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International and European Sports Law – Monthly Report – October 2020 - By Rhys Lenarduzzi

13. November 2020 Antoine Duval Blog, International Sports Law Cases, International Sports Law Material, International Sports Law Publications (0)
Editor’s note: Rhys Lenarduzzi is a final semester Bachelor of Law (LL.B) and Bachelor of Philosophy (B.Phil.) student, at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.


The Headlines

Aguero and Massey-Ellis incident: An Opportunity for Change and Education?

In mid-October a clip went viral of Argentinian star Sergio Aguero putting his hands on sideline referee, Sian Massey-Ellis. A heated debate ensued in many circles, some claiming that Aguero’s conduct was commonplace, others taking aim at the appropriateness of the action, around players touching official and a male touching a female with an unsolicited arm around the back, the squeeze and pull in. Putting the normative arguments aside for a moment, the irony of the debate was that all sides had a point. Football, almost exclusively, has grown a culture of acceptance for touching officials despite the regulations. Male officials who have let such conduct slide, have arguably let their female colleague down in this instance.

Whilst a partial defence of Aguero might be that this kind of conduct takes place regularly, the incident could serve as a learning experience. If Massey-Ellis’ reaction was not enough, the backlash from some of the public might provide Aguero and other players the lesson, that touching a woman in this way is not acceptable.

Returning to football, the respect and protection of officials in sport, the key here appears to be cracking down on touching officials entirely. This is not a foreign concept and football need only look at the rugby codes. Under no circumstances does the regulations or the culture permit that a player from the rugby codes touch a referee. It is likely the case that the obvious extra level of respect for officials in these sports derives from a firm culture of no touching, no crowding officials, communicating with officials through the team captain only, with harsh sanctions if one does not comply.

The Football Association of England has decided no action was necessary, raising questions of how seriously they take the safety of officials, and gender issues. This is ultimately a global football issue though, so the confederations or international bodies may need step in to ensure the protections that appear at best fragile.  


Rugby Trans issue

The World Rugby Transgender guideline has been released and contains a comprehensive unpacking of the science behind much of the regulatory framework. Despite many experts applauding World Rugby on the guidelines and the extensive project to reach them, the England Rugby Football Union is the first to defy the World Rugby ruling and transgender women will still be allowed to play women’s rugby at all non-international levels of the game in England for the foreseeable future. This clash between national bodies and the international body on an important issue is concerning and will undoubtedly be one to keep an eye on.

 

CAS rejects the appeal of Munir El Haddadi and the Fédération Royale Marocaine de Football (FRMF)

The refusal to authorise a footballer to change national federation is in the headlines with the CAS dismissing the appeal of the player and Moroccan federation, confirming the original determination of the FIFA Players’ Status Committee.

This has been given considerable recent attention and seemingly worth following, perhaps best summed up by FIFA Director of Football Regulatory, James Kitching, where in a tweet he notes: “The new eligibility rules adopted by the FIFA Congress on 18 September 2020 have passed their first test. We will be publishing our commentary on the rules in the next fortnight. Watch this space.”

 

 

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  • Asian Racing Federation council on anti-illegal betting & related financial crime – Quarterly Bulletin

 

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Asser International Sports Law Blog | International and European Sports Law – Monthly Report – January 2018 - By Tomáš Grell

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

International and European Sports Law – Monthly Report – January 2018 - By Tomáš Grell

21. February 2018 Antoine Duval Blog, International Sports Law Cases, International Sports Law Commentaries, International Sports Law Events, International Sports Law Material, International Sports Law Publications (0)

Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked. 


The Headlines 

Anti-doping whereabouts requirements declared compatible with the athletes' right to privacy and family life

On 18 January 2018, the European Court of Human Rights rendered a judgment with important consequences for the world of sport in general and the anti-doping regime in particular. The Strasbourg-based court was called upon to decide whether the anti-doping whereabouts system – which requires that a limited number of top elite athletes provide their National Anti-Doping Organisation or International Federation with regular information about their location, including identifying for each day one specific 60-minute time slot where the athlete will be available for testing at a pre-determined location – is compatible with the athletes' right to private and family life under Article 8 of the European Convention on Human Rights and their freedom of movement pursuant to Article 2 Protocol No. 4 of the Convention. The case was brought by the French cyclist Jeannie Longo and five French athlete unions that had filed their application on behalf of 99 professional handball, football, rugby, and basketball players.

While acknowledging that the whereabouts requirements clash with the athletes' right to private and family life, the judges took the view that such a restriction is necessary in order to protect the health of athletes and ensure a level playing field in sports competitions. They held that ''the reduction or removal of the relevant obligations would lead to an increase in the dangers of doping for the health of sports professionals and of all those who practise sports, and would be at odds with the European and international consensus on the need for unannounced testing as part of doping control''. Accordingly, the judges found no violation of Article 8 of the Convention and, in a similar vein, ruled that Article 2 Protocol No. 4 of the Convention was not applicable to the case.

