Editor’s note: Stephen Weatherill is the Jacques Delors Professor of European Law at Oxford University. He also serves as Deputy Director for European Law in the Institute of European and Comparative Law, and is a Fellow of Somerville College. This blog appeared first on eulawanalysis.blogspot.com and is reproduced here with the agreement of the author. 

The crumbling of the ‘SuperLeague’ is a source of joy to many football fans, but the very fact that such an idea could be advanced reveals something troublingly weak about the internal governance of football in Europe – UEFA’s most of all – and about the inadequacies of legal regulation practised by the EU and/ or by states. This note explains why a SuperLeague is difficult to stop under the current pattern of legal regulation and why accordingly reform is required in order to defend the European model of sport with more muscularity.

The creature that will not die

What, again?

It is over twenty years since since ‘Project Gandalf’, a plan for a European Football League prepared by Media Partners International, was notified to the Commission (OJ 1999 C70/5). Since then football in Europe has been played with a regular rhythm in the background: the threat of a breakaway ‘SuperLeague’ driven by the richest and most successful clubs. UEFA, the sport’s governing body in Europe, has responded. Alterations made periodically to the structure of its principal and most lucrative club competition, the Champions League, have favoured the interests of the richest and most successful clubs and, in a macabre dance, those changes have typically followed those clubs’ well-briefed grumbling and plotting. And Monday 19 April 2021 was glumly anticipated by football fans as the latest reel around the fountain: UEFA, media reports confidently predicted, would further compromise the structure of its competitions in order to give the richest and most successful clubs more of what they want – more games and firmer guarantees of participation.

But Monday 19 April instead brought the ‘SuperLeague’ clattering out of its murky background as threat and into the harsh light of day as execution. A group of twelve clubs from England, Spain and Italy announced the creation of an entirely new competition which would operate beyond the authority of UEFA. The self-chosen clubs are all rich, though several groan under mountainous debts. There is no plausible world in which this dozen would count as Europe’s undisputed finest in terms of sporting merit: their status is commercially driven. The plans guarantee the long-term participation of the founding clubs, and so would remove the threat of relegation from the new SuperLeague. This is entirely alien to the orthodox model of football Leagues across Europe. And the clubs plan to have their cake and eat it. They intend to play midweek games in the brand new SuperLeague while remaining members of their national associations, and so continuing to play in the Premier League, La Liga and Serie A as well as selected national Cup competitions. But they will no longer play in UEFA’s Champions League, which will therefore be robbed of most of its richest and most successful clubs, and also Arsenal and Spurs.

And then it crumbled.

Within 48 hours of the new competition’s announcement its proponents were racing each other from West London across East Manchester and beyond to see who could put most distance between themselves and a plan which had attracted almost universal derision and dismay. No longer a League from which its founder members could not be relegated, the SuperLeague had turned into a competition from which its clubs were desperate to knock themselves out. This Italian, Spanish and English Job had been intended to cause an explosion within European football, yet they couldn’t even blow the bloody doors off.

Gleeful mockery has its short-term place. This SuperLeague is dead. But the idea behind it and the people who drove it are not. A breakaway league in European football is the creature that will not die. Now is the time to think about the inadequacies of legal regulation of sport in Europe, in order to be prepared to defend the European model of sport the next time that a plan of this disruptive type is advanced, likely with greater strategic cunning. 

Why the law is not currently adequate

UEFA was doubly offended by the SuperLeague. The traditional regulatory model of European football was cast aside. No longer would qualification on merit be the sole criterion for participation. The infusion of fresh blood ensured by the system of promotion and relegation would be stopped. UEFA oversight would be precluded. The commercial model of recent years would be gravely imperilled too. UEFA’s Champions League is a spectacular success and provides UEFA with a valuable source of income. The ‘SuperLeague’ is a huge threat.

What could UEFA do?

The key insight is that UEFA is doubly offended because UEFA has a double function. It is a regulatory body but it is also a commercial actor. It protects the structure of the sport but it also makes money out of the sport. Most governing bodies in sport began in the days of well-meaning amateurs, carrying out the task of imposing routine and order on the rules of the game and the conduct of competitions, but in recent years, largely as a result of changes to the regulatory and technological shape of the audiovisual media sector, sport has increasingly become commercially lucrative to a dazzling degree. Governing bodies have typically added these new commercially sensitive functions to their longer-standing regulatory role by an incremental process of accumulation. UEFA, like many governing bodies in sport, sets the rules of the game but it has also become highly profitable. 

This is where and why the application of legal rules to governing bodies in sport becomes awkward. No one doubts that UEFA has a legitimate role. Sport needs a regulator, to set the rules, to impose order on the calendar, to protect the welfare of players and fans, and so on. But equally no one doubts that regulatory choices have direct commercial consequences. If UEFA decides to impose sanctions on those involved in a ‘SuperLeague’ it will be able to present such steps as a means to defend the integrity of the model of sport that has long dominated European practice. But it will stand accused of seeking to promote its own commercial interest in maintaining monopoly control over the Champions League by suppressing the emergence of a new form of competition, a SuperLeague, which might generate high levels of consumer demand and which, if the restless dozen are to be believed, had already generated lucrative financial backing. Both these perspectives contain their truths – regulatory and commercial motivations inevitably overlap in the governance of sport. 

Imagine UEFA had carried through its threats to impose sanctions, which, in their most vigorous form, would have involved banning participating clubs and players from any involvement in football other than the ‘SuperLeague’ itself. To achieve that would involve action not only by UEFA but also the relevant national football associations and, to exclude players form the World Cup too, FIFA. Would EU law oppose a response of this type, designed to protect European football’s traditional structures?

The problem in short is – it is not clear.

There is nothing explicit in EU law that addresses the matter. Sport was not even mentioned in the founding Treaties until as late as 2009, and the provision then inserted, Article 165 TFEU, is programmatic rather than precise. EU secondary legislation on sport is thin and of no relevance to the matter at hand. EU sports law largely comprises the patchwork of decisions of the Court and the Commission which have, since the very first in 1974 (Case 36/74 Walrave and Koch ECLI:EU:C:1974:140), addressed the compatibility of practices in sport with the demands of EU internal market law. This concerned initially the law of free movement, applied in the famous Bosman case (Case C-415/93 ECLI:EU:C:1995:463), and latterly competition law. And it is EU competition law which provides the most obvious objection to UEFA’s desire to take action against the promoters of and participants in a ‘SuperLeague’.

It is necessary to try to sift the existing practice of the Commission and Court to try to piece together an understanding of how EU competition law would apply in these circumstances. Nothing is predetermined. This, then, is already a problem – it is impossible to predict with confidence exactly how far UEFA’s autonomy of action is constrained by EU competition law.

Let us try. The most recent decision in which EU competition law has been applied to sport is also the one that is factually closest to the case of a governing body taking action to protecting its model against third party organisers wanting to offer competing events. It is the International Skating Union decision. 

The International Skating Union decision (ISU).

In December 2017 the Commission decided that the eligibility rules of the International Skating Union (ISU) were incompatible with EU competition law, specifically Article 101 TFEU on anti-competitive bilateral and multilateral practices (AT.40208). The Commission’s Decision was upheld on appeal to the General Court, which in December 2020 approved all the key findings made by the Commission (Case T-93/18 International Skating Union v Commission EU:T:2020:610).

The core of the objections in ISU were targeted at the governing body’s treatment of skaters who chose to take part in events that were not approved by the ISU. The ISU had power conferred on it as the sole governing body in the sport recognized by the International Olympic Committee (IOC) to ban such skaters from the Olympic Games and the World Championship. The ISU was able to act, and did act, in a way that protected and promoted the events which it organized at the expense of competing suppliers. The Commission’s Decision reached the conclusion that it reserved to itself powers in a way that exceeded what was necessary for the organization of the sport and for the maintenance of its integrity. It had pursued activities in the global market for the organisation and exploitation of international speed skating events in circumstances where its regulatory function overlapped with commercial motivations. The ISU had – according to both the Commission and the General Court - a conflict of interest. By stretching its activities beyond the regulatory domain into areas which prioritised its own commercial interests at the expense of third parties in the market, the governing body had acted in an anti-competitive manner contrary to Article 101 TFEU. 

