The International Association of Athletics Federations (IAAF), the monitoring body of track and field athletics, regularly submitted South African middle distance runner and Olympic gold medalist Mokgadi Caster Semenya to sex verification tests when it began questioning her sexual characteristics and speculating whether her body belonged on the Disorder of Sex Development (DSD) spectrum. DSD Syndrome is often defined as an “intersex condition” which affects the clear development of either/or genitalia, gonads and chromosomes into one distinctive sex or another. The spectrum of the intersex condition is particularly wide, and the disorder can sometimes be minimal - some cases of female infertility can actually be explained by an intersex condition.

The IAAF deemed the controversial sex verification tests necessary on the grounds that it was required to prove Semenya did not have a “medical condition” which could give her an “unfair advantage”. It was eventually found that, because of an intersex trait, Semenya did have abnormally high levels of testosterone for a woman, which, in the IAAF’s opinion, justified a need for regulatory hormonal adjustments in order for her to keep competing in the women’s category. The IAAF also funded research to determine how ‘hyperandrogenism’ affects athletic performance. In 2018, it issued Eligibility Regulations on Female Classification (“Athlete with Differences of Sexual Development”) for events from 400m to the mile, including 400m, hurdles races, 800m and 1’500m. The IAAF rules indicated that in case of an existing high level of testosterone, suppression or regulation by chemotherapy, hormonal castration, and/or iatrogenic irradiation was mandatory in order to take part in these events.

Semenya and her lawyers challenged the IAAF Regulations in front of the CAS, who, in a very controversial decision, deemed the Regulations a necessary, reasonable and proportionate mean “of achieving the aim of what is described as the integrity of female athletics and for the upholding of the ‘protected class’ of female athletes in certain events” (§626).

The CAS Ruling

Semenya and her attorneys claimed that forcing her to get unwanted medication represented a violation of human rights. On the 1^st May 2019, the Swiss-based Court of Arbitration of Sport (CAS) ruled in favor of the restrictions placed on female athletes with high levels of testosterone by the IAAF. The direct consequence of this decision for Semenya was the obligation for her to take testosterone suppressants in order to continue competing in her category of IAAF events.

In March 2019, the United Nations Human Rights Council issued a resolution indicating the IAAF Regulations were “not compatible with international human rights norms and standards, including the rights of women with differences of sex development” and that there was “no clear relationship of proportionality between the aim of the regulations and the proposed measures and their impact.”

Because the Regulations established conditions and restrictions which were targeted at the female (or intersex) athlete population exclusively and did not impose any equivalent conditions or restrictions on male athletes, the CAS Panel considered that the Regulations were, prima facie discriminatory on grounds of legal sex. After reminding that “it is common ground that a rule that imposes differential treatment on the basis of a particular protected characteristic is valid and lawful if it is a necessary, reasonable and a proportionate means of attaining a legitimate objective” (§548), the Panel considered that its sole responsibility was to determine whether the DSD Regulations were necessary, reasonable and proportionate. As such, the Panel said it was “not required to (…) appraise the adequacy of the IAAF’s policy-making process”.

The Swiss Federal Tribunal and ordre public

A decision from the CAS can only be challenged at the Swiss Federal Tribunal (SFT) on a limited number of grounds, enclosed in art. 190 al. 2 of the Federal Act on Private International Law (PILA), which include claiming that the principle of equal treatment of the parties or their right to be heard in an adversarial procedure has not been observed (lit. d) and that the award is incompatible with public policy (lit. e). At the beginning of June 2019, after an ex parte request, the SFT, Switzerland’s highest court, granted Semenya a temporary suspension of the IAAF rules on testosterone limits. She was able to compete over distances of 400 to 1’500m without medication, until the SFT issued a ruling.

Because it was considered that the discrimination was necessary, reasonable and proportionate in comparison with the vast majority of non-DSD women, the only outcome for Semenya’s lawyers was to argue on the violation of the principle of public order. The 30^th July 2019, the SFT reversed the ruling that temporarily lifted the application of the IAAF’s regulations, thus impeding her to defend her 800m title at the World Championships in Doha in September 2019. The SFT concluded that “neither the allegation of an infringement of the principle of non-discrimination, nor the alleged violation of ordre public due to an infringement of their personality and human dignity appeared with high probability to be well founded”. Welcoming the decision, the IAAF stated that, in certain particular cases, “biology trumps identity”.

The elements of comparison

Body Policing

Admitting that “the imperfect alignment between nature, law and identity is what gives rise to the conundrum at the heart of this case” (§559), the CAS stated that:

“On true analysis, (…) the purpose of the male-female divide in competitive athletics is not to protect athletes with a female legal sex from having to compete against athletes with a male legal sex. Nor is it to protect athletes with a female gender identity from having to compete against athletes with a male gender identity. Rather, it is to protect individuals whose bodies have developed in a certain way following puberty from having to compete against individuals who, by virtue of their bodies having developed in a different way following puberty, possess certain physical traits that create such a significant performance advantage that fair competition between the two groups is not possible.”

The public opinion could not help but point the finger at the underlying hypocrisy of the decision, in comparison with similar cases, both inside and outside of the sports world. Firstly, the same type of policy and legal arguments are often held for controlling certain types of bodies exclusively, whilst leaving others out of the line of sight. In the sports world, it is certainly the case: think of the impressive decoration of Olympian swimmer Michael Phelps aligned with the god-like praises he received for his physical strength and capacity; for instance. On the contrary, leaving “abnormally” tall basket-ball players on the bench so as to give naturally shorter players a chance to win, or testing male athletes with poor athletic results in suspicion they might have low levels of testosterone seems absurd. In fact, the latter are only tested as to make sure they do not take anything effectively modifying their capacities in competing. Semenya and her lawyers did point to the fact that “it is illogical and unnecessary to regulate one genetic trait while celebrating all the others” (CAS decision, §53).

Out of the sports world, indications of “naturalness” in pro-life arguments or governments’ refusal to medically cover the suppression of hormones in transgender reassignment cases are also examples of body policing. The case therefore raises the central question of how stereotypes, especially gender ones, give a social meaning to a fact and how legal regulation can confirm it, thus perpetuating it.

The social  meaning of women and gender

Taking a step away from Semenya’s cause célèbre, it must be stressed that, for long, women were not accepted to compete in the Olympics and that their progressive integration was only made possible when a redefinition of the norms of femininity and masculinity, as they relate to sports and competition, occurred. This means that medical tests were carried out and, as a backlash to noticing the instability and fluidity of sex categories, those very categories were reinforced and redefined according to stereotypes. In other words, the sports world went very far to ensure there was a biological difference so that the natural and social order as it was could not be disrupted.

If we try to move away from the (in my opinion, sterile) debate on biological differences (remembering that the latter has also been explained by anthropologists as being a consequence of our gendered social order[1]), we should ask ourselves who has the power to define the norms of femininity and masculinity. “Woman” and “man” have very particular social meanings. Furthermore, commentators often qualify the sex verification tests as being racially flawed. In this sense, the discussion is also of epistemological importance: the bonus corpus is never the female body, and is always the white male one, with “naturally” good athletic abilities. True, scientific results are usually dependent on a certain political order[2], as are any other empirical social-situated findings. The CAS Panel said that an assessment of the likely impact of the DSD Regulations on wider society would require “an analysis of multifaceted sociological issues which are not amenable to judicial resolution by an arbitral tribunal (…)” (§518). And, as such, it is certainly not for an arbitration court to have the power to (re)define gender categories, which are intrinsically political and historical, and are not limited to the sports world.

Appealing to the ECtHR

If she does not prevail before the SFT, Semenya could still appeal to the European Court of Human Rights, alleging a breach of Article 14 and/or Article 8[3]. It may give the Strasbourg Court an interesting opportunity to comment on gender opposition and binarity, as well as on the social limitations put on gendered bodies. The gender stereotypes discussion is not a new one; regional and international courts have had the opportunity, on many occasions, to comment on the need to combat harmful gender stereotypes[4]. However, they usually do so in relation to human rights law and to the principles of equality and non-discrimination. Even if, of course, not every unjustified discrimination is rooted in stereotypes[5], they seldom point at the wrong of gender stereotypes per se. Hopefully this may lead the ECtHR to further reflect on the harmfulness of gender stereotypes, beyond the well-established categories in need of protection against unjustified discrimination.

The CAS practically said that it was bound by biology. If anything, the results of the sex verification tests should have proven that Semenya’s body has incredible athletic abilities, with no requirements of medically modifying it whatsoever.

Conclusion

In a letter to the IAAF about their regulations, United Nations experts on health, torture, and women’s rights wrote:

“The assessment for ‘exclusion or treatment’ based on the IAAF regulations relies on suspicion and speculation, based on stereotypes about femininity. This effectively legitimizes widespread surveillance of all women athletes by requesting national federations as well as doctors, doping officials, and other official personnel to scrutinize women athletes’ perceived femininity, which can include appearance, gender expression, and sexuality. Women who are understood to be “suspicious” about their natural physical traits are tied to subjective and cultural expectations regarding which bodies and modes of gender expression are “appropriate,” or even valorised by adherence to traditional or normative aesthetics of femininity. Gender and sex-based stereotyping and stigma have a long history, not only of causing psychological harm to women and gender minorities, but also of increasing the possibility of violence against them.”

The social norms of gender act as a blur on reality, based on the stereotype that “a real woman” should not be that good of an athlete. It provides us with an overview of how public policy decisions are justified by scientific findings, operating in a gender-normative environment. The discrimination was considered “necessary, reasonable and proportionate” in comparison with the vast majority of non-DSD women, but it somehow appears to be a debate on the equality between women and men and on reaffirming the importance of the “fixed duality of sexual difference”[6]. The CAS Panel said that it was “faced with conflicting rights concerning the rights of female athletes who do, and do not, have DSD” (§554).

Interestingly enough, the more women are compared to each other, on the grounds of fairness, the stronger the female gender category is reinforced.

[1] Priscilla Touraille, Hommes grands, femmes petites : une évolution coûteuse. Les régimes de genre comme force sélective de l’évolution biologique, Éditions de la Maison des Sciences de l’Homme: Paris 2008.

[2] Thomas Laqueur, La Fabrique du Sexe: Essai sur le corps et le genre en Occident, Gallimard: Paris 1992.

[3] The ECtHR had considered an application brought following an unsuccessful appeal to the Swiss Federal Tribunal in the October 2018 decision ECtHR, Mutu and Pechstein v Switzerland, applications no. 40575/10 and no. 67474/10, ECLI:CE:ECHR:2018:1002JUD004057510, alleging breaches of Article 6 of the European Convention on Human Rights.

[4] The Office of the High Commissioner for Human Rights has broadly defined the notion of “harmful gender stereotypes”, as sexist beliefs, which include representing women in roles considered traditional; as mothers and household heads, as subordinates of men or as sexual objects. In 2013, the OHCHR prepared a report on sex and gender stereotypes, which outlines the practice of treaty bodies and their reference to gender stereotypes. The obligations of States with regard to stereotypes are those set out in Article 5 lit. a CEDAW, reinforced by Article 2 lit. f. which provides that States must “take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women”. At European level, judgments of the ECtHR have concerned stereotypes related in particular to sexuality (Kalucza v. Hungary), reproduction (A. B. C. v. Ireland; R. R. v. Poland) or domestic violence (Valiuliené v. Lithuania; Opuz v. Turkey). See also Konstantin Markin v. Russia; Carvalho Pinto de Sousa Morais v. Portugal; Khamtokhu and Aksenchick v. Russia.

[5] Sophia Moreau, ‘Equality Rights and Stereotypes’ in Dyzenhaus, D./ Thorburn, M. (eds.), Philosophical Foundations of Constitutional Law, Oxford University Press : Oxford 2019.

[6] Hilary Charlesworth, ‘Foreword’, in Harris Rimmer S./Ogg K., Feminist Engagement with International Law, Edward Elgar: Cheltenham 2019.

Since last year, Doyen Sports, represented by Jean-Louis Dupont, embarked on a legal crusade against FIFA’s TPO ban. It has lodged a competition law complaint with the EU Commission and started court proceedings in France and Belgium. In a first decision on Doyen’s request for provisory measures, the Brussels Court of First Instance rejected the demands raised by Doyen and already refused to send a preliminary reference to the CJEU. Doyen, supported by the Belgium club Seraing, decided to appeal this decision to the Brussels Appeal Court, which rendered its final ruling on the question on 10 March 2016.[1] The decision (on file with us) is rather unspectacular and in line with the first instance judgment. This blog post will rehash the three interesting aspects of the case.

·      The jurisdiction of the Belgian courts

·      The admissibility of Doyen’s action

·      The conditions for awarding provisory measures

I.      The jurisdiction of the Belgian courts

Doyen was not the only party to the dispute dissatisfied with the first instance ruling; FIFA and UEFA also appealed the decision challenging the territorial competence of the Belgian Court to hear the claims raised against FIFA’s TPO ban. They consider that the Swiss courts are solely competent to deal with civil disputes involving its rules and decisions.

As in first instance, the thrust of the ruling on this question turns on the interpretation of the Lugano convention of 2007 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. In principle, under Article 2(1) of the Convention: “Subject to the provisions of this Convention, persons domiciled in a State bound by this Convention shall, whatever their nationality, be sued in the courts of that State.” Thus, translated to the present dispute this would imply that FIFA and UEFA, which are Swiss Associations, are in principle to be sued in front of Swiss courts.

Moreover, to support their view that Swiss Courts have an exclusive jurisdiction, FIFA and UEFA also invoke Article 22(2) Lugano Convention stipulating that “proceedings which have as their object the validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, or of the validity of the decisions of their organs, the courts of the State bound by this Convention in which the company, legal person or association has its seat. In order to determine that seat, the court shall apply its rules of private international law”. Yet, the Appeal Court is of a different opinion and refers to the jurisprudence of the CJEU indicating that Article 22(2) should be interpreted as referring to disputes lodged based on company law or their statutes against decisions of a company or association.

