certain contexts, it may be appropriate or necessary for Anti-Doping Organizations/WADA to Process Personal Information for additional purposes, […] besides those already permitted or required by the Code, the International Standard or expressly required by law, in order to engage effectively in the fight against doping”.[32] It is unclear how this assessment is to be effectively implemented especially for sensitive data, be it under the assumption of a consensual basis or of one based on national law recognising substantial public interests for anti-doping activities. In both cases, if the actual purposes for which the data may be used are in limbo awaiting potential reassessment for ‘new’ purposes, it is questionable whether informed consent or a sufficiently predictable legal basis respectively could even be created.[33]

As the claims for more ‘evidence-based’ approaches and stronger monitoring of anti-doping programs grow louder, more thought could be spent on proportionality and purpose limitation of data processing in anti-doping. Most of the discussion so far has revolved around the intrusiveness of the whereabouts requirements. Whereabouts information, however, is only collected from a limited number of high-profile athletes (i.e., those included within a registered testing pool) and is only a fraction of the data collected as part of anti-doping programs. In the FNASS et al. v. France ruling, the ECtHR essentially relied on the pleas of the anti-doping movement and governments to find that the fight against doping pursues a public health interest and implements it in a proportionate way. In doing so, the ECtHR seems to perpetuate a tendency of CAS and other courts to take policy documents and consensus statements - whether enshrined or not in international law instruments such as the UNESCO Convention against Doping in Sport - as proof of the reality of the claims they contain[34] without requiring much supporting evidence. In many instances, this is technically justified by placing on the contesting party the burden of demonstrating any lack of proportionality.[35] On a higher level, however, it tends to create a presumption that any doubt must benefit the cause of anti-doping.[36] This may lead to self-perpetuating policy biases based on circular reasoning by justifying new measures through previous, unverified claims.

Data protection laws, with their detailed requirements and descriptions of data subject rights, may offer a foundation for a more granular analysis than general human rights provisions under the undetermined heading of ‘privacy’. Opportunities for legal analysis may still be hindered by the fact that an argument related to data protection is hard to build into a defence when athletes – or their counsel – would typically start seriously thinking about these issues only once they become subject to investigations or discipline for a potential breach of the anti-doping rules. CAS panels have been rather generous in admitting evidence unlawfully obtained against individuals charged in disciplinary proceedings.[37] It could thus prove extremely difficult – perhaps even counter-productive as a defence strategy – for an athlete to object to the admissibility of doping control data obtained in breach of data protection laws, in particular when the objection relates to a breach that leaves as much discretion to the panel as proportionality of data collection or retention. CAS panels have repeatedly recognised the fight against doping as an interest that overrides individual freedoms without carrying out much of an individualised balance of the interests at stake. [38]  More promising impetus could come from a random athlete seeking advice from supervisory authorities through the avenues offered by his or her national data protection laws prior to exposure to a positive test or other disciplinary action. Unfortunately, much like consumers, athletes often seem to show little interest in their privacy until they are confronted with some tangible detrimental consequences.

A true plague or a real opportunity?

Some may view recent developments in data protection laws as just another headache for sports governing bodies and deplore the advent of a new hurdle for anti-doping organisations who aspire to take their tasks under the World Anti-Doping Program seriously. Anti-doping organisations advocate that they are carrying out a mission of public interest. As we have seen, this view has been supported by various bodies and courts around the world and is also reflected in the UNESCO Convention against Doping in Sport. However, the GDPR does not regard public interest as an absolute basis for all data processing; in particular, sensitive data cannot be processed on the sole basis of an alleged public interest unless such public interest is substantial or related to public health, and its modalities are set out in national or EU law.

In a time where the credibility of existing structures and procedures within anti-doping authorities is questioned, the challenge arising from data protection standards can also be perceived as an opportunity for the anti-doping system. The ISPPPI and related WADA Guidelines, unfortunately, do not purport to provide solutions to the various crucial challenge set out above but merely invite anti-doping organisations to act in accordance with their applicable data protection laws. They give little guidance on how this is to be achieved in the event that these laws conflict with their duties under the WADC.

Developments in data protection force anti-doping organisations to look at their structures, legal status and their relationships with other organisations within the system. These developments should also have the effect of prompting national legislators to take measures more supportive of anti-doping policies in this domain, and in particular by making sure that sports governing bodies benefit from an appropriate legal basis for processing data, including sensitive data. Given that the very purpose of the WADC is to harmonise the regulation of doping in sport worldwide and that this objective is routinely invoked to justify restrictions on athlete rights, it would seem somewhat counterintuitive not to afford all athletes the same level of protection where their data is concerned. If there is truly a general international consensus on the legitimacy of the fight against doping and this consensus is supported by the State parties to the UNESCO Convention, those States, at a minimum, must be willing to give anti-doping organisations the means to carry out their tasks in a legally sustainable manner, unless and until these States are ready to engage in a fundamental overhaul of the current system.

[1] Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data. The GDPR started to apply on 25 May 2018. In theory, all entities conducting data processing activities within the scope of the GDPR ought to have secured compliance as of this effective date.

[2] Recital 112 refers to requirements for cross-border data transfers and provides: “Those derogations should in particular apply to data transfers required and necessary […] for public health, for example […] in order to reduce and/or eliminate doping in sport”.

[3] Article 3 para. 2 of the GDPR regarding territorial scope of application.

[4] See Articles 4.4 of the WADC for TUEs, 5.2 for testing, and 7.1 for results management.

[5] See e.g. CAS 2014/A/3598, 3599 & 3618, in which the authority of USADA to initiate proceedings against Johan Bruyneel and others was challenged.

[6] Article 4 (Definitions) of the GDPR. Note that a processor within the meaning of the GDPR may itself choose to delegate part of its activities to a sub-processor, if and to the extent authorised by the controller.

[7] See the guidance and examples given by the UK Information Commissioner’s Office.

[8] See Chapter IV of the GDPR.

[9] Article 28 para. 3 of the GDPR.

[10] Article 6 of the GDPR.

[11] Article 9 of the GDPR.

[12] Article 9 para. 1 of the GDPR; Article 3 lit. c of the DPA.

[13] See e.g. Duval A (2017) Not in My Name! Claudia Pechstein and the Post-Consensual Foundations of the Court of Arbitration for Sport, Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2017-01; Rigozzi A & Robert-Tissot F (2015) "Consent" in Sports Arbitration: Its Multiple Aspects. In: Geisinger & Trabaldo-De Mestral (eds) Sports Arbitration: A Coach for Other Players? ASA Series 41, Jurisnet NY, pp 59-95;

[14] Swiss Supreme Court Decision, 4P.172/2006, 22 March 2007.