The responsible EU Commissioner Margrethe Vestager, commenting at the time on the Commission ISU decision, was eager to treat the ruling as an expression of general principle, not simply one confined to its own particular facts. She explained that where a single federation organises competitions from local to international level according to the global pyramid structure which characterises the governance of most sports, ‘the penalties these federations impose should be necessary and proportionate to achieve’ goals associated with the proper conduct of the sport, but they ‘certainly shouldn't be used to unfairly favour the federation's own commercial interests, at the expense of athletes and other organisers’. 

The ISU Decision shows that EU competition law restrains the autonomy of governing bodies in sport, but the assymetry of power between the ISU and skaters has little in common with the more balanced relationship between UEFA and the biggest football clubs. So, in the search to understand how EU competition law restrains UEFA, ISU is a clue, but not definitive.

ISU and past practice

ISU is not a one-off: this is not the only material on which we can draw to understand how EU law affects and restricts UEFA’s options in responding to the SuperLeague. A wonderful book published in 2015 bursts with relevant ideas (K. Pijetlovic, EU Sports Law and Breakaway Leagues in Football). And the structure of the ISU ruling fits comfortably into the EU’s track record in applying EU law to sport. The need for a regulator in sport is acknowledged. A game needs common rules, predictably applied and apt to secure the integrity of competition. But such activities shall not spill over beyond what is necessary for the proper organisation of the sport, and there is special suspicion of systems of governance which are structured or applied in a way that prioritises the commercial interests of the governing body in question. 

In Meca Medina and Majcen v Commission (Case C-519/04P EU:C:2006:492) the Court explained that the compatibility of rules with EU competition law cannot be assessed in the abstract. The legal assessment of practices that have the effect of restricting competition also includes examination of their objectives. The Court decided that the imposition of sanctions for violation of anti-doping rules did not necessarily constitute a forbidden restriction of competition within the meaning of (what is now) Article 101 TFEU, since they were justified by the legitimate objective of preserving healthy sport, though it added that attention would need to be paid in detail to fair procedure and proportionate sanctions. Bosman (Case C-415/93 ECLI:EU:C:1995:463 ), a free movement rather than a competition law case, similarly permits the interpretation of EU law to be informed by the sporting context in which it is applied. So, famously, the Court declared that ‘In view of the considerable social importance of sporting activities and in particular football in the Community, the aims of maintaining a balance between clubs by preserving a certain degree of equality and uncertainty as to results and of encouraging the recruitment and training of young players must be accepted as legitimate’. The Court ruled against the particular transfer system of which Bosman had fallen foul because it went too far to apply collectively enforced restraints to the contractual freedom even of players whose contracts had expired. But the Court was plainly receptive to an adjusted regime which addressed the legitimate concerns it had mapped in the ruling. The transfer system was duly amended to apply only to players whose contract has not expired, and it lives on today in that slimmed down form.

There followed Motosykletistiki Omospondia Ellados NPID v Elliniko Dimosio – commonly abbreviated to MOTOE and known as the ‘Greek motorcycling’ case (Case C-49/07 EU:C:2008:376). It was held that ELPA, a body granted legal authority under Greek law to decide whether or not to permit the staging of motorcycling competitions, had violated Article 102 TFEU by running a system in which ELPA itself was engaged in the organisation and commercial exploitation of motorcycling events. The problem was that in the circumstances ELPA had ‘an obvious advantage over its competitors’; its gatekeeping right allowed it to ‘distort competition by favouring events which it organises or those in whose organisation it participates’. 

Article 165(1) TFEU, introduced into the Treaty with effect from 2009, directs that the EU ‘shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and its social and educational function’. But both the Court and the Commission have long been assiduous in interpreting and applying EU internal market law in a way that recognises the legitimate concerns that arise in sport. Article 165 merely codifies that contextual sensitivity. EU law has been shaped according to a model whereby sport enjoys ‘conditional autonomy’ under EU law (see S. Weatherill, Principles and Practice in EU Sports Law, 2017). Governing bodies are able to operate consistently with EU law on condition that they demonstrate why their practices are necessary for the organisation of their sport – to defend its ‘integrity’, as is asserted in ISU. It is when governing bodies reach beyond the sphere of legitimate and necessary regulation that they tend to come into conflict with EU law – for example by applying the transfer rules even to out-of-contract players or by leveraging regulatory power to enhance a position in the market at the expense of commercial rivals. 

The legitimate reach of a governing body’s regulatory power

In ISU the objection was not to the role of a governing body acting as gatekeeper, in order to impose order on a sport’s calendar: the objection was to leveraging that regulatory power to achieve commercial advantage. The problem was a conflict of interest between regulatory concerns and profit-making, and it is an endemic problem in sports governance given the rising commercial value of sport alongside a reluctance among governing bodies to establish systems which sharply separate the regulatory from the commercial sphere. 

ISU insists on review of a governing body’s regulatory choices for fear that they may generate anti-competitive consequences. But it does not assume that the supply of competitive sporting events shall become a wholly unregulated market. Neither the Commission nor the General Court in ISU objects to the notion that sports governing bodies shall be able in principle to arrange the calendar, to decide how many events should be permitted, to ensure safety standards are met, and to perform a broader gate-keeping function. The Commission went out of its way in ISU to state that protecting the integrity and good functioning of the sport is a legitimate objective pursued by a governing body and this is confirmed in the ruling of the General Court. So too Commissioner Vestager, reflecting on the Decision, insisted that ‘we're certainly not questioning the right of …federations to do their job of organising the sport’. 

The question: where to draw the line between legitimate supervision and anti-competitive conduct?

SuperLeague

Would EU law have precluded UEFA from taking steps to oppose the SuperLeague? 

It is plain that UEFA would gain commercial advantage by killing off the SuperLeague. But the exercise of regulatory power commonly has some commercial consequence – that unavoidable overlap does not take the governing body’s activities over the line. The real issue is whether the exercise of regulatory power is necessary to secure the organisation of the sport.

ISU was an extreme case. The power imbalance between ISU and the skaters was very great; and the penalties envisaged by ISU went beyond any conceivable band of proportionate response. Given the aggressive suppression of third party organisers that was involved, disclosing a clear strategy of furthering the ISU’s own commercial aspirations in staging skating competitions, there was no need for the notion of protecting the ‘integrity’ of sport to be explored in any depth. The Commission and the General Court did not trouble to do so. Meca-Medina too, though the leading case, does not help to tease out the precise boundaries of the zone of legitimate action to police the integrity of sport, because anti-doping procedures plainly fall within it.

UEFA’s position in the face of rebellion by the major football clubs would have obvious distinctions from the situations found in MOTOE and ISU, most of all that its concern to defend the integrity of its existing structures would seem to carry much more weight given that the leading football clubs possess a destructive power which the third parties in MOTOEand ISU did not. The SuperLeague was clearly designed to reduce the Champions League to a sideshow, if not to destroy it altogether. 

Two questions structure the legal inquiry. What legitimate objectives may UEFA defend? And, assuming legitimate objectives have been identified, what are the permissible limits of action designed to defend them?

Once again the problem is that these are not matters set out cleanly in any existing legal texts. But let us try.

Can UEFA adopt measures to secure the integrity of its competitions' ability to produce the one true champion: that is, can UEFA take steps to stop European football looking like boxing? I think this is plausible, and it would justify action designed to ensure that UEFA’s Champions League has a higher profile and greater appeal than any breakaway competition.

Can UEFA adopt measures to suppress a competition where access is not based on merit and/or where promotion and relegation are curtailed: that is, can UEFA take steps to stop European football looking like sports leagues in North America? I think this is also plausible, and it would justify action designed to curtail the viability of any breakaway competition.

UEFA has other plausible legitimate objectives on which it may rely in responding to the threat of a SuperLeague. Protecting the calendar to prevent player overload would belong on this list; so too would protecting the pyramid structure of governance in order to ensure that all competitions are subject to the same rules globally rather than fragmented according to which organiser is in charge; and the re-distribution of income raised at élite level throughout the structure of the sport, in order to achieve some degree of vertical solidarity, is a further relevant concern. 

If (some or all of) those are legitimate aims, then one would need also to check whether UEFA's measures are proportionate and apt to achieve the end in view. The length of any ban would  be legally relevant, so too the breadth of its scope. The harsher the penalty, the less likely it is to survive proportionality-based review - yet of course the harsher the penalty, the more effective it is likely to be. Here too a detailed context-specific analysis would be required, but one may think that sanctions imposed on clubs would be more readily shown to be necessary and therefore justified than sanctions imposed on individual players. 

