Close to 100 participants from 37 different countries attended the first ISLJ Annual International Sports Law Conference that took place on 26-27 October 2017 in The Hague. The two-day programme featured panels on the FIFA transfer system, the labour rights and relations in sport, the protection of human rights in sport, EU law and sport, the Court of Arbitration for Sport, and the world anti-doping system. On top of that, a number of keynote speakers presented their views on contemporary topics and challenges in international sports law. This report provides a brief summary of the conference for both those who could not come and those who participated and would like to relive their time spent at the T.M.C. Asser Institute.

Day 1

Opening Keynote by Miguel Maduro

The audience did not have to wait long for one of the highlights of the conference as Miguel Maduro, a former Chair of the FIFA Governance Committee, took the floor immediately after Johan Lindholm, an Editor-in-Chief of the International Sports Law Journal, and Antoine Duval, the Head of the Asser International Sports Centre, had delivered their opening speeches. Drawing on his experience as a Chair of the FIFA Governance Committee, Miguel identified the resistance to public scrutiny, accountability and transparency as root causes of the governance crisis currently faced by FIFA. He suggested that an independent international agency be established to supervise the governance of international sports governing bodies. According to him, only the European Union is capable of taking such an initiative.

Panel Sessions

The first panel, chaired by Johan Lindholm, revolved around the FIFA transfer system. Jakub Laskowski from Legia Warszawa explained why we might need a different approach to solidarity in professional football. Eleanor Drywood from the University of Liverpool then examined the FIFA's ban on the international transfer of minors, suggesting that international sports governing bodies in general, and FIFA in particular, should take account of the United Nations Convention on the Rights of the Child in order to enhance the protection of minors in sport. Finally, William McAuliffe, a sports lawyer practising in Switzerland, spoke about buy-out clauses and the club's consent to transfer under the FIFA Regulations on the Status and Transfer of Players.

The afternoon session started with a panel on the labour rights and relations in sport chaired by Professor Richard Parrish from Edge Hill University. Jack Withaar from Tilburg University focused on employment contracts in professional sport, concluding with the question whether international sports federations should take into consideration labour standards elaborated by the International Labour Organization. Thereafter, Matthew Graham from the World Players Association shared his insights on the functioning of international players' unions. Finally, Andrea Cattaneo from Edge Hill University encouraged a greater use of social dialogue to regulate professional football.

The last panel of the day, chaired by Professor Mark James from Manchester Metropolitan University, tackled a relatively new topic in international sports law – the protection of human rights. Whereas our research intern Tomáš Grell and Daniela Heerdt from Tilburg University discussed how human rights could be affected by the organisation of a mega-sporting event, Brendan Schwab from the World Players Association shed light on the more specific human rights risks faced by professional athletes. Both Tomáš Grell and Daniela Heerdt agreed that international sports governing bodies need to translate their human rights commitments from bidding and hosting agreements to actual practice. Brendan Schwab, for his part, emphasised that sportspeople are human first and athletes second, and introduced the World Player Rights Policy adopted by the World Players Association in July 2017.

Keynote Discussion between Michael Beloff QC and Sean Cottrell

Throughout his more than 50-years-long career in sports law, Michael Beloff QC, also known as one of the 'godfathers of sports law', has witnessed first-hand the professionalization of sport. This and many more aspects of his truly exceptional career as a sports lawyer featured in his keynote discussion with Sean Cottrell from LawInSport (a trusted media partner of the conference). Michael also touched upon some of the contemporary sports law themes, among which the lack of gender equality in the composition of international sports governing bodies, the role of athletes in good governance of sport, inaccuracies in sporting regulations or transparency at the Court of Arbitration for Sport.   

Day 2

Keynote Lecture by Stephen Weatherill

The second day also kicked off with a keynote lecture, this time delivered by Professor Stephen Weatherill from Oxford University, who examined the conditional autonomy enjoyed by international sports governing bodies under EU law. Against the background of UEFA's Financial Fair Play rules or the FIFA's ban on third-party ownership, he explained how sporting rules that would otherwise be incompatible with EU law could nevertheless be justified on account of the specific nature of sport, what he called the 'sporting margin of appreciation'. However; he also criticised the pyramidal structure of international sport for not allowing those at the bottom end (athletes and clubs) to participate in decision-making processes of international sports governing bodies.