[15] ECtHR Decision 22 October 2018, Mutu & Pechstein v. Switzerland, no 40575/10 et 67474/10, para. 114.

[16] Article 4 (Definitions) of the GDPR.

[17] Article 4 para. 5 of the DPA.

[18] Article 7 para. 3 of the GDPR.

[19] Article 7 para. 2 of the GDPR.

[20] Article 7.11 of the WADC.

[21] Though it is often debated to what extent exactly the performance enhancing effect of individual prohibited substances and methods is established. Heuberger J, Cohen A (2018) Review of WADA Prohibited Substances: Limited Evidence for Performance-Enhancing Effects. Sports Med. 2019; 49(4): 525–539.

[22] Message du Conseil fédéral du 11 nov. 2009, FF 09.082, pp 7450/7451 : « Aujourd’hui, les contrôles antidopage relevant du sport de droit privé reposent sur une déclaration de consentement du sportif. Cette déclaration doit être librement consentie. Or, cette liberté n’est pas garantie, dans la mesure où le refus de donner son consentement peut entraîner l’exclusion de la manifestation ou la perte de la licence ».

[23] CAS 2005/C/976 & 986, FIFA & WADA, para. 138 ; CJEU decision Meca-Medina & Majcen v. Commission (C-519/04).

[24] A recent example: CAS 2018/A/5546, Guerrero v. FIFA, CAS 2018/A/5571, WADA v. FIFA & Guerrero, paras 85 et seq.; Legal Opinion by Jean-Paul Costa on the 2015 revision of the WADC.

[25] Viret (2016), Evidence in Anti-Doping at the Intersection of Science & Law, T.M.C Asser, p. 133; Since its 2015 version, the WADC has included an explicit reference to proportionality as one of the key considerations underlying its drafting. See introductory section “Purpose, Scope and Organization of the World Anti-Doping Program and the Code”.

[26]ECtHR, FNASS et al. v. France (48151/11 and 77769/13), para. 191.

[27] Article 5(1)(c) of the GDPR, whereas the data must be “adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed (‘data minimisation’)”.

[28] Section 5.0 ISPPI “Processing Relevant and Proportionate Personal Information”.

[29] Art. 29 Working Party, now replaced by the European Data Protection Board under the GDPR.

[30] See collection of legal documents on WADA website.

[31] Comment to revised ISPPPI by NADA Germany, ad Annex Retention Times.

[32] Comment ad Article 5.3(d) draft ISPPPI.

[33] The EU Commission warns that extension of purpose is not possible where processing was based on consent or a provision of law without renewing the consent or creating a new legal basis.

[34] See e.g. preamble of the UNESCO Convention “Concerned by the use of doping by athletes in sport and the consequences thereof for their health, the principle of fair play, the elimination of cheating and the future of sport”.

[35] See already in CJEU decision Meca-Medina & Majcen v. Commission (C-519/04) regarding the proportionality of threshold levels.

[36] Maisonneuve Mathieu, La CEDH et les obligations de localisation des sportifs : le doute profite à la conventionnalité de la lutte contre le dopage, note sous CEDH, 5^e sect., 18 January 2018, Fédération nationale des associations et des syndicats sportifs (FNASS) et autres c. France, req. Nos 48151/11 et 77769/13. Journal d’actualité des droits européenes, Centre de recherches et de documentation européennes et internationales, 2018.

[37] CAS 2016/A/4487, IAAF v. Melnikov, para. 108.

[38] CAS 2009/A/1879, Valverde v. CONI, para. 139.

Editor’s Note: Oytun Azkanar holds an LLB degree from Anadolu University in Turkey and an LLM degree from the University of Melbourne. He is currently studying Sports Management at the Anadolu University.

Introduction

On 19 October 2017, the Turkish Professional Football Disciplinary Committee (Disciplinary Committee) rendered an extraordinary decision regarding the fixing of the game between Manisaspor and Şanlıurfaspor played on 14 May 2017. The case concerned an alleged match-fixing agreement between Elyasa Süme (former Gaziantepspor player), İsmail Haktan Odabaşı and Gökhan Sazdağı (Manisaspor players). The Disciplinary Committee acknowledged that the evidence relevant for proving the match-fixing allegations was obtained illegally and therefore inadmissible, and the remaining evidence was not sufficient to establish that the game was fixed. Before discussing the allegations, it is important to note that the decision is not only significant for Turkish football but is also crucial to the distinction between disciplinary and criminal proceedings in sports.

Background of the Case

During the last weeks of the 2016/2017 season in Turkish 2^nd Division League, three teams, namely Manisaspor, Şanlıurfaspor and Gazişehir Gaziantep, were competing to avoid relegation. At the penultimate week, Manisaspor played against Şanlıurfaspor and won the game. Gazişehir Gaziantep also won its match. As a consequence of these results, Şanlıurfaspor was relegated to a lower division. At the end of the season, on 5 July 2017, Şanlıurfaspor claimed that the club Gazişehir Gaziantep had attempted to influence the outcomes of the games and Şanlıurfaspor appealed to the Turkish Football Federation (TFF).

Şanlıurfaspor’s claims mainly focused on the recording of the talk between Nizamettin Keremoğlu (Vice-President of Gazişehir), Elyasa Süme (a former Gaziantepspor player), Gökhan Sazdağı (Gazişehir player who was on loan at Manisaspor at the time) and İsmail Haktan Odabaşı (Manisaspor player). The recording was leaked and uploaded on Youtube. The content of the recording clearly demonstrates that incentives were provided to Manisaspor players by Gazişehir in order to encourage them to win against Şanlıurfaspor. Furthermore, Gökhan Sazdağı confessed in the recording that he had been involved in match-fixing before and that this would not be his first time. In addition, Gaziantepspor claimed that Elyasa Süme was involved in match-fixing. On 20 July 2017, based on these serious allegations and the incriminating evidence publically released, the TFF referred Şanlıurfaspor’s application to the Turkish Football Federation Ethics Committee (Ethics Committee). Following the Ethics Committee’s report, the TFF subsequently referred the case to the Disciplinary Committee for determining the possible sanctions to be imposed on Gazişehir Gaziantep, Nizmettin Keremoğlu, Elyasa Süme, Gökhan Sazdağı and İsmail Haktan Odabaşı. Finally, on 19 October 2017, the Disciplinary Committee decided that the evidence relevant for proving match-fixing was illegally obtained and the remaining evidence was not enough to establish an instance of match-fixing.