The implications under competition law would not be limited to measures taken directly by UEFA. The collective sale of broadcasting and other media rights to the UEFA Champions League falls within the scope of Article 101 because it restricts supply (by individual clubs as sellers), but it is permitted on the basis that it generates sufficient economic benefits.  It remains to be seen whether the sale of rights to a SuperLeague would be treated with similar indulgence: its closed nature and the extent to which it shares the proceeds of collective selling with the game more widely might induce sceptical assessment.

A prediction? It seems to me highly plausible in principle that EU law would permit some forms of action taken by UEFA against participants in a SuperLeague which are designed to protect the legitimate interests of a governing body with overall responsibility for its sport, subject to meeting the demands of the principle of proportionality. But one needs to be fully aware that competition law, like high level sport, rarely yields a wholly confident prediction. A SuperLeague will be using it too, to argue that it is injecting fresh competition into the market for sports events and that accordingly it should be protected from sanctions. These are difficult legal arguments, for which both legislative texts and precise case law precedents are wanting.

What next?

The contempt directed at the owners of the twelve clubs involved in the breakaway has been torrential. Disdain for VAR unites football fans, but that unwelcome intrusion of technology into the frantic pace of a proper football match is a pimple alongside the wrecking ball arrogance of the SuperLeague. The protests appear to have brought the plan unveiled on Monday 19 April 2021 to its knees. The twelve clubs, it seems, will remain within the existing arrangements and play in the existing competitions. But the biggest clubs have not lost their appetite for inducing UEFA to alter the design of the Champions League to suit their interests better. And although this SuperLeague appears to be dead, the threat of the breakaway league in European football remains the creature that will not die.

The legal and regulatory framework is not adequate to meet such challenges. Consider the frantic response to the SuperLeague. UEFA needed to decide what type of sanctions it would impose, doubtless after – urgent – consultations with national associations and FIFA, and perhaps with national governments minded to legislate too. UEFA needed to seek – urgent – advice from the Commission on its view of the impact of EU competition law on proposed sanctions, even if ultimately the authoritative voice on the meaning of EU law belongs to the Court of Justice. And UEFA was already faced by – urgent – applications to national courts on behalf of the SuperLeague 12 seeking to secure orders restraining the imposition of any penalties.

On all these points the law is not clear. EU competition law does not provide a checklist of sanctions which UEFA may lawfully impose and those which go too far. EU law more generally does not regulate directly the structure of governance in European sport. Nor do national laws provide clear controls. Governing bodies in sport have been largely successful in sheltering their autonomy from legal regulation. The SuperLeague fiasco should prompt a re-think. What is UEFA’s autonomy’s worth, when it is revealed to be so vulnerable to the concerted strategies of the biggest clubs? This breakaway failed, but the creature is not dead, and the next version, more skilfully prepared, might succeed.

Re-thinking sporting autonomy

In the past UEFA, jealous of its sporting autonomy, frequently called into question the legitimacy of EU intervention. The judgment in Bosman records that UEFA had requested the Court to order a measure of inquiry under its Rules of Procedure in order to obtain fuller information on the role played by transfer fees in the financing of the game, but the Court, noting that UEFA had haplessly failed to submit this request before the close of the oral procedure, refused. Things have changed. UEFA has come to understand the strategic advantage of keeping the EU, most immediately the Commission, onside.

In 2012 a ‘Joint Statement’ by the EU Commissioner then responsible for competition law, Joaquín Almunia, and Michel Platini, then President of UEFA, declared that the ‘break even’ rule at the heart of UEFA’s system of ‘Financial Fair Play’ is based on sound economic principle and that its objectives are consistent with EU state aid policy (IP/12/264). This ‘Joint Statement’ is not legally binding and its analysis lacks depth, but its very existence demonstrates that UEFA, here also reflecting the interests of Europe’s leading football clubs, has succeeded in getting close to the Commission and securing its informal approval. This strategy of co-operation rather than confrontation also marked the reform of the transfer system after Bosman. In March 2001 the Commission declared it had formalized the matter in an exchange of letters between Mario Monti, at the time the Commissioner for Competition, and Sepp Blatter, President of FIFA (IP/01/314). Pending litigation was settled and brought to an end, and the Commission announced closure of its own investigation in June 2002 (IP/02/824). This has no formal status, and, as with FFP, one cannot exclude that a court would take a different view, but for the time being a co-operative solution prevails. Moreover the involvement of FIFA reminds that the effect of EU law is frequently not confined to EU territory alone. The economic centrality of Europe to many, if not all, sports means that in practice the need to adjust practices to comply with EU law sometimes entails that adjustment operates more widely. EU’s norms become global norms. Note too that since 2014 the Commission and UEFA have had a formal arrangement for co-operation.

For present purposes the principal point of interest is that here the governing body, UEFA, has a real and direct interest not in securing autonomy from EU law but rather in using it to defend its existing model of governance and, most of all, its premier club competition, the Champions League. Pursuit of a more intimate relationship with the EU may involve a diminution of autonomy from regulation but it may the best way for UEFA to protect its autonomy from the avaricious might of the biggest clubs. The EU is an imperfect regulator of sport – it lacks expertise, its competence is not comprehensive, and the geographical boundaries of the EU mean nothing to football. But it will be intriguing to observe whether April 2021’s eruption prompts demands for a more assertive EU, able and willing to move beyond the ad hoc application of competition law and to adopt instead a more proactive role, seeking to establish minimum standards of good governance while ruling out sporting competitions which depart from merit-based criteria for admission. It would – and should – be a chance too for the EU to insist on a more serious commitment to re-distribution of wealth within European football. The biggest clubs have induced the transformation of the Champions League into a competition in which only a small pool of clubs may aspire to reach the later stages, let alone win it, and the disproportionate benefits which attach to mere participation in it have wreaked havoc with competitive balance in smaller national leagues across Europe. UEFA needs EU backing to stop these trends, and to reverse them. This would transform the ‘European Model of Sport’ from windy rhetoric and window-dressing to something more concrete and normative.

Consider too national political processes. In the short term had there been a need to stop the SuperLeague by immediate intervention, then it is national political processes which have the power to act with the necessary speed. Legislation could forbid closed Leagues. A higher level of state intervention in sport would be another threat to UEFA’s autonomy, and would likely be accompanied by pressure to reform its governance, yet it would also provide UEFA with a further means to defend its model from the destructive power unleashed by a SuperLeague. So ‘will politics show its teeth and confer a real-sanctioned monopoly to the football pyramid … [as] a transnational public service?’ (Antoine Duval, April 19 2021). After all, tongue in cheek, ‘political interference with sports is only bad if it goes against governing bodies’ objectives’ (Borja García, April 19 2021).

Conclusion

Radical change is often generated by moments of crisis, and it could be that the prime movers behind the ‘SuperLeague’ will come to be seen as having provoked a strengthening, not a weakening, of UEFA’s regulatory and commercial profile. This, however, does depend on UEFA, the EU and national politicians seizing the moment, and acting now to reform governance. They should not assume that because the current crisis is over, business as usual will resume. The unsystematic character of EU competition law should serve to focus attention on the need for broader intervention by the EU in order to protect and improve established systems of governance. Faced by the biggest clubs’ plain disdain for matters of fundamental sporting significance in Europe such as merit-based qualification for competitions and open Leagues with promotion and relegation, UEFA may find the EU a helpful ally: so too it may find a higher level of readiness to intervene in sport at state level serves its purposes. A durable accommodation between sporting tradition and commercially-driven innovation is desperately needed, or else fans can gloomily anticipate the emergence of many more malformed creatures. The creature is not dead.

Editor's note: James Kitching is Legal Counsel and Secretary to the AFC judicial bodies at the Asian Football Confederation. James is an Australian and Italian citizen and one of the few Australians working in international sports law. He is admitted as barrister and solicitor in the Supreme Court of South Australia. James graduated from the International Master in the Management, Law, and Humanities of Sport offered by the Centre International d'Etude du Sport in July 2012.

Introduction

On 12 May 2015, the Court of Arbitration for Sport (CAS) announced that the World Anti-Doping Agency (WADA) had filed an appeal against the decision issued by the Australian Football League (AFL) Anti-Doping Tribunal (AADT) that thirty-four current and former players of Essendon Football Club (Essendon) had not committed any anti-doping rule violation (ADRV) identified within the AFL Anti-Doping Code (AADC). The players had each been charged with using Thymosin-Beta 4 (TB4) during the 2012 AFL season.