The principle enshrined in Article 2 Lugano Convention is not absolute, many exceptions are provided in the Lugano Convention itself. In particular, Article 5(3) Lugano Convention foresees that in delictual matters the court of the place where the harmful event occurred or may occur is competent. This entails both the place were the harmful conduct was put in motion and the place where the harm was felt. In the present case, the Appeal Court argues that it is “difficult to contest that by hindering the appellant to execute their partnership agreement and enter in future TPO or TPI agreements over specific players, the attacked ban is producing harmful effects on the Belgian territory”.[2] Furthermore, the TPO agreement between Doyen Sports and the ASBL RFC Seraing is not deemed fictitious, as it has been invoked by FIFA to hand out disciplinary sanctions to the ASBL RFC Seraing.[3]

Additionally, the Court derives also its competence from Article 6(1) Lugano Convention. This article provides that a party can be sued “where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings”. The key question is whether there is sufficient connectedness between the claims raised against l’URBSFA, FIFA and UEFA. The Court refers to the recent case law of the CJEU, which is relevant to the interpretation of the Lugano Convention, on the identical provision in the Brussels Regulation (notably the case C-352/13 at para. 20). It is of the view that “FIFA and URBSFA share a regulatory and disciplinary power that enables them both, acting jointly or separately, to adopt the contested ban, to enforce it and to adopt an individual decision susceptible to block, compromise and/or restrict the execution of the contract signed by the appellants”.[4] Thus, “the autonomous regulatory power of the URBSFA justifies its participation in this proceeding, alongside FIFA in order (i) to obtain that both be prevented to act; (ii) that each of them be deprived of the opportunity to contest the opposability of a decision to which they would not have been part and lastly (iii) to deny FIFA the possibility to circumvent an interdiction pronounced against it by having recourse to the regulatory power of the URBSFA”.[5] Finally, the Court argues “if the appellant were forced to lodge a claim against FIFA in front of the Swiss courts and against URBSFA in front of the Belgian Courts, this could potentially lead to irreconcilable solutions”.[6] As far as the claims against UEFA are concerned, which has not contrary to FIFA explicitly banned TPO, the Appeal Court is also convinced of their connectedness. It is so because UEFA “imposes to the clubs needing a license to participate in its competitions that they comply with the statutes and regulations of FIFA and, thus, with the disputed TPO ban “.[7]

This is again a powerful reminder that Sports Governing Bodies (SGBs) seated in Switzerland cannot evade the jurisdiction of the national courts of EU Member States when EU competition law is involved.[8] Under Article 5(3) Lugano Convention, EU Member States courts will be competent to deal with a civil liability claim based on EU competition law if the damage caused by the disputed measure/decision/regulation can be felt on the national territory of a Member State. Furthermore, if, as is usually the case for sports regulations, the rules have to be implemented by national sporting associations, the claims raised against the national SGBs will most likely be deemed connected to the original decisions/regulations of the international SGBs and justify the jurisdiction of the court of the domicile of the national SGB.[9]

II.    The admissibility of Doyen’s action

In this proceeding, as well as in the one initiated in front of the Paris court (FIFA’s legal submission in the Paris procedure has been published by football leaks), FIFA argues that Doyen’s action is not admissible due to the fact that the wrong administrator has initiated it. Indeed, under article 11.1 of Doyen’s own statutes the judicial representation is to be exercised by the local administrator designated by shareholder A acting in conjunction with the local administrator designated by shareholder B or by any other person designated by the general assembly. Yet, in practice Nelio Lucas, who fulfils none of the relevant criteria and was thus not authorized to act in Doyen’s name in judicial matters, lodged the action. However, Doyen could have under Belgium procedural rules ratified the judicial initiative taken by an incompetent organ. Doyen tried to do so but failed to organize the general assembly necessary to ratify Nelio Luca’s decision. Thus, the Court deems the action initiated by Doyen inadmissible. Luckily for Doyen it was not the sole party to the proceedings as the ASBL RFC Seraing joined the procedure. The Court believes the intervention of RFC Seraing in the proceedings is admissible and its interest to act is acknowledged. On this latter point, FIFA was arguing that RFC Seraing’s interest to act was inexistent due to the fact that the partnership agreement between Doyen and Seraing was contrary to the public order. However, in light of the divergent positions regarding the legality of TPO/TPI and of the on-going proceedings before various national courts and the European commission, the Belgium court is reluctant to admit that the interest of Seraing to act in this matter is illegitimate.

III.  Doyen’s (un)likelihood to prevail

Concerning the likelihood to prevail, however, the Court sided with the federations and refused to admit that the TPO/TPI ban was likely to restrict article 101(1) TFEU. On the one hand, as indices of the compatibility of the ban with EU law, it pointed out that the Commission was inclined to support the TPO ban, that FIFPro was clearly opposed to TPO and invokes fundamental values in support of the ban, and that the ban was adopted after a collective reflection involving many stakeholders and is aimed at tackling the negative externalities listed by the first instance court.[12] On the other hand, it refers to an academic article authored by Marmayou contesting the compatibility of TPO with EU law (this reference appears poorly chosen as the article is dedicated primarily to the FIFA regulations for intermediaries, for a stronger challenge to the compatibility of the TPO ban with EU law see Lindholm).[13] In any case, “it is obvious that a preliminary assessment cannot lead the Court to conclude, with sufficient certainty, that the ban would be contrary to EU competition rules”.[14] Finally, and this is the part of the ruling that seems to have been slightly misinterpreted by the press. The Court pointed out that Seraing and Doyen were asking in the main proceedings for a preliminary reference to the CJEU and that they were, therefore, conscious that they are not certain to prevail. However, the Appeal Court cannot, in the framework of a procedure involving provisory measures, ask a question to the CJEU, as it is unable to comply with the CJEU’s requirements for the admissibility of preliminary references (see the failed attempt in the UEFA FFP case). Hence, it is for the Commercial Court of Brussels, which is competent in the main proceeding, to decide whether it is necessary to do so. The Appeal Court (and the claimants as it cheekily points out) seems to believe that it could be needed, as it is not at all clear that the ban is contrary to EU competition law.

Conclusion

There are number of lessons that can be drawn from the judgment of the appeal court. Three stand out:

1. FIFA and UEFA cannot evade the jurisdiction of EU courts. Indeed, if an EU competition law violation of their rules is invoked they can be brought before the jurisdictions of the Member States
2. Doyen messed up in its original court filing by failing to abide by the procedure enshrined in its own statutes. This has no dire consequences in the Belgium proceedings due to presence of Seraing, but it might be a different story before the Paris court, where Doyen stands alone and the same procedural irregularity is invoked by FIFA.
3. To FIFA’s great satisfaction, the case against the TPO ban is not deemed strong enough to allow for the adoption of provisory measures blocking its implementation. As pointed out in our previous blog (and here) EU competition law is not a golden bullet that can be invoked easily to strike down FIFA or UEFA regulations. There is a high justificatory burden and the claimants will face an uphill battle to demonstrate that the ban is disproportionate (especially in light of the broad support for the ban amongst many key stakeholders).

This was only a small skirmish in a long legal war still before us. It will not be definitely over until the CJEU decides the matter (in 2018 at the earliest) or Doyen bows out of the game in the face of the high legal fees incurred. What is already certain is that the way EU law applies to sport is not straightforward and does not entail an economic/neoliberal logic blindly favourable to an unrestricted freedom to invest.

[1] Cour d’appel Bruxelles, Doyen Sports et ASBL RFC Seraing United c. URBSFA, FIFA et UEFA, 2015/KR/54, 10 mars 2016.

[2] “Il est difficilement contestable qu’en empêchant les appelantes de poursuivre l’exécution de leur convention de collaboration et la conclusion de nouvelles conventions « TPO » ou « TPI » spécifiques à des joueurs, l’interdiction litigieuse produit des effets dommageables sur le territoire belge.” Ibid, para.50.

[3] “C’est également en vain qu’il est soutenu que la convention de collaboration litigieuse ne serait qu’un artifice destiné à saisir les juridictions belges. En effet, elle a connu une exécution par des payements de sommes de Doyen Sports à l’ASBL RFC Seraing et surtout, son existence a été invoquée par la FIFA pour mener des poursuites disciplinaires contre le club dirigé par l’ASBL RFC Seraing et lui infliger une sanction.” Ibid.

[4] “L’URBSFA et la FIFA se partagent donc un pouvoir réglementaire et de contrainte qui leur permet, à l’une et à l’autre, agissant ensemble ou séparément, d’adopter l’interdiction litigieuse, de la mettre en œuvre et de prendre une mesure ou une décision à caractère individuel de nature à empêcher, compromettre et/ou entraver l’exécution du contrat conclu entre les appelantes.” Ibid, para.57

[5] “Le pouvoir règlementaire autonome de l’URBSFA et son pouvoir d’action propre justifient sa présence dans la procédure, en même temps que la FIFA afin (i) d’obtenir l’empêchement d’agir de l’une et de l’autre ; (ii) de priver chacune d’elles de la possibilité de contester l’opposabilité d’une décision judiciaire qui serait rendue dans une cause à laquelle elle serait demeurée étrangère et enfin (iii) d’empêcher la FIFA de contourner une interdiction qui serait prononcée à son encontre en recourant au pouvoir réglementaire de l’URBSFA.” Ibid.

[6] “Si les appelantes étaient dans l’obligation d’attraire la FIFA devant les juridictions suisses tout en citant l’URBSFA devant les juridictions belges, cette situation serait susceptible de conduire à des solutions inconciliables […]”, ibid. para.58.

[7] “En ce qui concerne l’UEFA, la connexité existe également. En effet, si elle n’est pas l’auteur des dispositions réglementaires et si elle n’est pas intervenue comme soutien dans l’exercice de poursuites disciplinaires menées contre le RFC SERAING, elle impose aux clubs qui doivent obtenir une licence pour participer aux compétitions qu’elle organise, de se plier aux statuts et aux règlements de la FIFA et à l’interdiction en cause.” Ibid., para.59.

[8] The same solution was adopted in 2012 by the French Cour de Cassation (Highest French Civil Court) in a dispute opposing the French agent Piau to FIFA. See Cour de cassation, civile, Chambre civile 1, 1 février 2012, publié au bulletin.

[9] This solution was also adopted by the OLG in the Pechstein ruling, see Oberlandesgericht München, 15 January 2015, Az. U 1110/14 Kart, para.A.I.1.a)aa) and bb).

[10] « L’urgence est établie. L’ASBL RFC Seraing est sous le coup d’une sanction disciplinaire dont seule l’exécution a été suspendue et elle est susceptible d’encourir de nouvelles poursuites et sanctions pour le cas où elle conclurait de nouvelles conventions TPO/TPI avec Doyen Sports ou toute autre société menant des activités de financement similaires.” Cour d’appel Bruxelles, Doyen Sports et ASBL RFC Seraing United c. URBSFA, FIFA et UEFA, 2015/KR/54, 10 mars 2016, para.78.

[11] « Ensuite, il n’est pas douteux que l’interdiction de poursuivre la convention de collaboration du 30 janvier 2015 et de conclure de nouvelles conventions TPO/TPI la prive d’une source de financement, sans qu’il soit démontré par les intimées qu’elle pourrait lui trouver un substitut adéquat par des emprunts classiques auprès de tiers.”Ibid.

[12] « D’un côté, il faut constater que :
- la Commission paraît s’être orientée vers la condamnation de la TPO;
- la FIPpro y est clairement opposée et invoque à cette fin des valeurs essentielles;
- l’interdiction est le résultat d’une réflexion collective à laquelle ont participé de nombreux interlocuteurs - et non pas seulement l’UEFA ou certains de ses membres - et elle est l’aboutissement de plusieurs constats que relève le premier juge dans son ordonnance : opacité, absence de contrôle des instances dirigeantes, importance du phénomène puisqu’il concerne le marché mondial, environnement ouvert à la corruption et aux pratiques frauduleuses, importance des sommes en jeu, etc...” Ibid, para.81.

[13] « De l’autre, de sérieuses réserves sont émises à propos de la légalité de l’interdiction de la TPO/TPI (voir ainsi l’article de J.M. MARMAYOU, « La compatibilité du nouveau règlement FIFA sur les intermédiaires avec le droit européen » Les cahiers de droit du sport, 2015, p. 15, pièce 38bis des appelantes).” Ibid.

[14] « Il est patent qu’un examen en apparence ne permet pas de conclure, avec la force nécessaire, que l’interdiction porte atteinte aux règles de la concurrence.” Ibid, para.82.

Editor's note: Dr Rishi Gulati is Associate Professor in International Law at the University of East Anglia (UK) and Barrister in Law. He has a PhD from King’s College London, Advanced Masters in Public International Law from Leiden University, and a Bachelor of Laws from the Australian National University. Amongst other publications, he is the author of Access to Justice and International Organisations (Cambridge University Press, 2022). He has previously worked for the Australian Government, has consulted for various international organizations, and regularly appears as counsel in transnational cases.

On 1 December 2024, Jay Shah, the son of India’s powerful Home Minister and Modi confidante Amit Shah, will take over the role of the Independent Chair of the International Cricket Council (ICC). This appointment reflects the influence India now has on the governance of cricket globally. A key test Jay Shah will face is whether or not the ICC should suspend the Afghanistan Cricket Board (ACB) from its membership as Afghanistan no longer maintains a women’s cricket team contrary to the organization’s own rules, as well as its human rights responsibilities. 

The Post-Taliban Situation for Women’s Cricket in Afghanistan

As is well known, following the highly chaotic US withdrawal from Afghanistan in 2021, the Taliban returned to power in that country. Since its return, the Taliban has banned education for young women and teenage girls, severely restricted their right to work, outlawed women’s voices being raised in public, issuing at least 100 decrees and edicts institutionally and systematically violating Afghan women and girls’ basic freedoms recognised in international law. 

In June 2024, the UN Special Rapporteur on human rights in Afghanistan said that “[t]he system of discrimination, segregation, disrespect for human dignity and exclusion institutionalized by the Taliban is motivated by and results in a profound rejection of the full humanity of women and girls.” It should then come as no surprise that women in Afghanistan are not allowed to play domestic cricket in that country any more. Further, the Afghanistan women’s cricket team no longer plays international cricket for the Taliban does not allow it. All the gains made in the pre-Taliban period, where the sport in that country had made genuine advances, were lost in a moment.

The ICC’s obligations to Afghanistan Women’s Cricket

As a global body that regulates international cricket, the ICC rightly enjoys independence in its working. However, this independence does not mean that the ICC should be unaccountable and be able to evade or avoid its human rights responsibilities. In respect of its obligations to Afghanistan’s women cricket, it cannot be said that the ICC is living up to those responsibilities.

Indeed, global sporting bodies are powerful transnational institutions to whom the most basic human rights obligations ought to apply. Amongst other things, the UN Guiding Principles on Business and Human Rights (UNGPs) which some sports bodies have voluntarily adopted require them to ensure compliance with internationally recognised human rights standards, including on non-discrimination, and the need to provide an effective remedy to those adversely affected (see especially Principles 11-29 of the UNGPs).

Although the words “human rights” do not appear in its Articles of Association (the ICC is incorporated as a company limited by guarantee in the British Virgin Islands), the organization’s own rules do indeed facilitate non-discriminatory participation of women in the sport, albeit in a roundabout way. 

ICC members, which the ACB is, must be run independently, i.e., without government interference (para. 2.4, ICC Articles). If there is governmental interference, then the member cannot maintain its membership (para. 2.8, ICC Articles). Specifically on women’s participation in the sport, where pathways for women’s cricket are lacking, and a member does not maintain a women’s cricket team, its membership ought to be suspended for this would appear to constitute a serious breach of its obligations as a Member (para. 2.10, ICC Articles; also see the ICC membership criteria).

Due to the Taliban’s ban on women’s sport, interference in the ACB’s affairs is manifest. Crucially, there are no pathways for girls and women to play cricket in Afghanistan, with that country failing to maintain a women’s cricket team. There is a clear basis for suspending the Afghanistan Cricket Board (ACB) from its membership. As Goldschmidt has explained, “Afghanistan, on even the loosest assessment, is not meeting the requirements prescribed by the ICC’s governance arrangements. 

While it would be preferrable if the ICC were to expressly adopt human rights principles in its governance arrangements, in the case at hand, its current framework already allows it to live-up to the organization’s human rights responsibilities through a straightforward application of its rules. Afterall, South Africa was suspended from international cricket between 1970 and 1991 during the Apartheid regime in that country. But why is this double standard allowed to continue? 

How the ICC may respond to the conundrum?

It has been said, “the ICC has been keen to stress that it does not recognise the Taliban as the legitimate ruling authority, and hence will “not penalise the ACB, or its players, for abiding by the laws set by the government of their country.” It is perhaps understandable that the ICC wishes to ensure that Afghan men can continue to play international cricket, thus, expelling the ACB is a difficult proposition.