Morning Session

The first panel of the day, chaired by Ben Van Rompuy from Leiden University, offered some interesting perspectives on the application of EU law to sport. Stefania Marassi from The Hague University of Applied Sciences explored the policies adopted by the European Union with a view to contributing to the promotion of sporting issues in line with Article 165 of the Treaty on the Functioning of the European Union. Christopher Flanagan, a lawyer practising in England, discussed why attempts to regulate the financial aspects of professional football are met with challenges under EU law. Employing FIFA's private order as a case study, Branislav Hock from the University of Portsmouth argued in his presentation that successful private modes of governance continuously emerge from public interventions, provided that the public acts as a reversed civil society. It is worthwhile to note that Branislav won the award for the best paper presented at the conference.

Thanks to Women in Sports Law, an association that unites women from more than 40 countries who specialise in sports law, the conference also continued over lunch. Lindsay Brandon, a sports lawyer practising in the United States, and Despina Mavromati, a Co-Founder of Women in Sports Law and a former Managing Counsel at the Court of Arbitration for Sport, talked about the current state of whereabouts requirements in the world anti-doping system. They were joined in the discussion by Professor Richard McLaren.

Keynote Lecture by Richard McLaren

After lunch, Professor Richard McLaren from Western University in Ontario, the former head of WADA's investigation into the Russian doping scandal, spoke about broader challenges to the operation of the world anti-doping system. Among other things, he stressed that athletes have a crucial role in uncovering doping practices, as they know much more about these practices than anybody else. Having insisted that whistleblowers are of utmost importance, he also criticised the International Olympic Committee for its treatment of the Russian athlete Yuliya Stepanova who was eventually blocked from competing at the Rio Olympics despite her exceptional contribution to the fight against doping. In more general terms, Richard asserted that the integrity of sport is threatened not only by doping but also by archaic governance, corruption or match-fixing.

Afternoon Session

After the lecture given by Richard McLaren, the conference continued with a panel on international sports arbitration chaired by Despina Mavromati. Howard Jacobs, an American sports lawyer, together with Lindsay Brandon from his office, discussed the proposal to create a permanent anti-doping division at the Court of Arbitration for Sport. Professor Jernej Letnar Černič from the Graduate School of Government and European Studies in Ljubljana then looked at how the guarantee of a fair trial could be strengthened in proceedings before the Court of Arbitration for Sport. Finally, Kazushige Ogawa from Rikkyo University in Tokyo shared his insights on the functioning of the Japan Sports Arbitration Agency.

The last panel of the conference, chaired by Antoine Duval, addressed one of the most pressing issues in the world of sport – the fight against doping. Kelsey Erickson from Leeds Beckett University examined a range of psychological factors influencing athletes who intend to blow the whistle on doping. Jan Exner from the Czech Olympic Committee focused on the sanctions for anti-doping rule violations, suggesting that a four-year period of ineligibility might be disproportionate. Finally, our last speaker Louise Reilly, an Irish barrister and a former counsel at the Court of Arbitration for Sport, provided a precise overview of jurisprudence dealing with intentional anti-doping rule violations under the 2015 World Anti-Doping Code.

A thank you note

We would like to take this opportunity to thank all the speakers and participants not only for joining but also for actively contributing to the very rich discussions that followed after each session. We hope that this is only the beginning and that the ISLJ Annual International Sports Law Conference will become a tradition in the coming years. For those who did not have the chance to attend, the ISLJ will publish a special issue including the papers of the conference, so stay tuned!

Looking forward to seeing you next year,

The team of the Asser International Sports Law Centre

PS: Feel free to leave us comments with your feedback/suggestions, so that we can work on improving the conference.

“One day Alice came to a fork in the road and saw a Cheshire cat in a tree. ‘Which road do I take?’ she asked. ‘Where do you want to go?’ was his response. ‘I don’t know,’ Alice answered. ‘Then,’ said the cat, ‘it doesn’t matter.”

