16.02.

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Introduction to Sports law

Prof. Dr. Ulrich Haas

No text book we can follow. Just copy the chapters from the book in library. Articles from the web site
are also study materials. Sports law in Switzerland 2nd edition.
Sports law in England (Good coverage on international sports law)
Sports law- common law dominates the topics.
Print out the codes on the website and the anti-doping code.
Internationality and globalization of sports- first trend in sport.
First part of the lecture. Second trend is commercialization of sports. How to cope with these two
trends.
Four steps when talking about globalization:
1. Needs and realities in organized sports
2. The escape to Delaware
3. A
4. S

Principle of uniformity, the rules are the same throughout the world. Competition is only possible if
same rules apply to all. Uniformed standards are applicable throughout the world. It means that you
can only compare competitive results through the same rules. It is much more difficult.
Rules of the game, much more rules than the ones for example that football is played with a ball. Fight
against doping, someone is running with an engine, or a chemical engine. Doping rules tell you the
obligations in between the competitions. Lot of other rules that interfere with daily life.
Protection of minors- team sports- tendency to go to poorer countries, bringing children in the
academies, very cheap, much cheap than to buy a full and complete player or sports person. Is that the
kind of level of playing we need? Ensuring a level of play.
Betting is a huge menace at the moment for sports. Allows people to make money laundering, you can
bet on everything. Hundreds of different things that you can bet. People bet on 2nd 3rd 4th league games.
Huge impact on the level of field playing. There need to be a couple of rules to fight match fixing and
corruption.

Financial stability- The most terrible thing that could happen to Bayern is none existing of another
club. In order to ensure that the other one is going to stay in the game you will have to have some kind
of system where loser is going to have revenue. Many different systems. The drafting system in USA.
The one that finishes the league the last gets to choose the best player.
Europe- relegation system. Revenue sharing, sharing TV rights, federations that distribute money.
Ensuring level of play field. Nobody would watch the game if there were no strong teams. It would be
boring. You need some kind of revenue sharing.

Principle of uniformity- completely globalised sport. Very complex legal rules. They go far beyond
the purpose of playing.

Search for outmost autonomy. The most autonomy you can get.
International federations are always rooted in a national legal system.
Once you choose your seat, your legal jurisdiction, the legal environment will influence you.
Therefore federations choose legal jurisdictions with the most autonomy, like Switzerland.
There is no supranational legal format for Federations.

The escape to Delaware:

(Escape to Switzerland in sports)
Easy and cheap incorporation/establishment:
Secured, stable place. Why FIFA chose Switzerland? After WW2, they asked themselves where their
money is going to be (in that time FIFA was in Paris), so the logical answer was Zurich, CH

Sporting and economic activity:

Of course its an economic activity. You know that you have to seek legal environment that allows
you to have economic activity. Civil code allows associations to make money (not every country)
Far-reaching autonomy
- Adoption of members
- Setting rules (rules on financial stability, protection of minors)
- Applying rules/disciplinary competence (Most sporting organizations have made a system to
enforce rules) Discipline measures- standard form of applying rules in sports.
The largest autonomy possible in order to enforce your rules.

Little state influence

Couple of legal systems that have huge influence on sports associations. The Polish government tried
to interfere with the elections in their Football federation. They hate state interference in sporting
organizations. International federation particularly look at legal environments where there is minimum
legal interfering.

Switzerland is super power when it comes to international sports law. Swiss law is very important
when it comes to sports law.

Consequences of commercialisation
Cartel and competition law, law against unfair trade practices, other laws regulating economic activity.
The more commercialized you are, the more rules are going to be applied to you. Contractual law,
competition law. They may even apply even though if they are from another legal environment.
Just by choosing your seat you will not avoid other legal systems.
Consequences of professionalism:
Personality rights, labour law, fundamental freedoms, constitutional guarantees. The more
commercialized you are, the more professional you are, the more legal rules apply to you.

Forum shopping:
No uniform law on jurisdiction
German athlete can choose the forum to protect his claims. Different legal standards will apply to
similar cases.
Federation are trying to escape from national court. Once you bring the case in front of national court,
the national rules apply.