However, until women’s cricket is restored in Afghanistan, suspending the ACB from the ICC would be an apt action that is not only in line with its own rules, but entirely consistent with the organization’s human rights responsibilities. If taking a strong stance against what some call gender apartheid against girls and women in Afghanistan means that the men’s cricket team may not be able to participate in international cricket, then this is a price that must be paid. As unfortunate as this state of affairs may be, it does not constitute an exception to the ICC’s human rights responsibilities.

-This does not mean that Afghan men’s and women’s cricket teams cannot take part in cricket at all. Most women cricketers from that country fled to western states following the Taliban take-over. Representatives from the former Afghanistan women’s cricket team presently based in Australia requested the ICC for permission to play as an Afghan refugee team, stating: : “Creating a team of Afghan refugees can give us a chance to play, coach and administer a cricket team without borders…The creation of this team will allow all Afghan women who want to represent their country to come together under one banner.” 

An appropriate response would be to allow the establishment of a women’s refugee cricket team. There is nothing stopping the ICC to allow the men to do the same should the ACB be suspended. 

Doing so does not only help the ICC to abide by its human rights responsibilities, but also assists the organization to mitigate any potential issues arising with respect to cricket’s participation in the 2028 LA Olympics at which cricket will make a much awaited return. Indeed, the ICC is a member of the Olympic Movement, and given the International Olympic Committee’s increased emphasis on human rights considerations throughout its operations, the need for the ICC to live up to its human rights responsibilities is correspondingly pressing.

The upcoming 2022 FIFA World Cup in Qatar and its links to human rights violations has been the subject of many debates in the media and beyond. In particular, the respect of migrant workers’ labour rights was at the forefront of much public criticisms directed against FIFA. Similarly, past Olympics in Rio, Sochi or Beijing have also been in the limelight for various human rights issues, such as the lack of freedom of the press, systematic discrimination on the basis of sexual orientation or forced evictions. These controversies have led sports governing bodies (SGBs) to slowly embrace human rights as an integral part of their core values and policies. Leading to an increased expectation for SGBs to put their (private) diplomatic capital at the service of human rights by using their leverage vis-à-vis host countries of their mega-sporting events (MSEs). In turn, this also raises the question of the need for the EU to accompany this change by putting human rights at the heart of its own sports diplomacy.

Research collective 
This Multiplier Sporting Event, organised in the framework of the transnational project on ‘Promoting a Strategic Approach to EU Sports Diplomacy’ funded by the Erasmus + Programme, aims to trigger discussions on the role of an EU sports diplomacy in strengthening respect for human rights in the context of MSEs both at home and abroad. It will feature two roundtables focused on the one hand on the diplomatic power and capacity of SGBs to fend for human rights during MSEs and on the other on the EU’s integration of human rights considerations linked to MSEs in its own sports diplomacy.

Programme

13:20 – 14:00 – Welcome and opening speech –Antoine Duval (Asser Institute)
14:00 - 15:30 - Panel 1: Leveraging the Diplomatic Power of the Sports Governing Bodies for Human Rights

• Lucy Amis (Unicef UK/Institute for Human Rights and Business)
• Guido Battaglia (Centre for Sport and Human Rights)
• Florian Kirschner (World Players Association/UNI Global Union)
• Claire Jenkin (University of Hertfordshire)

15:30 – 16:00 - Coffee Break

16:00 - 17:30 - Panel 2: A Human Rights Dimension for the EU’s Sports Diplomacy?

• Arnout Geeraert (Utrecht University)
• Agata Dziarnowska (European Commission)
• Alexandre Mestre (Sport and Citizenship)
• Ministry of Health, Welfare and Sport (TBC)

17:30 - Reception

On Wednesday 14 July 2021 from 16.00-17.30 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret, is organizing a Zoom In webinar on Rule 50 of the Olympic Charter and the right to free speech of athletes.

As the Tokyo Olympics are drawing closer, the International Olympic Committee just released new Guidelines on the implementation of Rule 50 of the Olympic Charter. The latter Rule provides that ‘no kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas’. The latest IOC Guidelines did open up some space for athletes to express their political views, but at the same time continue to ban any manifestation from the Olympic Village or the Podium. In effect, Rule 50 imposes private restrictions on the freedom of expression of athletes in the name of the political neutrality of international sport. This limitation on the rights of athletes is far from uncontroversial and raises intricate questions regarding its legitimacy, proportionality and ultimately compatibility with human rights standards (such as with Article 10 of the European Convention on Human Rights).

This webinar aims at critically engaging with Rule 50 and its compatibility with the fundamental rights of athletes. We will discuss the content of the latest IOC Guidelines regarding Rule 50, the potential justifications for such a Rule, and the alternatives to its restrictions. To do so, we will be joined by three speakers, Professor Mark James from Manchester Metropolitan University, who has widely published on the Olympic Games and transnational law; Chui Ling Goh, a Doctoral Researcher at Melbourne Law School, who has recently released an (open access) draft of an article on Rule 50 of the Olympic Charter; and David Grevemberg, Chief Innovation and Partnerships Officer at the Centre for Sport and Human Rights, and former Chief Executive of the Commonwealth Games Federation (CGF). 

Guest speakers:

• Prof. Mark James (Metropolitan Manchester University)
• Chui Ling Goh (PhD candidate, University of Melbourne)
• David Grevemberg (Centre for Sport and Human Rights)

Moderators:

• Dr Antoine Duval (Asser Institute)
• Dr Marjolaine Viret (University of Lausanne)

Editor’s Note: Shervine Nafissi (@SNafissi) is a Phd Student in sports law and teaching assistant in corporate law at University of Lausanne (Switzerland), Faculty of Business and Economics (HEC).

Introduction

The factual background

The dispute concerns a TPO contract entitled “Economic Rights Participation Agreement” (hereinafter “ERPA”) concluded in 2012 between Sporting Lisbon and the investment fund Doyen Sports. The Argentine player was transferred in 2012 by Spartak Moscow to Sporting Lisbon for a transfer fee of €4 million. Actually, Sporting only paid €1 million of the fee while Doyen Sports financed the remaining €3 million. In return, the investment company became the owner of 75% of the economic rights of the player.[1] Thus, in this specific case, the Portuguese club was interested in recruiting Marcos Rojo but was unable to pay the transfer fee required by Spartak Moscow, so that they required the assistance of Doyen Sports. The latter provided them with the necessary funds to pay part of the transfer fee in exchange of an interest on the economic rights of the player.

Given that the facts and circumstances leading to the dispute, as well as the decision of the CAS, were fully described by Antoine Duval in last week’s blog of Doyen vs. Sporting, this blog will solely focus on the decision of the Swiss Federal Supreme Court (“FSC”) following Sporting’s appeal against the CAS award. As a preliminary point, the role of the FSC in the appeal against CAS awards should be clarified.

Scope of the Federal Supreme Court’s review as for the international arbitral awards

Since the CAS has its seat in Lausanne, Switzerland, it has adopted its procedural rules in accordance with the 12^th chapter of the Swiss Private International Law Act[2], which provides a general legal framework for international arbitration in Switzerland. Under the relevant provisions of the Swiss PILA, arbitral awards are final upon their notification and can only be challenged before the Swiss Federal Supreme Court on a very limited number of grounds in order to prevent the parties to arbitrate again the dispute before a state Court.[3] Besides, in Swiss law, there is only one level of appeal against an international arbitration award before the Federal Supreme Court.[4] Thus, the FSC “ensures a uniformity in the review of arbitral awards and the development of a consistent court practice” be being the only one instance for appeals.[5] In this way, “arbitral awards are always reviewed by the same State court, ensuring consistency”.[6]

Setting aside the award may only be possible where the sole arbitrator has been improperly appointed or where the arbitral tribunal has been improperly constituted, where the arbitral tribunal has wrongly accepted or denied jurisdiction, where the arbitral tribunal has ruled beyond the claims submitted to it, or failed to decide one of the claims, where the principle of equal treatment of the parties or their right to be heard in an adversary procedure has not been observed, where the award is incompatible with public policy.[7] In casu, the examination of Sporting Lisbon's claims is based on the incompatibility of the award with public policy within the meaning of Art. 190 para. 2 let. e PILA.

As a reminder, an award is inconsistent with public policy if it disregards those essential and broadly recognized values which, according to the prevailing values in Switzerland, should be the founding stones of any legal order.[8] “An award is contrary to substantive public policy when it violates some fundamental principles of the law applicable to the merits to such an extent that it is no longer consistent with the notions of justice and system of values; among such principles are, in particular, the sanctity of contracts, compliance with the rules of good faith, the prohibition of abuse of rights, the prohibition of discriminatory and confiscatory measures, as well as the protection of incapable persons. (…). If it is not easy to define substantive public policy positively and to set its boundaries with precision, it is easier to exclude one item or another from it. The entire process of interpreting a contract and the legal consequences logically drawn therefrom are excluded; so is the interpretation of the statutory provisions of a private law body by an arbitral tribunal. Furthermore, it is not sufficient to show incompatibility with public policy – a concept more restrictive than arbitrariness – by showing that the evidence was wrongly assessed, a factual finding manifestly wrong, or a rule of law clearly violated”.[9]

Thus, the examination of this international arbitral award by the FSC is limited to the question of the compatibility of the said award with public policy, a notion more restrictive than arbitrariness.

The judgement of the Federal Supreme Court of Switzerland - the merits

Sporting Lisbon’s defence

First, the Portuguese club tried to demonstrate that the CAS award violated material public policy by giving effect to one-sided and usurious contracts including excessive restriction.[10]

The claim is based on figures from the ERPA contract. Considering that Doyen Sports invested €3 million at the beginning, the company managed in all cases with 12.36% of minimum return insofar as it activated the Put Option, or 40% if the company requested payment of the Minimum Interest Fee. These two scenarios did not take into account the possibility that the player concerned by the ERPA be transferred with a capital gain, thus enabling Doyen Sports to get an investment return of about 400%, as was the case for the transfer of Marcos Rojo to Manchester United.

Sporting Lisbon compared this investment return to its own, as it would only be left with €1 million, i.e. the 5% of the transfer fee once the 75% for Doyen Sports’s share and the 20% for Spartak Moscow’s share deducted. Therefore, according to the Portuguese club, the ERPA, which it describes as a partiary loan[11], infringes the provisions on usury, would be a one-sided contract and, accordingly, would be null and void under Swiss law.[12]

Secondly, Sporting Lisbon explained that it gave up its freedom of action in an unacceptable manner under and art. 27 of the Swiss Civil Code (protection of one’s legal personality against excessive restrictions).[13] Indeed, some clauses of the ERPAs required Sporting Lisbon to accept a transfer offer deemed sufficiently high, if not Sporting would be forced to pay Doyen Sports 75% of the proposed transfer fee without receiving any fee, precisely because of the absence of any transfer.[14] According to the Portuguese club, Doyen Sports was not only in a position to ask Sporting Lisbon to transfer Marcos Rojo even if the club preferred to keep the player in its squad for purely sporting reasons, but also to require the club to make its best efforts to transfer the player before the end of his employment contract. Sporting Lisbon further underlined that the ERPA is made up of clauses stipulating that the club, conscious of the harshness and the severity of the consequences of certain clauses, takes the commitment to consider these clauses as fair and a necessary condition to Doyen’s interest in the player’s economic rights.

Thirdly, the club considers that the award of the CAS violates material public policy because it gives effect to contracts that seriously disregard the personality rights and the fundamental rights of the players. ERPA contracts would seriously undermine the players by putting pressure on the club by various clauses, including a clause obliging it to pay to Doyen Sports a minimum amount of €4.2 million (the Minimum Interest Fee) in the event that Marcos Rojo is not transferred to another club before the end of his employment contract. Such a clause would force Sporting to do everything possible to encourage the player to leave the club before the expiration of the employment contract. Thus, the player, even though he is not a party to the contract, would see his right to free economic development restricted, if not annihilated, in particular his ability to take the appropriate decisions for his sporting career and to freely choose the club for which he intends to play.[15] As regards fundamental rights, Sporting Lisbon argues that the ERPA-mechanism allows a third party to indirectly decide whether the player concerned by the ERPA must continue to play for his club or whether he must accept the conclusion of a contract with another club. Such a situation would violate the prohibition of forced labor set out in Art. 4 para. 2 ECHR and, more generally, human dignity.[16]

Finally, according to Sporting Lisbon, there should be a shared conception of moral standards in the field of sport in general and football in particular. These standards should not only prevent players from becoming an object of speculation, but also prevent investors to take advantage of the financial difficulties of the clubs. By taking advantage of clubs in financial difficulty, investors make indecent profits, while the clubs lose control of the situation from the sporting point of view. The standards would help to strengthen contractual stability, which is a cardinal principle of the transfer system.

The FSC’s Decision

The FSC first considered the figures provided by Sporting Lisbon with regard to the calculation of the minimum return of 12.36% (insofar as the Put Option is activated) and 40% (in case Doyen requests payment of the Minimum Interest Fee), and found that these figures were based on a calculation over three and five years respectively. Consequently, if the calculation of the investment return was made over one year, this would have given interest rates lower than 15%, which would be lawful under Swiss law. In addition, the arguments based on Doyen Sports’ investment return of about 400% with the transfer of Rojo were considered as irrelevant. These figures cannot be qualified as interests, but only as a kind of remuneration of the lender, which depends on the amount of the transfer fee, thus being similar to a partiary loan paid by giving a share to the lender on the profit realized by the borrower in a subsequent transfer operation.[17] Therefore, assuming that the relationship between the two parties is a lender-borrower relationship, the fact that Doyen Sports could acquire 75% of the future transfer fee of the player for whom it had initially financed the transfer at Sporting Lisbon for an equivalent share (i.e. €3 million out of €4 million), is not an usurious, one-sided contract, nor immoral.

Finally, the particular aspect of this type of contract relates to the enormous capital gains that can be made with the transfer operation, in casu about 400%. Nevertheless, the FSC considers that this capital gain depends on predominantly random elements.[18] The fact that Marcos Rojo played well at the 2014 World Cup, and that the Argentine selection reached the final of this competition, could not be foreseen. Thus, the sudden increase in his value on the transfer market is totally uncertain and cannot be invoked as a claim against Doyen Sports.[19] Moreover, the FSC recalled that the opposite situation was also possible, i.e. a drastic loss of the value of the player based on his performance in selection and club. These elements can therefore not be objectively taken into account by the parties. At the end of its reasoning on this issue, the FSC took the liberty to criticize Sporting Lisbon by saying that the club would not have been offended by such capital gain if it had been the sole beneficiary of the transfer fee.[20]

Secondly, the FSC analyzed the argument put forward by Sporting Lisbon that the ERPA contract would seriously undermine its freedom under Art. 27 CC. It should be kept in mind that, according to case-law, a breach of that provision does not necessarily mean a violation of public policy. Such a violation is instead conceivable only in case of a blatant and grievous violation of a fundamental right.[21] It must be considered in this respect that a contractual limitation of economic freedom is disproportionate within the meaning of Art. 27 (2) CC only when the debtor submits to someone else’s arbitrariness, gives up his economic freedom or restricts it in such a way that the foundation of his economic existence is jeopardized.[22] In casu, the FSC recalls that Sporting Lisbon is not inexperienced in the sharing of economic rights insofar as Marcos Rojo was not the only Sporting player affected by this type of contract.[23] It was the club that took the initiative to contact Doyen Sports to request its financial assistance. The conclusion of the contract was also preceded by lengthy negotiations during which the club was assisted by experts and lawyers. Finally, the dispute with Doyen Sports concerning Marcos Rojo was not in itself able to deteriorate the club’s financial situation, and thus preventing it from pursuing its economic activities.