Separating Disciplinary and Criminal Proceedings

It is generally accepted that in sports law disciplinary proceedings are to be treated differently than criminal investigations.[1] In countries like Turkey, match-fixing and/or match-fixing attempts also constitute a crime. Article 11(1) of the Act on the Prevention of Violence and Disorder in Sports stipulates that a person providing advantages or benefits in order to influence the final result of a game shall be punished with imprisonment from five to twelve years. Article 11(5) of the same regulation also states that in case of commission of the offense by offering or promising incentive pay with the intention of enabling one team to win a match, only half of the punishment is to be imposed.

On the other hand, match-fixing and incentives also appear in Article 58 of the Turkish Football Disciplinary Instruction. The said provision makes clear that it is forbidden to influence the outcome of the games illegally or unethically. Incentives fall also within the scope of this provision. In case of a breach, individuals will face a life-long ban. In case of an attempt at match-fixing or of the provision of unlawful incentives, clubs will be sanctioned by at least a 12 points deduction.

It is important to note that Turkish prosecutors have not yet opened a criminal investigation for the allegations related to the provision of incentives, even if the allegations and evidence are serious.

The Position of FIFA, UEFA, and CAS with respect to Match-Fixing Allegations and Binding Rules for Turkish Authorities     

FIFA as the world's governing body of football has put in place significant provisions regarding match-fixing and corruption in football. Article 69 FIFA Disciplinary Code stipulates that anyone who unlawfully influences the outcomes of football games can be banned from taking part in any football-related activity for life. Furthermore, Article 3.10 FIFA Code of Conduct also highlights the importance of zero tolerance for bribery and corruption.  

UEFA president Michael Platini announced in 2011 that a zero tolerance policy was adopted by UEFA regarding match-fixing, and that all match-fixing allegations would be seriously investigated. Moreover, as evidenced in Sport Lisboa e Benfica Futebol SAD, Vitoria Sport Clube de Guimaraes v. UEFA and FC Porto Futebol SAD, UEFA is not bound by national associations’ decisions in this regard.

A zero-tolerance policy requires that match-fixing attempts be punished heavily. This does not mean, however, that there is no standard of proof for match-fixing allegations. According to the CAS, match-fixing allegations must be proved to its comfortable satisfaction. [2] Comfortable satisfaction is defined by the CAS as a standard that is higher than the civil standard of “balance of probability” but lower than the criminal standard of “proof beyond a reasonable doubt”.[3] In my view, considering the evidence in the case of Şanlıurfaspor, in particular the recordings and the statements of the clubs, it should be accepted that the standard of proof for match-fixing allegations was met.

What is crucial in our case is that UEFA and the CAS cannot intervene in the Turkish match-fixing proceedings due to Article 64(1) of the Statutes of the Turkish Football Federation stating that “CAS shall not, however, hear appeals on violation of the laws of the game, suspensions according to relevant provisions of the FIFA and UEFA Statutes, or decisions passed by the independent and duly constituted Arbitration Committee of the TFF”. Moreover, Article 59(3) of the Turkish Constitution provides that “the decisions of sports federations relating to administration and discipline of sporting activities may be challenged only through compulsory arbitration. The decisions of the Arbitration Board are final and shall not be appealed to any judicial authority”. On the other hand, in case of a breach, FIFA has the authority, relying on its Code of Conduct and Disciplinary Code, to take important steps in order to sanction clubs and/or individuals, even where national federations fail to do so. Therefore, on 25 October 2017, Şanlıurfaspor declared that if the Arbitration Board of the TFF did not sanction clubs and individuals who were allegedly involved in match-fixing, it would apply to FIFA to do so.

The Validity of Evidence

The main reason why the Disciplinary Committee did not find the clubs and individuals guilty of match-fixing was that the evidence, which was crucial to support the allegations, was obtained illegally. Therefore, it is of primary importance to compare this position to the one adopted by UEFA, CAS, and the Swiss Federal Tribunal with respect to the validity of illegally obtained evidence in disciplinary proceedings involving match-fixing.

UEFA’s position regarding the admissibility of evidence can be derived from specific provisions in its regulations. For instance, Article 4(2) 2017/2018 UEFA Champions League Regulations expressly states that if UEFA is comfortably satisfied that a club was involved in any activity aimed at arranging or influencing the outcome of a match, such club will be ineligible for the participation. While taking its decision, UEFA can rely on the decision of a national or international sporting body, but it is not bound by these decisions. Article 4(2) allows UEFA to punish clubs, even if they have been exonerated by other sporting bodies. Therefore, it can be concluded that if UEFA is comfortably satisfied, the validity of evidence will not be questioned. The article says nothing about the validity of evidence. In addition, even if national sports governing bodies do not punish clubs and/or individuals, UEFA is not bound by national decisions even if the evidence was illegally obtained. [4]

The CAS also supports the approach of UEFA with regard to the admissibility of evidence in match-fixing cases. According to the CAS jurisprudence, “even if evidence might not be admissible in a civil or criminal court in Switzerland, this does not automatically prevent a sports federation or an arbitration tribunal from taking such evidence into account in its deliberations”.[5] This statement clearly shows that the CAS distinguishes criminal or civil court proceedings from disciplinary proceedings. As a matter of fact, it can be argued that the CAS allows national sports governing bodies to evaluate the admissibility of match-fixing evidence less strictly than in criminal proceedings.

In general, the CAS is bound by Swiss law because it is domiciled in Switzerland. Therefore, the Swiss Federal Tribunal may annul the CAS awards if they are contrary to Swiss public policy. One could argue that a decision based on illegally obtained evidence violates Swiss public policy. Thus, the approach of the Swiss Federal Tribunal also needs to be taken into account. The Swiss Federal Tribunal discussed the admissibility of evidence in A. v The Football Federation of Ukraine. In this case, the appellant claimed that using illegally obtained evidence, violated Swiss public policy. As a response to this claim, the respondent (CAS) argued that there was an overriding public interest in preserving football’s integrity. Therefore, the evidence should have been admissible according to the CAS. The Swiss Federal Tribunal held that pursuant to Article 152(2) Swiss Private International Law Act (PILA), “illegally obtained evidence shall be considered only if there is an overriding interest in finding the truth”. In that particular case, the Swiss Federal Tribunal upheld the decision of the CAS and stated that if necessary to prove an instance of match-fixing, illegally obtained evidence was not inadmissible.