 

Football stakeholders preparing to crack down on agents' excessive fees

It has been a record-breaking January transfer window with Premier League clubs having spent an eye-watering £430 million on signing new acquisitions. These spiralling transfer fees enable football agents, nowadays also called intermediaries, to charge impressive sums for their services. However, this might soon no longer be the case as the main stakeholders in European football are preparing to take action. UEFA, FIFPro, the European Club Association and the European Professional Football Leagues acknowledge in their joint resolution that the 2015 FIFA Regulations on Working with Intermediaries failed to address serious concerns in relation to the activities of intermediaries/agents. They recognise in broad terms that a more effective regulatory framework is needed and call among other things for a reasonable and proportionate cap on fees for intermediaries/agents, enhanced transparency and accountability, or stronger provisions to protect minors.

 

The CAS award in Joseph Odartei Lamptey v. FIFA 

On 15 January 2018, FIFA published on its website an arbitral award delivered on 4 August 2017 by the Court of Arbitration for Sport (CAS) in the dispute between the Ghanian football referee Joseph Odartei Lamptey and FIFA. The CAS sided with FIFA and dismissed the appeal filed by Mr Lamptey against an earlier decision of the FIFA Appeal Committee which (i) found him to have violated Article 69(1) of the FIFA Disciplinary Code as he unlawfully influenced the 2018 World Cup qualifying match between South Africa and Senegal that took place on 12 November 2016; (ii) as a consequence, banned him for life from taking part in any football-related activity; and (iii) ordered the match in question to be replayed. In reaching its conclusion, the CAS relied heavily on multiple reports of irregular betting activities that significantly deviated from usual market developments. 

 

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Asser International Sports Law Blog | New Event! Diversity at the Court of Arbitration for Sport: Time for a Changing of the Guard? - Zoom In Webinar - 14 October - 4pm

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

New Event! Diversity at the Court of Arbitration for Sport: Time for a Changing of the Guard? - Zoom In Webinar - 14 October - 4pm

11. October 2021 Antoine Duval Blog, International Sports Law Events (0)

On Thursday 14 October 2021 from 16.00-17.30 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret (University of Lausanne), will be launching the second season of the Zoom-In webinar series, with a first episode on Diversity at the Court of Arbitration for Sport: Time for a Changing of the Guard?

The Court of Arbitration for Sport (CAS) is a well-known mainstay of global sport. It has the exclusive competence over challenges against decisions taken by most international sports governing bodies and its jurisprudence covers a wide range of issues (doping, corruption, match-fixing, financial fair play, transfer or selection disputes) including disciplinary sanctions and governance disputes. In recent years, the CAS has rendered numerous awards which triggered world-wide public interest, such as in the Semenya v World Athletics case or the case between WADA and RUSADA resulting from the Russian doping scandal (we discussed both cases in previous Zoom-In discussion available here and here). In short, the CAS has tremendous influence on the shape of global sport and its governance.

However, as we will discuss during this webinar, recent work has shown that the arbitrators active at the CAS are hardly reflective of the diversity of people its decisions ultimately affect. This in our view warrants raising the question of the (urgent) need to change the (arbitral) guard at the CAS. To address these issues with us, we have invited two speakers who have played an instrumental role in putting numbers on impressions widely shared by those in contact with the CAS: Prof. Johan Lindholm (Umea University) and attorney-at-law Lisa Lazarus (Morgan Sports Law). Johan recently published a ground-breaking monograph on The Court of Arbitration for Sport and Its Jurisprudence in which he applies empirical and quantitative methods to analyse the work of the CAS. This included studying the sociological characteristics of CAS arbitrators. Lisa and her colleagues at Morgan Sports Law very recently released a blog post on Arbitrator Diversity at the Court of Arbitration for Sport, which reveals a stunning lack of diversity (based on their calculations, 4,5% of appointed CAS arbitrators are female and 0,2% are black) at the institution ruling over global sport.


Guest speakers:


Moderators:


Register for free HERE.


Zoom In webinar series

In December 2020, The Asser International Sports Law Centre in collaboration with Dr Marjolaine Viret launched a new series of zoom webinars on transnational sports law: Zoom In. You can watch the video recordings of our past Zoom In webinars on the Asser Institute’s Youtube Channel.
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Asser International Sports Law Blog | Stepping Outside the New York Convention - Practical Lessons on the Indirect Enforcement of CAS-Awards in Football Matters - By Etienne Gard

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Stepping Outside the New York Convention - Practical Lessons on the Indirect Enforcement of CAS-Awards in Football Matters - By Etienne Gard

8. March 2018 Antoine Duval Blog, International Sports Law Cases, International Sports Law Commentaries (0)

Editor’s Note: Etienne Gard graduated from the University of Zurich and from King's College London. He currently manages a project in the field of digitalization with Bratschi Ltd., a major Swiss law firm where he did his traineeship with a focus in international commercial arbitration.