On 1 June 2015, WADA announced that it had filed an appeal against the decision by the AADT to clear Mr. Stephen Dank (Dank), a sports scientist employed at Essendon during the relevant period, of twenty-one charges of violating the AADC. Dank was, however, found guilty of ten charges and banned for life.

This blog will solely discuss the likelihood of the first AADT decision (the Decision) being overturned by the CAS. It will briefly summarise the facts, discuss the applicable rules and decision of the AADT, review similar cases involving ‘non-analytical positive’ ADRVs relating to the use of a prohibited substance or a prohibited method, and examine whether the Code of Sports-related Arbitration (CAS Code) is able to assist WADA in its appeal.

This blog will not examine the soap opera that was the two years leading-up to the Decision. Readers seeking a comprehensive factual background should view the excellent up-to-date timeline published by the Australian Broadcasting Corporation. 

Factual Background

“Blackest day in Australian sport”

The Decision ultimately derived from what one media commentator dubbed the “blackest day in Australian sport” .

On 7 February 2013, the chief executives of the five biggest Australian sports appeared beside the Federal Sports Minister, Federal Justice Minister, and CEOs of the Australian Sports Anti-Doping Agency (ASADA), and Australian Crime Commission (ACC) at a press conference which detailed the findings of a twelve month inquiry into Australian professional sport. The resulting report, “Organised Crime and Drugs in Sport”, set out that the ACC had identified or suspected widespread use of peptides and hormones in Australian professional sport.

Two days prior, Essendon had requested that ASADA and the AFL investigate whether prohibited substances had been administered to its players during the 2012 season.

AFL disciplinary action

On 2 August 2013, the AFL received an interim report from ASADA and eleven days later charged Essendon and four officers with engaging “in conduct unbecoming or likely to prejudice the interests or reputation of the Australian Football League or to bring the game of football into disrepute”. Essendon and three of the officials were ultimately sanctioned.

The grounds for the charges make for sobering reading. The highlights appear below (emphasis added):

51. With the assistance of Shane Charter (Charter), a convicted drug dealer, Dank ordered various peptides, or the raw materials for such peptides. The compounding of these substances was undertaken by Nima Alavi (Alavi) at the Como Compounding Pharmacy (Como). At least some of these substances were intended by Dank for administration to players at the Club and were in fact administered to players at the Club.

…

67. On 8 February 2012, at a meeting of players of the Club, Dank introduced four substances that were purportedly approved for use in accordance with the Protocol…

68. Following that meeting, 38 players at the Club signed “Patient Information/Informed Consent” forms in relation to these four substances…

69. If the dosages the subject of the “Patient Information/Informed Consent” forms were administered, the playing group would receive in the order of:

(a) more than 1,500 injections of AOD-9064 and Thymosin; and

(b) more than 16,500 doses of Colostrum; and

(c) more than 8,000 doses of Tribulus.

…

124. During the relevant period, the Club caused the following substances to be administered to players at the Club:

(a) Actovegin;

(b) unspecified amino acids

(c) unspecified multi-vitamins;

(d) AOD-9604 creams;

(e) AOD-9604 injections;

(f) Cerebrolysin;

(g) Colostrum;

 (h) REDACTED;

(i) Lactaway;

(j) Lube-all-plus;

(k) Melatonin;

(l) Melanotan II;

(m) TA-65;

(n) Thymosin Beta 4;

(o) Traumeel; and

(p) Tribulus.

125. The use of these substances by the players was not approved by the Club’s medical staff, with the exception of AOD-9604, which was the subject of some sort of informal approval by Reid in February 2012.

126. In many instances the use of these substances failed to have proper regard to player health and safety.

127. Proper records were not maintained by the Club as to precisely which players received which of the substances referred to in paragraph 124 above, in which quantities and when, during the relevant period.

AFL Anti-Doping Tribunal

Applicable Rules

On 14 November 2014, the AFL issued identical infraction notices to the 34 players alleging use of the prohibited substance TB4 during the 2012 season in violation of Article 11.2 of the AADC. The players were provisionally suspended on the same day. The infraction notices were issued after the players were placed on the ADRV Register of Findings on 12 November 2014 by an independent Anti-Doping Rule Violation Panel pursuant to the National Anti-Doping Scheme prescribed in the Australian Sports Anti-Doping Authority Act 2006.

As the alleged misconduct occurred during the 2012 AFL season, the applicable version of the AADC was the 2010 edition. This version was effectively a mirror of the WADA Code 2009.

As such, the standards applied universally by sports disciplinary and anti-doping panels applied. Accordingly, AFL and/or ASADA bore the burden of proving each ADRV to the comfortable satisfaction of the AADT, bearing in mind the seriousness of each allegation made. Such standard of proof was greater than a mere balance of probability, but less than beyond a reasonable doubt.[1] The AFL and/or ASADA were able to establish the allegations by “any reliable means”.[2]

Decision

The hearing was conducted on various dates between December 2014 and February 2015. The Decision was announced on 31 March 2015. However, its written reasons have never been made public. As such, determining the evidence that was available has been gleaned from numerous media reports (including this comprehensive piece by Gerard Whateley), public announcements, and leaked documents. The author has also had the benefit of discussing the matter with a number of parties close to the proceedings.

It was agreed by the parties that the case against each player had two limbs:

(i)           during the 2012 AFL season, the player used (through injections) TB4; and

(ii)          TB4 was a prohibited substance on the relevant WADA Prohibited List.

As a threshold issue, the AADT was comfortably satisfied that TB4 was a prohibited substance within the category of substances set out in s2 of the 2012 WADA Prohibited List:

“any pharmacological substance which is not addressed by any of the subsequent sections of the list and with no current approval by any governmental regulatory health authority for human therapeutic use”.

Thus, the case turned on the ability of ASADA to discharge its burden of proof relating to the first limb. This limb was broken down into three elements, agreed by the parties, which formed the basis of the ASADA case:

(a)          TB4 was procured from sources in China;

(b)          TB4 was obtained by Alavi, compounded and provided to Dank in his   capacity as Sports Scientist at Essendon; and

(c)           Dank administered TB4 to each player.

This was essentially the same conduct, described above, for which Essendon and its four officials were sanctioned.

Charter, Alavi and Dank all refused to appear at the hearing, and ASADA failed in a last-ditch application to the Victorian Supreme Court to compel Charter and Alavi to appear pursuant to the Commercial Arbitration Act 2011.[3] As such, ASADA’s case was wholly circumstantial, and relied, in a large part, on testimony and documents provided to it by Charter and Alavi during its investigation, and statements made by Dank in the media.

The AADT thus had an unenviable task in determining the probative value of the evidence provided by key witnesses without having the benefit of observing them under examination and cross-examination. As such, the AADT held (emphasis added):

“Having considered all the evidence relating to the credibility and reliability of Mr Alavi, Mr Charter and Mr Dank … the Tribunal finds that the credibility of each of these principal participants is at a low ebb and each man in acting as he did in his own way and for his own motive saw a golden opportunity to “feather his own nest.” Their lack of credibility is reflected when their reliability is called into question and the Tribunal is satisfied that on a number of important issues their evidence on those issues was not only unreliable but also … dishonest.”

In the absence of reliable direct evidence to establish that the players had used TB4, the decision of the AADT ultimately turned on these adverse credibility findings.

In relation to the first element, ASADA led (predominantly) documentary evidence to demonstrate that two shipments of substances (in December 2011 and February 2012) were procured from China, both of which included TB4, and were provided to Alavi. A substance in the second shipment was tested in May 2012 at a laboratory connected to the University of Melbourne, and the results proved the substance was TB4. As such, the substance that was purported to be TB4 in both shipments, as a result of the test results, was TB4.

After a thorough examination of the evidence and arguments of the players, and in particular, the fact that the majority of evidence had been obtained from dishonest witnesses, the AADT held that the first shipment had occurred, but that the second shipment had not. However, the AADT still considered the veracity of the test results, and whether they gave rise to the position that TB4 was procured in the first shipment. Faced with contrasting expert reports, which gave margin for error in the test results, the AADT ultimately held that “it is possible it was [TB4], but the Tribunal is not comfortably satisfied that it was”.