Thirdly, the FSC examined the claim concerning the personality and fundamental rights of the players concerned by an ERPA.[24] The judges considered that the club limited itself to purely theoretical reflections without, however, demonstrating in concrete terms how the ERPA contract would seriously undermine the aforementioned rights. To the extent that the FSC has limited power to review international arbitral awards, it is hardly theoretical arguments that will demonstrate that a CAS award violates public policy according to Art. 190 para. 2 let. e PIL. Moreover, Sporting Lisbon’s argument concerning the personality and fundamental rights of Marcos Rojo is incompatible with the fact that the club has used the TPO mechanism for several other players. Again, the FSC questioned the sincerity of this argument had Sporting Lisbon received the full amount of the transfer fee. Furthermore, although the FSC recognizes the quality of the club to report a violation of the player’s personality rights[25], it is not established by the judges that the players themselves have complained of any such violation. On the contrary, when he signed for Manchester United, Marcos Rojo would have welcomed the fact of joining one of the best clubs in the world. Marcos Rojo, who was earning the equivalent of €1.14 million in Sporting Lisbon, currently earns about €4 million per year at the English club. Therefore, it is somewhat bold on the part of Sporting Lisbon, according to the FSC, to put forward the prohibition of forced labor or the violation of human dignity in such circumstances.

Finally, The FSC did not want to admit a notion of moral standards in the field of sport in general, and football in particular, in relation to the definition of the concept of material public policy.[26] Apart from the fact that it seems difficult to determine what is a moral standard in football, to adapt the concept of material public policy in relation to a particular activity and, more importantly, to a particular branch of the activity concerned - in this case, sport or football - would in some way soften the force and reduce the scope of the concept by leaving to FIFA the task of defining the notion of morality proper to football. The result would be a dilution of the notion of material public policy and, consequently, an increased difficulty in defining the contours of this concept, not to mention the formation of a casuistry that is not favorable to the predictability of the law.

In conclusion, the FSC recalls that the high mobility of professional footballers and their frequent transfers are caused by FIFA regulations, in particular the rules relating to the maximum duration of an employment contract binding a Player to a football club and the conditions of a subsequent transfer of that same player to another club, but also by the manner in which the transfer system is applied.[27]

For all these reasons, the Federal Supreme Court rejected Sporting Lisbon’s appeal against the CAS award of 21 December 2015.

Conclusion

Following the award of the CAS, the FSC confirmed the validity of the ERPA contracts under Swiss law. The mechanisms that make up the agreements signed by Doyen Sports and other companies that invest in the player transfer market are based on traditional legal instruments, including the assignment of future receivables. Thus, from a Swiss legal point of view, TPO agreements do not undergo the same moral reprimand administered by the highest football bodies, such as FIFA, UEFA or FIFPro.

Consequently, the legal battle that resulted in a victory for the “pro-TPOs” and the model proposed by the third parties, challenges the legitimacy of FIFA regulations and, more specifically, Art. 18^ter RSTP. The arguments used by Sporting Lisbon to justify the early termination of the ERPA contract are very similar, or even identical, to those presented by FIFA to justify the formal ban of the TPO in May 2015.

Nevertheless, the fact that Swiss contract law is quite liberal does not exclude the invalidation of an ERPA for material public policy reasons. As we have seen with Football Leaks, the TPO mechanism can constitute a definite threat to the financial situation of clubs, such as FC Twente. It all depends on the case brought before the courts. Indeed, the case of Sporting Lisbon was not necessarily the best opportunity to challenge the validity of the contract, as the action of Art. 21 CO was time-barred (as mentioned in the previous blog on the initial CAS award) and the player joined, voluntarily, one of the best clubs in the world.

I believe that Art. 21 of the Swiss Code of Obligations (unfair advantage) as well as Art. 27 CC and 28ss CC (personality rights) may, depending on the case before the CAS, be a legal basis for the invalidation of the contract. To the extent that a dispute arises between an inexperienced club and an investment company, the application of Art. 21 CO is not totally excluded. In addition, if a player whose economic rights have been assigned to a third party is obliged to leave the club against his will or even join a club for whom he does not wish to play, the provisions on personality rights may find an echo at the CAS.

All eyes are on other courts where ‘TPO-cases’ are pending. Most importantly, the CAS should soon issue an award in the Doyen Sports and FC Seraing United v. FIFA case. As a reminder, in January 2015, the Belgian club and Doyen Sports concluded an ERPA contract despite the FIFA ban being enacted in December 2014. As a result, the FIFA Disciplinary Committee sanctioned the Belgian club with a transfer ban (for four complete and consecutive registration periods) and a fine of CHF 150.000 for breaches relating to the third-party ownership and third-party influence. The CAS is therefore seized of an appeal against a disciplinary sanction imposed by FIFA and will be obliged to take Art. 18^ter RSTP into consideration and to judge whether the sanction is justified. It remains to be seen whether the arguments based on EU law by Doyen Sports and FC Seraing United will be taken into consideration. Indeed, both parties also filed a complaint, based on EU law, before the Belgian Courts to challenge the TPO ban.[28] For now, all these procedures have failed. It will be interesting to see how the CAS will judge the Seraing case that relates to the same mechanism although the two cases are fundamentally different. The Rojo case dealt with a contractual dispute before the ban, while the Belgian club and Doyen Sports challenged a sanction issued by FIFA and the ban as such.

In any event, TPO deals have rarely been so much under the public spotlight since their ban, and the legal suspense goes on…

[1]     Economic rights are the rights to future transfer fees from the transfer of the player to another club, and, unlike federative rights, economic rights can be divided between multiple parties. See, among others, W. Tyler Hall, After the Ban: The Financial Landscape of International Soccer After Third-Party Ownership, Oregon Law Review, Vol. 94, 2015, pp. 179 – 221.

[2]     Hereinafter “PILA”.

[3]     Mavromati, Despina, The Role of the Swiss Federal Tribunal and Its Impact on the Court of Arbitration for Sport (CAS), 29 September 2016.

[4]     Antonio Rigozzi, L'arbitrage international en matière de sport, Bâle, (Helbing & Lichtenhahn), 2^ème édition, 2005.

[5]     Niederer Kraft & Frey, Swiss Arbitration – Practical Aspects and New Developments, Publication 19, 2015, p. 28.

[6]     Ibidem.

[7]     Art. 190 para. 2 PILA.

[8]     ATF 132 III 389 consid. 2.2.3.

[9]     Judgment of the FSC, 4A_116/2016, December 13rd 2016, par. 4.1. The English translation is based on the Judgment of the FSC, 4A_304/2013, March 3rd 2014, par. 5.1.1 made by http://www.swissarbitrationdecisions.com (emphasis added).

[10]    Judgment of the FSC, 4A_116/2016, December 13rd 2016, par. 4.2.1.

[11]    Under Swiss law, the “partiary” loan is a form of loan in which the remuneration of the lender consists in a share of the borrower’s earnings. The “partiary” loan has a random element: the remuneration of the lender depends on the success of a specific business or transaction of the borrower. In casu, the ERPA can be qualified as a “partiary” loan insofar as the transaction depends on the profit made by Sporting in case of a transfer of Marcos Rojo and provides for a share of Doyen in Sporting’s success. See, Bovet / Richa, CO 312 N 6 in : Commentaire romand Code des obligations I, Pierre Tercier / Marc Amstutz (édit.), 2^ème édition, Bâle, 2012 ; Pierre Tercier / Laurent Bieri / Pascal G. Favre, Les contrats spéciaux, 5^ème édition, Genève Zürich Bâle (Schulthess) 2016, N 2539.

[12]    Judgment of the FSC, 4A_116/2016, December 13rd 2016, par. 4.2.1.

[13]    Hereinafter “CC”.

[14]    Judgment of the FSC, 4A_116/2016, December 13rd 2016, par. 4.2.1.

[15]    Judgment of the FSC, 4A_116/2016, December 13rd 2016, par. 4.3.1.

[16]    Ibidem.

[17]    Judgment of the FSC, 4A_116/2016, December 13rd 2016, par. 4.2.3.

[18]    Ibidem.

[19]    Ibidem.

[20]   Judgment of the FSC, 4A_116/2016, December 13rd 2016, par. 4.3.3.

[21]    Judgment of the FSC, 4P.12/2000, June 14^th 2000, par. 5b. aa.

[22]    Ibidem.

[23]    In March 2013, 35 to 40 players' economic rights were shared with various investment funds. See CAS 2014/0/3781, par. 217.

[24]   Judgment of the FSC, 4A_116/2016, December 13rd 2016, par. 4.3.3.

[25]    According to the exceptio de jure tertii principle, see Judgment of the FSC, 4A_304/2013, March 3rd 2014, par. 3.

[26]   Judgment of the FSC, 4A_116/2016, December 13rd 2016, par. 4.2.3.

[27]    Judgment of the FSC, 4A_116/2016, December 13rd 2016, par. 4.3.3.

[28]   Patricia Moyersoen, La décision du TAS du 21 décembre 2015 à propos des contrats de TPO passés entre le Sporting Club du Portugal et la société Doyen Sports Investments, http://www.droitdusport.com/; http://www.rfc-seraing.be/audience-au-tas-de-lausanne/.

Editor’s note: Rhys Lenarduzzi recently completed a Bachelor of Law (LL.B) and a Bachelor of Philosophy (B.Phil.) 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.

In September 2018, the Football Stakeholders Committee endorsed the idea of a Clearing House that was subsequently approved in October of the same year by the FIFA Council. A tender process commenced in July 2019 for bidders to propose jurisdiction, operation and establishment. Whilst many questions go unanswered, it is clear that the Clearing House will be aimed at closing the significant gap between what is owed and what is actually paid, in respect to training compensation and solidarity payments. The Clearing House will have other functions, perhaps in regard to agents’ fees and other transfer related business, though those other operations are for another blog. It will hence act as an intermediary of sorts, receiving funds from a signing and therefore owing club (“new” club) and then moving that money on to training clubs. Whilst separate to FIFA, to what extent is unclear.

I have landed at the position of it being important to include a section in this blog series on the soon to commence Clearing House, given it appears to be FIFA’s (perhaps main) attempt to improve the training compensation and solidarity mechanisms. As will be expanded upon below, I fear it will create more issues than it will solve. Perhaps one should remain patient and optimistic until it is in operation, and one should be charitable in that there will undoubtedly be teething problems. However, it is of course not just the function of the Clearing House that is of interest, but also what moving forward with the project of the Clearing House represents and leaves unaddressed, namely, the issues I have identified in this blog series.

1. Operation and Function of the Clearing House

The Clearing House will apparently work in the following ways:

When a player is registered as a professional for the first time, or, in the case an international transfer becomes known via TMS (Transfer Matching System), a Preliminary Player Passport will be created. This will contain the information acquired by FIFA from the relevant national associations and money owing will be calculated, per the FIFA redistributive mechanisms (enshrined in Article 20 and Annex 4 of the RSTP in the case of training compensation, and at Article 21 and Annex 5 in the case of the solidarity mechanism; see Blog 1 for a comprehensive overview). Aforesaid calculation will be undertaken by FIFA and not the Clearing House, and the Preliminary Passport will be reviewed, then given the green light or conversely disputed by the relevant member associations, rather than the training clubs supposedly due compensation. Payment directions, including bank accounts and official contact details of clubs and national associations connected to the redistribution will then be communicated by FIFA to the Clearing House. An invoice may then be issued to the new club and the obligation of that club is to pay accordingly, to the Clearing House. The Clearing House will then distribute to the training clubs, though its mandate extends to confirming and ensuring the amounts and details are correct, and the money makes it to its destination. FIFA will be made aware of which payment obligations have been fulfilled, and which have not. It is FIFA and not the Clearing House then who may sanction non-compliant clubs.

For a more comprehensive overview of the Clearing House, please see Toni Roca’s piece on the LawInSport website; FIFA’s Clearing House: The Future Of Solidarity Mechanism & Training Compensation.

2. Potential Positives & Success of a Kind

One can see the positive side of modernising, centralising and digitising the transfer system, so as to improve compliance and efficiency in accordance with the regulations as they stand and the payment obligations that arise from those regulations. If achieved, FIFA can say it has ticked that box and many stakeholders will be pleased.

As mentioned in the second blog of this series, “In 2018, it was reported that just USD$67.7m of the USD$351.5m due to be distributed in solidarity contributions, was actually paid. That is a mere 19.3% of what should have trickled down and perhaps just as alarming is that this percentage has been worsening”. If FIFA does in fact close the gap between what is owed and what is paid by way of the Clearing House, that would indeed be success of kind. Hundreds of millions of dollars might make it to training clubs, some of those undoubtedly do not need the compensation, but a large share of those that might benefit are the kind of club I have referred to throughout this series as nurseries and/or victims of the so-called muscle drain. If achieved, one would then have to take their hats off to FIFA, as a specific objective would have been accomplished.

Success in the way imagined above would just be solving one issue, however. I appreciate that hundreds of millions of dollars can go a long way in achieving some form of redistributive solidarity and the fruits of that redistribution could potentially be far-reaching. Though lingering behind this hypothetical success would of course be, what proceeding with the Clearing House ignores.

3. Cause for Concern

Whilst one has to applaud FIFA’s efforts towards improvements, there appears a myriad of questions left unanswered not only about the Clearing House but additionally about the redistributive mechanisms themselves. To proceed under the guise that all is well with these systems and that all that needs to be remedied is the gap between what is owed and what is actually paid, is to ignore much of what I have raised in this blog series.

The following excerpt from a relevant FIFA webpage captures the organisations’ position.

“The original objectives and principles of the transfer rules remain sound: the protection of contractual stability; encouragement of training; solidarity between the elite and grassroots; protection of minors; competitive balance; and ensuring the regularity of sporting competitions”. 

To expand, this kind of sentiment highlights FIFA’s intention to proceed without answering the fundamental questions, as though it is the position held by all that these systems are targeted at legitimate objectives and adequate to attain them. This is clearly not just a case of once the Clearing House is in operation, the systems will simply work perfectly. To put the practical critique aside momentarily, the establishment of the Clearing House is no response to a fundamental critique, the philosophical flaws in justification for the redistributive mechanisms and it appears the hindrance cause by the systems to players’ free movement will continue to be ignored. 

Additionally, and returning to a practical perspective, with the Clearing House relying on a Players Passport, the compliance or non-compliance of national associations to provide and maintain the correct information seems to be what the project hinges on. Historically, some national federations have not been so reliable in this sense, so this is likely to be another aspect that will need significant attention. There may be less disputes given the supposed streamlining of the payment process, but might this quickly be forgotten given the introduction of the Clearing House seems to simultaneously mean an increased administrative burden on FIFA and the national associations? Then let us not proceed as though there will be no disputes at all. We are yet to be made aware what the process will be in the case of a dispute over the amounts calculated, a dispute over the Preliminary Passport, or the expiry dates of outstanding payments, to point to a few issues that may arise. Afterall, the dynamics of a transfer will change with the introduction of the intermediary Clearing House and will take some getting used to. Furthermore, it looks as though the training clubs owed money will not be involved directly in the process of disputes, which is to be dealt with by the member associations. This is questionable, as not all clubs have good relationships with their national associations, nor are national associations necessarily more trustworthy or better positioned to handle a dispute. On occasions it has been found that the reason a training club has not received their training compensation or solidarity payment, was because it was being held by a national federation (see section 4. of Blog 2 for a personal anecdote of an instance as such).