1. Prelude

On the 10th of June, 1958, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, widely known as the “New York Convention”, was signed in New York by 10 countries.[1] This rather shy figure progressively grew over the decades to now reach 157 signatory countries, turning the New York Convention into the global recognition and enforcement instrument it is today. As V.V. Veeder’s puts it, “One English law lord is said to have said, extra judicially, that the New York Convention is both the Best Thing since sliced bread and also whatever was the Best Thing before sliced bread replaced it as the Best Thing.”[2]

However, among the overall appraisal regarding the New York Convention, some criticisms have been expressed. For instance, some states use their public policy rather as a pretext not to enforce an award than an actual ground for refusal.[3]  A further issue is the recurring bias in favor of local companies.[4] Additionally, recognition and enforcement procedures in application of the New York Convention take place in front of State authorities, for the most part in front of courts of law, according to national proceeding rules. This usually leads to the retaining of a local law firm, the translation of several documents, written submissions and one, if not several hearings. Hence, the efficiency of the New York Convention as a recognition and enforcement mechanism comes to the expense of both money and time of both parties of the arbitral procedure.

In contrast with the field of commercial arbitration, where the New York Convention is often considered the only viable option in order to enforce an award, international football organizations, together with the Court of Arbitration for Sport (“CAS”), offer an effective enforcement alternative. This article aims at outlining the main features of the indirect enforcement of CAS awards in football matters in light of a recent case.

2.  Facts of the Case

The dispute at hand involved a football club affiliated with the United Arab Emirates Football Association (“UAEFA”) and a player’s agent. The club at hand owed a commission to the agent following the completion of a player’s transfer. The agent ultimately won the case before the CAS and the latter awarded him monetary compensation against the football club.

Shortly thereafter, means of enforcement against the club were sought.

It is widely recognized that the awards rendered by the CAS do qualify as awards under the New York Convention and may thus be subject to the classic enforcement provided therein.[5]

Whilst this is to be welcomed because it offers alternatives to the prevailing party seeking recognition and enforcement of the arbitral award, the following will show that another route exists, which may prove just as effective whilst saving both time and money.

Indeed, though the United Arab Emirates did ratify the New York Convention, the general critics mentioned above also applied in the case at hand. This meant that going down the route of direct enforcement against the UAE-based football club would have had several drawbacks. First, the translation workload in order to comply with the local procedural rules was significant. Second, since the recognition procedure was due to take place in front of national courts, a local law firm would have had to be retained. Finally, there was no clear timeline as to when exactly the due compensation would effectively be paid.

3. The Indirect Enforcement

Luckily, the world of football organizations provides for an alternative path, which proved to be highly effective at hand. Indeed, as a result of the deep-rooted integration of CAS and of its decisions in effectively all organizational layers of national and international football, the New York Convention is not the only global enforcement mechanism available to a prevailing party in that field. Although it requires to take steps outside that Convention and, as a result, of the entire ‘state-supported’ enforcement system, the indirect enforcement described below nonetheless proves to be a viable alternative for parties involved in football-related arbitration.

3.1 The Statutory Basis of Indirect Enforcement

It all starts with art. 15 para. 1 let. f of the FIFA Statutes which stipulates that the statutes of the member associations shall ensure that, inter alia, all relevant stakeholders must agree to recognize the jurisdiction and authority of CAS.[6] Art. 23 para. 1 let. f provides for a similar obligation with regard to the confederations’ statutes.[7]

Pursuant to art. 61 para. 1 of the Statutes of the Asian Football Confederation (“AFC”), to which the UAEFA is a member, the AFC recognizes the CAS to resolve disputes between, inter alia, clubs and intermediaries.[8] Further, according to art. 62 para. 1 of said Statutes, the member associations, among which the UAEFA, shall agree to recognize CAS as an independent judicial authority and to ensure that their members and clubs comply with the decisions passed by CAS. Any violation of these provisions will trigger a sanction on the breaching party, according to art. 62 para. 3 of the AFC Statutes.

Finally, art. 19 para. 4 of the UAEFA Statutes provides that each club, upon application for affiliation, shall provide a declaration whereas it undertakes to accept and implement the decisions rendered by the CAS.[9]

In light of the above, the rules of football organizations put in place a terraced indirect enforcement mechanism regarding CAS awards, whereas each club undertakes to comply with such awards vis-à-vis its home association, each such association being in turn similarly obligated vis-à-vis FIFA and its own Confederation. The latter finally has the duty to ensure that its affiliated associations recognize the authority of CAS, thereby closing the loop.

