Asser International Sports Law Blog

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

International and European Sports Law – Monthly Report – August 2016. By Kester Mekenkamp.

9. September 2016 Oskar van Maren Blog, International Sports Law Cases, International Sports Law Commentaries, International Sports Law Events, International Sports Law Material, International Sports Law Publications (0)

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


The Headlines

For the world of Sport, the elsewhere known “sleepy month” of August turned out to be the total opposite. Having only just recuperated from this year’s Tour de France, including a spectacular uphill sprint on bicycle shoes by later ‘Yellow Jersey’ winner Chris Froome, August brought another feast of marvellous sport (and subsequent legal drama): The 2016 Olympic Games in Rio de Janeiro.


The Olympic Games

Amongst those athletes that stood out in Rio were, of course, the “most decorated Olympian of all time” Michael Phelps and the “fastest man on earth” Usain Bolt. However, standing out can also happen for the wrong reasons. One sad example of this is the downfall of former “Lord of the Rings”, gymnast Yuri van Gelder. The Dutchman reached the Olympic finals for the rings, but was sent home by the Dutch National Olympic Committee after a night out in Rio de Janeiro. He subsequently unsuccessfully launched legal proceedings before a Dutch court in an attempt to reclaim his place in the finals. For an in depth legal analysis of the case see the blog by Guido Hahn.

Yet, the Van Gelder case is certainly not THE legal highlight of the Rio Games. In this regard, the CAS ad hoc Division (for a good overview of the procedure at the division, click here) was the court to watch in Rio. The CAS Ad Hoc Division was installed to resolve legal disputes arising during the Olympic Games. These disputes can relate to, for instance, matters of qualification, disciplinary sanctions or doping (on appeal). During the three weeks of the Games, it dealt with a caseload of 26 cases, 16 of which were linked with the Russian doping scandal. For the first time, a CAS anti-doping division was also active in Rio (with a caseload of 8 cases). The CAS Anti-doping Division, was aimed specifically at resolving doping cases. Through this office, the CAS handles (potential) doping cases in first instance. It can organize hearings of the parties concerned and impose provisional suspensions pending the conclusion of the procedure. The final decisions could be appealed before the CAS ad hoc Division or the CAS in Lausanne after the Olympic Games have ended. The links to all the published Rio awards can be found below under case law. 

Much controversy arose during the Games regarding the debate over the divide between male and female athletes. In the centre of attention stood South African runner Caster Semenya and Indian track-and-field athlete Dutee Chand. Both are at the centre of an on-going medical, ethical and legal discussion about the policies regulating hyperandrogenism in sport. Our blog hosted two posts on the matter one by Marjolaine Viret and Emily Wisnosky on “Regulating the human body in sports: Lessons learned from the Dutee Chand case” and a more personal point of view by Marjolaine Viret, “Why we should stop focusing on Caster Semenya”.

Finally, this Olympic summer of legal disputes would not be complete without a brief discussion of the Paralympics ban of the Russian Paralympic Committee (RPC). Indeed, this week marked the kick-off of the Paralympic Games, which will take place from 7 to 18 September. Exactly a month before the start of the games, on 7 August, the International Paralympic Committee (IPC) Governing Board decided unanimously to suspend the RPC with immediate effect. In a statement on its website the IPC explained that it regarded the RPC unable to “fulfil its IPC membership responsibilities and obligations”, in particular those under the IPC and WADA doping rules. On 30 August the CAS delivered a much-expected award in which it dismissed the appeal by the RPC and confirmed the decision rendered by the Governing Board of the IPC. In particular, the CAS Panel found that the ban did not violate procedural rules and amounted to a proportionate measures considering the circumstances.


Case law

Olympics


Dutch court

Rechtbank Gelderland, Van Gelder, 12 August 2016, C/05/306681 / KG ZA 16-347  


CAS awards of the CAS ad hoc Division

CAS awards of the CAS anti-doping Division


Swiss Federal Tribunal


IOC sanctions for doping violations at 2008-2012 Games


Others


 Official documents and Press releases


 In the news

Athletics

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Football

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Other


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Books


Blogs

Upcoming events

16 September - The future of the ‘legal autonomy’ of sport, Anglia Ruskin University, Cambridge, UK

26 September - Soccerex - Global Convention 2016, Manchester, UK

4 October – Demi-Journee Cedidac 2016 en Droit du Sport, Lausanne, Switzerland

 

Save the Date!