4. Concluding remarks

This account of questions and concerns is not exhaustive, and yet I would emphasise the issues with training compensation and solidarity mechanism more generally. Could the establishment of the Clearing House in fact raise more questions and cause more problems than it solves, given it may just semi-solve one problem, that of the gap between what is owed and what is paid? It is reasonable to ponder whether the commencement of the Clearing House in fact houses, protects and reinforces FIFA’s commitment to systems that are ultimately flawed, when time and energy could be better spent completely overhauling them. As it stands, and if one finds themselves sympathetic to the issues I have identified throughout this series, one can be reasonably concerned that the establishment of the Clearing House prolongs the arrival of a preferable alternative system.

In my next and final blog of this series, I intend to consider alternative systems of redistribution. I will also take the opportunity to address the idea that football clubs are incentivised by training compensation and solidarity payments.

Editor's note: This blog is part of a special blog series on the Russian doping scandal at the CAS. Last year I analysed the numerous decisions rendered by the CAS ad hoc Division in Rio and earlier this year I reviewed the CAS award in the IAAF case.

Unlike the International Association of Athletics Federations (IAAF), the International Paralympic Committee (IPC) was very much unaffected by the Russian doping scandal until the publication of the first McLaren report in July 2016. The report highlighted that Russia’s doping scheme was way more comprehensive than what was previously thought. It extended beyond athletics to other disciplines, including Paralympic sports. Furthermore, unlike the International Olympic Committee (IOC) the IPC had a bit more time to deal with the matter, as the Rio Paralympic Games were due to start “only” in September.

After the release of the McLaren Report, the IPC president Sir Philip Craven was “truly shocked, appalled and deeply saddened at the extent of the state sponsored doping programme implemented in Russia”. He immediately announced the IPC’s intention to review the report’s findings and to act strongly upon them. Shortly thereafter, on 22 July, the IPC decided to open suspension proceedings against the National Paralympic Committee of Russia (NPC Russia) in light of its apparent inability to fulfil its IPC membership responsibilities and obligations. In particular, due to “the prevailing doping culture endemic within Russian sport, at the very highest levels, NPC Russia appears unable or unwilling to ensure compliance with and the enforcement of the IPC’s Anti-Doping Code within its own national jurisdiction”. A few weeks later, on 7 August, the IPC Governing Board decided to suspend the Russian Paralympic Committee with immediate effect “due to its inability to fulfil its IPC membership responsibilities and obligations, in particular its obligation to comply with the IPC Anti-Doping Code and the World Anti-Doping Code (to which it is also a signatory)”. Indeed, these “obligations are a fundamental constitutional requirement for all National Paralympic Committees (NPCs), and are vital to the IPC’s ability to ensure fair competition and to provide a level playing field for all Para athletes around the world”. Consequently, the Russian Paralympic Committee lost all rights and privileges of IPC membership. Specifically, it was not entitled to enter athletes in competitions sanctioned by the IPC, and/or to participate in IPC activities. Thus, “the Russian Paralympic Committee will not be able to enter its athletes in the Rio 2016 Paralympic Games”.

This was an obvious blow to Russia’s Paralympic team and, as was to be expected, the RPC decided to challenge the decisions. Thanks to an agreement with the IPC, the case moved directly to the Court of Arbitration for Sport (CAS), which decided in favour of the IPC on 23 August. Nonetheless, the legal battle did not end there as Russian athletes continued the fight in the German courts. In this blog I will first review the CAS award and then discuss the follow-on disputes in German courts.

I.              The IPC’s triumph before the CAS

At play in front of CAS was the use of clauses 9.2.2 and 9.3 of the IPC Constitution to suspend the RPC for failing to fulfil its obligations as a member. Indeed, the member’s obligation provided in clause 2 of the IPC constitution, includes the obligation “to comply with the World Anti-Doping Code”[1] and to “contribute to the creation of a drug-free sport environment for all Paralympic athletes in conjunction with the World Anti-Doping Agency (WADA)”[2]. The RPC challenged the claim that it had failed to comply with these obligations. Furthermore, it considered that in any event the sanction applied was disproportionate.

A.    Did the RPC fail to comply with its membership obligations? 

The RPC contested in full the factual findings of the McLaren Report. Yet, the Panel held that the RPC failed to provide the necessary evidence to rebut McLaren’s factual claims. In particular, the RPC “decided not to cross-examine him although given the opportunity to do so”[3] and “did not call any athlete named by Professor McLaren as having been subject to the system he described”[4]. In other words, “Mc Laren’s evidence stands uncontradicted”[5]. However, in light of the lack of precise information, the Panel refused to conclude, like the IPC requested, that “the RPC and its Board Members were involved in, or complicit in, or knew of the existence of State sponsored doping of athletes and the methodologies as set out in the IP Report”.[6]

Nonetheless, the arbitrators also found that it is “undisputed that the RPC accepted the obligations imposed on it as a member of the IPC”, and amongst those obligations there is “the specific obligation under Article 20.1 of the WADA Code to adopt and implement anti-doping policies and rules for the Paralympic Games which conform with the WADA Code”.[7] Moreover, “the obligation vigorously to pursue all potential anti-doping rule violations within its jurisdiction and to investigate cases of doping (Article 20.4.10), are not passive”.[8] Thus, at a national level “the RPC is the responsible entity having the obligation to the IPC as well as to the IPCs’ members to ensure that no violations of the anti-doping system occur within Russia”.[9] Yet, the mere “existence of the system as described in the IP Report and in the McLaren affidavit means that the RPC breached its obligations and conditions of membership of the IPC”.[10]

Those are extremely important considerations to support the effectiveness of the world anti-doping system. In practice, the CAS is closing the door on national federations hiding behind the failure of other anti-doping bodies to deny their responsibility. If decided inversely, this would have led to a situation of organized irresponsibility, in which the bucket is simply passed over to a public institution (in Russia’s case RUSADA) that cannot be sanctioned under current anti-doping rules. Indeed, WADA declare RUSADA non compliant, but RUSADA is not a member of sporting associations, it does not enter athletes in international sporting competitions, thus SGBs would be hard pressed to find a way to impose any deterrent sanctions against it. If noncompliance is to be met with adequate sanctions, SGBs, which are tasked to supervise specific sports at national level, must bear the indirect responsibility for the systemic failure of the anti-doping system operating in their home country.

B.    Is the sanction imposed by the IPC proportionate?

As the Panel recognized from the outlet: “the more difficult question for consideration is whether the decision to suspend the RPC without reservation, or alleviation of the consequences to Russian Paralympic athletes, was proportionate”.[11] The RPC submited “that the IPC could have adopted a “softer measure” that still permitted clean Russian athletes to compete in the Paralympic Games in Rio”.[12] Furthermore, it argued, “that a blanket prohibition is not justified, as it has not been established that all para-athletes nominated by the RPC have ever been implicated in doping”.[13]

1.     Whose right are disproportionately affected?

The Panel considered first that as para-athletes are not parties to this appeal, “[q]uestions of athletes’ rights that may not derive from the RPC, but of which they themselves are the original holder, such as rights of natural justice, or personality rights, or the right to have the same opportunities to compete as those afforded to Russian Olympic athletes by the IOC in its decision of 24 July 2016 regarding the Olympic Games Rio 2016, are not for this Panel to consider”.[14] Instead, the “matter for review by this Panel is thus not the legitimacy of a “collective sanction” of athletes, but whether or not the IPC was entitled to suspend one of its (direct) members”.[15] Furthermore, “the collective member cannot hide behind those individuals that it represents” .[16]

Here the Panel adopts a relatively formalistic reasoning by denying the RPC the competence to invoke the potential rights of its athletes. This might contradict the idea that athletes bear a responsibility for the noncompliance of their national federation with the rules of an international federation as put forward by the Panel in the IAAF case. The RPC does, at least partly, represent the athletes, and there is a good case that can be made for it to be allowed to raise the potential infringements of the personality rights of its members in this procedure. It does not mean that the rights of the athletes were disproportionately affected, only that they should have been considered and not brushed aside as the Panel did in the present instance. 

2.     The (extraordinary) nature of the RPC’s regulatory failure

Unfortunately, the award’s analytical structure can lead to some confusion when dealing with the proportionality analysis of the IPC’s decision. There are two (implicit) steps that are key in the decision. First, an analysis of the depth (and consequences) of the RPC’s regulatory failure, and second an analysis of the proportionality of the sanction responding to this failure. The former will be dealt with in this section.

The Panel points out that the IPC “was faced with probative evidence of widespread systemic doping under the RPCs “watch””.[17] Moreover, as argued by the IPC, the RPC’s failure to act is even more acute in light of the IPC’s dependence on national members to implement its policies at national level. Thus, in particular, “the IPC relies on the RPC to ensure compliance in Russia with its zero tolerance anti-doping policy”.[18] More generally, “this federal system with complementary international and national obligations is the core back-bone of the fight against doping”.[19] In this context, the fact that the RPC claims that “it did not know what was happening and that it had no control over those involved in the system described by Professor McLaren does not relieve the RPC of its obligations but makes matters worse” [20]. Though it is unclear from the formulation used in this section of the award, the outcome of the case points undoubtedly to the fact that the Panel endorses the IPC’s understanding of the scope of responsibility of the RPC. Furthermore, the arbitrators insist that the “damage caused by the systemic, non-compliance is substantial” [21]. Finally, it finds again that the RPC “had a non-delegable responsibility with respect to implementing an anti-doping policy in conformity with the WADA Code in Russia”.[22] Thus, the RPC could not simply “delegate the consequences [of this responsibility] where other bodies within Russia acting as its agent implement a systemic system of doping and cover-up”.[23]

In this section of the award, the Panel recognizes, rightly in my view, that the effectiveness of the transnational regulation of international sports relies on the compliance of national federations and this is even more so in the case of the anti-doping fight.

3.     The proportionality of the sanction

The key question in the proportionality analysis was whether the sanction inflicted upon the RPC was adequate and necessary to attain its aim. The reasoning of the Panel is piecemeal and spread around a number of paragraphs of the award, which are regrettably not well connected together.

The first question is whether the IPC was pursuing a legitimate objective when imposing that sanction on the RPC. On the IPC’s own account, the sanction was considered “the only way to ensure that the system, and systematised doping, in Russia no longer continued”.[24] It adds “that it was a legitimate aim to send a message that made clear the lack of tolerance on the part of the IPC to such systemic failure in a country”.[25] The Panel recognizes that the “concern that clean athletes, inside and outside of Russia, have confidence in the ability to compete on a level playing field, and the integrity and credibility of the sporting contest, represent powerful countervailing factors to the collateral or reflexive effect on Russian athletes as a result of the suspension”[26], and constitutes “an overriding public interest that the IPC was entitled to take into account in coming to the Decision”.[27]

The second question linked to the proportionality of the sanction relates to its necessity. Was there a less restrictive alternative sanction available to attain the aim pursued? The IPC argued that the suspension of the RPC’s membership was necessary for three reasons:

• “to provoke behavioural change (for the future) within the sphere of responsibility of the RPC”
• “the suspension took into account that the failures in the past had resulted in a distorted playing field on an international level, because the IPC anti-doping policy was not being adequately enacted and enforced vis-à-vis para-athletes affiliated to RPC”
• “a strong message had to be issued to restore public confidence, since the Paralympic movement depends – much more than other sports – on the identification with moral values”[28]

The Panel held that the suspension was “a powerful message to restore public confidence”. It insisted also that there “was no submission to the Panel of an alternative measure that would, comparably and effectively, restore a level playing field for the present and the immediate future, affect future behavioral change and restore public trust”.[29]

Finally, the Panel concluded that “in light of the extent of the application of the system described by Professor McLaren and his findings of the system that prevailed in Russia, made beyond reasonable doubt, the Decision to suspend the national federation was not disproportionate”.[30] Moreover, it insisted that the consequences for the athletes were following logically from the suspension of the RPC and therefore proportionate, as it had decided in the IAAF case. The Panel also brushed aside the RPC’s attempt to portray the IPC’s decision as contrary to the IOC Decision dated 24 July 2016. On the one side, it found the IOC Decision to be irrelevant for the IPC and, on the other, it considered the IPC’s suspension to be in any event compatible with the IOC Decision.

II.            The Russian appeals in the German courts

The RPC’s appeal to the Swiss Federal Tribunal failed on 30 August because it could not demonstrate its ability to fulfil its obligations with regard to the anti-doping rules of the IPC and WADA, not unlike the one of the Russian athletes and RusAF in the IAAF case,. Nor could RusAF demonstrate that its interests would override those of IPC to fight effectively against doping and protect the integrity of sport. 

Yet, interestingly, new challenges against the RPC’s suspension were quickly lodged in German courts. Indeed, as the IPC is seated in Bonn, a number of Russian athletes tried to obtain provisory judgments from the Landgericht (LG) Bonn to participate in the Rio Paralympics. These cases were appealed to the Oberlandesgericht (OLG) Düsseldorf, and even ended up in front of Germany’s constitutional court, the Bundesverfassungsgericht (BVerfG). It would have been ironical if the German courts had quashed the decision of the IPC, bearing in mind that it is the German public broadcaster (ARD) which brought the Russian doping scheme to the fore in the first place.

A.    The decisions of the LG Bonn

On 5 and 6 September the LG (first instance tribunal) Bonn rendered two judgments (available here and here) on the matter. Both rejected the claims of the Russian athletes.

The first judgment found that the athletes could not rely on any contractual claims, as no contract existed between them and the IPC. This is due to the fact that the RPC is supposed to nominate them to participate in the Paralympic Games, for the court there is no contract between the IPC and the athletes.[31] Even where the IPC foresees in its rules that it can directly nominate athletes to participate in the Paralympic Games, one cannot derive that it has a contractual duty to select the claimants. Instead, it enjoys certain discretion in doing so. However, the LG recognized that the Russian athletes’ interests are affected by the IPC’s Decision of 7 August 2016, but it also acknowledged that the IPC justified its decision by the existence of a state-run doping scheme in Russia.[32] Thus, the final decision to enter or not athletes in the Paralympic Games of Rio should be left to the IPC. The fact that the IOC applied a different regime to the Russian athletes willing to participate in the Rio Games is deemed not binding upon the IPC, as it is a separate legal entity.

The second judgment, rendered the day after, follows a very similar line of reasoning. The LG added a pointed rebuttal of the claim that the Russian athletes were discriminated against. It insisted that the other countries are not suspected of running state doping schemes.[33] The court recognized that athletes cannot easily change their nationality, but it insisted that the Olympic Games are more than any other sporting competition characterized by the fact that athletes participating are not primarily representing themselves but their home country.[34] In this context, athletes must accept to face restrictions for which they might not be personally responsible.[35] Furthermore, the ineligibility of the Russian athletes was not deemed a disproportionate restriction on the freedom to work or on the fundamental personality rights of the claimants. The LG considered that authorizing specific athletes to compete under a neutral flag would not have been a milder solution to fight against doping, as the Russian public would still have identified them as Russian.[36] Instead, as members of the RPC, the claimants must accept such a restriction to their individual rights.

The LG Bonn strongly supported the decision adopted by the IPC. The court has, as the CAS did, declined to consider the suspension of the RPC, and the ensuing ineligibility of Russian athletes for the Rio Paralympic Games, as discriminatory or disproportionate.