The Approach of Turkish Law against Match-Fixing

As explained above, the Act on the Prevention of Violence and Disorder in Sports and the Turkish Football Disciplinary Instruction contain significant provisions aimed at combating match-fixing. However, these rules say nothing about the admissibility of evidence. Pursuant to Article 38(6) Turkish Constitution, “findings obtained through illegal methods shall not be considered evidence”. Contrary to the PILA, the Turkish Constitution does not provide for exemptions. Additionally, Article 206(2) and 217(2) Turkish Criminal Procedure Code provide that illegally obtained evidence cannot be accepted by criminal courts in Turkey. Nevertheless, there is no definitive verdict about the admissibility of evidence in sporting disciplinary proceedings in Turkey. Furthermore, Turkish sports regulations do not contain specific rules for assessing the evidence in match-fixing allegations. Therefore, it can be argued that in Turkey, there is a loophole in disciplinary proceedings as to whether illegally obtained evidence is admissible or not.

Conclusion

The fight against match-fixing is vital for sports governing bodies. This article has demonstrated that UEFA, CAS, and the Swiss Federal Tribunal share the same view that illegally obtained evidence is not always inadmissible when used to evidence an instance of match-fixing. In my view, the Disciplinary Committee disregarded the approach of UEFA, CAS, and the Swiss Federal Tribunal, and instead followed the practice of the Turkish Criminal Court. Because match-fixing is also a breach of the Turkish Act on the Prevention of Violence and Disorder in Sports, it is the duty of criminal courts in Turkey to assess whether the evidence was obtained legally or not. However, as a disciplinary body, the Disciplinary Committee was not forced to deny the admissibility of illegally obtained evidence. I believe it should have followed the established practices of UEFA, FIFA, and the CAS, and assess the available evidence to determine whether it met the comfortable satisfaction standard of proof. Hence, based on the confession recorded in the YouTube video, the Disciplinary Committee should have decided that the individuals concerned, at a minimum, attempted to fix the match and it should have imposed the corresponding sanctions.   

___________________________

[1] Adam Lewis and Jonathan Taylor, Sport: Law and Practice (Bloomsbury, 3rd ed, 2014) 249.

[2] Michael J Beloff et al, Sports Law (Hart Publishing, Second edition, 2012) 188.

[3] Beşiktaş Jimnastik Kulübü v UEFA [2013] CAS 2013/A/3258 [119].

[4] Public Joint-Stock Company “Football Club Metalist” v. Union des Associations Européennes de Football (UEFA) & PAOK FC [2013] CAS 2013/A/3297 [8.8].

[5] Public Joint-Stock Company “Football Club Metalist” v. Union des Associations Européennes de Football (UEFA) & PAOK FC [2013] CAS 2013/A/3297 [2].

Editor's Note: Ryan Gauthier is Assistant Professor at Thompson Rivers University in Canada. Ryan’s research addresses the governance of sports organisations, with a particular focus on international sports organisations. His PhD research examined the accountability of the International Olympic Committee for human rights violations caused by the organisation of the Olympic Games.

Publicly Financing a Stadium – Back in the Saddle(dome)

Calgary, Canada, held their municipal elections on October 16, 2017, re-electing Naheed Nenshi for a third term as mayor. What makes this local election an interesting issue for sports, and sports law, is the domination of the early days of the campaign by one issue – public funding for a new arena for the Calgary Flames. The Flames are Calgary’s National Hockey League (NHL) team, and they play in the Scotiabank Saddledome.

Scotiabank Saddledome, credit to Lorraine Hjalte, Calgary Herald

The team began play in 1972 as the Atlanta Flames, moving to Calgary in 1980. The Saddledome was built in 1983 to support both the newly-arrived Flames, and Calgary’s 1988 Winter Olympic Games. Today, the Saddledome is the oldest arena in operation in the NHL. Due to its age, and the damage caused by floods in 2013, the Flames are looking for a new home. As is the norm in North America, the Flames have no intention of going it alone, but are seeking a deal with the City of Calgary where the city would subsidize part of the arena. Negotiations have been ongoing for several years, with a few possible sites discussed.

Shortly into the 2017 municipal election campaign, negotiations between Calgary and the Flames broke down. The City of Calgary publicly released their proposal for a $555 million stadium, where the city would effectively subsidize 33% of the stadium through a mix of funding, land, and demolition of the old Saddledome. The team would pay 33% of the costs, and the fans would kick in the final 33% through a ticket tax. The Flames responded by releasing their proposal for a $500 million stadium, where the city would provide 45% of the funding through a ‘Community Revitalization Levy’ (a loan from the province of Alberta, paid off by property taxes on new developments around the arena), with the team providing 55% of the remainder. The difference in costs may be that the Flames’ proposal does not appear to consider the demolition of the old Saddledome. While the team’s proposal has the team paying more costs up-front, it would also see the Flames pay no property tax or rent during their tenure in the new stadium, while keeping all revenue generated by the arena.

Canadian national media praised Mayor Nenshi for not simply capitulating to the demands of the Flames. Print media exhorted taxpayers to “Just say ‘No’” to subsidizing the Flames, and called Nenshi’s re-election “a win for every city blackmailed by a sports team”. The Calgary Flames, and the NHL were less sanguine, as NHL Commissioner Gary Bettman blamed Nenshi for not getting a new arena for the Flames, and Flames’ management suggesting that the team would have to move. The night of Nenshi’s re-election saw the communications director of the Flames, Sean Kelso, take a more direct stance:

The ongoing dispute in Calgary is emblematic of a larger problem in North America – the public financing of stadiums for professional sports teams.

Public Financing of Stadiums in North America – A General Overview

North American cities have subsidized stadiums for professional sports teams for decades. However, cities rarely simply transfer cash to a team. Instead, more complex mechanisms are used: issuing bonds, tax increases, lotteries, and the use of “eminent domain”.

First, cities may provide money for stadiums through providing bonds to team owners. These bonds are tax-exempt, and are normally used by cities for public improvements. Cities have been able to justify their use for stadiums, and the tax-exempt nature of the bonds lowers the lifetime borrowing costs for a team. Second, cities may simply increase taxes. Cities used to increase property taxes to raise money for stadiums, but local residents began to resent such increases. Today, cities often increase “sin taxes” (e.g., on alcohol, or gambling), or taxes on hotels, in an attempt to move the burden of increased taxation to out-of-town people who won’t be voting in the next municipal election. Third, cities may set up lotteries, in conjunction with the state or province, to raise money for the stadium. Finally, cities may exercise their use of “eminent domain”. This tactic enables cities to condemn the land, with payment of just compensation (which is often not market value) to the original owner, for the furtherance of a “public purpose” (what constitutes a public purpose is broad, following the US Supreme Court decision in Kelo v. City of New London, 545 U.S. 469 (2005)).