28 October – ‘The Wilhelmshaven case: Challenging FIFA and the CAS’, FBO, Zeist, the Netherlands


 


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Asser International Sports Law Blog | Revisiting FIFA’s Training Compensation and Solidarity Mechanism - Part.1: The historical, legal and political foundations - By Rhys Lenarduzzi

Asser International Sports Law Blog

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

Revisiting FIFA’s Training Compensation and Solidarity Mechanism - Part.1: The historical, legal and political foundations - By Rhys Lenarduzzi

6. November 2020 Antoine Duval Blog, International Sports Law Commentaries (0)

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


In 2019, training compensation and solidarity contributions based on FIFA’s Regulations on the Status and Transfer of Players (RSTP) amounted to US$ 75,5 million. This transfer of wealth from the clubs in the core of the football hierarchy to the clubs where the professional players originated is a peculiar arrangement unknown in other global industries. Beyond briefly pointing out or reminding the reader of how these systems work and the history behind them, this blog series aims to revisit the justifications for FIFA-imposed training compensation and the solidarity mechanism, assess their efficacy and effects through a case study of their operation in the African context, and finally analyse the potential impact of upcoming reforms of the FIFA RSTP in this context.

First, it is important to go back to the roots of this, arguably, strange practice. The current transfer system and the legal mechanisms constituting it were largely the result of a complex negotiation between European football’s main stakeholders and the European Commission dating back to 2001. The conclusion of these negotiations led to a new regulatory system 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. Before paying some attention to the historical influences and how we arrived at these changes, as well as the justifications from the relevant bodies for their existence, let us briefly recall what training compensation and the solidarity mechanisms actually are.


1.     FIFA’s training compensation and solidarity mechanism: A very short introduction

Training compensation is the obligation of an acquiring/buying/signing/new club to compensate the training clubs of a player. A training club is considered to be the clubs of the player between the ages of 12 and 21, though the obligation to compensate continues if either of the following two instances take place, up until the season of a player’s 23rd birthday:  i) “[A] player is registered for the first time as a professional” or,  ii) “a professional is transferred between clubs of two different associations…”. The obligation does not arise if a former club terminates a player’s contract without just cause, when a professional reacquires amateur status in moving clubs, or when a player transfers to a category 4 club. Regarding the categories, this is important because the amounts owed to a training club hinge on where clubs fall within four categories (For more on the four categories see HERE).

There are some regulatory differences between the EU/EEA and the rest of the football world. A significant distinction is that without sufficient justification that it is worthy of compensation, a former club will not be owed by a “new club”[1] if they have not offered a contract of equivalent value to the player in question.[2]

The Solidarity mechanism provisions stipulate that when a player moves to a new club, mid contract, for a fee agreed between the new club and former club, then 5% of that fee is designated as a solidarity contribution, and each of the player’s training clubs will receive a portion. The apportionment varies depending on what age the player was registered with the training club (further information on apportionment can be found HERE). This obligation arises when a player is transferred definitively or on loan, between clubs from different associations, as well as when a transfer takes place within the same association, but a training club of the player is affiliated to another association.

For both training compensation and the solidarity mechanism, the regulations provide that the national association will instead receive the money when the club owed “has in the meantime ceased to participate in organised football and/ or no longer exists”.[3] In cases as such, the compensation is to be used for youth football development.

Disputes can arise when the new club does not pay on time or at all, or if there is a disagreement on the amount owed, as well as when a new club attempts to make the case that a player has already terminated his training period prior to age of 21. Given the above explanation of the systems is brief, further detail may be found within the relevant articles and annexes (see HERE for the full regulations).

2.     A brief history: From the ‘retain and transfer system’ to the FIFA RSTP 2001

Much of the current framework is the product of various events surrounding the birth of the regulations in 2001, though the ideas and concepts it captures go way back beyond this time. The English Football League’s registration system that would go on to be touted as the ‘retain and transfer system’ dates back to at least 1893.[4] Both this system and the American Baseball ‘reserve rule’ system are often mentioned in the same breath. As Sloane pointed out in 1969: “The justification for the reserve rule and the retain and transfer system lies in their alleged function in bringing about a more or less equal distribution of playing talent between clubs, whilst, their advocates argue, free competition would lead to a concentration of 'star' players into a few rich clubs.”[5]  Both systems were the target of an array of challenges over the years, though up until ‘free agency’[6] in the case of American Baseball (much earlier) and Bosman[7] in football, each system remained largely the same in existence and justification.[8] To further emphasise that the issues recognised, and in turn the ideas and justifications pertinent to the current system are hardly new, the Chester Report of 1969 on the situation regarding employment and transfers in football in England had striking similarities to much of what was raised within the European-level negotiations that lead to the changes in 2001.[9]