B.    The Appeal to the Oberlandesgericht Düsseldorf

The appeal decision of the OLG Düsseldorf is probably the most interesting of the German decisions analysed here. In the first part of its judgment, the OLG criticized harshly the Russian athletes for failing to request earlier a provisory order from the German courts. Indeed, at the time of the decision, 13 September 2016, the Paralympic Games were almost one week underway (7 September). Consequently, many (if not all) of the appellants would be unable to compete at the Games anyway, even if the court were to grant the requested order.

Yet, the core of the OLG’s ruling, and its most important contribution to the world anti-doping system, is its assessment of the balance of interests between the Russian athletes and the IPC. In a nutshell, the OLG found that the IPC’s interest in declaring the Russian athletes ineligible prevails because there is a legitimate suspicion that those athletes have been involved in doping in the previous years.[37] To come to this conclusion, the court conducted a fairly comprehensive assessment of the opposing interests. On the one side, the Russian athletes have an interest in participating in the Paralympic Games to secure economic revenues deriving primarily from sponsoring. On the other side, stands the IPC’s “fundamental interest in the organization of a fair sporting competition excluding athletes who have used doping or against which there is a strong suspicion of doping”.[38] In this case, the OLG held that the interest of the IPC for “clean” Paralympic Games prevails and justifies the rejection of the complaint.[39] For the Düsseldorf court, the personal guilt of the athletes is irrelevant, as the fact that they had the possibility to exercise their sport with the support of doping without risking to be discovered justifies in itself a general suspicion of doping against all Russian athletes.[40] Thus, the IPC can, for the preservation of the fairness of its competitions, declare them ineligible for the Paraympic Games. Only the athletes for whom it can be confidently demonstrated that they have not doped can be exempted from this exclusion.

Hence, the OLG considered that the factual constellation of the case justifies that each and every Russian Paralympian can be legitimately suspected of having been involved in doping over the recent years. Furthermore, Paralympic athletes were, as corroborated by the McLaren Report and his affidavit, also a target of the Russian doping system.[41] This suspicion cannot be rebutted by the oath taken by 68 (out of 84) of the appellants that they have not tested positive for doping in the last two years. Indeed, it cannot be demonstrated that the athletes have been subjected to non-manipulated doping tests.[42] In the end, the OLG fully endorsed the IPC’s decision to prioritize its objective of providing “clean Games” to the detriment of the interests of Russian Paralympians in participating.

C.    Final Stop at the Bundesverfassungsgericht

The next, and final stop, for the claimants was the BVerfG in Karlsruhe. The court, which rendered its ruling on 15 September, was faced with the demands of Russian athletes for a provisory order allowing them to participate (at least) to the closing ceremony of the Paralympic Games due to take place on 18 September.

The court’s balancing exercise between the interests of the IPC and those of the Russian athletes is favourable to the former. Thus, the BVerfG found that if it would grant the provisory order and later reject a related constitutional complaint, this would have irreparable consequences for the pending Paralympic competitions and closing ceremony and would send a (negative) signal to sport in general.[43] Even if, to their credit, the individual athletes are not directly involved in the state-run doping scheme unearthed by the McLaren Report, the Court believed that the decision of the IPC and the CAS to declare the whole Russian team ineligible must be respected. The entering of athletes through the national courts would intrude substantially on the autonomy of the IPC and of the CAS[44] and the deterring signal send by the RPC’s exclusion, which aims at scaring off national federations from supporting or tolerating systematic doping schemes, would be substantially weakened.[45]

Furthermore, if instead the provisory order is rejected and the Russian athletes prevail in a later constitutional complaint, the interests of the athletes to participate in the closing ceremony is still of significantly less weight than the IPC’s interest to ensure that the use of doping in sport is fought against effectively.[46] In particular, one cannot ignore that, besides one of the appellants, all the others will in any event not be able to participate to competitions which have already taken place.[47] Even for the only athlete potentially able to participate there are legitimate doubts regarding her material ability to compete in the Rio Paralympic Games. Therefore, the BVerfG rejected the appellants’ plea and definitely put an end to their hope in participating to the Rio Paralympic Games.

Conclusion

At the time of writing, the RPC is still suspended by the IPC and the second McLaren Report has corroborated with more evidence the extensive nature of the Russian doping scheme. The IPC has developed, in collaboration with WADA, a set of tough reinstatement criteria to be met by the RPC in order to be reinstated. The compliance of the RPC with the criteria will be monitored by a special taskforce. Thus, the IPC demonstrated its willingness to tackle head-on the Russian doping scheme. In doing so, it followed a radically different approach than the IOC and declared all Russian Paralympians to be ineligible.  

The CAS and the German courts later fully endorsed this approach. In fact, it seems that the national courts were even going beyond the findings of the CAS by emphasizing that there was a legitimate presumption from the side of IPC that all the Russian Paralympic athletes were doped. The CAS and the German courts also insisted that a balancing exercised between the interests of the athletes to participate in the Paralympic Games and the interests of the IPC to defend clean and doping free competitions, would be decided to the benefit of the latter. Even so athletes might not be directly responsible for the state-run doping scheme, they share the responsibility (as in the IAAF case) for the governance failures of their sports governing bodies. In the eyes of the German courts, this responsibility is reinforced by the fact that they are representing their country at the Paralympic Games.

In the end, the CAS (and the German courts) had to choose between:

1. Burdening athletes for the systematic failure of the Russian sports governing bodies to comply with their anti-doping commitments and risk to sanction innocent athletes;
2. or let the athletes compete and risk to jeopardize the already weak effectiveness of the world anti-doping system.

In general, this is the big fork-in-the-road question raised by the Russian scandal. On the one side, we can double down on anti-doping, beef up compliance mechanisms, and endure collateral damages: some innocent athletes. Or, on the other side, we acknowledge the total failure of the world anti-doping system as it is and de facto (or de jure) condone the use of doping in international sporting competitions. The CAS and the German courts clearly decided to follow the regulatory route, but this is only the beginning of a very long anti-doping journey.

[1] Clause 2.1.1.

[2] Clause 2.27.

[3] CAS 2016/A/4745, Russian Paralympic Committee v. International Paralympic Committee, award of 23 August 2016, para.43.

[4] Para.44.

[5] Para.43.

[6] Para. 54 and 55.

[7] Para. 56.

[8] Para. 59.

[9] Para. 60.

[10] Ibid.

[11] Para. 73

[12] Para. 76.

[13] Ibid.

[14] Para.79.

[15] Ibid.

[16] Ibid.

[17] Para. 81.

[18] para. 82.

[19] Ibid.

[20] Ibid.

[21] Para. 86.

[22] Para. 86.

[23] Para. 86.

[24] Para.83.

[25] Para.84.

[26] Para.84.

[27] Para.84.

[28] Para. 88.

[29] Para.89.

[30] Para. 91.

[31] „Anders als die Antragsteller meinen, kommt allein durch die Ausrichtung der Paralympics zwischen den Parteien kein Vertragsverhältnis oder vertragliches Vorverhältnis i.S.v. § 311 Abs. 2 BGB zustande. Da die Nominierung zur Teilnahme an den Paralympics im Regelfall durch das S und nicht durch den Antragsgegner erfolgt, ist nicht ersichtlich, dass die Parteien potentielle Vertragspartner wären.“ Landgericht Bonn, 20 O 323/16, at II.

[32] „Das Gericht verkennt nicht, dass die russischen Para-Athleten durch die Entscheidung des Antragsgegners vom 07.08.2016 nachhaltig in ihren sportlichen und auch wirtschaftlichen Interessen betroffen werden. Jedoch hat der Antragsgegner seine Entscheidung nachvollziehbar mit dem Vorwurf des organisierten Staatsdopings in Russland begründet. Insoweit muss es dem Antragsgegner selbst überlassen bleiben, von seinem Recht zur Zulassung einzelner Athleten Gebrauch zu machen oder aber nicht.“ Ibid.

[33] „Soweit die Antragsteller auf eine Ungleichbehandlung im Vergleich zu den Para-Athleten aus anderen Ländern abstellen, ist dem entgegenzuhalten, dass diese anderen Länder nicht dem Verdacht des organisierten Staatsdopings unterliegen.“ Landgericht Bonn, 20 O 325/16,  at II.

[34] „Zwar haben die Antragsteller keine Möglichkeit, ihr Land oder ihren Verband zu wechseln. Jedoch werden die Olympischen Spiele sowie die Paralympics weit mehr als Weltmeisterschaften oder andere sportliche Wettkämpfe dadurch gekennzeichnet, dass die Athleten an ihnen nicht nur auf eigene Rechnung, sondern vor allem für ihr Land teilnehmen.“ Ibid.

[35] „Der Charakter und die Besonderheit der Spiele können so auch dazu führen, dass der einzelne Athlet von ihm selbst nicht verschuldete Einschränkungen hinnehmen muss. Insoweit ist auch kein Verstoß gegen das Diskriminierungsverbot der §§ 19, 20 und 33 GWB zu erkennen.“ Ibid.

[36] „Die Zulassung einzelner Sportler bei Beibehaltung der Suspendierung des S wäre – als die Antragsteller meinen – nicht als milderes Mittel gleichermaßen geeignet zum Kampf gegen das Doping. Zwar liefen die russischen Para-Athleten dann nicht mit ihrer Landesfahne auf und träten dabei nicht offiziell für ihr Land auf. Sie würden aber dennoch von den Zuschauern mit ihrem Land identifiziert.“ Ibid.

[37] „Die Abwägung der widerstreitenden Interessen führt zu dem Ergebnis, dass der Antragsgegner den Antragstellern eine Teilnahme an den Paralympischen Spielen 2016 in Rio de Janeiro verwehren darf, weil der begründete Verdacht gerechtfertigt ist, dass diese Sportler in den vergangenen Jahren Doping betrieben haben.“ Oberlandesgericht Düsseldorf, VI-W (Kart) 13/16, at B.2.a.

[38] „Auf der Seite des Antragsgegners, der die Paralympischen Spiele 2016 veranstaltet, steht demgegenüber das fundamentale Interesse, einen fairen und sportlichen Wettkampf zu gewährleisten und alle diejenigen Sportler von den Spielen fernzuhalten, die entweder des Dopings überführt sind oder gegen die der hinreichend begründete Verdacht des Dopings besteht.“ Ibid., at B.2.a.bb.(2).

[39] „Im Streitfall führt das überragende Interesse des Antragsgegners an „sauberen“ Paralympischen Spielen zu dem Ergebnis, dass die streitbefangenen Zulassungsbegehren abzulehnen waren.“ Ibid., at B.2.a.bb.(3).

[40] „Diese ein Doping begünstigenden Rahmenbedingungen rechtfertigen gegen alle Athleten, die unter dem System trainiert haben, einen Dopingverdacht.“ Ibid.

[41] Ibid., at B.2.a.bb.(3) (3.1)..

[42] Ibid., at B.2.a.bb.(3) (3.3)..

[43] „Würde die beantragte einstweilige Anordnung ergehen, die noch zu erhebende Verfassungsbeschwerde aber später erfolglos bleiben, hätte dies erhebliche Auswirkungen für die noch ausstehenden Wettkämpfe und die Durchführung der Abschlussfeier der Paralympischen Spiele am 18. September 2016 in Rio de Janeiro und eine Signalwirkung nicht nur für paralympischen Sport, sondern für den Sport insgesamt.“BVerfG, Beschluss der 2. Kammer des Ersten Senats vom 15. September 2016, 1 BvQ 38/16, at II.3.a).

[44] „Eine Zulassung einzelner Athletinnen und Athleten durch die staatlichen Gerichte griffe erheblich in die Verbandsautonomie des IPC und der internationalen Sportgerichtsbarkeit ein.“ Ibid.

[45] „Die mit dem Ausschluss des RPC von den Paralympischen Spielen beabsichtigte Signalwirkung, die insbesondere nationale Sportverbände von der Duldung, Unterstützung oder Organisation systematischen Dopings abschrecken soll, würde erheblich beeinträchtigt.“ Ibid.

[46] „Zwar erscheint das Interesse der Antragstellerinnen und des Antragstellers auch dann durchaus gewichtig, wenn ihnen nur die Teilnahme an der Abschlusszeremonie am 18. September 2016 möglich sein sollte. Im Vergleich zu dem Interesse des IPC, den Einsatz von Dopingmitteln im Sport nachhaltig und effektiv zu bekämpfen, hat dies jedoch deutlich weniger Gewicht.“ Ibid., at II.3.b).

[47] „Zudem kann nicht unberücksichtigt bleiben, dass - abgesehen allenfalls von der Antragstellerin zu 5) - die übrigen Antragstellerinnen und der Antragsteller wegen des inzwischen weitgehend durchgeführten Gesamtprogramms der aktuellen Paralympischen Spiele nicht mehr an den sportlichen Wettkämpfen teilnehmen können und ihnen damit insoweit nur noch ein bloßer Zuschauerstatus zukommen könnte, den sie auch ohne Erlass der einstweiligen Anordnung wahrnehmen können.“ Ibid.

Editor's note: Michele Krech is a JSD Candidate and SSHRC Doctoral Fellow at NYU School of Law. She was retained as a consultant by counsel for Caster Semenya in the proceedings before the Court of Arbitration for Sport discussed above. She also contributed to two reports mentioned in this blog post: the Report of UN High Commissioner for Human Rights,  Intersection of race and gender discrimination in sport (June 2020); and the Human Rights Watch Report, “They’re Chasing Us Away from Sport”: Human Rights Violations in Sex Testing of Elite Women Athletes (December 2020).

This blog was first published by the Völkerrechtsblog and is republished here with authorization. Michele Krech will be joining our next Zoom In webinar on 31 March to discuss the next steps in the Caster Semenya case.

Sport is the field par excellence in which discrimination
against intersex people has been made most visible.

Commissioner for Human Rights, Council of Europe
Issue Paper: Human rights and intersex people (2015)

Olympic and world champion athlete Caster Semenya is asking the European Court of Human Rights (ECtHR) to make sure all women athletes are “allowed to run free, for once and for all”. Semenya brings her application against Switzerland, which has allowed a private sport association and a private sport court to decide – with only the most minimal appellate review by a national judicial authority – what it takes for women, legally and socially identified as such all their lives, to count as women in the context of athletics. I consider how Semenya’s application might bring human rights, sex, and sport into conversation in ways not yet seen in a judicial forum.

Background

Semenya, a South African national, competes in the sport of track and field, which is governed internationally by a private association, World Athletics, headquartered in Monaco. A few years ago, World Athletics introduced new Regulations barring women with innate variations of sex characteristics from competing in certain women’s events, unless they medically reduce their atypically high testosterone levels. Semenya first challenged the Regulations before the Court of Arbitration for Sport (CAS) – an international arbitral tribunal located in Switzerland and commonly known as the “supreme court of sport”. After the majority of the CAS panel upheld the Regulations, Semenya appealed to Switzerland’s highest judicial authority, the Swiss Federal Tribunal (SFT), which dismissed her claim, leaving the Regulations – and “sport sex” – in place.

All the while, the UN Human Rights Council‘s independent experts and the UN High Commissioner for Human Rights, along with Human Rights Watch, the World Medical Association, and various organizations focused on women’s and LGBTQI+ equality in sport, have expressed serious concern that the Regulations contravene international human rights norms and standards. However, no court has squarely decided this question. The CAS panel measured the Regulations against the non-discrimination provisions of the World Athletics Constitution and the Olympic Charter (para. 424), finding it unnecessary to delve into the “detailed principles” of “international human rights law including those that apply in Monaco … and the domestic laws of many countries in which [World Athletics] has members and holds international competitions” (para. 544). Whether the Regulations were contrary to such laws was deemed a matter for the courts of those jurisdictions to decide (para. 555). But because the CAS decision is an international arbitral award, the SFT was restricted, pursuant to the Federal Statute on Private International Law, to reviewing only one substantive ground of appeal: whether the CAS decision was compatible with Swiss public policy (i.e. the most fundamental values that, according to prevailing opinions in Switzerland, should form the basis of any legal order). As the SFT explained, while the principles underpinning the Swiss Constitution or the European Convention of Human Rights (ECHR) could be considered when defining public policy, the provisions of these instruments could not be directly invoked to challenge the CAS decision (paras. 9.1 to 9.2).