After understanding the what, the question remains: why do cities subsidize sports stadiums? Ultimately, there is a limited supply of major-league teams, and cities view being a “major league” city as a benefit. Unlike European professional leagues, where any local team could make it to the top league through promotion, the top leagues in North America are closed leagues, currently limited to 30-32 teams in the “big four” leagues. Cities that want to be home to a professional team must convince a league to expand, placing a new team in their city (as Las Vegas recently did with the NHL), or convince an owner of an already-existing team to relocate (as Las Vegas has done with the National Football League’s Oakland Raiders). One way to encourage expansion or relation is to offer a subsidized stadium. It can be argued that these tactics are no different than a city offering a subsidy to convince a company to establish or relocate an office – like what is happening with Amazon right now – except for the scale of the subsidy.

Boosters of stadium subsidies have argued that cities should be happy to have sports teams, as the teams will generate an economic boost. They claim that the team, and their new stadium, will increase local income, employment rates, property values, and the well-being of citizens. However, economists have generally debunked these claims. While there are examples of successful stadiums, they are generally not as successful as predicted, often not worth the costs, and the few successes are drowned out by every other instance where the economic impact was not realized (sort of like hosting the Olympic Games or FIFA World Cup).

Proposed Legal Solutions to Halt Public Financing of Stadiums

Given the lack of economic benefits generated by stadiums, particularly given the hundreds of millions of dollars of subsidies granted to each stadium, legal scholars have proposed legislative, regulatory, and judicial solutions to halting this gravy train.

In regards to legislative solutions, Canada and the United States could follow the model of the European Union (EU). The EU has restrictions on government assistance to private industries, to prevent the distortion of competition across the EU – these are known as the “State Aid” rules, found in Art. 107 of the Treaty on the Functioning of the European Union. In practice, the EU has an uneven history of applying the State Aid rules to sport. However, it has shown more enthusiasm over the past year to find evidence of state aid that is incompatible with the Treaty, including in a case that involved a questionable deal involving land next to Real Madrid’s Bernabéu Stadium. However, legislative solutions are unlikely to be enacted by either the American Congress or the Canadian Parliament (or local legislative bodies). There appears to be no interest to do so, and why would there be? Politicians can benefit from new stadiums by working with business elites who support the stadiums, and the evidence of repercussions at the ballot box appear to be mixed.

Some legal scholars have suggested regulatory or judicial solutions, such as: halting the tax-free status of municipal bonds, ending the use of eminent domain to obtain land for stadiums, and advocated a stronger role for antitrust oversight over the conduct of teams and leagues in this regard. However, courts have construed these particular laws broadly enough to allow the public financing of stadiums to continue.

A Good Governance Approach to the Public Financing of Stadiums – Atlanta Braves Case Study

When even Calgary’s stance, which had the city subsidizing at least 1/3 of the stadium, is considered brave, it seems reasonable to presume that publicly-subsidized stadiums will continue apace in North America. As such, it may be more helpful to consider what happens after a stadium project is proposed. Applying a good governance approach to stadium financing could be a helpful way forward. If stadiums are going to be built, regardless, then it is best to make those who build stadiums – governments and teams – accountable to the taxpayers and fans.

Good governance principles have been increasingly applied to the organization of sport – particularly the governance of international sporting organisations. While good governance can be defined in a myriad of ways, it is often broken down to particular principles. In examining stadium projects, I suggest that four principles should be considered: transparency, public participation, solidarity, and review. These principles closely track those used by the Sports Governance Observer.

One recent stadium project seems to have studiously avoided all of these principles entirely – in a way that demonstrates the need for these principles to be applied in the first place. This project took place in the Calgary Flames’ old home of Atlanta, USA.

                                                                                          Turner Field, credit to Zpb52

In 2013, the Atlanta Braves announced that they were leaving their current stadium in downtown Atlanta. They weren’t moving to a new city, but were moving 32 kilometres north to the suburb of Cobb County. The reason for the move? A brand new, publicly-financed stadium. The Atlanta Braves had played at Turner Field since 1997. Not even twenty years later, the stadium, originally built as the centrepiece of the 1996 Summer Olympic Games, was deemed to be obsolete by the Braves. Enter Cobb County. To pay for a new stadium for the Braves, Cobb County issued $368 million in municipal bonds (originally estimated at $276 million). The Braves, in chasing public money, bucked the trend of teams moving closer to the city centre, as suburbs are not conducive to stadiums.

While the rationale and the dollar figure should raise some eyebrows, the process used to secure funding for the stadium should be deeply disturbing to fans of democratic processes. The deal itself was negotiated in secret between a single Cobb County commissioner, and the Atlanta Braves. The president of the Atlanta Braves, John Schuerholz, stated that if news of the deal “had leaked out, this deal would not have gotten done…If it had gotten out, more people would have started taking the position of, ‘We don’t want that to happen. We want to see how viable this was going to be.’” Eventually, the deal needed to be voted on by Cobb County commissioners. At the public vote held in May 2014, only twelve speaking slots were available to the public. Stadium supporters had lined up by 2pm for the 7pm meeting, and the Commissioners denied any additional speaking slots. The same Commissioners voted 5-0 to fund the stadium. Opponents of the stadium filed a suit in the Georgia courts, alleging that the bonds used to finance the new stadium violated the Georgia state constitution, and various state laws. However, the opponents were defeated in the courthouse, too, as the Georgia Supreme Court upheld the validity of the bonds as they provided at least some plausible public benefit. The stadium opened in 2017 to positive reviews from fans and ballpark enthusiasts.

In examining the Atlanta Braves new ballpark by applying principles of good governance, the results are discouraging. Transparency was almost non-existent throughout most of the process, as the deal was completed in secret, as admitted by the president of the team. Public participation was curtailed throughout the process, and most galling, at the eve of the final vote on the funding. There have been no solidarity benefits that have come to the forefront, although it should be noted that it is possible that money that was raised to pay for public parks was diverted to funding the stadium, which cuts against the idea of solidary benefits. Finally, there will likely be no post facto review of the stadium and any attendant benefits it may claim. While there was review of the deal itself through the courts, the Georgia Supreme Court noted that “we do not discount the concerns Appellants have raised about the wisdom of the stadium project and the commitments Cobb County has made to entice the Braves to move there. But those concerns lie predominantly in the realm of public policy….”.

SunTrust Field, Credit to David Goldman/AP

The Value of Good Governance Principles in the Stadium Debate

The case of Atlanta demonstrates the importance of good governance in the public financing of stadiums. Proponents, critics, and scholars can apply these principles to evaluate and engage in more thoughtful debates over the processes of public financing of stadiums. Since stadiums are likely to receive public funding, regardless of the merits, a better process should improve the benefits to the public, while constraining the costs.