The broad sanction mechanism at every stage leaves considerable discretionary powers to the competent bodies in order to appropriately pressure the breaching stakeholder, on whichever link in the chain the latter may be, into complying with CAS decisions.

3.2 The Indirect Enforcement Procedure

The FIFA Statutes do not provide for any particular body directly tasked with the enforcement of CAS awards against FIFA’s affiliates and their stakeholders. Nor is there any particular procedure enshrined in the FIFA Statues as to how the indirect enforcement of CAS awards shall take place. In particular, art. 64 FIFA Disciplinary Code only applies to CAS decisions in appeal arbitration proceedings regarding the decisions of FIFA and not to CAS decisions rendered in an ordinary arbitration procedure.[10]

However, art. 45 of the FIFA Statutes does provide that the Member Associations Committee shall deal with relations between FIFA and its member associations as well as the member associations’ compliance with the FIFA Statutes. The same is true at the level of the AFC, whereas art. 54 of its Statutes provide that the Associations Committee shall be responsible for relations between the AFC and its Member Associations as well as Member Association’s compliance with FIFA and AFC Statutes and Regulations.

In other words, both at FIFA and AFC level, a standing committee is responsible for ensuring that the Members comply with the applicable statutes and thus, inter alia, with awards rendered by CAS.

Based on the above, we concluded that in order for the competent FIFA and AFC standing committees to examine the case of a club not complying with a CAS award, they needed to be first convinced that (i) a final and binding CAS award had been rendered against a club affiliated with a member association and that (ii) such club refused to comply with said award. Second, the above-mentioned committees would need to be shown that the national football association has been notified of such occurrence and been asked to take appropriate actions against the club according to its own statutes.

From this point in time onwards, the FIFA and AFC standing committees will have been notified that a member’s association has been asked to remedy a matter of non-compliance of an affiliated club with a CAS award and thus such association is now under a statutory obligation to ensure compliance from the club, as described above, or else may itself be found to have breached the FIFA and/or AFC Statutes and sanctioned accordingly.

4. Epilogue and Conclusion

Shifting the focus back to the case that prompted the idea of this blog, once the route leading to indirect enforcement was mapped, we proceeded with gathering the evidence needed, i.e. that the CAS award was final and binding upon the football club.

Section 193 of the Swiss Private International Law Act – which applies to international CAS proceedings – enables the parties to request an enforceability certificate from the competent state court regarding an award rendered by an international arbitral tribunal with its seat in Switzerland. This document certifies that the award in question is final and that no appeal can be filed against it. In the case of the CAS, the state court competent for the issuance of an enforceability certificate is the Tribunal cantonal, in Lausanne.

Once this certificate was obtained, we filed it together with a copy of the award to the competent national association, the UAEFA, urging the latter in writing to request from the club that it complied with the CAS award, or else the club would be sanctioned. Both the competent standing committees of the FIFA and of the AFC received a copy of that letter.

From this moment onwards, the machinery of the indirect enforcement mechanism was switched on and we knew that leverage existed at every level, up until FIFA, to ensure that each stakeholder, be it the UAEFA or the AFC, pressures its affiliated bodies, and, ultimately, the club, into complying with the CAS award.

In the case at hand, this method proved to be successful. Indeed, as a result of the aforementioned steps, the AFC promptly contacted the UAEFA, requesting this matter to be solved and the football agent received the awarded compensation from the club within a few weeks after the UAEFA, the AFC and the FIFA were notified as described above.

This case shows how operating outside the New York Convention can prove both cost- and time-effective. When used properly, the indirect sanction mechanism put in place by football organizations proves to be a proper alternative to classic enforcement proceedings and shall in any event be considered as a viable option under similar circumstances.

[1] Flannery/Merkin, Arbitration Act 1996, 5th Ed., Oxon, 2014, p. 356.

[2] V.V. Veeder, Is There a Need to Revise the New York Convention - Key note speech, in: ‘The Review of International Arbitration Awards – IAI Forum’, International Arbitration Institute, 2008, p. 183 et sqq., p. 186.

[3] V.V. Veeder, p. 191.

[4] Gaillard, ‘The Urgency of Not Revising the New York Convention’, in: The New York Convention at 50, 2008, p. 689 et seqq., p. 690.

[5] Nafziger/Ross, Handbook on International Sports Law, Edward Elgar 2011, p. 40; Rubno-Sammartano, International Arbitration Law and Practice, 3rd Ed., JurisNet, 2014, p.1709; Nolon, Arbitration and the Olympic Athlete, in: McCann, ‘The Oxford Handbook of American Sports Law’, OUP 2017, p. 444.

