The rise of Dutee Chand, India’s 100 and 200-meter champion in the under 18-category, was astonishing. Her achievements were more than promising: after only two years, she broke the 100m and 200m national junior records, competed in the 100m final at the World Youth Athletics Championships in Donetsk and collected two gold medals in the Asian Junior Championships in Chinese Taipei. But, in July 2014, this steady rise was abruptly halted. Following a request from the Athletics Federation of India (AFI), the Sports Authority of India (SAI) conducted blood tests on the Indian sprinters. Dutee was detected with female hyperandrogenism, i.e a condition where the female body produces high levels of testosterone. As a result, a few days before the Commonwealth Games in Glasgow, the AFI declared Dutee ineligible to compete under the IAAF Regulations and prevented her from competing in future national and international events in the female category. Pursuant to the IAAF ‘Hyperandrogenism Policy’, the AFI would allow Dutee to return to competition only if she lowers her testosterone level beneath the male range by means of medical or surgical treatment.[1] On 25 September 2014, Dutee filed an appeal before the CAS, seeking to overturn the AFI’s decision and declare IAAF and IOC’s hyperandrogenism regulations null and void. She is defending her right to compete the way she actually is: a woman with high levels of testosterone. Interestingly enough, albeit a respondent, AFI supports her case.

IAAF and IOC rules set limits to female hyperandrogenism, which is deemed an unfair advantage that erodes female sports integrity. While these rules have been contested with regard to their scientific and ethical aspects, this is the first time that they will be debated in court. This appeal could have far-reaching ramifications for the sports world. It does not only seek to pave the way for a better ‘deal’ for female athletes with hyperandrogenism, who are coerced into hormonal treatment and even surgeries to ‘normalise’ themselves as women[2], but it rather brings the CAS, for the first time, before the thorny question:

How to strike a right balance between the core principle of ‘fair play’ and norms of non-discrimination, in cases where a determination of who qualifies as a ‘woman’ for the purposes of sport has to be made? 

‘Prove your gender!’

The separation between women and men in athletic competitions has been paradigmatic. Considering the sex-based physiological differences, which in case of a mixed competition would lead to virtually no women participation, the separation opened the door for women to compete at the highest levels. Nevertheless, the determination on the eligibility of women athletes to participate in the female category has become a source of controversies. So far, as decades of flawed IOC policies have demonstrated, it has not been clarified ‘who is woman’ for the purposes of sport.

The idea of ‘sex testing’ in sports dates back to 1960s and even preceded doping tests. The first gender test introduced by the IOC is nowadays laughable: nude parades of female competitors before a panel of judges in charge to verify the presence of female genitals and other sex characteristics.[3] Soon, this test was proven unworkable, since in intersex conditions, where people are born with both male and female genitalia, the outside did not match the inside.

The next test introduced was dubbed ‘chromosome testing’, which was based on the assumption that chromosomes are the key factor in determining sex, i.e. XY for male and XX for female. However, this test overlooked natural situations, where males have an extra X chromosome or females are missing one and was, therefore, soon abandoned. Thereafter, the SRY (i.e. the gene that triggers male sex determination) gene detection test was introduced, but the Olympics Games in Atlanta 1996 proved its deficiency:  eight women were tested positive for it and all were finally cleared for competition. Following this series of gender policies, which were deemed particularly discriminatory towards women with sexual development disorders, the IOC removed gender verification tests in June 1999.

It was not before 2009, in the wake of the Caster Semenya case, involving the South African 800m and 1500m runner and world champion, that an urgent need for reconsidering sex determination policies was brought into surface. Semenya’s masculine appearance, unusual muscle build and, foremost, her outstanding victory in the 2009 World Championships 800m race, fuelled a frenzy of suspicions on her gender. Following her victory, in an unprecedented breach of confidentiality and privacy rules, the IAAF leaked that Semenya had undergone tests to determine whether she had an unfair advantage as compared with other women. For three years, Semenya was not allowed to participate in events as her gender was still under investigation. In 2012, she was cleared by the gender testing committee and she began racing again. The story of Semenya, who suffered from humiliation and castigation by athletics officials and the media, unveiled IAAF’s incompetency in handling complex gender-related issues.

As a reply, in an attempt to establish an unambiguous, objective and scientifically based policy, IAAF and IOC, in 2011 and 2012 respectively, released new regulations. In that context, the focus shifted from sex testing to endogenous testosterone testing. The natural levels of testosterone have become the new golden rule: the purpose is not to determine ‘who is woman’, but rather ‘what makes a woman a woman’. Both policies are based on the assumption that testosterone is a key factor for men’s often superior strength and speed and, as a result, women with testosterone levels typical for males have an ‘unfair’ advantage. Therefore, according to the new regulations, if a female athlete has androgen levels higher than the normal male range, she is deemed ineligible to compete in women’s competition and will only be considered able to compete again if she lowers her testosterone level by means of medical or surgical treatment.

Despite IAAF’s protest to the contrary, this is the recent re-incarnation of ‘sex testing’.[4] The real import of these rules has been illustrated by the Dutee’s case. With Dutee’s appeal pending before the CAS, the legality of IAAF and IOC’s current gender policy needs to be scrutinized.