With the momentous Bosman case in 1995, the previously commonplace practice of an out of contract player being retained and unable to transfer (regardless of that player’s preferences) was found contrary to EU law. Importantly for the subject of this blog, the court also recognised that “encouraging the recruitment and training of young players must be accepted as legitimate”[10] aim, on the basis of which the free movement rights of players could in principle be restricted. Thus, leaving an opening for a regulatory system that would support the “recruitment and training of young players”[11] and restrict free movement in a proportionate way.

In 1998, the European Commission decided to open an investigation against FIFA based on competition law concerns linked to its then applicable RSTP.  This decision brought FIFA, UEFA and FIFPro to the European Commission’s negotiating table to hammer out a compromise that would satisfy their divergent interests and be compatible with the EU’s antitrust rules. The regulations as they now stand, aside from some minor amendments, reflect the outcome of those negotiations. The final press release of the European Commission concluded that FIFA’s new regulations would have to reflect a set of principles in order to be deemed compatible with EU competition law. In particular it accepted that:

  • in the case of players aged under 23, a system of training compensation should be in place to encourage and reward the training effort of clubs, in particular small clubs;
  • creation of solidarity mechanisms that would redistribute a significant proportion of income to clubs involved in the training and education of a player, including amateur clubs; 

These are in fact quite faithfully transposed in the FIFA RSTP provisions discussed above. Since then, the Bernard[12] ruling of the CJEU further clarified that the societal significance of sport, rendered the incentivisation of training legitimate. In its ruling, the court specified that in order to comply with EU law, a training compensation system ‘must be actually capable of attaining that objective and be proportionate to it, taking due account of the costs borne by the clubs in training both future professional players and those who will never play professionally’.[13] This remains the main benchmark that any FIFA training compensation system must meet in order to comply with EU law.

As we have shown in this section, the shape of the current FIFA training compensation system and solidarity mechanism are very much a direct result of the EU’s interventionism in the regulation of football in the aftermath of the Bosman case. In doing so, the EU institutions also recognised that the idea of redistributing funds to compensate the costs incurred by the training club in instructing a player is a legitimate one.

3.     Justifying redistribution: Sharing the costs of training

Why do football institutions want this system in place and how was it justified? As was alluded to above, these ideas are not new ideas and are rooted in tradition.[14] Football and its intricacies have been deemed in need of protection for a long time, at least from within. More importantly for this blog, there is a desire for wealth to be redistributed in the form of compensation to the training clubs, to manufacture solidarity between the different levels of football and to incentivise goals such as training, education and development. This justification for FIFA’s redistributive systems is largely connected to the recognition that sport is important for the social fabric, and that incentivising development and training clubs goes beyond football and has societal benefits.

These objectives are reflected in the compromise agreed between FIFA and the EC in 2001. The latter’s press release emphasised that training compensation was “to encourage and reward the training effort of clubs, in particular small clubs“. Similarly, FIFA stated in Circular no. 769; “This system is designed to encourage more and better training of young football players, and to create solidarity among clubs, by awarding financial compensation to clubs which have invested in training young players.” Thus, it is clear that both the football authorities and the EU institutions recognise that the core aim of the FIFA’s training compensation and (though less obviously) its solidarity mechanism are to support the recruitment and training of young professional footballers. In fact, the CJEU’s advocate general in Bernard later recognised that training compensation rules “ensure that clubs are not discouraged from recruitment and training by the prospect of seeing their investment in training applied to the benefit of some other club, with no compensation for themselves”.[15] She went on to emphasise that “there is a broad public consensus that the training and recruitment of young players should be encouraged rather than discouraged”.[16]

At the heart of these rationalisations lies the core belief that failing to compensate the club that has helped a young player grow into a professional player is unfair and would discourage the club’s future effort to train players. Whether a training compensation system is necessary to attain such an objective is, however, far from evident. As was pointed out by advocate general Lenz in the Bosman case, such objectives could as well “be attained by a system of redistribution of a proportion of income, without the players' right to freedom of movement having to be restricted for that purpose“.[17] Nevertheless, the idea of redistribution between clubs remains the fundamental policy objective that underpins both FIFA’s training compensation system and solidarity mechanism.