[6]Art. 15 para. 1 let. f of the FIFA statutes reads as follows: “Member associations’ statutes must comply with the principles of good governance, and shall in particular contain, at a minimum, provisions relating to the following matters: […] all relevant stakeholders must agree to recognise the jurisdiction and authority of CAS and give priority to arbitration as a means of dispute resolution […].

[7] Art. 23 para. 1 let. f of the FIFA statutes reads as follows: “The confederations’ statutes must comply with the principles of good

governance, and shall in particular contain, at a minimum, provisions relating to the following matters

[8] Art. 61 para 1 of the Asian Football Confederation Statutes reads as follows: “The AFC recognises the independent Court of Arbitration for Sport (CAS) with headquarters in Lausanne (Switzerland) to resolve disputes between the AFC and the other Confederations, Member Associations, Leagues, Clubs, Players, Officials, Intermediaries and licensed match agents.”

[9] Art 19 para 4 of the UAEFA Statutes reads as follows (tentative translation): “Each applicant should provide the following documents: […] A declaration that it will to accept and implement the resolutions and decisions issued by the Court of Arbitration for sport in Lausanne (CAS).”

[10] Art. 64  para 1 of the FIFA Disciplinary Code  reads as follows (emphasis added): “Anyone who fails to pay another person (such as a player, a coach or a club) or FIFA a sum of money in full or part, even though instructed to do so by a body, a committee or an instance of FIFA or a subsequent CAS appeal decision (financial decision), or anyone who fails to comply with another decision (nonfinancial decision) passed by a body, a committee or an instance of FIFA, or by CAS (subsequent appeal decision): […].”

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Asser International Sports Law Blog | International and European Sports Law – Monthly Report – November and December 2019- By Thomas Terraz

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

International and European Sports Law – Monthly Report – November and December 2019- By Thomas Terraz

22. January 2020 Antoine Duval Blog, International Sports Law Cases, International Sports Law Events, International Sports Law Material, International Sports Law Publications (0)

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

 

The Headlines

WADA Conference and the Adoption of 2021 WADA Code Amid Calls for Reform

On November 5-7, WADA held its Fifth World Conference on Doping in Sport where it faced a busy schedule, including the adoption of the revised 2021 World Anti-Doping Code and the election of a new WADA President and Vice-President by the Foundation Board. Concerning the latter, Witold Bańka, Poland’s Minister of Sport and Tourism, was elected as WADA President and Yang Yang, a former Chinese speed skater, elected as Vice-President, replacing Sir Craig Reedie and Linda Helleland respectively.  As Helleland leaves her position, she has expressed some strong views on the state of sport governance, particularly that ‘there is an absence of good governance, openness and independence in the highest levels of international sports’. Helleland was not the only one to recently voice governance concerns, as Rob Koehler, Director General of Global Athlete, also called for a ‘wholesale structural change at WADA’, which includes giving ‘independent’ athletes a vote in WADA’s Foundation Board, ensuring a greater ‘separation of powers’ and ensuring greater protection of athletes’ rights.

In the midst of the calls for reform, the amended 2021 WADA Code and the amended International Standards were also adopted after a two year, three stage code review process. Furthermore, a major milestone in athletes’ rights was achieved with the adoption of the Athletes’ Anti-Doping Rights Acts (separate from the WADA Code), which enumerates certain basic rights to help ‘ensure that Athlete rights within anti-doping are clearly set out, accessible, and universally applicable’. On the other hand, the Act ‘is not a legal document’, which clearly circumscribes some of the potential effects the Act may have. Nonetheless, athlete representative groups have ‘cautiously welcomed’ some of the changes brought by the 2021 WADA Code, such as the ‘modified sanctions for substances of abuse violations’.

Sung Yang’s Historical Public Hearing at the CAS

After much anticipation, the second public hearing in CAS history occurred on November 15 in Montreux, Switzerland in the Sun Yang case (details of this case were discussed in August and September’s monthly report), which was livestreamed and can be seen in its totality in four different parts (Part 1, Part 2, Part 3, Part 4). This was an extremely unique opportunity, which hopefully will become a more common occurrence, to see just how CAS hearings are conducted and perhaps get a taste of some of the logistical issues that can emerge during live oral hearings. One of these problems, accurate translations, rapidly became apparent as soon as Sun Yang sat in the witness chair to give his opening statements. The translators in the box seemed to struggle to provide an intelligible English interpretation of Sun Yang and other witnesses’ statements, while Sun Yang also seemingly had trouble understanding the translated questions being posed to him. The situation degenerated to such an extent that ultimately one of WADA’s officials was called to replace the translators. However, the translation drama did not end there, since during Sun Yang’s closing statements an almost seemingly random person from the public appeared next to Sun Yang who claimed to have been requested from Sun Yang’s team to ‘facilitate’ the translation. Franco Frattini, president of the panel, questioned the identity of the ‘facilitator’ and explained that one could not just simply appear before the court without notice. Interestingly, Sun Yang’s legal team also rapidly intervened claiming that it had not been made of aware of the inclusion of the supporting translator, further complicating the matter. In the end, Sun Yang concluded his statements with the translation from the WADA official.

