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

The Headlines 

The CAS award in RFC Seraing v. FIFA

On 10 March 2017, FIFA published a short press release which praised the long-awaited award delivered by the CAS in the appeal of the Belgian football club RFC Seraing against FIFA’s decision. The French version of the award is now available on the CAS’s website.

The dispute in question emerged from agreements concluded between RFC Seraing and Doyen Sports Investments Limited, a private investment company known for its engagement in the acquisition of professional football players’ economic rights (Doyen). These agreements allowed Doyen to (i) influence the independence and the policy of the Belgian club; and (ii) receive an indemnity payable in connection with the future transfer of certain players. In September 2015, the FIFA Disciplinary Committee held that by entering into these agreements, RFC Seraing violated Articles 18bis and 18ter of the Regulations on the Status and Transfer of Players (RSTP) prohibiting the third-party influence on clubs and the third-party ownership of players’ economic rights. As a result, the Belgian club was banned from registering players on a national and international level for four consecutive registration periods and obliged to pay a fine of CHF 150,000.

On appeal, the CAS Panel has confirmed that Articles 18bis and 18ter RSTP are valid under European law and Swiss law. Having considered the sanction imposed by the FIFA Disciplinary Committee on RFC Seraing disproportionate, the CAS Panel reduced the transfer ban from four to three consecutive registration periods. For an in-depth analysis of the award, we invite you to read the recent blog written by our senior researcher Mr Antoine Duval.

The CAS award in Olga Abramova v. International Biathlon Union

On 1 January 2016, WADA prohibited the use of meldonium for the first time. A few days later, Ms Olga Abramova, a Russian-born Ukrainian biathlete, underwent an in-competition doping control which revealed the presence of meldonium in her body. An independent investigation was conducted by the Anti-Doping Hearing Panel (ADHP) of the International Biathlon Union. On 14 November 2016, the ADHP rendered a decision in which (i) Ms Abramova was found to have committed an anti-doping rule violation (meldonium); and (ii) a one-year period of ineligibility was imposed on her. Eventually, Ms Abramova appealed the said decision before the CAS.

In its press release dated 19 April 2017, the CAS announced that the appeal filed by Ms Abramova had been partially upheld. The CAS Panel has found to its comfortable satisfaction that Ms Abramova fulfilled her obligation to ensure that meldonium did not enter her body after 1 January 2016 (i.e. the date when meldonium was added to the list of prohibited substances). In other words, Ms Abramova ‘could not reasonably have known or suspected even with the exercise of utmost caution that meldonium could still be detected in her blood after 1 January 2016’. Accordingly, the CAS Panel has cancelled the one-year period of ineligibility imposed on Ms Abramova. It should be noted, however, that, in accordance with WADA Guidelines, the CAS Panel has confirmed the disqualification of any results achieved by Ms Abramova between 10 January 2016 and 3 February 2016.

France investigates potential corruption linked to the selection procedure for the 2018 and 2022 FIFA World Cup

Following the United States and Switzerland, France has recently become the third country to open a criminal investigation into potential corruption relating to the selection procedure for the 2018 and 2022 FIFA World Cup finals which are scheduled to take place in Russia and Qatar respectively. The Parquet National Financier, a French authority responsible for law enforcement against serious financial crime, has reportedly interviewed the former FIFA President Mr Joseph Blatter. The former UEFA President Mr Michel Platini, who admitted in the past that he had eventually decided to cast his vote for Qatar following a lunch with the former French President Mr Nicolas Sarkozy and senior Qatari officials, has not been interrogated by French authorities yet.

Sports Law Related Decisions

• CAS – Award delivered in the arbitration between RFC Seraing and FIFA
• Comisión Nacional de los Mercados y la Competencia (Spanish competition authority) – Decision on Liga Endesa and its anticompetitive behaviour
• European Commission – Decision on support from central government of the Czech Republic to non-profit sport facilities