In relation to the second element, the AADT was not comfortably satisfied that TB4 was compounded or provided to Dank. As a result of its findings relating to the first and second elements, the AADT did not “consider it necessary to consider the third element…as it is dependent upon the first and second elements…being established and neither has been established to the comfortable satisfaction of the Tribunal”.

Accordingly, the AADT was not comfortably satisfied that the first limb required to prove the ADRV was made out, and exonerated each player of their charge.

Non-analytical positive “use”

The Decision is a classic non-analytical positive “use” case.[4] In this class of cases, as no adverse analytical finding is recorded, the relevant anti-doping organisation must rely on a combination of direct and/or circumstantial evidence in order to discharge its burden of proving use of a prohibited substance or method.

Comfortable Satisfaction

Prior to the implementation of the WADA Code, sports arbitration panels embryonically decided to apply a ‘comfortable satisfaction’ standard of proof; less than the criminal standard of proof beyond a reasonable doubt but more than the ordinary civil standard of proof on the balance of probabilities.[5]

This standard was preferred due to sports disciplinary cases not being criminal in nature, but rather, a private law of association type.[6] This principle has been consistently upheld and was espoused as such by the Swiss Federal Tribunal: “the duty of proof and assessment of evidence [are] problems which cannot be regulated, in private law cases, on the basis of concepts specific to criminal law”.[7]

However, precisely where this standard falls between the criminal and civil standards is unclear.[8] That anti-doping cases are presented in a quasi-criminal manner suggests they should be closer to the latter, but the private nature of sports disciplinary cases suggests that the lesser standard is more appropriate.

This distinction is significantly important to WADA overturning the Decision. In its press release after receiving the Statement of Appeal, the CAS recorded that “WADA requests that the CAS issue a new decision based on an appropriate burden of proof and evidentiary standards”. As such, it is clear that WADA considers that the standard of proof applied by the AADT was too high when considering the evidence.

However, an analysis of a number of prior decisions suggests that the standard of proof in this class of cases has always been close to the criminal standard. The jurisprudence suggests that Panels rely solely on direct and incontrovertible testimonial, documentary, and scientific evidence to sanction individuals for “use” violations.

pre WADA Code cases

In French[9], it was alleged that French used prohibited substances after the discovery of a bucket of used syringes, needles containing traces of a prohibited substance, and a supplement whose label stated that it contained a prohibited substance, inside his room at his athlete residence. The CAS, however, was not comfortably satisfied as there was “no direct evidence that Mr. French had used the material in the sense that no-one saw him use it and he has consistently denied use”.[10] Furthermore, that the label stated the name of the prohibited substance was not sufficient to prove that the supplement actually contained the prohibited substance.[11]

In A., B., C., D., E. v IOC[12], five simultaneously-decided cases, the CAS held that admissions of undertaking or performing blood transfusions, coupled with the discovery of instruments and chemicals necessary for blood-doping in their residence during the 2002 Winter Olympics, was sufficient evidence to sanction four individuals for using a prohibited method. In the absence of direct evidence against Mr. E, the only of the five whom argued that “he had nothing to do with the paraphernalia found in the chalet and that he did not perform any type of autologous or other blood manipulation while he was at the 2002 Winter Games”[13], the Panel issued a warning only.[14]

In Collins[15], a case deriving from the BALCO scandal, the United States Anti-Doping Agency (USADA) relied on a cache of emails where Collins admitted to using prohibited substances (both EPO and the hybrid testosterone “cream” developed by BALCO)[16], as well as test results of independent blood and urine tests arranged by BALCO.[17] Following expert testimony, the Panel found beyond a reasonable doubt (as was required by the relevant IAAF Rules) that her blood samples demonstrated EPO use in 2002 and 2003[18] and that her urine samples demonstrated “a pattern of testosterone and epitestosterone levels that can only be explained by the illegal use of BALCO’s cream”.[19]

post WADA Code cases

In Gaines[20] and Montgomery[21], two further BALCO cases heard simultaneously, following argument on the appropriate standard, the Panels stated: (emphasis added)

“From this perspective, and in view of the nature and gravity of the allegations at issue in these proceedings, there is no practical distinction between the standards of proof advocated by USADA and the Respondents. It makes little, if indeed any, difference whether a “beyond reasonable doubt” or “comfortable satisfaction” standard is applied to determine the claims against the Respondents. This will become all the more manifest in due course, when the Panel renders its awards on the merits of the USADA’s claims. Either way, USADA bears the burden of proving, by strong evidence commensurate with the serious claims it makes, that the Respondents committed the doping offences in question”.[22]

Similar to Collins, the USADA relied on a multitude of testimonial, documentary and scientific evidence to allege use of a prohibited substance. However, the Panel ultimately decided that admissions about their use of the infamous “Cream” developed by BALCO to their ex-teammate Kelli White, was “sufficient in and out of itself”[23] to comfortably satisfy themselves of the athletes’ guilt.

In Hamilton[24], the Panel cited the discussion of the appropriate standard referred to in Gaines and Montgomery but did not explicitly apply it.[25] After upholding the reliability and validity of the homologous transfusion test of Hamilton’s blood samples, the Panel relied upon these test results to be comfortably satisfied that Hamilton had used a prohibited method.[26] A similar approach was undertaken by the Panel in Pechstein[27] to find that %retics peaks in her blood sample of February 2009 were abnormal and that accordingly she had used a prohibited method.

In the Cyprus case[28], WADA and FIFA appealed a decision of the Cyprus Football Association (CFA). Prior to a number of league matches, a club coach administered two pills (which he had independently sourced) to the starting line-up, claiming them to be caffeine pills and/or vitamins.[29] Two players subsequently recorded an adverse analytical finding for a prohibited substance, while five others who did not test positive admitted to investigators that they had also used the pills. Only the two players and the coach were sanctioned by the CFA. WADA alleged that the CFA had erroneously failed to sanction the five players. The Panel was not comfortably satisfied of this conclusion:

199. The Panel notes, in fact, that there is no evidence that the actual pills individually used by each of the Other Players contained a prohibited substance. Indeed some players took the pills, were subsequently tested and there was no adverse analytical finding.

200. No clear cut evidence was brought to show that…the pills administered…were “plain steroids” and not “caffeine pills” contaminated by steroids”.[30]

The most famous case in this class, albeit never reviewed by an arbitration panel, was Armstrong.[31] The USADA relied on witness testimony which provided direct evidence of Armstrong using prohibited substances or prohibited methods during the 1999, 2000, 2002, 2003, 2004, and 2005 Tour de France races. The USADA also utilised financial records linking Armstrong to the disgraced sports doctor, Dr. Michele Ferrari, as well as undertaking retesting of old samples which purportedly demonstrated EPO use at the 1999 Tour de France, and provided a “compelling argument consistent with blood doping” at the 2010 Tour de France.

Conclusions

Two overriding conclusions can be drawn.

The first is that there is no definitive answer to the question of what evidence shall be presented to prove a non-positive analytical “use” case.[32] As stated by the Panels in Gaines and Montgomery:

“[d]oping offences can be proved by a variety of means; and this is nowhere more true than in “non-analytical positive” cases such as the present”.[33]

The second is that the standard of proof is significantly closer to the criminal than the civil standard. Indeed, in Gaines and Montgomery, the Panels could draw no distinction between beyond a reasonable doubt and comfortable satisfaction, taking into account the allegations raised and the sanctions requested. This elevated standard becomes clear in those matters which relied solely upon circumstantial as opposed to direct evidence.

In French and the Cyprus case, the Panels held that admissions could be relied upon only where there was unambiguous evidence that the substance used either was or contained a prohibited substance. Thus, a label on supplement packaging which lists a prohibited substance as an ingredient, or the ingestion of a pill taken from the same batch as one ingested by a teammate who subsequently tests positive, are not enough on their own to comfortably satisfy a Panel that a used substance was a prohibited substance.

Effectively, the cases require the party bearing the evidentiary burden to prove that the used substance or method was without doubt the substance or method alleged; in other words, the highest possible standard of ‘comfortable satisfaction’. Even in Pechstein, where the Panel emphatically rejected the Appellant’s request to apply a higher than normal standard of proof and stated that it would apply the “normal comfortable satisfaction standard”,[34] the Panel still blurred the lines between the two after systematically reviewing and rejecting each of the Appellant’s argument, leaving little doubt in its own mind that the use of a prohibited method was the only possible reason for the blood abnormalities.