Concluding remarks and subsequent blogs

This blog has highlighted that FIFA’s training compensation system and solidarity mechanism were introduced, after lengthy discussions with the European Commission and relevant stakeholders, in order to create a solidarity and redistributive relationship between the club where a player was trained and the club were a player pursues his professional career. The core justification behind them is that the training clubs provide an important educational service and that their work would be discouraged if they would not be enjoying some economic returns on their investment (in time and resources) to train players that go on to play professionally for a bigger/richer club.

While this objective is certainly respectable, there are, however, questions that remain regarding the adequacy and necessity of these systems to effectively redistribute funds between clubs. First, one should always keep in mind that training compensations are restricting the players’ freedom to move between clubs. Second, as we will see in the coming blog focusing on African players and clubs, it is questionable whether the current FIFA rules are in practice achieving their main redistributive function. Third, if these mechanisms are necessary to encourage training, it is as well remarkable that they are not also introduced in the context of women professional football, as will be discussed in our third blog. Finally, my last blog will assess how the coming changes to FIFA’s RSTP will affect the structure and operation of both the training compensation system and the solidarity mechanism.

[1] “New club” is the language used in the RSTP.

[2] “[I]n writing via registered post at least 60 days before the expiry of his current contract” per RSTP Annex 4 (6) ‘Special provisions for the EU/EEA’.

[3] RSTP - Annex 4 (3) 3; Annex 5 (2) 3.

[4] Sloane, P. J. (1969), The labour market in professional football, British Journal of Industrial Relations, 7, 181-199.

[5] Ibid.

[6] Established from the decision in Curt Flood v. Bowie Kuhn, et al. 407 U.S. 258.

[7] Case C-415/93 Union Royale Belge des Socie´te´s de Football Association and others v. Bosman and others, ECLI: EU: C:1995:463

[8] Gerrard, B. (2002), The Muscle drain, Coubertobin-Type Taxes and the International Transfer System in Association Football,  European Sport Management Quarterly at 50 – “High Court in England ruled in 1963 that the retain-and transfer system was a restraint of trade. This led to a progressive relaxation of the transfer system with players being given more freedom to move between teams at the end of their contracts while transfer fees remained payable”.

[9] Per Sloane (1969) – “Contracts should have a terminable date and be renewable only on the consent of both parties… The committee did, however, suggest that a special levy should be imposed by the Football League on transfer fees, in addition to the present arrangement and graded according to the size of fee at a progressive rate. This levy could be returned to clubs for the purpose of ground improvements and would thereby tend to offset the tax advantage which clubs derive by signing players, since such payments, unlike the cost of ground improvements, are tax allowable.

[10] Bosman, para 106.

[11] Ibid.

[12] Case C-325/08 Olympique Lyonnais SASP v Olivier Bernard and Newcastle UFC, ECLI: EU: C:2010:143

[13] Ibid para 45.

[14] Pearson, G. Sporting Justifications under EU Free Movement and Competition Law: The Case of the Football ‘Transfer System’, European Law Journal, Vol. 21, No. 2, (March 2015) pp. 222.

[15] Opinion of Advocate General Sharpston in CJEU case C-325/08 Olympique Lyonnais SASP v Olivier Bernard and Newcastle UFC, para 46.

[16] Ibid para 47.

[17] Opinion of Advocate General Lenz CJEU case C-415/93 Union Royale Belge des Socie´te´s de Football Association and others v. Bosman and others, para 239.

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Asser International Sports Law Blog | Last call to register to the 2021 edition of the Sports Law Arbitration Moot - Deadline 1 December

Asser International Sports Law Blog

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

Last call to register to the 2021 edition of the Sports Law Arbitration Moot - Deadline 1 December

27. November 2020 Antoine Duval International Sports Law Events (0)

Dear all,

Our Slovenian friends (and former colleague) Tine Misic and Blaž Bolcar are organising the second edition of the Sports Law Arbitration Moot (SLAM).

The best four teams of the SLAM competition will compete in the finals, which will be held in Ljubljana, Slovenia, on 30th and 31st March, 2021.