The unfair results of ‘fairness in sports’: The dark side of IAAF’s and IOC’s gender policy

Fair competition, which provides a fair opportunity to compete and prohibits athletes from competing with unfair advantages, has been widely accepted as a value integral to sports.[5] In this light, considering hyperandrogenism as an uncommon athletic capacity in relation to other female competitors, IAAF and IOC introduced the ineligibility of female athletes with hyperandrogenism in order to preserve the ‘sacrosanct’ competitive equality in the female category. However, it is our opinion that the current policy is on the borderline of what is fair for the following reasons: 

1. The ‘testosterone’ criterion as yardstick to determine eligibility?

According to the IAAF androgen policy, a general scientific consensus on naturally occurring testosterone as a relevant physical characteristic to separate athletes into different competition classes exists. The first problem is that this argument relies on the flawed assumption that a bright line between male and female can be drawn, not acknowledging situations of an ‘intersex’ status. As David Epstein, reporter and author of “The Sports Gene”, puts it clearly “neither body parts nor for the chromosome within them unequivocally differentiate male from female athletes”. Furthermore, while IAAF relies on a binary perception of biological sex in order to identify the gender of athletes, gender, in fact, is a social construction, which does not correspond to the complexities of biological sex. Secondly, it relies on the assumption that testosterone levels in the human body have limited variability within the sexes. Nevertheless, recent studies have found a complete overlap between testosterone levels in elite men and women, ripping apart testosterone levels as a reliable factor for separating between sexes.  The third problem is the lack of supporting scientific evidence that a competitive advantage can derive from high natural levels of testosterone.[6] Indeed, the scientific understanding of testosterone receptors is far from comprehensive. A recent research supported by the Swiss WADA laboratory added to the uncertainty: “Unfortunately, and to the best of our knowledge, there are neither available data on serum androgen levels nor reliable statistics on the so-called hyperandrogenism among a large and high-level female athletes’ population”.

IAAF policy, in overall, seems to create an absurd result: instead of introducing an objective criterion-if any- for separating between men and women, it rather suggests a classification of athletes between ‘high testosterone’ and ‘low testosterone’. However, ‘High-T’ and ‘Low-T’ categories of competition are not on the agenda.  

2. IAAF policy fosters discrimination

The current policy suggests a discriminatory treatment: it targets only women suspected for hyperandrogenism due to their physical appearance and high levels of performance. Women are asked to prove that they are female, while there is no such a requirement or restriction for men.

Furthermore, the fundament itself of the androgen policy is discriminatory against women who do not conform to traditional notions of femininity. Indeed, it lays on the physiological superiority of men in terms of endurance and strength as compared to women, perpetuating the long-established perception that an intrinsic link between manliness and sport exists, while femininity is associated with more gentle exercise.[7] In IAAF’s view, ‘too masculine women’ do not belong to the female category. It seems that under a scientifically based guise, IAAF seeks to impose a preference for certain social norms regarding what constitutes femininity in a woman’s appearance as criteria for participation.[8]

However, in order to perceive the level of discrimination, the most important question to be addressed is how you qualify an athlete. Hyperandrogenism is a rare biological characteristic and according to IAAF regulations and controversial scientific evidence, it gives female athletes a natural advantage that other female athletes do not have. Similarly, long limbs, broad wingspan for swimmers and height for basketball players are natural advantages.[9] Nevertheless, the later ones, but for hyperandrogenism, have never been considered as unfair. Indeed, the quintessence of elite sports lays on the participation of individuals with rare biological characteristics. In this light, the inevitable question arises: Why should female athletes like Dutee be obliged to reduce or eliminate an inherent advantage that they are born with? Why is then nobody asking a swimmer like Phelps to operate his double-jointed ankles? Or as SAI director-general Juji Thomson remarked: “ Just because Usain Bolt's height is to his advantage will the international authorities want his legs chopped off to ensure a level-playing field?” In other words, why hyperandrogenism has been viewed as different to other biological advantages broadly accepted in some elite athletes? The answer is simple: IAAF’s policy reflects the well-established public perception of femininity and female athletes who do not conform to this norm have to be excluded or ‘feminise’ themselves.

Thereby, IAAF and IOC policy exacerbate bullying and marginalization of women in sports putting their physical difference under unethical and humiliating scrutiny. Semenya had been intruded into the toilets by competitors seeking to check whether she really was a girl. While, after a race in Berlin, her competitor Mariya Savinova sneered “just look at her” when she was asked whether Semenya was a man. Similarly, the most talented female athletes, such as Serena Williams, Martina Navratilova, WNBA player Brittney Griner– and the catalogue is really long-, have been accused of not really being female. This play is up again with IAAF’s ‘are you woman enough to compete as female?’ policy seeking to confer legality to discrimination.

What should not be overlooked, finally, is the bitter truth that the current IAAF policy inevitably targets in priority women from developing countries. Athletes like Semenya or Dutee never perceived their difference, until they appeared on track field courts, where this difference has been flagged in the most humiliating way as abnormality. In sharp contrast to IOC’s declarations on eliminating any kind of discrimination in sports, IAAF and IOC gender policy achieves the most undesirable result: sex and social discrimination ‘all-in-one’. 

3. The disproportionate results of IAAF’s policy: To undergo treatment or not? This is not a question!

Female athletes with hyperandrogenism are faced with two choices: undergo medical treatment to fit the IAAF ‘Procrustean bed’ or abandon female competitions. The disproportionate and unfair consequences are evident.

As Katrina Karkazis, pioneer of Dutee’s motion against IAAF, remarks, the IAAF and IOC treat a physical difference as an illness, which requires a medical response. However, the necessity of such an invasive medical, or surgical, intervention is highly questionable. The suggested treatment does not stop at lowering female athletes’ testosterone level below IAAF’s limit of 10nmol/liter, but it rather aims to eliminate hyperandrogenism. In this sense, sharing IAAF’s assumption that testosterone is the key to performance, such treatment will render athletes like Dutee less competitive than other women who do not have hyperandrogenism or whose hyperandrogenism is below the cut-off. Thereby, IAAF policy, albeit mandating fairness in competition, puts a disproportionate burden on female athletes with hyperandrogenism.