To meet this standard, the cases articulate that only direct evidence should be adduced. This includes: admitting to using a proven prohibited substance or prohibited method; scientific evidence of which no credible explanation other than the use of a prohibited substance or prohibited method is possible; scientific evidence which demonstrates that a substance used is a prohibited substance; witness observations of use; and witness testimony of direct admissions.

One further conclusion can be drawn: WADA, on the basis of its current evidence, is unlikely to overturn the Decision. The inherited ASADA case was wholly circumstantial. It did not contain direct, incontrovertible evidence from any of the classes seen in the previous cases. Its key witnesses chose not to testify, nor could they be compelled under Australian law, and nor is it likely that they can be compelled under Swiss law to attend at the CAS.[35] As such, WADA’s prospects of success hinge upon its ability to adduce new and direct evidence of the use of TB4 by the players. 

Will R57.3 of the CAS Code prevent WADA from adducing new and direct evidence?

R57 of the CAS Code provides that a Panel in the appeal arbitration division has “full power to review the facts and the law”. Appeals are heard de novo and any procedural fairness issues deriving from the first-instance are thus automatically cured. This interpretation has been upheld in numerous Awards and the Swiss Federal Tribunal.[36]

R57.3 of the CAS Code, introduced in 2013, provides one limitation: “[t]he Panel has the discretion to exclude evidence presented by the parties if it was available to them or could reasonably have been discovered by them before the challenged decision was rendered”. This is consistent with Swiss procedural law in that a document can only be adduced, at an appellate hearing, if it did not exist at the time of the first instance hearing or hearings or was not in the possession of the appellant at the time.[37]

According to Rigozzi et al, in appeals against decisions rendered by sports-governing bodies, the scope of R57.3 should extend only to those cases “where the adducing of pre-existing evidence amounts to abusive or otherwise unacceptable procedural conduct by a party”.[38]

Mavromatis characterises de novo review as “not only desirable, but also necessary for a number of reasons, to the extent that the previous instance is not an independent arbitral tribunal but the internal body of a sports federation”.[39] As such, R57.3 should be interpreted “as not to circumvent the core principle of the Panel’s full power of review”[40].

In two recent Awards, the Panels held that this discretion should be exercised with caution, in situations where a party may have engaged in abusive procedural behaviour or in any other circumstances where the Panel might, in its discretion, consider it either unfair or inappropriate to admit new evidence.[41]

In SC FC Sportul Studentesc SA[42], the Sole Arbitrator excluded the principal evidence supporting the appeal as he was not provided any satisfactory explanation why it could not be submitted or adduced during the two sports-governing body proceedings.[43]

Hence, it is only in rare cases that the CAS limits its power of full review. Thus, as long as new evidence adduced by WADA is neither abusive nor can be construed as unacceptable procedural conduct, it is highly unlikely to be excluded. Levy has suggested that such exclusions may give rise to an appeal to the Swiss Federal Tribunal due to the denial of the right to be heard.[44] In any event, WADA was not a party at first instance, so it remains questionable whether R57.3 may even be utilised by the players. 

Conclusion

The biggest soap opera in the history of Australian sport will come to a conclusion some time prior to the 2016 AFL season. At the time of publishing, the CAS has recently announced the hearing timeline.

Media reports have recently suggested that WADA ordered retesting of samples obtained from the players in 2011-2012, resulting in two samples demonstrating abnormally high levels of TB4. As set out above, the previous cases suggest that only this type of direct evidence will be able to convince a Panel to the requisite standard. The challenge for WADA, given the length of the ASADA investigation, is to find it.

An independent report commissioned by Essendon published in May 2013, graphically described its supplements programme as “a pharmacologically experimental environment never adequately controlled or challenged or documented within the Club in the period under review”. It is not disputed that the players must ultimately take full responsibility for each substance that presents in their body.

However, at the same time, the gross inadequacies in the governance at Essendon during the period – failures in documentation and record keeping, lack of (proper) informed consent for the players, uncertainty in the supplements administrated, and the creation of an unsafe work environment, among others – for which the club was already heavily sanctioned and which gave rise to the investigation in the first place, ironically appears to be the main obstacle preventing WADA from discharging its burden of proof.

[1] AFL Anti-Doping Code (2010 Edition), Article 15.1.

[2] AFL Anti-Doping Code (2010 Edition), Article 15.1.

^[3] ASADA v 34 Players and One Support Person [2014] VSC 635. 

[4] See e.g. Richard H McLaren, An Overview of Non-Analytical Positive & Circumstantial Evidence Cases in Sports, 16 Marq. Sports L. Rev. 193 (2006).

[5] See e.g. N., J., Y., W. v Federation Internationale de Natation CAS 98/208.

[6] Ibid.

[7] SFT, 5P83/1999, para. 3.d.

[8] Michael Straubel, Enhancing the Performance of the Doping Court: How the Court of Arbitration for Sport Can Do Its Job Better, 36 Loy. U. Chi. L. J. 1203 (2005), at 1270.

[9] Mark French vs Australian Sports Commission and Cycling Australia, CAS 2004/A/651.

[10] French at 58.

[11] French at 51.

[12] A., B., C., D. & E. v International Olympic Committee, CAS 2002/A/389, 390, 391, 392, 393.

[13] A., B., C., D. & E. v IOC at 53.

[14] A., B., C., D. & E. v IOC at 53.

[15] United States Anti-Doping Agency vs Michelle Collins, AAA No. 30 190 00658 04.

[16] Collins at 1.3, 4.1, 4.2, 4.3, 4.4.

[17] Collins at 1.3, 4.11 – 4.24.

[18] Collins at 4.16.

[19] Collins at 4.17.

[20] United States Anti-Doping Agency vs Chryste Gaines, CAS 2004/O/649.

[21] United States Anti-Doping Agency vs Tim Montgomery, CAS 2004/O/645

[22] Gaines at 36, Montgomery at 36.

[23] Gaines at 52, Montgomery at 50.

[24]Tyler Hamilton vs United States Anti-Doping Agency and Union Cycliste International, CAS 2005/A/884.

[25] Hamilton at 47.

[26] Hamilton at 91.

[27] Claudia Pechstein vs International Skating Union, CAS 2009/A/1912.

[28] World Anti-Doping Agency and Federazione International de Football Association v Cyprus Football Association, Carlos Marques, Leonel Medeiros, Edward Eranosian, Angelos Efthymiou, Yiannis Sfakianakis, Dmytro Mykhailenko, Samir Bengeloun, Bernardo Vasconcelos, CAS 2009/A/1817.

[29] WADA & FIFA v CFA et al at 14.

[30] WADA & FIFA v CFA et al at 198-200.

[31] United States Anti-Doping Agency vs Lance Armstrong, Reasoned decision of the USADA on disqualification and eligibility (10 October 2012).

[32] McLaren at 212.

[33] Gaines at 45, Montgomery at 45.

[34] Pechstein at 123-126.

[35] See this piece for an excellent analysis of the operation of the powers of compulsion within the Swiss Public International Law Act vis-à-vis Australian law: < http://sociallitigator.com/2015/05/25/essendon-supplements-saga-is-it-up-up-and-away-to-switzerland/>.

[36] see FC Sion v Federation Internationale de Football Association & Al-Ahly Sporting Club, CAS 2009/A/1880; E v Federation Internationale de Football Association, CAS 2009/A/1881; Eintracht Braunschweig GmbH & Co. KG a. A. v. Olympiakos FC CAS 2012/A/2836; SFT 4A_386/2010

[37] Article 317 of the Swiss Civil Procedure Code.

[38] Antonio Rigozzi /Erika Hassler / Brianna Quin, The 2011, 2012 and 2013 revisions to the Code of Sports-related Arbitration, in: Jusletter 3 juin 2013, at 14.

[39] Despina Mavromatis, The Panel’s Right to Exclude Evidence Based on Article R57 Para. 3 CAS Code: a Limit to CAS’ Full Power of Review, in CAS Bulletin 1/2014, at 56.

[40] Mavromatis at 56.

[41] See Zamalek Sporting Club vs Accra Hearts of Oak Sporting Club, CAS 2014/A/3518; MFK Dubnica v FC Parma, CAS 2014/A/3486.