This is a great opportunity for students to familiarise themselves with the world of sports arbitration, to meet top lawyers and arbitrators in the field, and to visit beautiful Ljubljana.

Go for it!

You'll find more information and can register at https://sportlex.si/slam/en

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Asser International Sports Law Blog | International and European Sports Law – Monthly Report – November and December 2016. By Saverio Spera.

Asser International Sports Law Blog

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

International and European Sports Law – Monthly Report – November and December 2016. By Saverio Spera.

6. January 2017 Oskar van Maren Blog, International Sports Law Cases, International Sports Law Commentaries, International Sports Law Events, International Sports Law Material, International Sports Law Publications (0)

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


The Headlines

The Russian State Doping Scandal and the crisis of the World Anti-Doping System

Russian doping and the state of the Anti-Doping System has been the dominant international sports law story in November and December. This is mainly due to the release of the second report of the McLaren’s investigation on 9 December 2016. The outcome of McLaren’s work showed a “well-oiled systemic cheating scheme” that reached to the highest level of Russian sports and government, involving the striking figure of 30 sports and more than 1000 athletes in doping practices over four years and two Olympic Games. The report detailed tampering with samples to swap out athletes’ dirty urine with clean urine. Simultaneously, the IOC has over the last months announced 101 positive tests from retesting samples collected at Beijing 2008 and London 2012 and announced sanctions, 27 of which were for Russians athletes (for more information, see here, here and here).

A few weeks before the publication of the McLaren report, on 20 November the WADA Foundation Board met in Glasgow, in what, at least that we argued on this blog, should have been a turning point in the global fight against drugs in sport. In that occasion, the board endorsed a sanctioning framework for non-compliance that “will equip the anti-doping system with the ability to levy meaningful, predictable and proportionate sanctions in cases of non-compliance by anti-doping organizations (ADOs) with the World Anti-Doping Code (Code)”. The Board also agreed to continue evaluating the request made by the Olympic Summit to establish an Independent Testing Authority (ITA). In addition, the Board’s recommendation about the whistleblower program aims at appropriately supporting, protecting and rewarding whistleblowers in order to strengthen the Anti-Doping System. The hope is that those recommendations will help filling the massive gaps exposed in the World Anti-Doping System by the Russian scandal. 


The Football Leaks: Second edition

It is not the first time that the football leaks appear on this blog. Already in December 2015, we started analysing contracts released by an earlier (certainly more amateurish, but also more transparent) apparition of the football leaks. Back then we focused on Doyen’s TPO deals (you can dive back into the blogs here, here, here and here). Our conclusion was very much the same as the one advanced by the European Investigative Collaborations (EIC): there is something rotten in the globalized football economy and it is in dire need of proper regulation (and regulators).

Moving forward, on 9 December Der Spiegel published its first in-depth piece on the new football leaks. The data gathered by Der Spiegel (Germany) and the European Investigative Collaborations (EIC), includes 18.6 million documents comprising of original contracts. This data revealed a large and uncontrolled use of murky financial operations, complex contractual networks and tax schemes in the world of professional football. In particular linked to the operation of the transfer market. Evidence on player contracts revealed by football leaks showed, for example, that in what has been called ‘the Cypriot scheme’ football players were bought and loaned out by the Cypriot club Apollon Limassol without ever playing for the club, or – at least in one case - without even entering the country. In so doing, the Cypriot club had taken over the role of Third Party Owner usually held by investment funds, a practice that was banned by the FIFA’s regulation from May 2015, in order to avoid, among other things, loss of control over transfer operations.

NRC (The Netherlands) and EIC network have also discovered that agents of various South American football stars (such as Colombian James Rodríguez) used the Netherlands as a pivot country for tax reasons to carry out the transfer of their clients to top clubs in Europe (a story to which our Senior Researcher, Antoine Duval, contributed). There is also evidence of continuous alternation of companies involved in the transfers, with contracts passing from firms in The Netherlands to the tax heavens British Virgin Island, Panama and The Caribbean. The story of the transfer of the football player Kondogbia from the Spanish club Sevilla to the French club Monaco in 2013, emerged through football leaks as well, adds another layer to the evidence of dirty tricks linked to TPO (for more information on the Economic Rights of Players Agreement (ERPA) involving Kondogbia, see our ‘old’ blog from April 2016).