Furthermore, concerns have been raised about the medical effects of the treatment suggested. In fact, it has been argued that long-term hormone therapy can have devastating results on female athletes’ health. Dutee’s denial to undergo this treatment is far from a ‘caprice’. A study published in 2013 revealed the cases of four female athletes identified as having hyperandrogenism, who were sent to a clinic in France. It was reported that those athletes also had medical procedures that had nothing to do with lowering their testosterone levels for sports: a reduction to the size of their clitorises, feminizing plastic surgery and oestrogen replacement therapy. It seems that the IAAF is pulling the trigger on female athletes’ head, who are ready to accept any treatment- even the most questionable ones- in order to keep competing.

On the other hand, the ineligibility sanction leads to a further disproportionate result: If Dutee is considered too masculine to compete in the female category, does she qualify for the male category? Can the mere presence of higher testosterone levels in a female athlete’s body presume that she can compete as a man? The answer has to be answered in negative, notwithstanding the ‘fair play’ issues that may arise. IAAF and IOC rules are cruelly disproportionate: athletes like Dutee who refuse to undergo this questionable treatment are effectively left without a forum to display their talent.

Do it like Pistorius

So far, the IAAF and IOC policy have been shown scientifically shaky, discriminatory and disproportionate. In parallel with these arguments, Dutee has also a very important precedent to rely upon: the CAS ruling in the Pistorius case.

In 2008, Oscar Pistorius, the South African double amputee runner, challenged IAAF rules that prohibited competitive running on ‘cheetah’ legs in international IAAF-sanctioned events alongside able-bodied athlete as being in breach of its commitment to non-discrimination. In that case, the fundamental rights of disabled athletes to be adequately accommodated and have genuinely equal opportunity to compete were at issue. Pistorius had to prove that he gained no advantage from using the prostheses. Reviewing scientific testing and analysis, the CAS concluded that ‘Cheetah’ legs did not give Pistorius an overall advantage.

Although the ‘tailor-made’ effect of the award could raise serious criticism[10], the Pistorius case has been landmark from a twofold point of view. Firstly, the CAS did not hesitate to challenge the indeterminacy of scientific analysis and developed the ‘net advantage’ approach, which stipulates that both the benefits and burdens have to be taken into consideration in determining whether a device provides an advantage to an athlete who uses it.[11] A similar approach has been adopted in the Veerpalu doping case, where the CAS questioned the scientific reliability of the limits applied for the WADA human growth hormone test (HGH).[12] Pistorius and Veerpalu cases have set an important threshold: international sports governing bodies, when it comes to enforce scientific- related sanctions, should rely on scientifically well-founded assessments.

Secondly, the CAS took an extraordinary step. It sent a clear message to international federations that they must address the eligibility criteria surrounding disabled athletes in a transparent and impartial manner.[13] There is no reason why the CAS in the Dutee case would do it differently. After all, sporting rules that seek to ensure fair competition and prevent a competitor from obtaining an unfair advantage have at least to be proportionate and non-discriminatory. 

Let Dutee Run?

The lines between male and female are blurring. As Fausto-Sterling has observed “the reason sports federations can’t get this right is because there is no right”.[14] Sports governing bodies may never be able to ensure fair competition without reaching absurd results.[15] In its daunting task to legally enforce controversial science related and ethical issues, CAS is facing a double challenge. It has the opportunity to set fair and accurate eligibility rules based on objective criteria, which will also preserve the essence of sports. Undoubtedly, sports governing bodies have the authority to establish their eligibility rules. However, self-regulation does not come without limits: sports federations’ rules have to comply with the non-discrimination clauses included in their statutes[16] and the IOC charter. The role of the CAS in monitoring the compliance of these regulations with non-discrimination norms is essential. Therefore, in some cases, CAS has to leave its ‘comfort-zone’: it has to deviate from its well-established practice to provide a significant degree of deference to sports governing bodies with regard to their authority to establish the eligibility rules and rather applies a ‘fairness’ requirement on a case-by-case basis, such as in the Pistorius case.

More importantly, CAS has the chance to finally flesh out the toothless IAAF and IOC commitments to gender equality. Dutee’s case is a fertile ground for an interpretation in the light and purpose of the recent UN resolution on sport and the proclaimed values underpinning the Olympic 2020 Agenda. After all, what is the point of trumpeting non-discrimination in sports, if, in 2014, a female athlete is deemed ‘not woman enough’ to compete with women?

Whatever the CAS decides, one thing remains certain: discrimination against women with sexual development specificities will not anymore be in the blind spot of the law. Dutee showed the way.

[1] IAAF Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition - In force as from 1st May 2011 ,  Article 6.8 <http://www.iaaf.org/about-iaaf/documents/medical >

[2] Dr Ben Koh, Daryl Adair and  Peter Sonksen OBE, ‘Testosterone, sex and gender differentiation in sport – where science and sports law meet’ (14 October 2014) <http://www.lawinsport.com/articles/item/testosterone-sex-and-gender-differentiation-in-sport-where-science-and-sports-law-meet>

[3]  J Ellison, ‘Caster Semenya And The IOC’s Olympics Gender Bender’ (26 July 2012) <http://www.thedailybeast.com/articles/2012/07/26/caster-semenya-and-the-ioc-s-olympics-gender-bender.html>

[4] R Pielke, ‘Dutee Chand, science and the spirit of sport: why IAAF policy is deeply flawed’ (20 October 2014) <http://www.sportingintelligence.com/2014/10/20/dutee-chand-science-and-the-spirit-of-sport-why-iaaf-policy-is-deeply-flawed-201001/>

[5] P Zettler, ‘Is It Cheating to Use the Cheetahs? The Implications of Technologically Innovative Prostheses for Sports Values and Rules’ (2009) 27 Boston University International Law Journal, 389.