Escape to arbitration
Not a state judge issues a decision, but the private party.
mainz05 password

General advantages- dispute away from state court, private third party that is going to resolve the
dispute. Much faster, speed is the essence in sports. 8 years in state courts for a German athlete.
Speed is the essence, you can speed up the process considerably.
Uniform legal standards- a single forum for arbitration, the same standards apply to all the cases.
Arbitration gives an unique opportunity to apply one legal standard.
No forum shopping due to concentration of jurisdiction- no tactics, everybody has got the same
chances to win or lose the case.
Party autonomy- all the liberty in order to design the procedure to present the case. If you want the
case to be treated in Chinese, you can choose that. Lots of aspects of autonomy that wouldnt be
possible in front of the state courts.

Creation of legal standards suited for transnational problems- If you think of doping, there are
principles of strict liability. No difference whether jurisprudence or law is applicable.

At the end of the day what happens is- another step of localizing the sports law from its environment.
As little contact with state law as possible. There remain certain contacts with state law. Examination
of the arbitration agreement. Is it valid or not? The possibility to appeal arbitrary boards. No one will
look at merits, minimum level of scrutiny. Arbitration agreement- dispute is being taken away from
state courts. What is happening with provisional measures? If you have signed arbitration agreement
Recognition and enforcement- Little enforcement proceeding from sports organisations, the only way
to enforce the decisions is by state courts. FIFA can enforce the decision by disciplinary measures
(excluding from transfer market, relegation to 2nd league).
Once there is a decision from CAS, the success rate of execution from FIFA is 90%! This execution
mechanism is super successful. Everybody will bring the case in front of the international federation,
not in front of state court.
Sport tries to do over the last couple of years is to avoid the grip of national laws.
Escape to a-nationality:
Little contact left between state law and international sports. Finding solutions with globalized world.
The challenge of globalization, national world is death to globalized solution.

Second trend

Commercialisation:
Two effects:
1. Changes the autonomy with state law
2. Changes the identity of sports completely
If we talk about sports, most people would ask themselves, what sports has to do with law?
Sport- lat. deportare- leisure activity
Legal rules apply to provide same rules. No sport without rules, no sport without law.
Athletes have met somewhere outside, and asked themselves about the rules. Forming clubs and rules,
statutes. As soon as you have different clubs playing against each other, funding of regional
federations happens. Every country has some kind of national federations. Everybody is a member of a
higher hierarchy.
State law- there has always been conflict between sports and state law.
One of the biggest issues in Ancient Greece- travelling of sports men to Olympic. Having an Olympic
truce, few months before Olympics and few weeks after Olympics to provide sports men to safely
arrive to the games.

Roman Empire- how to handle the question of property (Gladiator fights in Coliseums), special kinds
of contracts were drawn up First tax laws go back to Rome.

Conflicts with religion: sporting activity had a religious purpose in Ancient Greece.
Church didnt like sports in the medieval times. Lots of laws that forbid to play football on some days.
Lots of problems that religious authorities are not fond of- drinking, gambling etc.

Exercising the sports by lots of people was suspicious- there is a fear that they would turn against the
government.
Sporting activity and the legal environment of government on the other side. These problems are
nothing new. However, today this conflict is much bigger than it has been in the past.
The reason for this is that sport is a mass phenomenon. Commerce has changed sports completely.
Switzerland- NZZ 2014, Nr. 257- CHF20 billion turnover in sports. 97.000 employees.
EU- law- what are the consequences once the commerce comes in?
No specific field that says that EU is able to regulate the field of sports. Only provision is the Art.
165
Art. 26 TFEU to protect markets.
How EU law influences the sporting activity?
Rules of federations are locked upon the free market.
Beach volleyball- 2cm width of bikini, because it is a boring sport. Is it unjust with the state law? It
might be a disguised kind of discrimination- on nationality (Islamic countries). Is there justification for
this? Commercial reasons- attracting more people to better sell the event. Sport has become an
economic activity. All the rules that apply to economic activity apply to sports.