Applying principles, as opposed to enacting legislation, may lead the reader to ask “can these principles be enforced?” In terms of traditional legal enforcement, namely recourse to a regulatory body or a court, a city would probably need to implement these terms into a Memorandum of Understanding with the team. For principles such as solidarity, particulars could be written into the final funding agreement. This has been done, for example, with the Community Benefits Agreement implemented between the City of Edmonton, and the Edmonton Oilers hockey team, for a publicly-subsidized stadium that opened in 2016.

However, even if the city itself refuses to implement these principles, they do provide a framework to hold decision-makers to account. In instances where the government has done wrong by the citizens, but there are no judicial remedies, the remedy is then to vote the government out. In establishing these principles, they then provide standards by which the government can be held to account, if not formally, then at least through the ballot box.

Editor’s Note: Saverio Spera is an Italian lawyer and LL.M. graduate in International Business Law from King’s College London. He is currently an intern at the ASSER International Sports Law Centre.

The time is ripe to take a closer look at the CAS and its transparency, as this is one of the ways to ensure its public accountability and its legitimacy. From 1986 to 2013, the number of arbitrations submitted to the CAS has grown from 2 to more than 400 a year. More specifically, the number of appeals submitted almost doubled in less than ten years (from 175 in 2006, to 349 in 2013[1]). Therefore, the Court can be considered the judicial apex of an emerging transnational sports law (or lex sportiva).[2] In turn, the increased authority and power of this institution calls for increased transparency, in order to ensure its legitimacy.[3]

One might ask why focusing on the level of transparency of an arbitral institution is so important, given the traditional aura of confidentiality that has always accompanied arbitral proceedings. The answer is multifaceted. Firstly, a cursory look at the developments of international commercial arbitration and, more significantly, international investment arbitration shows that confidentiality is not anymore the untouchable hallmark that it once was.[4] Secondly, and most importantly, the peculiarities of the CAS Appeal Procedure make this body look like an arbitral institution but function in a way that is more akin to an international court. Furthermore, it is well known that one of the foundations of domestic and international arbitration is party autonomy. Parties freely opt to defer their dispute to an arbitral panel rather than a court for a variety of reasons, one of which can actually be the confidential nature of arbitration. That said, it is hard to ground the CAS Appeal Procedure on party autonomy. According to the CAS Code (Art. R47), in order for the CAS to have the necessary jurisdiction to hear an appeal, either the parties have expressly agreed to it, or an arbitration clause is contained in the statutes or regulations of the governing body issuing the decision under appeal. In practice, the regulations of the Sports-Governing Body often contain an arbitration clause in favour of the CAS, or these bodies require athletes to sign a specific arbitration agreement as a precondition for participating in an event or competition.[5] An example of the former practice is given by the FIFA Statutes, which – at Art. 59 expressly require that national federations insert an arbitration clause in favour of the CAS in their regulations, and – at Art. 58 imposes that “(a)ppeals against final decisions passed by FIFA’s legal bodies and against decisions passed by confederations, members associations or leagues shall be lodged with CAS”. An example of the latter is given by Bye-law 6 to Rule 44 of the Olympic Charter, which obliges athletes entering the Olympic Games to sign a form containing a clause which devolves the CAS exclusive jurisdiction over any dispute arising in connection with the participation to the Games.

In such a framework, athletes face the alternative between not competing at all and accepting to resort to the CAS in case of a dispute. The post-consensual foundation of the system is a feature that stands in irreconcilable conflict with the logic of international commercial arbitration, based on party autonomy. If the free will of the parties in choosing to arbitrate rather than litigate justifies, to a limited extent, a limitation of transparency in favour of confidentiality in international commercial arbitration, what justifies a low level of transparency at the CAS?

In this regard, for example, the level of transparency of international investment arbitration has been subjected to intense scrutiny. Transparency should then, a fortiori, be scrutinized in the realm of sports arbitration, and in particular at the CAS, whose central position in the lex sportiva is widely acknowledged.

This blog will focus on the two key issues related to the CAS’ transparency. Firstly, the availability of information about arbitrators on the CAS website. Secondly, and most importantly, the publication and ready availability of CAS awards. Furthermore, as the CAS ordinary procedure resembles traditional commercial arbitration, the blog will be only concerned with awards stemming from the Appeal procedure. 

Lack of transparency concerning the arbitrators

Articles R33 to R36 of the CAS Code deal with independence and impartiality of CAS Arbitrators as a conditio sine qua non of the arbitration proceedings.[6] Moreover, these provisions provide for mechanisms to guarantee this independence together with measures at disposal of the parties that want to challenge the independence or impartiality of an arbitrator. Yet to diligently exercise their right, and ensure the independence of arbitrators, parties need full access to information on the arbitrators.

Analysed through the lens of transparency, the problems arise from the fact that it is difficult to assess the inclinations and history of arbitrators prior to initiating proceedings before the CAS. In other words, given the limited information on arbitrators found on the CAS website[7], parties are not equipped with the necessary tools to make a fully informed choice. There is always a risk for conflicts of interest that parties to CAS arbitration should be able to assess on a level playing field, i.e. through a simple visit to the CAS website. Thus, more transparency with regards to the information provided about arbitrators would help reduce the prevailing information asymmetry between the one-shotters (mainly the athletes and their lawyers) and the repeat players (mainly the SGBs and their lawyers/legal counsels) at the CAS. Not only should the section ‘List of Arbitrators’ give access to each arbitrator’s jurisprudential record and relevant past or present contractual relationships. It should also list publications or comments arbitrators have released in the past, as some of them might have already formed a view on a certain type of cases. Although this is not always an indicator of bias, it would permit the parties to make a better-informed choice. Furthermore, and more importantly, in order to level the playing field between the parties, the information about arbitrators should also include a reference to who nominated them in past CAS arbitrations. Additionally, the fact that dissenting opinions are not recognised nor notified by CAS^[8] adds another layer to a feeling of opacity surrounding the arbitrators’ profiles and views.

Finally, according to Art. R33 CAS Code, ICAS draws up the list of arbitrators. From the point of view of securing the CAS’ transparency and accountability, it would be necessary that the nomination process be publicly scrutinized. Thus, ICAS should publish the name of the institutions putting forward each new arbitrator, as well as the reasons why they were considered adequate candidates.  

Lack of transparency in the publication of awards

The lack of transparency of the CAS is further illustrated by the process followed for the publication of its awards (and in particular awards of the Appeal Division).