[6] M Naimark, ‘A New Study Supports Female Athletes Unfairly Excluded From Sport’ (12 September 2014) <http://www.slate.com/blogs/outward/2014/09/12/sex_verification_in_sports_a_new_study_supports_unfairly_excluded_female.html>

[7] Dr Ben Koh,Daryl Adair and  Peter Sonksen OBE (n 2)

[8] R Pielke (n 4)

[9] For a very interesting comparison of the physiques between athletes from a wide range of different sports and competitions, see Howard Schatz’s Athlete series.

[10] CAS 2008/A/1480 Pistorius v/ IAAF (16 May 2008), para 56.

[11] CAS 2008/A/1480 Pistorius v/ IAAF (16 May 2008), para 36.

[12] M Viret and E Wisnosky, ‘Sinkewitz v. Veerpalu: Struggling to fit anti-doping science into a legal framework’ (19 March 2014) < http://wadc-commentary.com/wp-content/uploads/2014/04/WADC_COMMENTARY_Sinkewitz-Blog.pdf>

[13] Cornelius, 236

[14] J Ellison (n 3).

[15] P Zettler (n 5), 394.

[16] For instance, IAAF Constitution 2011, Art 3: “The Objects of IAAF are (…) 4. To strive to ensure that no gender, race, religious, political or other kind of unfair discrimination exists, continues to exist, or is allowed to develop in Athletics in any form, and that all may participate in Athletics regardless of their gender, race, religious or political views or any other irrelevant factor.”

Introduction 

The first part of this two-part blog on multi-club ownership in European football outlined the circumstances leading to the adoption of the initial rule(s) aimed at ensuring the integrity of the UEFA club competitions (Original Rule) and retraced the early existence of such rule(s), focusing primarily on the complaints brought before the Court of Arbitration for Sport and the European Commission by the English company ENIC plc. This second part will, in turn, introduce the relevant rule as it is currently enshrined in Article 5 of the UCL Regulations 2015-18 Cycle, 2017/18 Season (Current Rule). It will then explore how the UEFA Club Financial Control Body (CFCB) interpreted and applied the Current Rule in the Red Bull case, before drawing some concluding remarks. 

The Red Bull case: The concept of decisive influence

Background 

The company Red Bull GmbH (Red Bull) started building its football empire[1] in 2005 by transforming the Austrian club SV Wüstenrot Salzburg[2] into what would henceforth be known as FC Red Bull Salzburg (RB Salzburg). As regards its legal form, RB Salzburg is currently a limited liability company (GmbH) wholly owned by the association FC Red Bull Salzburg e.V. Until 2015, when the club began a disengagement process from Red Bull, the statutes of FC Red Bull Salzburg e.V. conferred on Red Bull the right to appoint and remove the members of the association's board.

In 2009, with the objective of playing the top-flight Bundesliga within a decade, Red Bull invested in the German club SSV Markranstädt, at that time competing in the fifth tier of German football. The club was subsequently rechristened as RasenBallsport[3] Leipzig (RB Leipzig) and rebranded. Although RB Leipzig thrived on the pitch, it attracted much criticism off the pitch for attempting to circumvent the so-called '50+1 rule', according to which German football clubs may not allow investors to acquire a majority of their voting rights.

Since Red Bull's takeover of RB Leipzig in 2009, the two clubs have maintained a close cooperation involving an increased transfer activity which has seen players moving from one club to the other on a regular basis. With the help of players like Naby Keïta, who moved from RB Salzburg to RB Leipzig in the summer of 2016, the German club finished second in the 2016/17 Bundesliga season, its first-ever in the top flight, and qualified for the 2017/18 UCL group stage. RB Salzburg, for their part, added in the 2016/17 campaign another domestic title to their collection and secured a spot in the 2017/18 UCL second qualifying round.

The Current Rule  

As mentioned above, the Current Rule is encapsulated in Article 5 of the UCL Regulations 2015-18 Cycle, 2017/18 Season (UCL Regulations). It preserves the structure of the Original Rule, making admission to the UEFA club competitions conditional upon fulfilment of three specific criteria. In terms of substance, however, the Current Rule differs in two important aspects. First, unlike the Original Rule which outlawed ownership, personal and other links only between clubs participating in the same UEFA club competition, the Current Rule extends this prohibition to clubs participating both in the UCL and the UEFA Europe League. Second, an individual or legal entity is now deemed to have control over a club not only if he/she/it (i) holds a majority of the shareholders' voting rights; (ii) is authorized to appoint or remove a majority of the members of the administrative, management or supervisory body; or (iii) is a shareholder and single-handedly controls a majority of the shareholders' voting rights, but also if he/she/it (iv) is able to exercise by any means a decisive influence in the decision-making of the club.[4] The purpose of this latter change is to address situations where an individual or legal entity falls short of having de jure control over a club, but nevertheless remains able to exercise such an influence that may, if exercised in more than one club, jeopardize the integrity of the UEFA club competitions. As will be discussed in the next section, the concept of decisive influence played a pivotal role in the Red Bull case.