Tomorrow the Foundation Board of the World Anti-Doping Agency (WADA) will gather in Glasgow for its most important meeting since the creation of the Agency. Since the broadcasting of a documentary alleging systematic doping in Russian athletics by the German public broadcaster in December 2014, the anti-doping world has been in disarray. The various independent investigations (the Pound Report and the McLaren Report) ordered by WADA into doping allegations against Russian athletes have confirmed the findings of the documentary and the truth of the accusations brought forward by Russian whistle-blowers. Undeniably, there is something very rotten in the world anti-doping system. The current system failed to register a widespread, and apparently relatively open, state-sponsored scheme aimed at manipulating any doping test conducted in Russian territory. Moreover, it was not WADA that uncovered it, but an independent journalist supported by courageous whistle-blowers.

This is testimony to the innocuousness of WADA’s compliance checks. The Agency loves barking in public but hardly bites. In all fairness, it is simply not equipped to properly enforce the rules it has proudly devised and promoted. To adequately reset the system, the anti-doping community needs to acknowledge that until now WADA has been more of a PR stunt than a serious global anti-doping supervisor. The practical reality of anti-doping operations must be well understood to do so. The Agency drafts and adopts the World Anti-Doping Code and its complementary international standards but it is unable to control the concrete meaning that will be given to these provisions at a local level. In other words, the world anti-doping system as it stands is a glocal construct. It is dependent on the collaboration of local institutions (national governments, agencies, laboratories, but also sports federations) for its operation and thus takes different local meanings. Either the anti-doping community recognizes this pluralist reality and renounces the ideal of a level anti-doping playing field or the structure and operation of the system must be radically changed.

In recent weeks, key stakeholders have indicated their preferences. Both an influential group of national anti-doping agencies (often public bodies financed by national states) and the International Olympic Committee have called (here and here) for WADA to exercise more stringent compliance monitoring and to be given the proper authority to police the local anti-doping enforcers. This is the only way forward if the widely shared ideal of a level playing field is to be maintained. Yet, it also implies that the IOC (representing the entire sports community) and national governments will have to substantially increase WADA’s budget. This will most likely prove difficult at a time when governments across the globe are focusing on tightening their fiscal belts. The IOC, which derives huge economic revenues from its commercial monopoly over the Olympics (and its ideals), will probably have to put its money where its mouth is and unilaterally assume a substantial raise of WADA’s budget (from  $27,484,828 in 2015). To illustrate the scale of the expansion needed: in 2015 WADA had only 81 employees (compared with more than 11,000 athletes participating in the Rio Olympics). In these conditions, it can hardly monitor the particular workings of each national anti-doping agency and laboratory around the globe. The Agency will need to recruit in-house investigators in droves if it is to fulfil the responsibility that the IOC and NADOs want to endow it with. If WADA stays underfunded and understaffed, we will continue to witness just another example of organized irresponsibility. WADA would be tasked with an impossible mission in order to deflect the blame for failing to rein doping from other institutions that would have had the means to act but declined to do so.

To succeed in ensuring a more-or-less comparable enforcement of the World Anti-Doping Code around the globe, WADA will not only require more resources. It will also need to radically change its mind-set. The Agency must acknowledge that its anti-doping mandate is a Sisyphus-like task. It will never be fully achieved and to even approach achieving it will require the enrolment of whistle-blowers and the media. For this to happen, the former must be able to trust that they will not irremediably damage their professional/personal careers (the IOC’s treatment of Stepanova is an obvious counter-example) and the latter would need to have access to much more publically available data on anti-doping enforcement to know where to look. 

Finally, even if WADA were to morph into a trustworthy watchdog patrolling the globe to ensure a minimum level of compliance with its rules and standards, it would still need to rely on the disciplinary power of the IOC and the other Sports Governing Bodies to back-up its monitoring activities. The controversial decision of the IOC to let the Russian athletes compete in Rio, despite WADA’s recommendation otherwise, highlights the resistance it might face. Enhanced monitoring and compliance checks will have a deterrent effect only if they are followed-up by substantial sanctions.

The future of the fight against doping is on the table this weekend. Like Alice in Wonderland, the WADA is at a fork in the road, and to choose the right path it will need to decide first where it wants to go.