Official Documents and Press Releases

• CAS – CAS cancels the one-year period of ineligibility imposed on Olga Abramova
• CAS – CAS issues decisions in the cases of Stanislav Emelyanov, Ekaterina Poistogova, Vladimir Kazarin and Alexey Melnikov
• FIFA – Activity report 2016
• FIFA – Agenda of the 67^th FIFA Congress
• FIFA – FIFA publishes new annual reports and confirms target result of USD 100 million for cycle
• FIFA – Financial report 2016
• FIFA – Football official Richard K. Lai banned by independent Ethics Committee for 90 days from all football activities
• FIFA – Governance report 2016
• IAAF – Independent Athletics Integrity Unit is operational
• IOC – IOC sanctions three athletes for failing anti-doping test at Beijing 2008 and London 2012
• IOC – IOC sanctions two athletes for failing anti-doping test at Beijing 2008 and London 2012
• Paralympic Movement – CAS decision on Russian Paralympic Committee confirmed by the Swiss Federal Tribunal
• UEFA – Three clubs exit settlement agreement with CFCB
• UEFA – UEFA Congress approves good governance reforms
• WADA – 2015 Anti-doping rule violations report
• WADA – Statement regarding Italian Tribunal decision on Michele Ferrari and entourage
• WADA – Statement on ARD documentary
• WADA – WADA reinstates the Madrid Laboratory
• WADA – WADA removes Brazil from the World Anti-Doping Code non-compliant list
• WADA – Yemen ratifies UNECO Anti-Doping Convention

In the news

Doping

• AFP News UK chief calls for more money in fight against doping
• The Associated Press 5 Russians banned for doping at Olympics
• The Associated Press IAAF clears 2 Russian world champions, 5 others to compete
• The Associated Press Lawmaker in Russia fights Olympic doping case at CAS
• Andy Brown Meldonium 2.0? Jamaican case highlights need for clenbuterol thresholds
• Hajo Seppelt and Thilo Neumann IOC sweeps test results under the carpet
• Sky Sports UEFA unhappy with WADA over Mamadou Sakho’s ban
• Joscha Weber Doping pressure mounts on IOC at German parliament

Football 

• Andy Brown CONMEBOL publishes details of suspicious bank transfers totalling USD 129 million
• CIES Football Observatory The Champions League among the most unbalanced competitions
• David Conn France investigates votes for 2018 and 2022 World Cups and questions Blatter
• David Conn Newcastle United and West Ham raided in HMRC tax fraud investigation
• Rob Harris Anglo-French soccer fraud probe sees raids on teems, arrests
• Liam Morgan Sheikh Ahmad resigns from all footballing roles following alleged corruption link
• MSN Qatar football official wins FIFA ban appeal
•  Reuters FIFA compliance official pleads guilty in U.S. bribery case
• Reuters Genoa defender Armando Izzo banned for 18 months over match-fixing claims
• Charles Sale FIFA legal bills for investigation into corruption in football hit £80 million mark
• Stephan Uersfeld DFB backs Bild over claims of Russian censorship for Confederations Cu

Other

• Nick Butler IOC ban 2024 candidate cities from Pan-American Sports Organisation General Assembly
• Bryan Armen Graham eSports to be a medal event at 2022 Asian Games
• Craig Lord Governance review lawyers tell FINA that Ethics Panel must have stand-alone powers
• Reuters CAS upholds Mexican player’s appeal against match-fixing ban

Academic Materials

 International Sports Law Journal, April 2017, Volume 16, Issue 3

• Johan Lindholm Editorial to the International Sports Law Journal, Volume 16, Issue 3-4
• Mordehai Mironi The Promise of Mediation in Sports-related Disputes
• Oskar van Maren How to Bail Out Your Local Club: The Application of the State Aid Rules to Professional Football Clubs in Financial Difficulty
• Antoine Duval The Russian Doping Scandal at the Court of Arbitration for Sport: Lessons for the World Anti-Doping System
• Paolo Garraffa Michael Jordan’s Who? The Trade Mark Litigation between Michael Jordan and ‘Qiaodan’ Sports
• Terence D. Brennan Over Compensation: The Battle for Training Compensation and Solidarity in United States Soccer
• Salomeja Zaksaite and Karolis Radoševičius Manipulation of Competitions in Formula 1: Where Policy Ends and Cheating Begins
• Jonathan G. Merritt ‘Don’t Look a Gift Horse in the Mouth: Regulating for Integrity, What Equestrianism Can Learn from Thoroughbred Racing’
• Claire Sumner The Spirit of Sport: The Case for Criminalisation of Doping in the UK

Others

• Borja García A New Horizon in European Sports Law: The Application of the EU State Aid Rules Meets the Specific Nature of Sport
• John Grady Analysing Rule 40’s Restrictions on Using Athletes in Olympic Sponsorship at Rio 2016
• Maureen Weston The Regulation of Doping in U.S. and International Sports
• Salomeja Zaksaite and Karolis Radoševičius Manipulation of Competitions in Formula 1: Where Policy Ends and Cheating Begins