02.03.2015
The effect of commercialization is two-folded. It changes the sports from the inside and the outside.
As soon as we talk about money, people will say why dont I have a share in that. The autonomy
decreases automatically. The choice of legal form that would be available: the legal form of an
association. As soon as economic activity comes in play, your choices will be much more limited. It
will be more difficult to find exact legal form.
European law- certain sections that are dealing with culture, taxes, environment It is heavily
regulated. You will not find a comparable section for sports law. Art. 165 of the treaty of functioning
of EU- generic article. The only thing it does to sport is- promote. General provisions might still be
applicable- Art. 26 of the Treaty (TFEU). This provision doesnt say anything about sports. However
the provision says that you are engaging in the market. The second set of provisions come in action
when the market competition comes to play.
They have a huge effect on sports. The more you are engaging in economic activity, the more these
provisions apply to you.
As soon as there is an impact on the market, then we are looking in the perspective of EU law. It is
always the state law that transfers the autonomy to these federations. Important thing (cycling case) -
International federations were not exempted from EU law.
Sport is utterly depending on regulating. There are some rules that have to be exempted from the
beginning. There are certain types of championship that allow discrimination against other people, like
in the state teams (World Cup, European championship). Every other sporting provision would be
under heavy scrutiny of the TFEU.
All the European rules that try to regulate economic activity will regulate sporting activity.
If you look for justifications- the criticism is very high. The important thing is that at the end of the
day- even though you dont find the special provision in TFEU, there are general provisions that have
huge impact on sports.
What kind of rules might have to change?
1. Eligibility rules (how certain athletes are chosen for certain events)
2. Transfer rules (an athlete would not be free to choose the team he plays for freely, transfer
windows- during certain periods of time, are they compatible with EU law- restrictions on free
movement of workers; justification- protecting of the competition, where athletes could freely
transfer between teams during one competition)
3. Discrimination (sport is full of discrimination, very essence is discrimination; basketball if
you are not tall you are not eligible to play; one of the biggest discriminations was in water
 ballet- only allowed for women- justification hairy mens legs wouldnt be attractive to watch;
football- woman athlete cant play for mens team and vice versa)
4. Rules against doping (athletics- doping rules that dont allow certain substances)
5. Financial fair play (how much money is going into teams, certain regulations that prohibit
these kinds of financing) economic activity in sports- lots of rules are going to apply to you

Amateur sport and professional sport is not decisive whether the TFEU will apply.

Pressure from the inside on the change of the sports:

If we look at the Olympic movement sport- up to 1970s there were provisions stating that you have to
be an absolute amateur in order to participate in the Olympic Games.

Jim Thorpe case- shows the perception of sports in that time. It was a thing reserved for social elite.
Rule 1 OC (1970) rule reserved for rich people. Sport was perceived as something for aristocracy and
they wanted to be among themselves, surrounded by rich people. It had the consequence that the
Olympic Games werent so popular, because the sportsmen werent the best. At that time the Olympic
Federation split up in two federations (Amateur and Professional). The same applies to International
Bicycling federation.
If you want to make money from the Olympic Games you have to engage the best sportsmen. They
had to get back the professional sportsmen in order to commercialize them. It has changed the sports
from the inside.
Its not only the people that changed, its also the sport itself. Once you start to sell events, youll have
to talk to TV stations, how you can sell these sports. One sports that has changed completely is ski
jumping. The reason it has become so popular is because of TV. The soccer sells, it has one big
problem- winter pause. TV houses had to fill that gap, and they made a huge hype with ski jumps, and
started to buy rights for the ski jumps. They formed the duration of the competition and made it more
interesting. It was the outside pleasure of sponsors and TV houses to form this sport as it is today.
Solely designed for TV broadcasting and ideal for advertising. Every now and then the camera turns
on the spectators, they are dressed the same way.
Another thing that makes sports changed from the inside is pyramidal structure: athlete- club- NF- IF.
Exception to the rule is boxing.
Federation like FIFA designing the rules, to make a lot of money out of the World Cup, they have to
infringe some rights of the players (wearing the same jersey in which case the national federation
chooses the sponsor, not the player his individual sponsor). As soon as money is involved there are
lots of conflicts. Its the teams that contract players. FIFA tells the teams that they have to make their
players possible to play at the World Cup. Once we talk about large sums of money there is no
common interest, there is an individual interest. Important thing is that there are lots of conflicts.
Doping has changed sports from the inside completely. The commercialization is the incentive to do
doping. If there are certain economic gains, people will try to take certain substances to win.
It has lots of challenges, to cope with.
Volleyball case- question of disguised discrimination according to TFEU?
What are the most important things weve seen so far? Huge challenges arising from globalisation.
People competing against each other on a global level. It is easy to enact provision from federation.
On a level of state there is nothing similar.
Second challenge is arising from commercialization, the more commercialized, the more legal
provisions apply to it. The danger here is that sport will lose sport specific.
Sports law is not really harmonized field of law. It is an interdisciplinary branch in nature- tax law,
labour law, European law, contractual law, company law. No defined limits and boundaries.
We found that one of the important issues is right balance between self-regulation between state law
and sports federations. State law changes the character of sports. If state law applied in the scope of
discrimination we wouldnt have national teams. Sport has a very complex structure, it is very
hierarchical. At the top of this pyramidal structure we have monopolistic structure (FIFA)
If you give a lot of power to few people there is always danger that they will misuse it. Power in the
hands of these international federations is comparable to governmental power. It doesnt feel very
differently from the perspective of clubs who makes the regulations (state or international federations)
Two different approaches.
Italy, Spain, Portugal, France are countries that perceive sports as public goods, and they have to be
regulated by government. (Interventionist approach)
Other countries as Switzerland start from a presumption as liberal model. It is not a question that has
to be regulated from governments. (Self-regulatory approach)
Two approaches are there because of the finding a balance.
They meet somewhere between at the common ground.