Furthermore, the club coefficient no longer serves as a principal criterion in determining which of the two or more commonly owned clubs should participate in a UEFA club competition. Under the Current Rule, the club which qualifies on sporting merit for the more prestigious UEFA club competition is to be favoured.[5] If two or more commonly owned clubs qualify for the same UEFA club competition, then the club which was best-ranked in its domestic championship should be admitted.[6]

Proceedings before the CFCB

On 15 May 2017, soon after RB Salzburg and RB Leipzig had both secured their place in the 2017/18 UCL, the UEFA General Secretary dispatched a letter to the CFCB, expressing his concern that the clubs might not fulfil the criteria enshrined in the Current Rule. The subsequent investigation conducted by the CFCB Investigatory Chamber relied to a great extent on compliance reports prepared by independent auditors. On 26 May 2017, the CFCB Chief Investigator referred the case to the CFCB Adjudicatory Chamber, concluding that the clubs had failed to satisfy the criteria set out in the Current Rule and, as a result, only RB Salzburg should be admitted to the 2017/18 UCL.[7] In particular, the CFCB Chief Investigator suggested that Red Bull exercised decisive influence in the decision-making of both RB Salzburg and RB Leipzig, and identified several ways in which this influence manifested itself. For instance, the CFCB Chief Investigator drew attention to the presence of certain individuals allegedly linked to Red Bull in the decision-making bodies of both clubs or an unusually high level of income received by the clubs from Red Bull via sponsorship agreements.[8]

In its decision handed down on 16 June 2017, the CFCB Adjudicatory Chamber paid attention mainly to the changes made by RB Salzburg as part of the club's disengagement process from Red Bull. As noted above, Red Bull ceased to have the right to appoint and remove the board members of FC Red Bull Salzburg e.V. in 2015, when the association's statutes were amended accordingly. With this in mind, the CFCB Adjudicatory Chamber had to examine whether Red Bull was not able to exercise decisive influence in the decision-making of RB Salzburg (and RB Leipzig) by any other means.

The CFCB Adjudicatory Chamber was confronted with an onerous task, in particular because the UCL Regulations do not specify when an individual or legal entity is deemed to have decisive influence in the decision-making of a club. Nor do these regulations clarify how such a level of influence could be attained. Having examined the wording and purpose of the Current Rule, the CFCB Adjudicatory Chamber asserted that ''the benchmark for establishing decisive influence is a high one'',[9] finding support for its conclusion in the EU Merger Regulation.[10] For the avoidance of doubt, the Chamber further noted that the concept of decisive influence is not to be confused with that of significant influence which features in the UEFA Club Licensing and Financial Fair Play Regulations, Edition 2015.[11]

In determining whether Red Bull was indeed capable of exercising decisive influence in the decision-making of both clubs, the CFCB Adjudicatory Chamber observed from the aforementioned compliance reports that RB Salzburg had removed certain individuals allegedly linked to Red Bull from the club's decision-making bodies and terminated certain loan agreements entered into with the beverage company.[12] With the aim of refuting the CFCB Chief Investigator's allegations, RB Salzburg presented additional documentary evidence. According to the CFCB Adjudicatory Chamber, it followed from such evidence, inter alia, that Red Bull had reduced the amount of sponsorship money paid to the Austrian club or that a cooperation agreement between the two clubs had been terminated.[13] This evidence alleviated the CFCB Chief Investigator's concerns to such an extent that he eventually decided to withdraw his objection to the admission of RB Salzburg and RB Leipzig to the 2017/18 UCL.[14] Consequently, the CFCB Adjudicatory Chamber held that, at the time of its decision, Red Bull's relationship with RB Salzburg resembled ''only a standard sponsorship relationship''.[15] Having concluded that Red Bull did not have decisive influence in the decision-making of RB Salzburg, there was no need for the Chamber to consider Red Bull's relationship with RB Leipzig.[16]

Furthermore, the CFCB Adjudicatory Chamber verified whether one of the clubs did not exercise decisive influence over the other. In this regard, the Chamber referred to the cooperation agreement and the increased transfer activity between the clubs. Nonetheless, the Chamber eventually stated that there was insufficient evidence to arrive at the conclusion that RB Salzburg exercised decisive influence over RB Leipzig or vice versa.[17]

Further implications and concluding remarks

Rules aimed at ensuring the integrity of club competitions also exist at the national level. In England, the Rules of the Premier League stipulate, inter alia, that a person[18] – be it either natural person, legal entity, firm or unincorporated association – may not (i) be involved in or have any power to determine or influence the management or administration of more than one club participating either in the Premier League or the English Football League;[19] and (ii) hold or acquire any significant interest in more than one club participating in the Premier League. A person is deemed to have acquired significant interest in a club if he/she/it holds 10 per cent or more of the shareholders' voting rights.[20] In Spain, an individual or legal entity may not hold 5 per cent or more of the shareholders' voting rights in more than one club participating in a professional competition at the state level.[21]

It follows that both in England and Spain, the pertinent regulations set a relatively low threshold of the shareholders' voting rights that an individual or legal entity may not exceed in more than one club participating in the same domestic club competition. Moving back to UEFA, the Current Rule sets the relevant threshold at 50 per cent (majority of the shareholders' voting rights), but complements it with the 'catch-all' notion of decisive influence.