While it was Sun Yang’s legal team that had provided the original translators in the box, it still raises the question as to how translation at CAS could be improved to ensure a certain standard of translators. After all, quality translation is critical to the parties’ right to be heard under Article 6 (e) ECHR. Regardless, in the end, neither parties made an objection that their right to be heard was violated.

Russian Doping Saga Continues: WADA Compliance Review Committee Recommends Strong Sanctions

As was already discussed in August and September’s monthly report, WADA uncovered numerous inconsistencies concerning data taken from the Moscow Laboratory. After further investigation, WADA’s Compliance Review Committee has recommended that the Russian Anti-Doping Agency (RUSADA) be found non-compliant with the WADA Code. Accompanying the recommendation, the Compliance Review Committee also suggested several sanctions, which include prohibiting Russian athletes from participating in major events like the Olympic Games and ‘any World Championships organized or sanctioned by any Signatory’ for the next four years unless they may ‘dmonstrate that they are not implicated in any way by the non-compliance’. It would also see an embargo on events hosted in Russia during the same period. However, these sanctions did not go far enough for some, like Travis Tygart, chief executive of USADA, who wishes to prevent a repeat of Rio 2016 and PyeongChang 2018 ‘in which a secretly-managed process permitting Russians to compete – did not work’. On the other hand, the IOC has advocated for a softer, individual based approach that pursues ‘the rules of natural justice and respect human rights’. In the midst of these developments, the Athletics Integrity Unit also decided to charge several members of the Russian Athletics Federation (RusAF), including its President Dmitry Shlyakhtin, after a 15 month investigation for ‘tampering and complicity’ concerning a Russian athlete’s whereabouts violations.

Following many calls for strong consequences, the WADA Executive Committee met on December 9th and adopted the recommendations of the Compliance Review Committee. Athlete representatives have expressed their disappointment with the sanctions, calling the decision ‘spineless’ since it did not pursue a complete ban on Russian participation at events such as Euro 2020 and the 2020 Olympics. At this point, RUSADA has sent notice to WADA that it will be disputing the decision of WADA’s Executive Committee’s decision at the CAS.

 

Major International Sports Law Decisions

Court of Arbitration for Sport – Sun Yang Public Hearing Part 1, Part 2, Part 3, Part 4

Court of Arbitration for Sport – CAS 2019/A/6110 Liam Cameron v. UK Anti-Doping Limited (UKAD)

Court of Arbitration for Sport – CAS 2018/A/5989 IAAF v. Qatar Athletics Federation & Musaeb Abdulrahman Balla

 

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Asser International Sports Law Blog | Selected procedural issues –and questions– arising out the Caster Semenya Judgment of the Swiss Federal Tribunal - By Despina Mavromati

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Selected procedural issues –and questions– arising out the Caster Semenya Judgment of the Swiss Federal Tribunal - By Despina Mavromati

11. September 2020 Antoine Duval Blog, International Sports Law Cases, International Sports Law Commentaries (0)

Editor's note: Dr Despina Mavromati is an attorney specializing in international sports law and arbitration (Sportlegis Lausanne) and a UEFA Appeals Body Member. She teaches sports arbitration and sports contracts at the University of Lausanne, Switzerland

 

As the title indicates, this short note only deals with selected procedural issues and questions arising out of the very lengthy Semenya Judgment. In a nutshell, the SFT dismissed Semenya’s appeal to set aside the CAS Award, which had denied the request of Caster Semenya (Semenya, the Athlete) to declare unlawful the Differences of Sex Development (DSD) Regulations of World Athletics (formerly IAAF).[1]

At the outset, it has to be reminded that the CAS Award dealt with the merits of the Semenya case in a final and binding way by rendering an arbitral award according to Article R59 of the CAS Code (and Article 190 of the Swiss Private International Law Act – PILA). Therefore, the SFT did not act as an appellate court but rather as a cassatory court, entitled to review only whether the exhaustively enumerated grounds for annulment set out in Article 190 (2) PILA were met (and provided that they were properly invoked and substantiated in the motion to set aside said award).

 

The granting - and subsequent lifting - of the suspensive effect of the DSD Regulations

This was one of the few cases in sports arbitration where the SFT granted an urgent interim relief (mesures superprovisionnelles), by ordering World Athletics to suspend the implementation of the DSD Regulations, only to lift such relief shortly afterwards for lack of prima facie “reasonable chances of success”. The fate of the motion to set aside the CAS Award appeared to be ominous already at that stage. Another relatively recent case where the SFT granted interim relief (only to revoke it later) was the Guerrero case. 