Association Law
How sport is organized?
What are the legal forms how sport is administered?
Factual aspects:
The backbone- is the form of association, nearly in every legal culture on continental Europe.
These rules go back very long in time. (1900)
Provisions are in large parts quite similar in these countries. There are some legal regimes that dont
know associations (US, UK). They use different legal forms to administer and organize sports.
Athletes are members of the clubs, clubs are mostly in the form of association, and they are part of the
regional federations (legally organized as association), regional federations are members of national
federations, national federations are members of international federations. They are all organized in
legal form of associations.
Exceptions- WADA- in the form of foundation.
Two different sports models:
1. Interventionists sports model (Italy, France) sport is a public good and it must be regulated by
government

2. Liberal sports model- government only interferes as far as necessary

French situation:
Historical background is in the centralized state. In the 1960s France performed poorly at Olympic
Games. De Gaulle created Ministry of sport (as supreme body) and other public institutions. In order
to have control of sporting activity, they introduced different types of associations. Delegation- a kind
of recognition of certain powers from ministry of sports to associations. Accreditation- accredited to
certain rules.
Difference between these layers. You will never get accredited by Ministry of sport if you dont fulfil
certain minimum requirements (1st level). Lots of other rules focusing on internal structure. If you
dont comply with these rules you dont get accreditation. 112 accredited organizations in France. You
get administrative support from Ministry of sport (financial support with state money). In order to be
efficient you need accreditation.
Once you are accredited you can try to attain higher level (2nd level)- Delegation.
Only one federation can represent one sport. Minimum requirement- you have to be accredited for
minimum 4 years. You are allowed to use name French national team. If you want to hold national
championships you have to be a delegation. Delegations are the highest bodies. There are 75
Delegations. It is state protected monopoly once you attain the delegation. You are the sole authority
to represent that sport. Lot of powers that are delegated to these federations. If you want to appeal
against it you would have to go to administrative courts. It is a highly regulated sports organization,
lots of rules by government. All these rules can be found in special code (Code de Sport)

Swiss situation:
Typical features of association in Swiss law, advantages and disadvantages, formation of an
association, rules and regulations, membership, governance, example IOC

09.03.2015

Association law in Switzerland? Swiss might not be sports power, but it is a super power in terms of
sports associations, because most sports federations are located in Switzerland.
The legal form of association is very important, it is found on every form of models.
World Anti-Doping organisation is in a form of foundation
Features of an association

Five features that are important for an association:

1. It always regulates a group of people (Art. 52 CC). You can form an association with at least
two people. Natural or legal persons can form an association.
2. To form an associations, there has to be some kind of charter, agreement- articles of an
association, its a contractual basis. (Art. 60 CC). You can distinguish two different points of
type- articles up till these articles have been agreed between the parties and afterwards.
Everything behind this point is not an association, it is a partnership- in order to create an
association. Ratifying is a decisive point of creating an association