Blog

Asser International Sports Law Blog

• Antoine Duval RFC Seraing at the Court of Arbitration for Sport: How FIFA’s TPO Ban Survived (Again) EU Law Scrutiny
• Saverio Spera The Validity of Unilateral Extension Options in Football – Part 1: A European Legal Mess
• Adriaan Wijckmans The Legality of Surety Undertakings in Relation to Minor Football Players: The Lokilo Case

Law in Sport

• Thomas Barnard Six key points for footballers to consider when signing their first professional contract
• Lydia Banerjee How a change in approach could help tackle racism in football – The Jonjo Shelvey case
• Manali Kulkarni Child welfare in sport – How different countries approach mitigating the risks relating to contact sports for children
• Despina Mavromati The application of Swiss law in doping cases before the CAS and the Swiss Federal Tribunal
• Zane Shibab, James Thorndyke and Thomas Gibby How to recover prize money from doping athletes: Lessons for event organisers from the Shobukhova case
• Jamie Singer and Leon Farr Changing nationality in sport: Where should we draw the line? A review of the Aljaz Bedene case

Others

• Aage Radmann Another book about football hooliganism – is that really necessary?
• Andreas Selliaas How far should governments go controlling the governance of international sports federations?
• Ross Tucker On the Jamaican clenbuterol positives: A procedural failure and credibility black hole
• Mike Woitalla How FIFA rules hurt immigrant children in the USA

Upcoming Events 

• 7-9 June – International Conference on Doping and Public Health, Thon Hotel Ullevaal Stadion, Oslo, Norway
• 29-30 June – Sport & EU 12^th Annual Conference, Molde University College, Molde, Norway
• 26-27 October – ISLJ Annual Conference on International Sports Law, T.M.C. Asser Institute, The Hague, the Netherlands. Save the date!

The European Commission’s competition decisions in the area of sport, which set out broad principles regarding the interface between sports-related activities and EU competition law, are widely publicized. As a result of the decentralization of EU competition law enforcement, however, enforcement activity has largely shifted to the national level. Since 2004, national competition authorities (NCAs) and national courts are empowered to fully apply the EU competition rules on anti-competitive agreements (Article 101 TFEU) and abuse of a dominant position (Article 102 TFEU).

Even though NCAs have addressed a series of interesting competition cases (notably dealing with the regulatory aspects of sport) during the last ten years, the academic literature has largely overlooked these developments. This is unfortunate since all stakeholders (sports organisations, clubs, practitioners, etc.) increasingly need to learn from pressing issues arising in national cases and enforcement decisions. In a series of blog posts we will explore these unknown territories of the application of EU competition law to sport.

We kick-start the series with a recent investigation of the Swedish National Competition Authority (NCA) into a so-called duty of loyalty clause applied by the Swedish Bodybuilding and Fitness Federation (Svenska Kroppskulturförbundet, SKKF).[1]

Source: http://www.scmp.com/photos/recent/all/1046780

The facts

The SKKF is the only national member of the International Bodybuilding Federation (IFBB) and organises various championships in the sport of bodybuilding and fitness in Sweden. It is essential for Swedish clubs, individual athletes, and officials to be a member of the SKKF as this is prerequisite for participation in IFBB international competitions.

The IFBB’s rules and regulations form an integral part of the SKKF’s Statutes. According to the SKKF’s rules, members who compete or otherwise participate in contests that are not approved or authorised by the SKFF or IFBB can be fined or suspended (i.e. the duty of loyalty clause). Athletes who have taken part in an unsanctioned event must also test for doping, at their own expenses, before they are allowed to compete at SKKF or IFBB events again.

In October 2013, BMR Sport Nutrition AB, a manufacturer of nutritional and bodybuilding supplements that also occasionally organises unsanctioned bodybuilding and fitness events in Sweden, filed a complaint before the NCA alleging that this rule violates Article 101 TFEU and Chapter 2, Article 1 of the Swedish Competition Act as it prevents event organisers from effectively competing with the SKKF (i.e. they are deprived from the chance to gather the human resources necessary for a successful event). The complainant submitted evidence that the threat of a fine and/or the withdrawal of their license by the SKKF effectively deterred athletes from participating in non-sanctioned events.

The context

The Swedish bodybuilding case follows a 2011 decision of the NCA, which ordered the Swedish Automobile Sports Federation (Svenska Bilsportförbundet, SBF) to abolish its rules preventing members from participating in motorsport events not authorized by the KKF.[2] On appeal by SBF, the Swedish Market Court upheld the decision in its entirety.[3]

This “precedent” case dealt with two duty of loyalty clauses in the SBF’s Common Rules prohibiting officials and contestants, licensed by the SBF, to officiate or participate in motor sport events other than those organised by the SBF or its member clubs. A violation of these provisions could result in a fine and/or withdrawal of the licence to officiate or compete in SBF events.