[42] SC FC Sportul Studentesc SA v Romanian Football Federation & several players, CAS 2013/A/3286-3294.

[43] SC FC Sportul Studentesc SA at 66-70.

[44] Roy Levy, The new CAS rules – what you need to know, at < http://www.lawinsport.com/blog/roy-levy/item/the-new-cas-rules-what-you-need-to-know>.

My favourite speed skater (Full disclosure: I have a thing for speed skaters bothering the ISU), Claudia Pechstein, is back in the news! And not from the place I expected. While all my attention was absorbed by the Bundesverfassungsgericht in Karlsruhe (BVerfG or German Constitutional Court), I should have looked to the European Court of Human Rights in Strasbourg (ECtHR). The Pechstein and Mutu joint cases were pending for a long time (since 2010) and I did not anticipate that the ECtHR would render its decision before the BVerfG. The decision released last week (only available in French at this stage) looked at first like a renewed vindication of the CAS (similar to the Bundesgerichtshof (BGH) ruling in the Pechstein case), and is being presented like that by the CAS, but after careful reading of the judgment I believe this is rather a pyrrhic victory for the status quo at the CAS. As I will show, this ruling puts to rest an important debate surrounding CAS arbitration since 20 years: CAS arbitration is (at least in its much-used appeal format in disciplinary cases) forced arbitration. Furthermore, stemming from this important acknowledgment is the recognition that CAS proceedings must comply with Article 6 § 1 of the European Convention of Human Rights (ECHR), in particular hearings must in principle be held in public and decisions freely available to all. Finally, I will criticise the Court’s finding that CAS complies with the requirements of independence and impartiality imposed by Article 6 § 1 ECHR. I will not rehash the  well-known facts of both cases, in order to focus on the core findings of the decision.

I.               CAS arbitration is recognised as forced arbitration: Hallelujah!

As many of you will know, longstanding doctrinal debates have been raging on the question whether athletes freely consent to CAS arbitration.[1] I have argued at length that CAS arbitration is fundamentally post-consensual arbitration and I am obviously quite happy to see the ECtHR endorsing this view today. However, this is not true in all CAS cases: ordinary arbitration often involving commercial disputes will most likely be consented to by both parties. Moreover, as will be discussed below, the ECtHR choose to distinguish between Pechstein and Mutu in its assessment of the free consent to CAS arbitration.

Regarding Pechstein, the key paragraphs of the decision are found between §109 and §115. The Court finds that the International Skating Union (ISU)’s regulations were imposing CAS’ jurisdiction for disciplinary matters (§109) and that Pechstein was forced to accept the arbitral clause if she was to participate in ISU competitions (§110). In this context, it refers to the famous holding of the Swiss Federal tribunal in the Cañas decision acknowledging the forced nature of arbitration in sport (§111) and to the ISU decision of the European Commission finding that the ISU is in a quasi-monopolistic position on the market for the organisation of speed skating competitions (§112). This leads to the key deduction by the Court, that Pechstein’s choice in the present case “was not to participate in one competition instead of another, depending on her acquiescence or not to the arbitral clause” (§113). Thus, her case is not deemed analogous to the commercial arbitration cases handled previously by the ECtHR. Instead, the Court holds that “[i]n light of the effects that a non-acceptance of the arbitral clause would have on the professional life of the claimant, one cannot assert that the latter has accepted the clause in a free and non-equivocal fashion.” (§115) Hence, the Court concludes, “even though the clause was not imposed by law but by the regulations of the ISU, the acceptance of the jurisdiction of the CAS by the claimant must be understood as a “forced” arbitration in the sense of [the Court’s] jurisprudence”. (§115) Thus came to an end a never-ending doctrinal debate on the consensual nature of CAS arbitration, at least when the CAS clause is imposed by a dominant SGB as a condition to participate in sports competitions.

Interestingly, the Court distinguished Mutu from Pechstein. Indeed, the Court notes “the situation of [Mutu] is different from [Pechstein’s] because the applicable regulation of the sporting federation [FIFA] involved did not impose arbitration but left the choice of dispute resolution mechanism to the contractual freedom of clubs and players” (§116). Mutu invoked the imbalanced between clubs and players to argue that he was forced to accept the clause. Yet, the Court rejects this line of arguments on the basis that he failed to provide evidence supporting the fact that all the players at Chelsea had accepted an arbitration clause or that no other club would have recruited him without the insertion of an arbitration clause into his employment contract (§117-119). The Court concludes that contrary to Pechstein, Mutu “has not demonstrated that the only choice available to him was to accept the arbitration clause to be able to earn a living through the professional practice of his sport, or to refuse it and renounce altogether his professional career.” Hence, the Court considers that Mutu’s situation is not a case of ”forced” arbitration (§120). Nonetheless, the Court’s assessment of the consent to arbitration is quite strict: not only should the consent be free, it must also be unequivocal. In other words, Mutu by freely opting for the jurisdiction of CAS instead of the national courts must “have renounced in full awareness the right to have his dispute with Chelsea decided by an independent and impartial tribunal” (§121). In the present case, as Mutu challenged the independence and impartiality of the CAS arbitrator nominated by Chelsea, the Court considered that one cannot take for granted that he had renounced unequivocally to contest the independence and impartiality of the CAS in a dispute involving Chelsea (§122). This part of the judgment has potentially extremely wide implications beyond sports arbitration, as the Court seems to indicate that any challenge to the independence or impartiality of an arbitrator could harm the validity of an arbitration clause freely consented to by the parties.

In conclusion, after this decision it will be very difficult to argue that disciplinary cases (e.g. doping cases) submitted to the CAS through the appeal procedure are grounded in free consent. Nonetheless, as pointed out by the Court in § 98 of the ruling, there are good post-consensual foundations to justify forced CAS arbitration. This post-consensual arbitration might come as a surprise to some, but law is fundamentally a pragmatic practice of social ordering, which is flexible enough to adapt to specific realities. The fact that in the world of sport a type of transnational authority is exercised by a network of (mainly) Swiss associations, which submit their final disciplinary decisions to the mandatory review of the CAS, might be necessary to ensure that international sporting competitions take place on a level playing field. However, and this is the great virtue of the present judgment, CAS will not be allowed to hide behind a fictitious arbitration label to escape full compliance with the procedural rights enshrined in Article 6 § 1 ECHR. 

II.             CAS arbitration must comply with Article 6 § 1 ECHR

The most important consequence of the Court’s recognition that CAS arbitration was forced in the case of Pechstein and equivocal in the case of Mutu is that CAS has to fully comply with the fundamental procedural rights guaranteed by Article 6 § 1 ECHR (in particular its civil limb, see the ECHR guide on Article 6). Specifically, the Court focused on the publicity of hearings and the independence of the CAS. Regarding the former it concluded, rightly in my view, that the lack of publicity of Pechstein’s hearing violated the ECHR. However, I (and more importantly two judges of the ECtHR) do dissent from the Court’s finding that the CAS is sufficiently independent vis-à-vis the SGBs. 

A.    The day CAS went public: Towards transparency in CAS proceedings and beyond

The CAS is at the same time one of the globe’s most famous and secretive transnational courts. Every sports fan around the world knows it and many journalists follow its press releases and skim through its awards (when published). Based on citations in the media, it is probably one of the (if not the) most covered and publicly discussed international courts, and yet it is also the most secretive. The publicity of hearings and judgments of national and international courts is the norm around the world, and confidentiality an exception reserved to cases in which the security and/or the privacy of an individual might call for it. In scholarship, the transparency of the CAS is often favourably compared to commercial arbitration as it publishes some (systematically less than 30%) of its awards. Yet, as is readily acknowledged by this judgment, the true comparison should be made with national and international courts, as the jurisdiction of the CAS is not grounded on free consent.

In practice, the Court found that in the Pechstein case, the CAS should have organised a public hearing as Pechstein expressly requested. Indeed, the Court points out that “the questions discussed in the framework of the challenged procedure – which related to the question whether the claimant was rightly sanctioned for doping, and for which the CAS heard numerous experts – necessitated the organisation of a hearing under the control of the public” (§182). The Court notes in support of its finding that “there was a controversy over the facts and that the sanction imposed on the claimant had a ignominious nature, which was susceptible to damage her professional reputation and credibility” (§182). And concludes that the lack of publicity of the debates before the CAS violates Article 6 §1 ECHR.