 

Legal interest of a federation in order to “support” its member athletes

According to the admissibility conditions of the Law on the Federal Tribunal (LTF), the party filing a motion to set aside a CAS award must have a current interest worthy of protection. It is e.g. extremely difficult to meet this condition in a case relating to a competition that already took place. It One must also have a “personal” legal interest worthy of protection (see the SFT judgment in the matter of FIFA v. P. Guerrero & WADA). World Athletics contested the “personal” legal interest of Athletics South Africa but the SFT drew the distinction between this case and one of its previous judgments (the Guerrero case), where FIFA had contested a doping-related sanction imposed by the CAS before the SFT. Other than in the Guerrero case, the Athlete’s national federation (ASA) had not previously rendered a decision on the Athlete; moreover, national federations are directly concerned by the DSD Regulations to the extent that they need to actively collaborate with their international federation for their effective implementation (Semenya Judgment, at 4.1.3) This means that, in similar cases in the future, member federations have also standing to challenge the validity of such regulations.

 

Waivers to appeal to the SFT against CAS awards are invalid, full stop.

The waiver to bring the case before the CAS included in the disputed DSD Regulations was, obviously, invalid to the extent that it was not the “fruit of an explicit consent” by the Athlete. The latter had thus the right to contest the CAS Award before the SFT and this federal jurisprudence has remained unaltered since the groundbreaking Cañas SFT judgment (see the Semenya Judgment at 4.2.4).

 

The CAS independence revisited – even though not questioned by the parties

Unlike other athletes, Caster Semenya did not attack the CAS Award suggesting the lack of independence or impartiality of the CAS—either as an arbitral institution or as the subjective independence of its arbitrators (see the Semenya Judgment at 5.1.2). The SFT still deemed important to repeat its jurisprudence on the institutional independence and the specialized character of the CAS, to which the parties brought their dispute (see the Semenya Judgment including all references to SFT and ECtHR case law at 5.1.2).

 

The meaning - and limits - of the SFT leitmotiv “facts established by the CAS Panel are binding upon the SFT”

This is the reason most often invoked by the SFT when declaring inadmissible a particular grievance raised by the parties as a “criticism of appellatory nature” (see also “faits constatés dans la sentence” in the Semenya Judgment at 5.2.2). It is well-known that, unlike the de novo review by the CAS under Article R57 CAS Code, the SFT will not review the facts as they were established by the CAS Panel – save for the most exceptional circumstances (see the Semenya Judgment at 5.2.3 f.).

In the particular circumstances of this case, the facts binding on the SFT did not prevent the latter from reviewing the legality of the DSD Regulations. The SFT could however only consider the facts as they were established in the CAS award and not in the parties’ version of facts, to the extent that these versions deviated from the CAS factual findings (see the Semenya Judgment at 6). As such, the starting point for such analysis (and obviously one of key importance) was the Panel’s factual finding that athletes subject to the DSD Regulations enjoy an “overwhelming” advantage over other female athletes that are not subject to such regulations (see the Semenya Judgment -“avantage insurmontable”- at 9.6.2, at 9.8.2 and 11.1).

 

Swiss law not applicable in the case at hand

With the international federation based in Monaco (an exception to the rule that international federations are based in Switzerland), the CAS Panel proceeded to the interpretation of the DSD Regulations based on the IAAF Constitution and Rules, the Olympic Charter, and Monegasque law. As such, it held that Swiss law was not applicable to the merits and the SFT confirmed such finding (See the Semenya Judgment at 5.1.1). This, however, does not seem to have any influence on the SFT’s findings to the extent that the latter is not an appellate court and should not evaluate the application of Swiss–or any other—law applied in the specific case (see the Semenya Judgment at 9.1).

 

Violation of the constitution of the panel for unduly limiting its (full) scope of review

The Athlete raised a—rather unusual—ground for annulment (particularly based on the ground of irregular composition of the tribunal) because the panel had allegedly refused to amend or complement the DSD Regulations, thereby unduly limiting its scope of review. The SFT dismissed the plea holding that the full power of review of the panel related to the control of the proportionality of the DSD Regulations and not their amendment. The SFT dismissed the plea as unfounded, even though it implicitly considered that this plea does not even fall within the scope of irregular composition of the arbitral tribunal under Article 190 (2) (a) PILA but could – at most – constitute a violation of the parties’ right to be heard (see the Semenya Judgment -with further references- at 7).

 

Violation of substantive public policy – the three pleas invoked by the Athlete

Caster Semenya’s request for annulment of the CAS Award due to a violation of substantive public policy was divided into three pleas: the violation of the principle of prohibition of discrimination, the violation of personality rights of the Athlete and the violation of the Athlete’s human dignity. In this respect, the two conflicting groups were the athletes subject to the DSD Regulations against the athletes who were not subject to the DSD Regulations.