The NCA and the Market Court established that the contested rules constituted a decision by an association of undertakings. While the NCA had only applied national competition law, the Market Court, having defined the organisation of motorsport competitions in Sweden as the relevant product market, found that trade between the Member States was affected and therefore also applied Article 101 TFEU. According to the Court, the mere existence of the rules considerably distorted competition because they led to an absolute ban for SBF members to participate in non-sanctioned events. It concluded that, even if the rules would be regarded as serving a legitimate objective, the total ban could not be considered proportional to achieving such an objective. Moreover, the Court concluded that the restriction of competition could not benefit from an exemption under Article 101(3) TFEU or Chapter 2, Article 1 of the Swedish Competition Act.

While the Market Court’s judgment is far from innovative and carefully followed the proportionality test adopted by the Court of Justice in Meca-Medina, the case drew much media attention and raised concerns and criticism from the Swedish sports movement. Having demonstrated the remedial potential of EU competition law to challenge organisational sporting rules, it was only a matter of time before further national enforcement action would result from this case. 

The outcome

In a statement responding to the filing of the complaint by BMR Sport Nutrition AB, the chairman of the SKKF contested the apparent analogy with the SBF (motorsport) case. He essentially put forward three reasons. First, the SKKF is a non-profit organisation that pursues an aim in the general interest (i.e. the promotion of sport) and reinvests all its income, which is insufficient to cover its costs, in its sports activities, e.g. to fund education and training activities, doping tests, and travel expenses of the national team. This precludes the assumption that it pursues an economic activity. It follows that the SKKF cannot be regarded as an undertaking for the purposes of competition law (contrary to commercially successful sports associations). Second, the SKKF does not act independently of the will of its members. Similar to trade unions, member athletes voluntarily submit themselves to the applicable regulations when they join a member club. They can move to change certain rules if they find, in a true democratic spirit, a majority for such change. Alternatively, member athletes can choose to leave their club and join another association. Third, the right of freedom of association excludes the rule-making powers of the SKKF from the ambit of the competition rules.

Nevertheless, following several meetings between the NCA and the SKKF, the latter committed no longer to suspend or fine athletes, coaches, officials or judges that participate in non-sanctioned events.[4] The requirement that they must test for doping, at their own expense, was not abolished. According to the SKFF, this requirement was necessary to comply with the IFBB anti-doping rules, which conform to the provisions of the World Anti-Doping Code.

Given the commitment of the SKKF to no longer apply the duty of loyalty clause, the NCA decided to close the investigation without concluding whether competition law had been infringed.

Commentary

Those familiar with sports-related competition law cases will surely recognize the arguments of the chairman of the SKKF to assert immunity from the application of the competition rules. While they have been tried and tested many times, also before the Union courts, these arguments keep popping up. So let’s take a closer at why they are not accepted.

Regarding the claim that the SKKF is a non-profit organisation that exclusively aims to promote the development of the sport, it must be recalled that – if there still was any doubt - in Meca-Medina the Court of Justice made clear that the qualification of a rule as “purely sporting” was insufficient to remove the body adopting that rule (or the person engaging in the activity covered by it) from the scope of the Treaty. It thus must be examined, irrespective of the nature of the rule, whether the specific requirements of the various provisions of the Treaty are met. For the purpose of the competition rules, the notion of “undertaking” is a core jurisdictional element. According to established case law, this concept covers “any entity engaged in an economic activity regardless of the legal status of the entity or the way in which it is financed”.[5]

In an attempt to escape the bite of the competition rules, various other sports associations have time and again asserted that they cannot be regarded as “undertakings” because their objective is not the pursuit of economic interests. Even when only considering their regulatory functions, this reasoning finds no support in the case law. The Court of Justice has consistently held that the concept of undertaking does not presuppose a profit-making intention. The fact that entities are non-profit making has no effect on their classification as undertakings.[6] Similarly, the fact that entities pursue cultural or social activities does not in itself prevent these activities from being regarded as economic.[7]

In the case at hand, it is clear that in addition to the SKKF, even assuming that it organises bodybuilding and fitness events without seeking to make profit, other entities like BMR Sport Nutrition AB are also engaged in that activity (and do seek to make a profit). The SKKF offers goods or services on a market in competition with others. The success or economic survival of the SKKF ultimately depends on it being able to impose its services to the detriment of those offered by other event organisers. Consequently, the SKKF must be considered as an undertaking engaged in the markets for the organisation and marketing of bodybuilding and fitness events.