This is a first important step towards imposing more transparency at the CAS (I have argued for radical transparency in a presentation at the Play The Game conference last year). Yet, the decision of the Court is not without ambiguity: will the CAS have to hold public hearings only when requested by the parties or should it systematically hold public hearings and revert to confidentiality only in exceptional circumstances? The existing case law of the ECHR points, in my view, to the latter alternative, but even the former would be a big leap forward for the CAS. Indeed, the a minima reading (read also on this issue the outstanding blog by Nick de Marco) of the judgment implies that the CAS will have to organise a public hearing if requested by one of the parties. In any case, a waiver of such a hearing will need to be freely consented to. Furthermore, and this was not touched upon in the present decision, Article 6 §1 ECHR also obliges to publicise judgments once adopted, with only the narrowest of exceptions. Currently, CAS is clearly in contravention with this obligation, as it does not systematically publish its (appeal) awards. This fundamental lack of transparency will have to be remedied quickly if the CAS is to operate in conformity with the present judgment.

B.    A fundamental dissent on CAS independence

The final, key, aspect of the judgment concerns the Court’s findings related to the independence and impartiality of the CAS. Under Article 6 § 1 ECHR, a case must be heard by an independent and impartial tribunal. It is, at least in my eyes, highly doubtful whether the CAS should be considered as such, yet the Court decided otherwise. This decision was strongly challenged in a dissent by two judges (including quite ironically the Swiss judge). I will first present the key parts of the analysis of the Court and then provide a critique of my own to the Court’s holdings. I believe the most important question is not related to the independence or impartiality of the individual arbitrators involved in the Mutu and Pechstein case, but concerns the structural independence of the CAS from the SGBs, and I will thus focus only on the latter.

The key holdings of the Court are found at §§151-158 and concern only the Pechstein leg of the ruling, as only she challenged the structural independence of the CAS. The Court holds first that the CAS’s financial dependence on the Olympic movement is not problematic because analogically the State finances national courts (§151). It reminds then that, back when the Pechstein case was heard in 2009, the International Council of Arbitration for Sport (ICAS) was nominating one fifth of the arbitrators having the interest of the athletes in mind, while being itself composed mainly of individuals affiliated with SGBs susceptible to face proceedings against athletes at the CAS (§154). Moreover, the Court stresses that arbitrators were nominated for a term of four years renewable, without limits on the number of terms, and the ICAS had the power to revoke an arbitrator by a summarily motivated decision on the basis of article R35 of the CAS Code (§155). Nonetheless, the Court finds that Pechstein did not provide concrete elements challenging the independence and impartiality of any of the 300 arbitrators on the CAS list at the time (§157). In the crucial part of the decision, the Court acknowledges that while “it is ready to recognise that the organisations susceptible to face the athletes in the framework of the disputes brought before the CAS were exercising a real influence on the mechanism of nomination of the arbitrators in place at the time, it cannot conclude that, only on the basis of this influence, the list of arbitrators was composed, even in majority, of arbitrators who could not be deemed independent or impartial, individually, objectively or subjectively, from the said organisations” (§157). Henceforth, the Court decides that it has no reason to diverge from the assessment of the Swiss Federal tribunal regarding the independence of the CAS.

In my view, the Court is right on one point. The financing of the CAS by the SGBs is not per se threatening the independence of the CAS and should actually be welcomed as an adequate form of quasi-public financing of sporting justice. However, this is true only if the ICAS and the CAS administration are stringently separated from the bodies that are supposed to be checked by the CAS and whose decisions it is reviewing. Quite paradoxically the Court recognises the influence of the SGBs on the ICAS, which was evident at the time the Pechstein case was heard and is still apparent nowadays (the SGBs nominate 12 individuals out of the 20 members of the ICAS and the ICAS is headed by an IOC Vice-president), but it does not deem it sufficiently problematic to challenge the independence and impartiality of the CAS. This is a strange conclusion for a Court specialised in procedural justice (for a similar perplexity see §§ 7-10 of the dissent). The ICAS does not only control who gets to be appointed as a CAS arbitrator, it also controls who gets to preside over the Appeal and Ordinary Divisions of the CAS, and who gets to be appointed as CAS Secretary General. All of this happens without any minutes of the ICAS meetings being published, thus without any transparency on the reasons that led to the appointment of X over Y. This alone should have pushed the ECtHR to have some serious concerns over the appearance of control by the SGBs over the ICAS and, therefore, over the CAS. Moreover, and what I feel is the major argument speaking against CAS’s independence from the SGBs, even if one accepts the Court’s point that an athlete will be able to find a CAS arbitrator on the list who is not biased, in appeal cases the president of the panel will be ultimately nominated by the President of the Appeals Division. Thomas Bach, now President of the IOC, was the President of the Appeals Division from 1994 to 2013, since then Corinne Schmidhauser, who is the President of AntiDoping Switzerland and a member of the Head of the Legal Committee of Swiss Ski has taken over his former position. While it is often argued that if the parties agree on a president, the President of the Division will merely ratify their choice (§ 127), the issue is that one side (the SGBs) will be in a strong position to impose a name to the other (the athletes). Indeed, the SGBs bargain in the shadow of a final decision by the president of the Appeal Division, who be it Thomas Bach or Corinne Schmidhauser was and still is clearly biased in their favour. This simple institutional set-up, easy to reform but still in place, is the Gordian knot of the control of SGBs over the CAS.  The Court simply ignored this argument (as did the BGH in 2016, triggering an attempt at a revision of the judgment), which was raised by Pechstein’s lawyers (§ 124). In doing so, it decided to side with a system that is at odds with the core of its own jurisprudence on the independence and impartiality of tribunals, as powerfully outlined by the dissent. Maybe, the Court felt it had already done enough and it did not want to destabilise the CAS further, but it certainly missed a great opportunity to provide a fairer judicial process to thousands of athletes worldwide.

Conclusion: The end of the beginning for the CAS

A few years ago, in a presentation on the Pechstein ruling of the Oberlandesgericht München, I wondered whether the case was the beginning of the end for the CAS or (more optimistically) the end of the beginning. By the latter, I meant that the CAS would enter into a new dimension with the decision. This new era was, unfortunately, delayed by the surrealist judgment of the BGH, which the ECtHR has in my view partially corrected with this ruling. As from this decision, the CAS will not be able anymore to claim that it is an arbitral tribunal legitimated through the free consent of the parties. The ECtHR has shattered, forever, this fiction. It did not replace it with a clear alternative foundation, however. In fact, the CAS is not a product of national law or of an international treaty. It is, instead, simply the artefact of transnational power and of the necessities of global sports governance. At the same time as the ECtHR recognised its usefulness and existence, it also held that it ought to be tamed too. This is the meaning of the Court’s finding that CAS must comply (like any national court in Europe) with the requirements of procedural justice enshrined in article 6 § 1 ECHR. In other words, never again will the CAS be the same, as it will have to become a proper court. Surely, the ECtHR betrayed its good intentions by denying the undeniable lack of independence of the CAS. Yet, this duty will be left to the German judges in Karlsruhe or to the Grand Chamber of the ECtHR if, as you would expect from Pechstein, she decides to appeal the decision. In this regard, the rigorously argued dissent will prove a strong basis to put a final nail in the coffin of CAS’s current institutional structure.

To conclude, after seemingly winning this case, the CAS will have to undergo a radical change. The new CAS will be open to the public (both hearings and awards), it will need to shore up its independence from the SGBs if it desires to fends off future challenges based on the dissent, and more generally it will have to ensure that all of its procedures are rigorously kept in line with the constantly evolving jurisprudence of the ECtHR on article 6 §1 ECHR. The CAS can embrace these changes or wait for diligent lawyers to drag its awards through national courts in Europe, which will not be as timid as before in assessing the compatibility of CAS procedures with the ECHR. Nonetheless, there is also a lot to celebrate in this judgment for those, like me, who believe that the CAS is a necessary institution. It is now fully recognised as a judicial body sui generis, which is more than the emanation of the parties to a dispute. In fact, it is officially and finally recognised as the Supreme Court of World Sport, but with great powers comes also great responsibility…

[1] You will find many references to these debates in Duval, Antoine, Not in My Name! Claudia Pechstein and the Post-Consensual Foundations of the Court of Arbitration for Sport (February 20, 2017). Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2017-01.