So, should one be fatalist about these wrongdoings and abuses on the transfer market and around it? No. We believe that the European Union and its Member States could and should act (see our proposition in French here, and comments to NRC in this piece) to regulate the worst economic practices of the football worlds. 


CAS award on Real Madrid’s transfers of minors

Finally, in the much-watched dispute between Real Madrid FC and FIFA over the Spanish club’s transfers of minors, the CAS partially sided with the football club. The CAS award modifies the decision rendered by the FIFA Appeal Committee in these terms: Real Madrid’s ban from registering any new national or international player is reduced from two transfer periods to one and the fine the club is imposed to pay to FIFA is reduced from 360,000 CHF to 240,000 CHF. The reasoned decision will be notified to the parties early 2017.  


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Asser International Sports Law Blog | The Semenya Decision of the Swiss Federal Tribunal: Human Rights on the Bench - By Faraz Shahlaei

Asser International Sports Law Blog

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

The Semenya Decision of the Swiss Federal Tribunal: Human Rights on the Bench - By Faraz Shahlaei

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

Editor's note: Faraz Shahlaei is a JSD Candidate at Loyola Law School, Los Angeles. His research and teaching interests are public international law, international sports law, international human rights and dispute resolution.

 

The issue of international human rights was a central contention in Caster Semenya case ever since the start of her legal battle against the regulations of the IAAF. However, the human rights arguments were poorly considered in the two proceedings related to this case. To put it in perspective, it is like having a key player nailed to the bench throughout the whole game; no coach ever tried to give it a chance while it had the potential to be the game changer for all parties.

In 2019, the Human Rights Council, the inter-governmental human rights body of the UN, expressed concern over issues of discrimination in sports in particular regarding IAAF female classification regulations. In June 2020, the United Nations High Commissioner for Human Rights submitted a report to the United Nations Human Rights Council on the “Intersection of Race and Gender Discrimination in Sport”. The report draws a detailed picture of how human rights in the Semenya case have been violated and also elaborates on the inherent problem of addressing human rights issues in alternative dispute resolution mechanisms favored by the sport governing bodies. However, despite an in-depth discussion of Caster Semenya’s case at both the CAS and then the SFT, the question of human rights, a key concern and a fundamental pillar of the case, hasn’t been adequately answered yet!

The following arguments are intended to discuss how international human rights law, has not been properly examined in Caster Semenya’s case:

1.     CAS arbitral panels are not primarily concerned with the application of international human rights law since sport arbitrations are conducted based on regulations of sport governing bodies, predominantly in the absence of a human rights clause within that framework (OHCHR, para 44). Even if they were, a proper consideration of human rights aspects in any dispute, including whether there is a necessary, proportional and legitimate exception to the human rights rule or whether there are more important rights worthy of protection, needs individuals that are knowledgeable about the international human rights system to carefully scrutinize the issues based on human rights norms. Even if the CAS includes human rights experts in its pool of arbitrators, there are still questions regarding the dependability and the weight of their interpretation of the human rights treaties considering their appointment process by private actors in compare with for example judges in the ICJ, ECtHR or members of the UN treaty bodies.

2.     The Semenya case is a suitable example of this gap. In fact, when it comes to the issue of discrimination and international human rights law, the panel finds the UN amicus curiae and other expert submissions useless (CAS, para 554). The panel argues that the submissions failed to address the three-prong spear of necessity, proportionality and legitimacy and therefore are not helpful for the task in front of the panel. Despite acknowledging the relevancy of some human rights arguments (CAS, para 554), the panel finds a more important value to protect, namely: fairness in sports; and builds up its analysis of necessity, proportionality and legitimacy based on this concept. Whether this assessment is in line with international human rights, remains a question since the issue has not been considered by a panel with adequate human rights expertise. The player is on the bench!

3.     Furthermore, the issue of female athletes’ eligibility is not related only to gender-based discrimination. As the report of the OHCHR makes clear it is also about the right to work and just and favorable working conditions; the right to highest attainable standards of physical and mental health; the right to sexual and reproductive health; prohibition of arbitrary interference with privacy; the right to bodily integrity and the right to human dignity (OHCHR, para 34). None of these rights have been considered in the CAS award and subsequently by the SFT within the international human rights law context.