The CAS Code provides rules for the publication of awards in the Ordinary Procedure (Art. R43) and the Appeal Procedure (Art. R59). For the Ordinary Procedure the default rule is confidentiality ‘unless all parties agree or the Division President so decides’. The rule favours a presumption of confidentiality because the CAS Ordinary Procedure is mainly used for commercial disputes based on the clear consensual agreement of the parties to submit to CAS arbitration. However, it is interesting to note that even in the similar realm of international commercial arbitration confidentiality is not an unchallenged hallmark anymore. International commercial arbitration awards are being voluntarily published with increased frequency[9] and some authors even advocate the adoption of a presumption of openness of the awards.[10] In fact, although the need for transparency in commercial arbitration is less compelling than in investment arbitration due to the private interests at stake, the general public may still be affected in a variety of ways and therefore needs to have access to the decisions. [11]

Conversely, the default rule for the CAS Appeal Procedure is publicity. Art. R 59(7) provides that “(t)he award, a summary and/or a press release setting forth the results of the proceedings shall be made public by CAS, unless both parties agree that they should remain confidential. In any event, the other elements of the case record shall remain confidential”. The rationale for a different treatment between the Ordinary Procedure and the Appeal Procedure lies in the consideration that, unlike the more commercially-oriented disputes destined to the Ordinary Procedure, appeals concern disciplinary decisions issued by international federations that are of interest to the public and that, in any case, might have already been disclosed.[12]

From a comparative point of view, it is noteworthy that the public interests at stake are one of the reasons why international investment arbitration, as opposed to – or at least more rapidly than – commercial arbitration, has shifted from a presumption of confidentiality to a presumption of openness.[13] In oversimplified terms, investment arbitration disputes involve States, which – for instance – have to resort to the national budget to pay in case of adverse awards. Also, governments’ public policies are often challenged before investment arbitral tribunals by foreign investors. All these matters are of evident public interest and were a key factor in pushing for more transparency. In the field of international investment law this process was initially triggered by NAFTA Chapter 11 and its interpretation by the Free Trade Commission (FTC), followed by the 2006 amendment to the ICSID Arbitration Rules. The development of the UNCITRAL Rules on Transparency, which also provide for amicus curiae submissions and open hearings, made another important stride in that direction.

Turning the attention back to the CAS, all the awards published are released on the CAS website. Although it could be argued that, at least for the Appeal Procedure, the default rule should go further down the road of transparency following the trend in treaty investment arbitration, a transparency-weary commentator could potentially be satisfied with the existing framework of the CAS Code, if only the CAS would implement it consistently. Instead, the CAS administration seems to follow a rather opaque and discretionary publication policy that gives rise to major transparency issues, the main one being the fact that, as we will see, only a limited number of awards are published on the CAS website. 

The CAS statistics include the number of Appeals submitted to the CAS (until 2013) and it is easy to determine the number of awards published per year in the CAS Database between the entry into force of the Code (22 November 1994) and the end of 2013. We compared the two figures and obtained the percentage of awards published each year in relation to the number of appeals submitted.[14]

A quick glimpse at the table suffices to notice an unfortunate trend in the publication policy of the CAS. If we exclude the first couple of years, in which the number of appeals submitted were extremely limited, the percentage of awards published is constantly below 30% (with the sole exceptions of 2001, 2002 and 2008, and – in any case –substantially below the still hardly acceptable threshold of 50%). The figures get even more striking as the workload of the CAS increased. From 2009 onwards, the average percentage of appeal awards published stands at a disappointing 17.5%!

This state of affairs significantly hampers predictability and coherence of the CAS jurisprudence, as well as threatens the objective of providing legal certainty to the sporting world at large, which is at the heart of the appeal procedure at the CAS. Indeed, the CAS jurisprudence has acquired throughout the years a law-making role that, in turn, calls for full transparency of its awards. If we read through the CAS case law we can find that arbitrators often refer, and demonstrate a consistent deference, to CAS jurisprudence.[15] To this end, transparency becomes a central issue, as it prevents inconsistency by subjecting the CAS panels to the critical scrutiny of their peers. After all, the need for coherence has been stressed by the CAS itself when it has recognised that, in spite of the lack of stare decisis at the CAS, arbitrators are disposed to “follow the reasoning of a previous Tribunal […] both of a sense of comity and because of the desirability of consistent decision of the CAS, unless there were a compelling reason, in the interest of justice, not to do so”.^[16] From the point of view of the potential parties to CAS arbitration this is of particular importance. If awards are systematically published, lawyers (and in fine the parties) are better able to determine before initiating the arbitration whether their case is likely to succeed. Furthermore, the availability of awards on the CAS website would put repeat players and one-shotters on an equal playing field, eliminating – at least in this regard – the edge that the former gain on the latter.

The need for predictability requires not only awards to be published, but also to be promptly published after they are rendered. The potential disputing parties might have an interest in having previous awards available quickly. In this regard the above-mentioned role of precedents in CAS jurisprudence plays again a significant role. It has been noticed how some decisions are based on solutions adopted in previous awards that have not yet been published.[17] Having the award readily at disposal is necessary for the parties’ legal argumentation. This way the party’s counsel can, respectively, either use the award as a valid leg to bolster her arguments or criticise the position recently adopted by a panel on the same issue.[18] Additionally, a more systematic publication of recent awards online would significantly contribute to increase the level of transparency at the CAS, as the web represents a great opportunity for the public in terms of speed and accessibility. On the CAS website it is possible to find a section specifically dedicated to ‘recent decisions’. This section, though, does not seem to be organised as systematically as it could be. The CAS’ policy regarding the recent decision section of its website is extremely confusing. It includes some awards from 2016 and 2015, but not all the awards from these years available in the CAS database, as well as older awards from 2012 and 2011, which can hardly count as ‘recent decisions’. Apart from the consideration that “these awards disappear from the website after a few weeks and it is not possible to find them anymore”[19], a more systematic publication of the recent awards would be desirable. A valid model to follow has been identified in the websites of the Italian Camera di conciliazione e di arbitrato per lo sport (CCAS) and the Canadian Centre for Ethics in Sports (CCES), where the decisions taken are systematically published without excessive delay.[20]

Conclusion

There is a clear, widespread and apparently unstoppable demand for transparency in contemporary international law. This demand has been voiced by civil-society, governments and international institutions with increased frequency. Thus, more room for transparency has been made within international institutions in the last few years.[21] We have seen very briefly how even in the confidentiality-savvy field of international arbitration transparency has made its way up on the ladder of priorities. In sports arbitration, where the jurisdiction is often not exercised over the parties on the basis of their consent[22], the judicial activity of the CAS must be a fortiori open to scrutiny not only by the parties but by the public at large. There are many ways to evaluate the legitimacy of a court. One of these is the persuasion among the public that an international court has the right to exercise authority in a given domain. To be persuaded, it is essential that the public has a possibility to assess how the CAS carries out its activities and, therefore, be allowed the broadest access possible to CAS awards to be able to evaluate (and criticize) their rationality. A greater transparency at the CAS would allow for greater participation of those that might be affected by its activity.