I believe that the CFCB Adjudicatory Chamber may have missed a golden opportunity in the Red Bull case to clarify further the rather vague concept of decisive influence. Unfortunately, the Chamber limited itself to stating that ''the benchmark for establishing decisive influence is a high one'',[22] without providing any concrete examples of how such a level of influence could be attained or manifested in practice.[23] The concept of decisive influence therefore remains shrouded in legal uncertainty. Moreover, in order to avoid speculations, the Chamber could have provided more details about the changes made by RB Salzburg. For instance, it could have specified which individuals allegedly linked to Red Bull were removed from the club's decision-making bodies or how the amount of sponsorship money paid to the club was reduced. Such details become particularly important if the concept of decisive influence plays a central role, because in this context the general public will not be able to access most of the relevant information via commercial registers. In contrast, this will not be the case with legal systems in England or Spain which employ a threshold of the shareholders' voting rights as a key criterion. Thus, if UEFA fails to provide such details (subject to confidentiality rules) in its decisions, its credibility might suffer.

Despite the fact that this post has identified certain flaws of the concept of decisive influence, I do not believe that a modification of the Current Rule should be a matter of urgency. As suggested above, a well-reasoned decision may foster UEFA's credibility and help reduce the legal uncertainty emanating from the concept of decisive influence. Bearing in mind the recent revitalization of multi-club ownership in European football, UEFA might soon get another opportunity to deliver such decision.

[1]   It should be noted that in addition to FC Red Bull Salzburg and RasenBallsport Leipzig, Red Bull also owns the U.S. club New York Red Bulls and the Brazilian club Red Bull Brasil.

[2]   It was often referred to as SV Austria Salzburg, a name that was given to the club at its foundation in 1933.

[3]   In fact, due to the rules prohibiting clubs to be named after their sponsors, the abbreviation 'RB' does not officially stand for Red Bull, but rather for RasenBallsport which can be roughly translated as 'lawn ball sports'.

[4]   UCL Regulations, Article 5.01(c).

[5]   Ibid. Article 5.02(a).

[6]   Ibid. Article 5.02(b).

[7]   As the Austrian club finished first in its domestic championship (whilst RB Leipzig finished second).

[8]   CFCB Adjudicatory Chamber AC-01/2017 RasenBallsport Leipzig GmbH and FC Red Bull Salzburg GmbH, Decision of 16 June 2017, para. 11.

[9]   Ibid. para. 41.

[10] Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings, Article 3(2). See also Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings.

[11] CFCB Adjudicatory Chamber decision (n 8) para. 40.

[12] Ibid. para. 50.

[13] Ibid. para. 51.        

[14] Ibid. para. 52.

[15] Ibid. para. 55.

[16] Ibid. para. 57.

[17] Ibid. para. 58.

[18] Rules of the Premier League to be found in the Premier League Handbook, Season 2017/18, Rule A.1.122.

[19] Ibid. Rule F.1.2. This provision in essence corresponds to Article 5.01(b) of the UCL Regulations.

[20] Rules of the Premier League, Rule F.1.3.

[21] Royal Decree No 1251/1999 on Sports Limited Liability Companies, Article 17(1) and (2). Professional football competitions at the state level include only La Liga and Segunda División A.

[22] See CFCB Adjudicatory Chamber decision (n 8) para. 41.

[23] Such examples could only be inferred from the changes made by RB Salzburg.

The European Commission’s decisions of 4 July 2016 to order the recovery of the State aid granted to seven Spanish professional football clubs[1] were in a previous blog called historic. It was the first time that professional football clubs have been ordered to repay aid received from (local) public authorities. Less attention has been given to five other decisions also made public that day, which cleared support measures for five football clubs in the Netherlands. The clubs in question were PSV Eindhoven, MVV Maastricht, NEC Nijmegen, FC Den Bosch and Willem II.

Given the inherent political sensitivity of State aid recovery decisions, it is logical that the “Spanish decisions” were covered more widely than the “Dutch decisions”. Furthermore, clubs like Real Madrid and FC Barcelona automatically get more media attention than FC Den Bosch or Willem II. Yet, even though the “Dutch decisions” are of a lower profile, from an EU State aid law perspective, they are not necessarily less interesting.

A few days before entering the quiet month of August, the Commission published the non-confidential versions of its decisions concerning PSV Eindhoven, Willem II and MVV Maastricht (hereinafter: “MVV”). The swiftness of these publications is somewhat surprising, since it often takes at least three months to solve all the confidentiality issues. Nonetheless, nobody will complain (especially not me) about this opportunity to analyze in depth these new decisions.

In the case of PSV, the Dutch State argued successfully that the measure implemented by the city of Eindhoven was in line with the so-called ‘Market Economy Investor Principle’ (MEIP), thereby not constituting a selective advantage to PSV. In other words, the measure did not fulfill the criteria of Article 107(1) TFEU and was not considered State aid. The aid measures granted by the cities of Tilburg and Maastricht to Willem II and MVV respectively were considered compatible State aid under Article 107(3)c) TFEU. Interestingly enough, in the Willem II and MVV cases, the Dutch authorities also argued that the respective measures did not confer any selective advantage to the clubs, but they failed to convince the Commission.

A comparison between the PSV decision on the one hand, and the other “Dutch” decisions on the other, taking into account the definition and operation of the MEIP in the (professional) football sector, will be left for a future blog. This two-part blog, instead, will focus on the compatibility assessment under Article 107(3)(c) done by the Commission in the Willem II and MVV cases and explain why it considered the State aid measure justified.

Part one will serve as an introduction on the two cases. It will provide background information on the compatibility assessment. In part two, the compatibility assessment conducted by the Commission in the two decisions will be analyzed. As will be argued, the conditions set out by the Commission can serve as a blueprint for all public authorities within the EU willing to grant State aid to football clubs in financial difficulties.  