4.     More importantly, the enforcement of DSD regulations raises questions regarding the prohibition of torture, cruel, inhuman and degrading treatment (OHCHR, para 34(a)). The OHCHR report explains that enforcement of DSD regulations are “medically unnecessary, and potentially harmful” (para. 32), brings the targeted individuals with “shame and ridicule” (para. 33), inflicts physical and psychological harm (para 34(c)) and is a form of forced medical intervention (para 34 (c)) which triggers issues related to article 7 of the International Covenant on Civil and Political Rights. This prohibition in most cases trumps any exception or justification. Therefore, Article 7 of the ICCPR on prohibition of torture, cruel, degrading and inhuman treatment, ratified by Monaco in 1997, can be a potentially bigger threat to DSD regulations rather than the issue of non-discrimination.

5.     Challenging an arbitral award in national jurisdictions, other than the public policy grounds, is limited to issues pertinent to procedural matters. Therefore, the scope of reviewing the issues at stake in the arbitral award is very limited and if any of the above rights have not been already scrutinized during the arbitration, they will fall outside the scope of the appeal. For example, the SFT finds that the contradiction of taking oral contraceptives with religious and moral values of the individual is an inadmissible claim since it hasn’t been raised in front of the CAS at the first place (para 10.6).

6.     A fundamental discordance between the human rights framework and the approach adopted by the SFT, emerges when the SFT argues that the non-discrimination principle based on the Swiss Constitution is restricted to the treatment of individuals by public entities not private bodies such as sport organizations (para 9.4). Nevertheless, the SFT observes that sport governing bodies possess a status similar to states (which is in itself an interesting finding and I will touch upon this later in this note) and then deals with public policy grounds. However, the legal protections in international human rights law are of a different nature. Positive obligations of the states in guaranteeing the enforcement of human rights norms within their jurisdiction is an indispensable part of the legal regime created by international human rights law. The UN Human Rights Committee is clear when it states “the positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities”. The practice of international courts and tribunals corroborates this view where in many cases public officials were held accountable for failing to do their due diligence in preventing human rights violations within their jurisdictions (See e.g. Fadeyeva v. Russia, paras 89-93; CCPR Concluding Observations on Germany, para 16).

7.     The SFT delves into the public policy issues and by relying on the findings of the CAS (para 9.8.2; 9.8.3.1) comes to the same conclusion as to the priority and legitimacy of the principle of fairness in sports (para 9.8.3.3, 9.8.3.4) and ultimately finds no breach of public policy (para 10.7). Based on paragraph 1 and 2 of this note, the analysis of the CAS, which the SFT relies upon it, is disputable from the human rights perspective.

8.     The SFT refers to the decision of the ECtHR in FNASS and others v. France and finds the analysis applicable to this case. This seems reasonable as both cases are justifying certain restrictions to protect the rights of third parties. However, the pivotal argument of the ECtHR in FNASS not only mentions the protection of public health (para 165) but also the risks of doping for physical and mental health of the doped athletes (paras 171-173); the SFT’s stance on this topic is in conflict with serious concerns asserted by the OHCHR on how DSD regulations pose a serious risk to the right to health of the individuals requiring them to undergo unnecessary and potentially harmful medical treatment (OHCHR para 32, 33, 34(a), 34(b), 34(c), 34(d)). Additionally, in FNASS the right to privacy is examined in the face of whereabout regulations plus being available for an hour each day for testing purposes; the ECtHR finds that the protection of health, which is the aim of the doping control system, is more important than revealing the whereabout information. However, in the present case reasonable concerns are over endangering the health and safety of individuals rather than disclosing the information about the place of residence. Article 3 of the Additional Protocol to the Oviedo Convention concerning biomedical research can be illuminating in this regard: “The interests and welfare of the human being participating in research shall prevail over the sole interest of society or science”.

9.     At times, the SFT finds itself relying on the notion of consent in relations between athletes and sport governing bodies and employs it as a justifying factor for example for the intrusive examination of athletes’ body that if they object, such examinations would not take place (para 10.2, 11.2). The SFT further points out that athletes’ defective consent to requirements set by the IAAF, justifies taking oral contraceptives and it is not a treatment imposed on an unwilling individual (para 10.2).