This call for greater accountability of international courts and tribunals, though, does not seem to resonate much at the CAS. If one looks, as we have done in this blog, at the reality of transparency at the CAS, one cannot help feeling disappointed. Information about arbitrators is scarce and it is hard to find any consistency in the publication of CAS awards.

Yet the CAS could intervene on these two key aspects. To this end, we propose a few brief recommendations for the CAS administration to follow.

Firstly, the section of the CAS website ‘List of Arbitrators’ should be enriched with all the relevant information concerning arbitrators. Therefore:

First recommendation: The CAS should include in the ‘List of Arbitrators’ section of the website a downloadable individualized PDF comprising: jurisprudential records, past or present relevant contractual relationships, publications or comments arbitrators have released in the past and a summary indicating who nominated them in past CAS arbitrations.

Secondly, the CAS should make sure that all its appeal awards are promptly available to the public. Therefore:

Second recommendation: The CAS should simply remove the phrase ‘unless both parties agree’ from the provision of Art. R59. Thereafter, parties would be in principle deprived of the authority to veto the publication of a sentence.

Even if one believes that – notwithstanding its peculiarities – the Court operates as a traditional arbitral institution, a systematic reform of the publication policy of the CAS would be urgently needed. The CAS website (and database) need to be modernized to facilitate a swift and easy access of the public to the awards. Therefore:

Third recommendation: The ‘recent decisions’ section should contain (for a short timeframe, maximum three months) all the recently decided awards and the database should provide all the awards rendered and not only less than a fifth as is currently the case.

There is much to do, but with a bit of will the CAS can become a world-wide leader in terms of arbitral transparency and greatly strengthen its legitimacy and standing in the eyes of its users and of the public at large.

[1] The statistics used for this article are taken from the CAS website, the available data stops on 31 December 2013.

[2] Lorenzo Casini, The Making of a Lex Sportiva by The Court of Arbitration for Sport  (2012). German Law Journal, Vol. 12 n. 5, 452, Antoine Duval, Lex Sportiva: A playground for transnational law (2013). European Law Journal, Vol. 19 Issue 6, 822-842.

[3] Anne Peters, Towards Transparency as a Global Norm in Andrea Bianchi and Anne Peters, Transparency in International Law, Cambridge University Press 2013, 557.

[4] See Cindy G. Buys, The tensions between confidentiality and transparency in international arbitration, The American Review of International Arbitration (2003), Catherine A. Rogers, Transparency in International Commercial Arbitration  (2006) and Stephan W. Schill, Five times transparency in international investment law (2014), The Journal of World Investment and Trade, Volume 15, Issue 3-4.

[5] Rigozzi/Hassler, Sports Arbitration under the CAS Rules, Chapter 5 in Arbitration in Switzerland, Kluwer Law International (2013), 988.

[6] Despina Mavromati & Matthieu Reeb, The Code of the Court of Arbitration for Sport, Commentary, Cases and Materials, Kluwer Law International (2015), 134.

[7] In some cases information is limited to a couple of lines, e.g. “Juris doctor; Professor of International Law at […] University School of Law; practicing lawyer; international arbitrator”. See http://www.tas-cas.org/en/arbitration/list-of-arbitrators-general-list.html, accessed 19 January 2017.

[8] The last part of Art. R 59(2), inserted with the 2010 revision of the CAS Code, reads as follows: “Dissenting opinions are not recognized by CAS and are not notified”.

[9] Catherine A. Rogers, Transparency in International Commercial Arbitration, (2006). Penn State Law, 23.

[10] See, among others, Cindy G. Buys, The tensions between confidentiality and transparency in international arbitration, The American Review of International Arbitration (2003), 121.

[11] Cindy G. Buys, Ibid, 135.

[12] Despina Mavromati & Matthieu Reeb, The Code of the Court of Arbitration for Sport, Commentary, Cases and Materials, Kluwer Law International (2015), 588.

[13] Stephan W. Schill, Five times transparency in international investment law (2014), The Journal of World Investment and Trade, Volume 15, Issue 3-4, 369.

[14] The accuracy of the findings is limited by the lack of precision of the CAS’ statistics. Namely, in the statistics section of the website it is possible to retrieve only data referring to the Appeals submitted every year but not to the appeal awards rendered. Therefore, our yearly comparison cannot take fully into account the temporal shift between the submission of the case and the rendering of the decision (as well as the limited number of cases which were withdrawn). In other words, in reality, the share of awards published is probably slightly higher than indicated in the table.

[15] Gabrielle Kaufmann-Kohler, Arbitral Precedent: Dream, Necessity or Excuse? (2006). Arbitration International, 365.

[16] CAS 96/149, A. C[ullwick] v. FINA, p. 251, 258 – 259, cited in Antonio Rigozzi, l’Arbitrage internationale en matiére de sport, (2005), 638.

[17] Antonio Rigozzi, l’Arbitrage internationale en matiére de sport, (2005), 640.

[18] Going back with the memory to a few years ago, it has be noted how Pavle Jovanovic’s counsel would have had great benefit in having the possibility to read the award rendered in the case that saw the French judoka Djamel Bouras opposing the International Judo Federation in a doping case, which was not yet published when the Jovanovic case was submitted. Had the award been promptly published he would have had the chance to invoke the solution contained therein (See Antonio Rigozzi, l’Arbitrage internationale en matiére de sport, (2005), 639).

[19] Antonio Rigozzi, ibid, 641.

[20] Antonio Rigozzi, ibid, 642.

[21] Anne Peters, The Transparency Turn of International Law (2015), The Chinese Journal of Global Governance, 3.

[22] For a wider discussion on the lack of consent in sports arbitration, see A. Rigozzi & F. Robert-Tissot, “Consent” in Sports Arbitration: Its Multiple Aspects’, in E. Geisinger & E. Trabaldo de Mestral (eds.), Sports Arbitration: A Coach for other players? (2015), 59 -60; A. M. Steingruber, Sports Arbitration: how the structure and other features of competitive sports affect consent as it relates to waiving judicial control, 20 American Review of International Arbitration (2009), 59, 73; M.A. Weston, Doping Control, Mandatory Arbitration, and Process Dangers for Accused Athletes in International Sports, 10 Pepperdine Dispute Resolution Law Journal (2009), 5, 8; and D. H. Yi, Turning Medals into Metal: Evaluating the Court of Arbitration of sport as an international tribunal, 6 Asper Review of International Business and Trade Law (2006), 289, 312.

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