Background

Willem II

In 2004, the municipality of Tilburg and football club Willem II concluded a contract, by which Tilburg became the owner of Willem II’s stadium and the club obtained a lease for the use of the stadium.[2] The annual rent of the stadium was established at €1 million, based on a depreciation period of 30 years, investment costs and an interest rate of 5.5%.[3]

In May 2010, Willem II found itself on the verge of bankruptcy. The municipality was quick to realize the potential negative effects a bankruptcy could have for Tilburg. These negative effects consisted of (1) the loss of rental income; (2) the absence of a tenant for the stadium; (3) the absence of professional football in Tilburg; and (4) the necessity to demolish the stadium and all the costs it would entail.[4] As a result, on 31 May 2010 the municipality decided to lower the rent to €905,000 per year and to decrease the variable costs. Both measures were taken with retroactive effect till 1 July 2004, which resulted in Willem II receiving a total of €2.4 million from the municipality.[5]

Tilburg’s rescue operation of Willem II was never notified to the Commission.[6] Instead, a citizen informed DG Competition shortly after the measure was implemented by means of a letter. This prompted the Commission to send a request for information to the Netherlands on 14 March 2011.[7]

In response to the Commission, the Dutch authorities argued that the new rent agreement was in conformity with the current municipal calculation methods and that the basic principles of the 2004 agreement were still respected. Moreover, the costs Tilburg would suffer for letting Willem II go bankrupt would be higher than the rescue costs. Consequently, the municipality believed it acted in accordance with the so-called ‘Market Economy Investor Principle’ (MEIP).[8] Moreover, the municipality imposed a restructuring plan that aimed at restoring the club’s long-term viability. The conditions of this plan included finding a way to clean up its balance sheet and the need to respect the national football association's norms for salaries of players.[9]

In its decision to open a formal investigation, the Commission counter argued that the depreciation of the stadium’s rent was already adjusted in 2007, and would not justify the retroactive application until 2004. Additionally, the lowering of the variable costs with retro-active effects ended up to be lower than the actual maintenance costs for that period, and should therefore be considered as State aid in accordance with Article 107(1) TFEU.[10] Finally, at the time the Commission launched the formal investigation, it nourished doubts whether the aid measure could be considered compatible with the internal market pursuant Article 107(3)(c). Having received no notification of the rescue measure, the Commission was unable to carry out a proper compatibility assessment. 

MVV

In 2010, football club MVV was facing severe financial difficulties: its total debt amounted to €6.5 million, including €1.7 million to the municipality of Maastricht. As a means of aiding its local football club, the municipality decided to waive its claim of €1.7 million and bought the stadium for €1.85 million.[11] The municipality held that the purchase was done in accordance with the MEIP and that the stadium would be used for multifunctional purposes. The parties agreed that MVV would use the €1.85 million to finance preferential claims, such as taxes and pensions.[12] 

The Commission opened a formal investigation procedure, because it was unable to conclude on the basis of the available information (the rescue measures were not notified[13]) that the behaviour of the municipality had been that of the typical creditor in a market economy.[14] Firstly, it doubted whether a total remission of the claim (€1.7 million) was entirely necessary, since other creditors transformed their claim into a claim on future income from transfer payments or “only” waived 50% of their claim. Secondly, according to the Commission, the purchase price of the stadium was estimated on the basis of replacement value rather than the real market value. It further raised doubts as to whether the municipality acted in accordance with the MEIP since investing in a football stadium depending on one captive user entails a very high risk, even when claiming that you want to make it multifunctional.[15] Similar to the Willem II case, no compatibility assessment of the aid measure in favour of MVV was carried out, because the measure was not notified.[16] 

The rules on compatibility

Pursuant to Article 107(3)(c) TFEU, aid to facilitate the development of certain economic activities, where such aid does not adversely affect trading conditions to an extent contrary to the common interest, may be considered compatible with the internal market. Only the Commission has the competence (subject to control by the EU Courts) to determine whether or not certain aid merits derogation from the general prohibition of Article 107(1).[17] However, it is settled case law that it is up to the Member State to invoke possible grounds of compatibility and to demonstrate that the conditions for such compatibility are met.[18] Due to its own wide discretion to assess the compatibility, the Commission has developed its own methodologies and approaches over the years, found in the decisional practice, policy documents[19] and sector specific guidelines.[20] 

The Rescue and Restructuring Guidelines

The Community Guidelines of 1 October 2004 on State aid for rescue and restructuring firms in difficulty (hereinafter: “Rescue and Restructuring Guidelines”) primarily serve as a tool for the Commission to assess similar cases in a similar way.[21] The criteria and conditions laid down in the Guidelines are mostly based on the Commission’s own experience in dealing with cases involving State aid in favour of firms in difficulty and case law by the Court of Justice of the EU. Due to the continuous developments in the area of EU State aid law, the Guidelines are regularly updated.[22] In the Guidelines, the Commission sets out the conditions under which State aid for rescuing and restructuring undertakings in difficulty may be considered compatible with the internal market. These conditions include the notification obligation for the Member State,[23] as well as demonstrating that the firm qualifies as ‘a firm in difficulty’. As is stipulated in point 11 of the Guidelines, a firm is considered to be in difficulties where the usual signs of a firm being in difficulty are present, such as increasing losses, diminishing turnover and mounting debt.