Regarding the somewhat chucklesome claim that the SKKF should be qualified as a trade union (or other professional association) that cannot act independently of the will of its members, it is sufficient to stress that Article 101 TFEU also applies to “associations of undertakings”. A federation like the SKKF, the beacon of democracy it may be, is not an association of employees but (also) of member clubs that engage in economic activities. Hence, the result of the delimitation between the federation acting “in its own right” or “merely as an executive organ of an agreement between its members” is irrelevant: Article 101 TFEU still applies to its regulations.

Regarding the claim based on the principle of freedom of association, indeed protected in the Swedish constitution as well as in the EU legal order, it is difficult to see how the duty of loyalty clause could be considered an inevitable result thereof. In any event, the Court of Justice has made clear that this right cannot be so absolute as to afford sports federations’ complete immunity from EU law.[8] In other words, the need to guarantee sports’ right of self-regulation cannot be a blank check to avoid scrutiny of measures that may conceal the pursuit of economic interest. Provided that its rules are proportional to a legitimate objective, SKKF should have nothing to fear from the competition rules.

So contrary to what the chairman of the SKKF contented, the analogy between its rule and the contested rule in the SBF (motorsport) case was accurate. A confrontation with this inconvenient truth was sufficient to convince the SKKF to commit itself to no longer suspend or fine athletes, coaches, officials or judges for participating in non-sanctioned competitions. That the requirement of a doping test (for those having participated in competing events) could remain clearly illustrates that competition law will leave unscratched restrictive sporting rules that are deemed inherent and proportionate to the organisation and proper conduct of sport. It almost makes you wonder what all the fuss is about when competition law confronts the world of sport.

One final note: the contested “SKKF” rule is the national equivalent of the clause contained in the IFBB Constitution (which forms an integral part of the SKKF’s statutes). Article 19.4.7 stipulates that:

“Any athlete or official who participates in a competition or event not approved or sanctioned by the IFBB, may be fined, suspended or expelled. The amount of the fine as well as the suspension period will be decided by the IFBB Disciplinary Commission … Once the suspension has been completed and before participating in an IFBB competition or event, the athlete must be drug tested at his or her own expenses”

Participation in an event or competition includes (but is not limited to!) competing, guest posing, giving a seminar, lecture or similar presentation, judging, officiating, allowing the use of one’s name and/or likeness for promotional purposes, and/or taking part in a non-IFBB sanctioned competition or event in any other way, shape or form.

To the IFBB and all other European member federations, who have to the author’s knowledge not decided to no longer enforce or abolish this rule: beware!

[1] Swedish Competition Authority (Konkurrensverket), 28 May 2014, Bodybuilding and Fitness Competitions, Decision dnr. 590/2013, http://www.kkv.se/upload/Filer/Konkurrens/2014/13-0590.pdf

[2] Swedish Competition Authority (Konkurrensverket) 13 May 2011, Swedish Automobile Sports Federation, Decision dnr. 709/2009, available at http://www.kkv.se/upload/Filer/Konkurrens/2011/Beslut/09-0709.pdf

[3] Swedish Market Court's ruling 2012:16 in Case A 5/11, Svenska Bilsportförbundet v Konkurrensverket (December 20, 2012), http://www.kkv.se/t/NewsArchive.aspx?id=529

[4] The SKKF notified its member athletes and clubs of the changes via its newsletter and website.

[5] Case C-41/90 Höfner and Elser [1991] ECR I-1979, para. 21.

[6] See e.g. Case C-222/04 Ministero dell'Economia e delle Finanze v Cassa di Risparmio di Firenze SpA and others [2006] ECR I-289; Case C-475/99 Firma Ambulanz Glöckner v Landkreis Südwestpfalz [2001] ECR I-8089; Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck v Commission [1980] ECR 3125; C-244/94 Fédération Française des Sociétés d’Assurances and others v Ministère de l'Agriculture [1995] ECR I-4013; Joined Cases C-115/97 to C-117/07 Brentjens’ Handelsonderneming BV v Stichting Bedrijfspensioenfonds voor de Handel in Bouwmaterialen [1999] ECR I-6025.

[7] See e.g. Joined case C-180/98 to C-184/98 Pavel Pavlov and Others v Stichting Pensioenfonds Medische Specialisten [2000] ECR I-6451; Case C‑218/00 Cisal [2002] ECR I‑691.

[8] Case C-415/93 Union Royale Belge des Sociétés de Football Association and others v Bosman and others [1995] ECR I-4921, paras. 79-80