 

Horizontal Application of the Prohibition of discrimination ?

The prohibition of discrimination as foreseen in Art. 8 (2) of the Swiss Constitution applies to the relation between individuals and the State and has no “horizontal” effect. Sports associations are considered “private” parties notwithstanding their size and thus discrimination resulting from such private parties does not form part of the essential values that form public policy. The “private” character of sports associations has long been an obstacle for athletes when invoking violations of their constitutional guarantees and was also mentioned in this judgment (at 9.4).

Notwithstanding its insistence on the “private” character of sports associations, the SFT does seem to hesitantly develop its jurisprudence. Similar to the principles of interpretation under Swiss law, where the SFT has held that statutes of large federations must be interpreted in accordance with the principles of interpretation of a (states’) legal acts (see e.g. the Kuwait Motorsport SFT Judgment), the SFT acknowledged in the Semenya case that the relationship between an athlete and a large (international) sports association bears similarities to the relationship between an individual and a state (see the Semenya Judgment, at 9.4).

In any event, this interesting debate will have to wait for another judgment since the SFT eventually found that there was no violation of the prohibition of the principle of discrimination by following the argumentation of the CAS Panel, whereby a discriminatory measure can still be allowed if justified by a legitimate objective (in casu the principle of equality of chances). In the case at hand, the SFT relied on the assessment made by the CAS Panel which, after hearing all the arguments raised by the parties, resulted in a reasonable outcome (or at least to a “not unreasonable” outcome) (see the Semenya Judgment, at 9.4 and at 9.8.3.3).

 

Breach of personality rights and the difference from the Matuzalem judgment

On the breach of personality rights plea, the SFT reiterated its limited scope within the public policy grievance, which requires a clear and severe violations of a fundamental right. Again, the DSD Regulations were not found to fall within the (narrow) scope of Art. 27 Swiss CO, neither from the viewpoint of physical integrity nor from the viewpoint of economic freedom (see the Semenya Judgment, at 10.1).

Other than in the Matuzalem case (the first – and only SFT judgment that annulled a CAS award for violation of substantive public policy so far), the athlete would still be capable of participating in the specified competitions after complying with the conditions set out in the DSD Regulations; moreover, there was no imminent risk of their economic existence as was in the Matuzalem case, whereas the measure was found to be able to achieve the desired goal, were necessary and proportionate (see the Semenya Judgment at 10.5).

 

Violation of human dignity

The SFT seemed to endorse the CAS Panel’s findings in this respect, and concluded that the impossibility to participate in specific competitions would not amount to a violation of the athlete’s human dignity.


Should the SFT broaden the scope of public policy for sports arbitration? The SFT still says “no”

The scope of substantive public policy according to well-established jurisprudence of the SFT is extremely narrow and such limited review is compatible with the ECtHR (see the Semenya Judgment with references to the Platini Judgment at 5.2.5; see also the Semenya Judgment at 9.8.3.3). The SFT, once again, refused to broaden the scope of the public policy as a ground for annulment of CAS awards. This reminds us of a somewhat different yet analogous attempt of the parties in the SFT Judgment 4A_312/2017. The SFT had reiterated its position that there should be no different notion of public policy tailored to sports arbitration.[2]

 

Closing remarks: The Athlete’s requests for relief and the inherent limits of arbitration in similar cases

It is interesting to note that the Athlete did not appeal to the CAS against a decision finding her ineligible to compete based on the concrete application of the DSD Regulations. She rather filed a claim with the CAS attacking the legality of the DSD Regulations– for all the reasons mentioned in the CAS award and the SFT judgment.

This resulted in the CAS Panel finding – and the SFT confirming - that the DSD Regulations could not be invalidated as such but left the door open for future challenges: the DSD Regulations may prove disproportionate in their application, if e.g. it should prove impossible to apply them, in case of a specific athlete subject to the DSD Regulations where their application proves impossible or disproportionate (see the Semenya Judgment, at 9.8.3.5).

The Athlete would thus – theoretically – be able to file a new case with the CAS, once the DSD Regulations were implemented and following a potential decision on ineligibility. This shows the difficulty in directly challenging a set of regulations in cases where the hearing authority considers that it is rather their application in a concrete case that may give rise to a specific violation of athletes’ rights. The CAS panel, as an arbitral tribunal, is inherently limited by the scope of the appeal, which in the present case was Caster Semenya’s claim to have the DSD Regulations declared invalid as such.

[1] For an insightful overview of the facts behind the judgment and the findings of the SFT, see Marjolaine Viret, Chronicle of a Defeat Foretold: Dissecting the Swiss Federal Tribunal’s Semenya Decision – in the Asser International Sports Law Blog of 9 September 2020.

[2] See SFT Judgment 4A_312/2017 of 27 November 2017.
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