In order to rescue a firm from bankruptcy, the Member State has to show that it limits the amount of aid provided to that which is strictly necessary to keep the firm in business.[24] Section 3.2 of the Guidelines requires that the grant of the aid must be conditional on the implementation of a restructuring plan that restores the long term viability of the firm.[25] The restructuring plan needs to be approved by the Member State concerned and communicated to the Commission.[26]

The Member States granting the restructuring aid will have to limit the amount and intensity of the aid to the strict minimum of the restructuring costs necessary to enable restructuring to be undertaken in the light of the existing financial resources of the firm. This also means that the beneficiaries are expected to make a significant contribution to the restructuring plan from their own resources.[27] The Commission will normally consider the following contributions to the restructuring to be appropriate: at least 25 % in the case of small enterprises, at least 40 % for medium-sized enterprises and at least 50 % for large firms.[28]

The Guidelines also stipulate that, in case the firm in difficulty is considered a medium-sized enterprise or larger[29], compensatory measures must be taken by the Member State that grants the rescue and/or restructuring aid in order to ensure that the adverse effects on trading conditions are minimized as much as possible, so that the positive effects pursued outweigh the adverse ones.[30] These last two conditions (i.e. limiting the aid to what is strictly necessary and introducing compensatory measures) have the aim of ensuring that the State aid measure is proportionate to the objective tackled, namely rescuing and/or restructuring a firm in difficulty.

Last but not least, the so-called ‘one time, last time’ principle has to be applied. According to this principle, rescue aid should only be granted once.[31] 

In the coming days, the key part of the Commission’s decisions, the compatibility assessment, will be discussed in part two of this blog.

[1] Real Madrid (twice), FC Barcelona, Valencia CF, Athletic Bilbao, Atlético Osasuna, Elche and Hércules.

[2] Commission Decision on State Aid SA.40168 of 4 July 2016 implemented by the Netherlands in favour of the professional football club Willem II in Tilburg, para. 10.

[3] Commission Decision SA.33584 of 6 March 2013 – The Netherlands Alleged municipal aid to the Professional Dutch football clubs Vitesse, NEC, Willem II, MVV, PSV and FC Den Bosch in 2008-2011, para. 29.

[4] Ibid, para. 30.

[5] Ibid.

[6] Ibid, para. 67.

[7] Ibid, paras. 3-4. To find out how a citizen’s letter can instigate a preliminary State aid investigation, see Ben Van Rompuy and Oskar van Maren, “EU Control of State Aid to Professional Sport: Why Now?” In: “The Legacy of Bosman. Revisiting the relationship between EU law and sport”, T.M.C. Asser Press, 2016.

[8] The essence of this principle is that when a public authority invests in an enterprise on terms and in conditions that would be acceptable to a private investor operating under normal market economy conditions, the investment is not State aid.

[9] SA.40168, para. 12.

[10] SA.33584, paras. 29-31 and 51-53.

[11] Ibid, para. 32.

[12] Ibid, para. 57.

[13] Ibid, para. 67.

[14] Commission Decision on State Aid SA.41612 of 4 July 2016 implemented by the Netherlands in favour of the professional football club MVV in Maastricht, para. 12.

[15] SA.33584, paras. 54-57.

[16] SA.41612, para. 11.

[17] According to settled case law, national courts do not have the power to declare a State aid measure compatible with the internal market. See e.g. C-354/90, Fédération Nationale du Commerce Extérieur des Produits Alimentaires and Syndicat National des Négociants et Transformateurs de Saumon v French Republic, ECLI:EU:C:1991:440, para. 14.

[18] SA.41612, para. 42; see also Case C-364/90, Italy v Commission, ECLI:EU:C:1993:157, point 20.

[19] See for example Communication from the Commission COM(2012) of 8 May 2012 to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – EU State Aid Modernisation (SAM), para. 12.

[20] See for example the Communication from the Commission OJ C25/01 of 26 January 2013 on the EU Guidelines for the application of State aid rules in relation to the rapid deployment of broadband networks, paras. 32-34.

[21] In July 2014, the Commission published new Guidelines on State aid for rescuing and restructuring undertakings in difficulty, but they are not applicable to aid granted in 2010.

[22] The Rescue and Restructuring Guidelines published in 2014 are the fourth of its sort after earlier versions published in 1994, 1999 and 2004.

[23] Communication from the Commission of 1 October 2004 (2004/C 244/02) Community Guidelines on State Aid for Rescuing and Restructuring firms in difficulty, point 25(c).

[24] Ibid, point 25(d).

[25] Ibid, poins 34-37.

[26] Ibid, point 59. In this regard, it should be noted that the Commission does not need to endorse the restructuring plan.

[27] By “own resources” the Commission also understands funding from external financiers at market conditions.

[28] Guidelines on State Aid for Rescuing and Restructuring firms in difficulty, points 43-44.

[29] The Commission’s definition of Small and Medium-Sized enterprises (SMEs), as stipulated in the Annex of the Commission Recommendation concerning the definition of micro, small and medium-sized enterprises, is also used in the Rescue and Restructuring Guidelines. Pursuant to Article 2 of the SME Recommendation, a small enterprise is defined as an enterprise which employs fewer than 50 persons and whose annual turnover and/or annual balance sheet total does not exceed €10 million, whereas a medium-seized enterprise is defined as an enterprise which employs fewer than 250 persons and which has an annual turnover not exceeding €50 million, and/or an annual balance sheet total not exceeding €43 million.

[30] Guidelines on State Aid for Rescuing and Restructuring firms in difficulty, point 38.

[31] Ibid, point 25(e) and section 3.3. In practice, this actually means that rescue or restructuring aid can only be granted once every 10 years.

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.