The ECtHR’s consideration of Semenya’s application will therefore mark the first time a court evaluates the private regulations of World Athletics (and, particularly, the role of Switzerland in upholding them) against international human rights law. It may also mark the first time the ECtHR decides a case of discrimination based on sex characteristics. Given such novelty, what else might be new and different before the ECtHR compared to the past (quasi)judicial processes? I consider this question in two (intricately connected) parts – the facts and the law – where the ECtHR could play a remedial role.

The Facts: Sex before the ECtHR

The CAS panel characterized the case as one of “significant scientific complexity” and remarked on both the lack of consensus among experts and the “paucity of evidence” regarding certain matters concerning the effect of testosterone on the athletic performance (para. 582). The majority of the panel found, however, that the totality of the evidence provided adequate support for World Athletics’ claim that the women targeted by the Regulations “enjoy a significant performance advantage over other female athletes, which is of such magnitude as to be capable of subverting fair competition within the female category” (para. 538). This finding was also central to decision of the SFT, which was bound to rule based on the facts found by the CAS. The SFT made clear that, pursuant to its own constitutive law, it could not correct or supplement the arbitrators’ findings, even if the facts had been established in a manifestly incorrect manner or in violation of the law (para. 5.2.2).

Meanwhile, abundant scholarly critiques have been registered against World Athletics’ evidence, ranging from the methodologies used to the conclusions drawn. Moreover, much of this evidence was produced “in-house” by World Athletics; the leaders of its own Health and Science Department conducted the main scientific study relied on to justify the Regulations. Without delving deeper into this apparent lack of independence, it is notable that the conflated “scientific” and “legislative” process here is a private one; no Swiss public authority sought evidence to inform or evaluate the regulatory decision at issue.

To what extent, then, might the ECtHR reassess the evidence? While the Court was not set up as a court of first or fourth instance – that is, to establish the basic facts of a case or to re-evaluate the facts established by a domestic court – it does require parties to substantiate their claims, and is free to assess the admissibility, relevance, and probative value of the evidence put forth. The Court may request additional evidence, draw inferences from the absence of evidence, and even engage in fact-finding if the evidence is contested or unclear. To resolve uncertainty, the Court may rely on evidence from external actors, including experts and academics, as well as a wide variety of third-party interveners.

Considering this range of evidence would reveal that understandings of sex in athletics cannot be detached from understandings of sex beyond the sports sphere. Indeed, sport has been shown to be especially effective at disguising and transmitting socio-scientific ideologies – including those related to testosterone – as self-evident truth. While there are limits to the ECtHR’s ability to decide complex socio-scientific questions, it need not accept factual findings made (tenuously) by the CAS and not by Switzerland. Moreover, it should become clear to the ECtHR that “science” cannot provide a definitive answer to the question before it; in fact, the (selective) way science has been deployed by World Athletics is at the very heart of the alleged human rights violations.

The Law: Sport before the ECtHR

A number of rights guaranteed by the ECHR are pertinent in Semenya’s case. Most obvious is Article 8, which encompasses the right to personal autonomy and identity, including physical, psychological, and moral integrity. The “impossible choices” and documented harms inherent in the Regulations clearly interfere with this right. In addition, Article 14 requires member States to secure to everyone within their jurisdiction all Convention rights “without discrimination on any ground”. The Regulations apply only to women with certain sex characteristics (which the Commissioner for Human Rights has said fall under sex as a prohibited ground of discrimination) and arguably exhibit racial and regional bias.

Whatever Convention rights are invoked, the ECtHR will have to decide whether any infringement is legally justifiable. To begin, any potential infringement of Article 8 must be “in accordance with the law” – that is, it must have some basis in domestic law. However, unlike antidoping rules enacted by public authorities – which the ECtHR has held meet this test – the Regulations at issue in Semenya’s case are not part of Swiss law or based on any international treaty. Switzerland will therefore be in the strange position of defending Regulations enacted by a private association located in Monaco.

In this regard, Switzerland will have to establish that the Regulations pursue one of the legitimate aims identified in the ECHR. The ECtHR has previously recognized “fair play and equality of opportunity” in sport as constituting such an aim. More critically, however, Switzerland will have to establish that the Regulations are “necessary in a democratic society” to achieve this aim. In addition to the evidentiary shortcomings discussed already, it is not clear that the Regulations serve a “pressing social need” like antidoping “whereabouts” rules do, according to the ECtHR. The need for the latter was based on abundant State-adduced evidence that doping harms the physical and mental health of athletes and sets a dangerous example for youth. The “danger” that Switzerland is seeking (or allowing World Athletics) to avoid in Semenya’s case is much less apparent. In fact, it is Semenya and other athletes targeted by the Regulations, as well as the youth that look up to them, that are put most at risk.

It therefore cannot be said that the ECtHR has established a blanket principle that the pursuit of fairness can justify serious infringements of athletes’ rights, as the SFT implied in its decision (para. 9.8.3.3). Surely mandating medically unnecessary drug use (or surgery) for certain athletes, as a condition of eligibility for the female category of competition, is not analogous to prohibiting it (with therapeutic use exemptions) for all athletes.

In any case, the ECtHR’s practice is to “balance” individual interests and the interests of the community as a whole. But who makes up the relevant community? The majority of the CAS panel found, for example, that because of “constraints on the [its] competence and role” it was neither necessary nor appropriate for it to consider “the possible wider impact” of the Regulations outside the “segment of society” governed by World Athletics (para. 589). However, it is not just Semenya’s athletic career, but her entire life, that is affected by the Regulations. Likewise, it is not just elite women athletes without intersex traits who comprise the community with interests at stake (and little evidence has been adduced to characterize these interests). A much broader community may have an interest in seeing the unhindered potential of every athlete on display, and the whole of the LGBTQI+ community may have an interest in avoiding the stigmatization that flows from mandatory “normalization” procedures in any sphere of life. The fact that sport is “a massively visible social practice, extensively relayed worldwide” makes it all the more important which community or communities are counted and valued in the Court’s assessment.

Finally, the scope of the relevant community will also be important to the ECtHR’s consideration of whether there is a relevant European consensus, which in turn informs how great a “margin of appreciation” (i.e. degree of deference) is to be granted to Switzerland. There may be a common European approach reflected in the calls of the Commissioner for Human Rights and the Parliamentary Assembly to end medically unnecessary sex-“normalizing” interventions without free and fully informed consent. When it comes to sport eligibility rules, though, it could be said that the common approach is to defer to private international governing bodies like World Athletics. But any such “consensus by omission” only highlights the structural failure of States to uphold – proactively, where necessary – human rights in the context of sport. Indeed, World Athletics’ Regulations prevent any consensus (or lack thereof) from emerging among States by restricting athletes’ access to domestic courts. Therefore, Switzerland – as the home of the CAS – and the SFT – as the judicial authority with exclusive jurisdiction to review CAS awards – would seem to have a unique responsibility to secure the human rights of athletes. In other words, because Switzerland is effectively speaking for a worldwide community, its margin of appreciation should be very narrow.

When it comes time for the ECtHR to consider the merits of Semenya’s application, it will have to decide whether the paradoxical concept of “sport sex“, as upheld by the SFT, can be sustained in accordance with the ECHR. The limitations of the judicial processes to date point to the potential – if not the promise – of the ECtHR to (re)consider the full range of facts and to directly apply human rights law within athletics. Whatever the ECtHR decides, its decision will have significant implications far beyond both Switzerland and sport.

The author gratefully acknowledges Gráinne de Búrca, Antoine Duval, Katrina Karkazis, and Gabriele Wadlig for their input on this piece.

Editor's Note:  Marjolaine is an attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences.   She currently participates as a scientific collaborator at the University of Neuchâtel on a research project to produce the first article-by-article legal commentary of the 2015 World Anti-Doping Code. Her latest book Evidence in Anti-Doping at the Intersection of Science & Law was published in 2016 in the International Sports Law Book Series of T.M.C. ASSER Press.

INTRODUCTION

On 30 September 2016, a panel of the Court of Arbitration for Sport (“CAS”) rendered its award in the matter opposing high-profile tennis player Maria Sharapova to the International Tennis Federation (“ITF”). Maria Sharapova was appealing the two-year ban imposed on her by the ITF Tribunal in June 2016 for her use of Meldonium, a substance newly added to the WADA Prohibited List 2016[1]. Since neither the ITF nor WADA had chosen to challenge the Tribunal’s decision, the stakes of the case were rather simple: would the player convince the CAS panel that she should benefit from a finding of “No Significant Fault or Negligence”[2], thereby allowing for a reduction of the sanction down to a minimum of one year, or should the decision of the Tribunal be upheld? In its award, the CAS panel decided to grant such finding and reduced the sanction to 15 months.

This blog does not purport to be a ‘comment’ on the CAS award. Rather, it seeks to place the Sharapova matter into a broader context with respect to a specific issue: the expectations on Athletes when it comes to their awareness of the prohibited character of a substance, specifically when taking a medication[3]. In July 2016, I presented at the T.M.C Asser Institute in The Hague various current challenges of anti-doping that the Meldonium cases exposed (see the video here). One of these challenges concerned the modalities for including new substances onto the Prohibited List. This blog represents a follow-up on my presentation, in the light of the findings contained in the CAS award.

More concretely, the blog takes as a starting point one finding in the award, made by the CAS panel when evaluating whether the player acted reasonably in entrusting her sport agent – who lacked any medical or other scientific qualification – with ensuring that her medication scheme stayed compliant with the World Anti-Doping Program[4]:

“checking a substance against the Prohibited List is not an action for which specific anti-doping training is required. It is expected to be made, as a rule and under Article 3.1.2 of the TADP, by the player personally, and a player does not need to have scientific or medical expertise for such purpose. No standard in the WADC or otherwise raises such a high bar”[5].

This statement may have raised some eyebrows among readers familiar with anti-doping, after years of repeated warnings that Athletes should not only consult a doctor before taking a medication, but preferably a doctor versed in sports medicine, and that they have to take responsibility for failing to do so if the medication turns out to be prohibited.

CAS JURISPRUDENCE: BETTER SEE TWO DOCTORS THAN ONE

Since many – if not most – substances on the Prohibited List are originally therapeutic products, there is a rich body of CAS case law revolving around the Athlete’s duty to seek specialized advice before taking a medication. As the panel in the Cilic v. ITF matter noted, Athletes have a reinforced duty of care, in particular: “[w]here the product is a medicine designed for a therapeutic purpose. Again, in this scenario, a particular danger arises, that calls for a higher duty of care. This is because medicines are known to have prohibited substances in them”[6].

Though the basic position taken in the Cilic v. ITF appears uncontradicted or even supported in other CAS decisions[7], CAS case law is fluctuating on the level of diligence that can be expected from Athletes when taking a medication. It seems common ground that failure to consult a health professional is a factor pleading against the Athlete when assessing his or her degree of Fault, and, conversely, that seeking professional advice tends to make the Fault lighter[8]. The exact contours of the diligence expected, and the consequences of a failure to exercise such diligence, however, are less uniformly defined. Circumstances taken into account may include: whether the Athlete acted in an emergency or had ample time to do verifications[9]; whether the Athlete did seek some professional advice (although not necessarily fully qualified one) or proactively enquired about risks related to doping[10]; whether the Athlete initially received clearing through a doctor and was simply careless in continuing use of the medication[11], or used the medication without any attempt to seek a prescription altogether[12]; and whether the Athlete subsequently obtained a Therapeutic Use Exemption (“TUE”)[13].

Nevertheless, there seems to be consensus among CAS panels on at least one point: failure to recognize the prohibited character of the active substance in a medication never justifies a finding of No Fault or Negligence, even upon (erroneous) advice from a qualified health professional[14]. This jurisprudence finds explicit support in the Comment to Article 10.4 of the WADC: “Athletes are responsible for their choice of medical personnel and for advising medical personnel that they cannot be given any Prohibited Substance”[15]. The idea behind the jurisprudence is clear: it avoids that Athletes could ‘hide’ behind the advice of a doctor, who would then simply admit to having made an egregious error[16]. The CAS panel’s statement in the Sharapova matter seems to put in question this apparently well-established point of jurisprudence: if, as the panel assumed, the WADC only expects the Athlete to personally check a substance against the Prohibited List, no Fault can be held against the Athlete if it can be shown that the prohibited character of the substance was not recognizable to the Athlete, irrespective of whether such prohibition would have been obvious to a qualified health professional.

HOW CAN AN ATHLETE VERIFY WHETHER A MEDICATION IS PROHIBITED?

Putting aside for a moment the consistency of the Sharapova award with past CAS jurisprudence and its impact on the WADC system as a whole, the finding of the CAS panel raises a more practical question: is it realistic to consider that there is no duty on the Athlete to call on scientific or medical expertise to determine whether a substance is prohibited?

In order to assess this question, let us imagine the situation of an Athlete who plans to take – or is already taking – a medication, and wants to make sure that the substance does not raise any doping issues:

1. The Athlete would need to know that the substance will (as a rule) not be listed by its brand or trade name, but by the name of the active substance. More precisely, WADA announced in 2014 that it seeks to enhance the clarity of the Prohibited List by using the nomenclature of the WHO International Non-Proprietary Name (“INN”). The rationale for always listing active substances rather than trade names is rooted in a reality of international sports that one and the same active substance may be marketed under different names in different countries. For example, ‘Meldonium’ is a WHO recommended INN, which is marketed, among others, under the name ‘Mildronate’. While the distinction should be obvious to a health professional, it is much less certain that determining the active substance will always lie within the abilities of an Athlete. In the Sharapova matter, the player did in fact argue that both her manager and she “mistakenly, but honestly, believed Mildronate to be the name of the substance and did not realize that it was a brand name”[17].
2. The Athlete would need to know that the exact chemical name and spelling of a substance may vary depending on usage, language and country[18]. Thus, an automatic search through the Prohibited List is not sufficient. The Athlete would either need to do a search for all potential spellings and/or read through a few hundred substances on the List, since it is hardly imaginable that the Athlete would be able to determine on his or her own within which class of substances the medication falls. In addition, some substances may have synonyms that do not appear on the Prohibited List, but only in accompanying documents such as a WADA Explanatory Note[19]. Searching a drug database established by the Athlete’s National Anti-Doping Organization (“NADO”) is not necessarily a fool proof method either, since NADOs typically only include in their database therapeutic products that are registered or otherwise approved for sale in the relevant country[20]. Thus, a negative search result may simply mean that the medication has not (yet) obtained approval in the country.
3. An additional factor to take into account is the ‘open’ nature of the Prohibited List. The List is non-exhaustive, in the sense that it does not list each Prohibited Substance by its name. Instead, most classes include a list of examples followed by a catch-all clause. For these non-named, ‘similar’ or ‘related’, substances, the Athlete would thus need to assess whether the medication has a chemical structure and/or effect similar to other substances named on the Prohibited List[21].
4. Finally, it would be difficult to advise the Athlete as to what entity – prior to the CAS panel in a doping dispute – would have the authority to preventively ‘clear’ a substance upon enquiry. A negative search result on the WADA Prohibited List search engine appears with the following response: “No results: If a Substance or a Method you have searched for is not found, please verify with your Anti-Doping Organization to ensure that this Substance or Method is not prohibited as a related Substance or Method that falls under an existing category”.