  • First, the consent in this case is a flawed consent since it leaves “no real choice to the athlete, who has to choose between undergoing these intrusive medically unnecessary assessments and treatments with negative impacts on their health and wellbeing” (See here, p 5). This incomplete consent might survive when tested against imposing the arbitration clause on an athlete (Mutu & Pechestein case) but might fail when tested against more fundamental issues such as prohibition of cruel, inhuman and degrading treatment, non-discrimination, the right to health, bodily integrity and prohibition of medical intervention without free consent. Furthermore, consent should be considered in the light of the decision of the ECtHR in Chitos v. Greece in which a military staff resignation resulted in imposition of a financial penalty. In Chitos a new law was adopted after the applicant was recruited by the military, changing the conditions of the release of the personnel from the military service. The Court finds that the law pursues a legitimate aim and is proportionate, and it also takes account of the fact that “at the outset … the applicant cannot legitimately maintain that he was unaware of the rationale and scope of the obligations he had entered into” being aware of also the benefits that he would receive from this relation. The question in front of the Court was whether the applicant voluntarily offered himself since he had prior knowledge of rules and possible consequences. The Court maintains that the issue of mental constraint should be considered based on the situation at the time of the entry into force of the new law not at the time when the applicant was first recruited (para 97). Furthermore, in Van Der Mussele v. Belgium regarding the issue of prior consent and the existence of a threat the ECtHR maintains that: “This could be so in the case of a service required in order to gain access to a given profession, if the service imposed a burden which was so excessive or disproportionate to the advantages attached to the future exercise of that profession, [then] … the service could not be treated as having been voluntarily accepted beforehand” (para 37). As explained above an assessment of necessity, proportionality and legitimacy based on international human rights grounds can be different than the conclusions based on the principle of fairness in sports.
  • Second, the OHCHR report calls attention to power imbalances in sports which hinges upon the notion of consent in relations between the athletes and sport governing bodies (para 34 (c)). The Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health emphasizes the need for particular measures to protect “vulnerability of certain individuals whose rights are compromised owing to deeply rooted power imbalances and structural inequalities” in particular in clinical practice and medical research. “In sport, such power imbalances are compounded by athletes’ dependency on the sports federations requiring such medical interventions and the frequent absence of adequate and holistic support during the decision-making process” (OHCHR, para 34(c)).
  • Third, the issue of consent becomes significantly important with respect to medical intervention in human body. For any type of medical intervention, free and informed consent of the individual is required. Article 5 of the Oviedo Convention on Human Rights and Biomedicine provides that any intervention in the health of individual should be conducted with free and informed consent including the consequences and risks involved. The OHCHR report calls attention to the “risk of unethical medical practice, particularly when the informed consent of the person concerned is not required” (OHCHR, para 34(c)). It is uncontested that human dignity and its health has priority over any type of scientific test or research even for the good of society. Article 3 of the Additional Protocol to the Oviedo Convention applies to this argument as well which provides: “The interests and welfare of the human being participating in research shall prevail over the sole interest of society or science”.
  • Fourth, individuals have the right to refuse or withdraw consent at any time without being subject to any form of discrimination (Article 5, 16 of Oviedo Convention; Additional Protocol, article 13(3)).
  • Fifth, the argument that the CAS is open to future findings of the adverse effects of such treatments which is supported by the SFT (para 9.8.3.5), is in contrast with requirements of medical and biological interventions of human body in international human rights law as it is encouraging unethical and potentially harmful medical experimentation and at the same time overlooks the notion of free and voluntary consent. Any type of medical intervention and research should come with careful consideration of ethical acceptability of such practices including protection of “dignity, rights, safety and well-being of research participants” (Additional protocol to the Oviedo Convention, article 9).

Notwithstanding the above arguments, one of the findings of the SFT can be an interesting line of thought for further research; that the vertical structure of sports and the dominance of sport governing bodies in their realm, puts them in a similar position as states (para 9.4). Traditionally only states and international governmental organizations are direct subjects of public international law and therefore bearers of responsibility under its rules and principles including the responsibility to enforce the human rights standards. The finding of the SFT adds more weight to the argument that sport governing bodies have replaced states in certain functions in a way that states are no longer responsible for those operations. This is one criterion recognized by public international law scholars for recognition of international legal personality. Therefore, it will be interesting to study whether sport governing bodies are in a position to be recognized as de facto states although without a geographical territory.

Finally, what I argued above does not mean that ultimately, once the award of the CAS in Semenya case is scrutinized by a human rights body it will fail. It may or may not; but as long as this evaluation has not been conducted by a competent human rights court, there will always remain questions about the credibility of a CAS award which disregarded most of the human rights concerns touched upon in this blog.

Therefore, a key player in this game is still on the bench!

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