However, it is not clear at all under the current system that an International Federation or NADO have the authority to issue a binding clarification in this respect, and WADA does not appear prepared to take on this ‘clearing’ function. In fact, the WADA Q&A on the Prohibited List openly acknowledges that the status of some substances may not be clear-cut and that “it is in the best interest of the athlete to refrain from taking any substance or use any method if its status is unknown or unclear”[22].

Considering the elements above, one may legitimately question the idea expressed in the CAS award that checking a substance against the Prohibited List is an act that is to be performed by the Athlete personally and that there is no expectation in the WADC that the assessment should be done by a qualified professional.

AN ISSUE OF FAULT OR AN ISSUE OF PREDICTABILITY?

There is some truth to the statement in the Sharapova award in the context of the WADC, but not in the sense one would expect: when it comes to finding that a violation has been committed, the WADC does not care whether one could reasonably expect the Athlete to be aware of the prohibited character of the substance. Article 3.2.1 of the ITF Tennis Anti-Doping Programme (“TADP”) referenced in the award addresses the dynamic character of the prohibition under the WADA Prohibited List and reads, in fine[23]: “It is the responsibility of each Player and each Player Support Personnel to be familiar with the most current version of the Prohibited List”. The expression “responsibility of each Player” – which reflects the duty expressed in Article 2.1 of the WADC – has never been understood as meaning that Athletes are only expected to check the Prohibited List personally. It means that Athletes will need to carry the consequences if they are not aware of its current content.

This regulatory situation is implicit in all awards in which CAS panels are asked to deal with an argument that the Athlete was not aware of the prohibited character of the substance: as soon as a substance is determined to be prohibited and was present in the Sample, there is no question that an anti-doping rule violation was committed under Article 2.1 of the WADC[24]. Rather, the predictability is examined, if at all, under the angle of the degree of Fault, to determine the severity of the applicable sanction under Article 10[25].

By contrast, if the statement by the CAS panel in the Sharapova matter were to be taken literally, the debate would no longer be limited to the degree of Fault, but would directly affect the predictability of the prohibition for the Athlete. If the WADC truly only expected Athletes to personally check a substance against the Prohibited List, the predictability of the prohibited character would have to be defined according to an Athlete’s capabilities. There are arguments to support such a position: anti-doping rules of an International Federation – including the Prohibited List incorporated therein – are made binding on Athletes through contractual (or otherwise consensual) means. As early as 1994, the panel in Quigley v. UIT noted that: “any legal regime should seek to enable its subjects to assess the consequences of their actions”[26]. An analogy with the fiction nemo censeture ignorare legem, developed with respect to state law, is difficult to sustain. In a contractual context, the contents of the parties’ agreement needs to be interpreted based on what the other party could reasonably understand[27]. Even if elite Athletes undertake to keep themselves informed about the evolution of the rules, this implies that there may be certain limits on this undertaking.

Thus, if one were to follow the CAS panel’s findings in Sharapova that Athletes are expected to check the Prohibited List personally, one would need to deny the predictability of the prohibition in each case in which the prohibited character of the substance could not reasonably be recognized by the Athlete him- or herself, and thus find that an element of the anti-doping rule violation is missing. While a literal reading of the statement may evoke such an extreme outcome, it is unlikely that the CAS panel had in mind such implication for its statement. There is no other indication in the award that the CAS panel meant to question the ‘fiction’ of awareness of the prohibition that has been generally accepted in CAS jurisprudence, or its corollary of strict liability. In fact, the arbitrators were not asked to do so, since Maria Sharapova did not challenge the anti-doping rule violation itself.

MORE COMMUNICATION IS NOT ALWAYS BETTER COMMUNICATION

The reason why CAS panels refrain from analyzing the issue under the angle of legal predictability – apart from the fact that the parties generally do not raise this defence – is probably because, unlike the degree of Fault, predictability of the scope of the prohibition allows for no graduation: either the finding of an anti-doping rule violation can be supported, or it cannot.

Accordingly, CAS panels prefer to attenuate the harshness of the regime by evoking a framework of ‘reciprocal’ duties between Anti-Doping Organizations and Athletes. This is also perceivable in the Sharapova award, in which the CAS panel expressed its view that: “anti-doping organizations should have to take reasonable steps to provide notice to athletes of significant changes to the Prohibited List, such as the addition of a substance, including its brand names”.

The extent of the “reasonable steps” expected from the Anti-Doping Organizations, and the repercussions in case of a failure to take appropriate steps in a particular matter, however, is not clear[28]. In particular, the Sharapova award does not clarify whether the communication has to be such that the Athlete can genuinely be expected to verify the prohibited character of a substance personally, without specialized assistance. Though the sections in the Sharapova award addressing this issue could convey such an impression, it is unlikely that this was the CAS panel’s intent. Other paragraphs regarding the ‘delegation test’, on the contrary, clearly point at an inevitable need for medical support. As part of their assessment of the player’s Fault, the panel noted a default to instruct and supervise her agent, in particular: “to put him in contact with Dr Skalny [the physician who had prescribed the medication to Maria Sharapova] to understand the nature of the Skalny products”. According to the panel, if an Athlete could simply delegate their obligations to a non-trained third party without properly instructing them, “such a finding would render meaningless the obligation of an athlete to avoid doping”. Between the lines, the CAS panel thus acknowledges that it is part of an Athlete’s duty of diligence to involve a physician when circumstances so warrant.

In our view, the level of communication expected from Anti-Doping Organization must take into account the nature of the substance, as well as the channels through which an Athlete is supposed to come into contact with this substance. As far as medications are concerned, communication that makes the prohibited character of a substance easily identifiable for a health professional (e.g. a doctor or a pharmacist), would appear an adequate and sufficient level of communication. There is no doubt that the Prohibited List has evolved to a degree of complexity that imposes heightened duties on Anti-Doping Organizations to do their share to prevent inadvertent violations. However, while appropriate communication is essential, caution must be applied with respect to communication of information of a very technical nature. The information related to the Prohibited List is at the intersection of two technical domains: it is both a legal and a scientific-medical document. In this constellation, one should also factor in the risk that more communication would merely increase the potential for misunderstanding. It might be preferable for Anti-Doping Organizations to refer to one unique document with accurate and precise language that can be interpreted reliably by the relevant professional, than to draft multiple ‘information notices’, ‘warnings’ etc. attempting to adapt the information to lay-persons also, but in which each minor change of wording may create new ambiguities. Of note, this also supposes an appropriate training and awareness on part of the health professions, in particular those practitioners who know they are regularly dealing with sportspeople.

THE NEXT MISSION OF ANTI-DOPING: SAFER ELITE SPORT?

The finding in the Sharapova v. ITF award that no anti-doping training is needed to ascertain the status of a substance, and that the check is to be conducted, as a rule, by the Athlete personally, without scientific or medical qualifications being required, should not be taken in isolation from its context. It would be dangerous to assign too strong a precedential value to this element in the CAS panel’s analysis. In other sections of the award, the CAS panel acknowledged - at least between the lines - that checking a medication against the Prohibited List without appropriate specialized advice is not commendable and would hardly be sufficient to consider that the Athlete discharged his or her duties of diligence under the WADC.

More generally, CAS panels have so far refrained from assessing the predictability of the prohibited character of a medication as a requirement for establishing an anti-doping rule violation. However, they do seem to recognize that there are certain duties on Anti-Doping Organizations to assist Athletes in properly performing their own duties under the WADC. Communication deemed insufficient will not invalidate an anti-doping rule violation, but may be taken into account in reducing the Athlete’s degree of Fault. This can be viewed as an incentive towards intensified communication efforts on part of the anti-doping movement, but without jeopardizing the prohibition itself in individual cases.

Ultimately, the lesson to retain from the Sharapova award – and the Meldonium cases in general – goes beyond the duty for Athletes to be aware of the prohibited character of a substance. The underlying question that these cases raise is the health risk involved in elite sport, and the Athlete’s willingness to go to great lengths to practise at the highest level. There is widespread abuse of medications – sold over-the-counter or reused after an initial prescription – in the population in general[29]. Athletes are not an exception, but the problem seems to be exacerbated by competitive sport, where Athlete often feel they depend on a ‘quick fix’ to a health condition to meet their goals[30].

As pointed out in a previous comment to the ITF Tribunal Decision in Sharapova, it is not for adjudicatory bodies to deliver a ‘moral’ judgement on the manner in which elite sport should be practised. The CAS panel was asked to consider whether Maria Sharapova was at Fault with respect to her anti-doping duties, not whether she was conveying a ‘respectable’ or ‘responsible’ image of elite sport, or whether she was acting reasonably in terms of healthcare.

Nevertheless, given the WADC’s stated goal of protecting the Athlete’s health, the anti-doping movement cannot entirely disregard the messages that are sent out to Athletes when it comes to the use of medication. CAS awards indirectly reflect the panels’ perceptions on the subject, and the diverging attitudes that also coexist in health systems in general. In the eyes of some CAS panels, including in the matter of Maria Sharapova, taking a medication without medical supervision or outside the purposes for which the medication was prescribed does not seem to constitute Significant Fault[31]. When Athletes are at times held to extremely high standards of care for taking nutritional supplements[32], or even for being sabotaged at a social drink[33], CAS panels should be mindful not to encourage Athletes to view self-medication as part of their training routine.

[1] The decision was commented on http://wadc-commentary.com/sharapova/

[2] The capitalized words in the text are terms defined in the World Anti-Doping Code (« WADC »).

[3] Defining what is to be considered a ‘medication’ for purposes of anti-doping is a delicate topic in itself and will be the object of a separate analysis in a future blog. Within the context of the Sharapova decision, typical ‘medications’ envisaged here are those in the core domain of prescription drugs, without regard to borderline cases (health supplements, herbal remedies, functional food etc.).

[4] The CAS panel chose a tripartite test known in the liability of the employer in Swiss tort law, based on the ‘three culpa’ : culpa in eligendo (lack of diligence in choosing the person), culpa in instruendo (lack of diligence in instructing the person), or culpa in custodiendo (lack of diligence in supervising the person) (see Sharapova award, para. 85). The details of this test and its appropriateness for the context of anti-doping will be analyzed on the WADC Commentary Anti-Doping Blog http://wadc-commentary.com/antidopingblog/ .

[5] Sharapova award, para. 88 iii.

[6] CAS 2013/A/3335, Cilic v. ITF, para. 75 b.

[7] CAS 2016/A/4371, Lea v. USADA, para. 91, limiting, however, this duty of diligence to the situation « of an athlete taking prescribed medication fo the first time »; in the Sharapova award, para. 84, the panel also insisted that Athlete cannot be expected in each case to meet all factors proposed in the Cilic guidance.

[8] “Did the athlete consult appropriate experts” is a factor to assess the Athlete’s objective Fault in the guidance issued in CAS 2013/A/3335, Cilic v. ITF, para. 74; CAS 2015/A/3876, Stewart v. FIM, paras 77/78; CAS 2011/A/2645, UCI v. Kolobnev & RCF, para. 92, with further references; CAS 2006/A/1133, WADA v. Stauber, para. 39.

[9] CAS 2006/A/1133, WADA v. Stauber, para. 36.

[10] CAS 2008/A/1565, WADA v. CISM & Turrini, para. 66.

[11] CAS 2011/A/2645, UCI v. Kolobnev & RCF, paras 87 & 93.

[12] CAS 2010/A/2229, WADA v. FIVB & Berrios, para. 100 ; CAS 2011/A/2585, WADA v. Marino & UCRA, para. 112.

[13] CAS 2015/A/3876, Stewart v. FIM, paras 77 & 84.

[14] CAS 2008/A/1565, WADA v. CISM & Turrini, para. 63 ; CAS 2006/A/1133, WADA v. Stauber, para. 35 ; CAS 2005/A/828, Koubek v. ITF, para. 60; even applied to an Athlete who was administered the substance as part of an emergency treatment in hospital but failed to subsequently enquire about the substance that had been administered (CAS 2006/A/1041 Vassilev v/ FIBT & BBTF); even applied if the tournament organization delivered the wrong medication after prescription by the official tournament doctor (CAS 2005/A/951, Cañas v. ATP).

[15] See also Article 21.1.4 of the WADC, whereby Athletes are “to take responsibility to make sure that any medical treatment received does not violate anti-doping policies and rules adopted pursuant to the Code”.

[16] CAS 2006/A/1133, WADA v. Stauber, para. 35.

[17] Sharapova award, para. 43 v.

[18] See e.g. the stimulant spelt “metamfetamine” in the WADA Prohibited List, is spelt “methamphetamine” in FDA-approved drugs.

[19] CAS 2013/A/3075, WADA v. Szabolcz, para. 9.8.

[20] See e.g. the drug enquiry database of Swiss Anti-Doping: “This database contains drugs authorized in Switzerland, only.”

[21] For a critical analysis, see Viret Marjolaine (2016), Evidence in Anti-Doping at the Intersection of Science & Law, T.M.C Asser Press / Springer, The Hague, pp 465-479.

[22] For more details, see Viret Marjolaine (2016), Evidence in Anti-Doping at the Intersection of Science & Law, T.M.C Asser Press / Springer, The Hague, pp 472-477.

[23] This provision concretizes Article 4.1 of the WADC.

[24] In CAS OG 12/07, ICF & Sterba v. COC & IOC, which involved a non-listed stimulant, the CAS panel noted that the use of the substance by the Athlete “could have been avoided if indeed the substance had been expressly included on the Prohibited List or in any other data base that can be easily accessed with modern technology and the internet”, but added that “This, of course, does not change the fact that the Anti-Doping violation occurred”, but was “important and relevant in respect to assessing and examining the level of fault of the Respondent and the consequential sanction” (para. 6.6.18).

[25] See e.g. CAS 2016/A/4371, Lea v. USADA, para. 92, citing the CAS jurisprudence that “athletes should have clear notice of conduct that constitutes an anti-doping rule violation”, but only to determine the degree of fault involved in failing to anticipate the excretion time needed for a substance prohibited In-Competition only.

[26] CAS 94/129, quoted in CAS 2016/A/4371, Lea v. USADA, para. 92.

[27] This was explicitly recognized, though with respect to a violation of failure to submit to Sample collection, in CAS 2008/A/1557, FIGC, Mannini & Possanzini v. WADA, paras 6.15 et seq.

[28] For a more extensive analysis, see the upcoming contribution on the WADC Commentary Anti-Doping Blog,

[29] E.g. the WHO warnings about antibiotics resistance acquired through inadequate use of antibiotics without specialized advice (e.g. prescribed for viral infections, or patients using the rest of their tablets when they experience similar symptoms).

[30] See e.g. the current debate surrounding the use of glucocorticoids among elite Athletes, and the use of TUEs for common health conditions after the data leaks revealed by hackers.

[31] CAS 2016/A/4371, Lea v. USADA, para. 91, in which the Athlete had taken a medication prescribed for pain relief as a sleep aid, as he had witnessed his teammates do.

[32] CAS 2009/A/1870 WADA v. Hardy & USADA, para. 120.

[33] CAS 2008/A/1515, WADA v. Daubney & Swiss Olympic, para. 125.