3. Art. 60 II CC- The articles must be done in writing, and the main point is the agreement on the
objects of association- certain purpose- it has to be readable. Associations of persons must
pursue a non-commercial purpose. The legal form of an association is reserved for non-
 economic purposes. The reason why this is provided is for protection. There is no personal
liability of members and no minimum funds as a capital in associations. There is no real
protection for the creditors. They limit activity to non-economic activity in order to protect
creditors. How do we distinguish between economic and non-economic activity? Decisive
criteria is rather liberal. Jurisprudence says there is no economic activity unless your final goal
is to achieve financial gain/ advantages and to distribute them to the members. If you dont
pursue these goals your activity is qualified as non-economic activity. If you pursue gains for
non-members that is ok. Professional/ trade associations (ok). If you establish a company
under the context of association, that would be ok. Associations are allowed to pursue
economic activity as long as it serves a main purpose of non-economic activity. If we take a
comparative view, a lot of other legal frameworks are a lot stricter.
FIFA- has a legal form of association (multibillion company in practice) - economic activity
that serves sports administering.
Features that protect creditors: The association must be registered in the commercial register if
certain requirements are met. The kind of creditor protection are accounting. It meets a
minimum standard of protection.

Are there any special rules for administering sports as object of association? Not in
Switzerland (in Italy professional clubs must be in the legal form of a SA- companies, shares
etc. in order to protect creditors). However, if you look at some of the leagues in CH, there is
certain freedom to choose a legal form (Swiss Hockey).
4. Once the association is formed it acquires legal personality. Art. 60 I CC
5. The association is completely independent from its members, no changes.

Features: association of persons, contractual basis, non-commercial object, legal personality,

independent of its members.

Advantages and disadvantages of associations

Why would most clubs choose the legal form of association? What are the motives?
One person- one vote principle. Size that fits all kinds of different purposes. No liability. Legal
capacity is independent of change of members. No minimal capital requirements. Little financial and
individual risk. Very large autonomy in order to design an association. Simple and cheap procedure to
constitute an association.

Autonomy of the federation:

Its such a strong feature guaranteed in (Art. 23 Swiss Constitution).
Negative autonomy- nobody can be forced to be a member of an association.
Positive form of autonomy- you can design a form of an association according to your needs; a lot of
autonomy in terms of internal organisation of association (members, organs, etc.); regulatory
autonomy- you can enact rules and regulations the way you want; disciplinary autonomy- not
expressly stipulated, you can enact disciplinary rules, measures as fines, bans (The reason behind is- if
you are allowed to enact rules that differ from standard rules, you also need rules to sanction those
who dont comply with those rules).
It is comparable to contractual autonomy. The legal basis is to be found in contract (agreeing upon
articles of association).

Autonomy of the federation

One of the provision that tries to protect association from state interference (Art. 23 Swiss
Constitution).
Protecting of the autonomy of associations on international level is guaranteed in Art. 11 ECHR. It is a
concept that we find quite frequently.
Extend of autonomy is interesting, in CH it is much larger than in other countries in Europe.
Sport has some kind of immunity when it comes to state supervision. The Constitution protects
associations from all kinds of state interference.
Couple of countries dont know the legal form of an association- England and USA. Are sports there
immune from state interference? Actually there are some sorts of immunity and regulation bodies, but
that is different concept.

Example:
CAS WADA v Hardy & USADA
Hardy appealed to CAS (Court of Arbitration for Sports- private arbitrary institution).

The formation of an association:

First step: Partnership to form an association (Art. 62 CC)
Second step: Charter of association (contractual basis, designing of provisions, personal requirements
(minimum number, legal capacity, agreement has to be in writing, special form requirements if
association is done in context of certain contractual obligations, minimum contents have to be
included in the charter, purpose has to be described, admissible, you have to choose a name,
depending on whether you want contribution from members you have to include ressources). Art. 60 II
CC and Art. 71 CC. Members have a duty to pay subscription only if the articles of association so
provide.
You have to agree on legal form and also on the contents of charter.
Third step: election of two organs- General assembly and the Committee. The consequences once the
Charter has been ratified and the organs have been elected- legal personality, partnership ceases to
exist, members of the partnership become members of association automatically.
If you want to you can enter the association in commercial registry. The association must be registered
if it: conducts a commercial operation in pursuit of its objects; is a subject to an audit requirement.

Rules and regulations

Legal nature of statutes- what is the legal nature? Contractual basis in order to form an association.
The main difference between a contract and the charter of an association is that contract is between
only two parties. Statutes are designed to bind not only two people, but lots of people, and designed to
bind these people absolutely equally. Everybody is bound in the exact same manner. You dont find
this feature in contract law. Legal nature of statutes is disputable.

Primary addressees of statutes are members. Question- is it possible to bind people that are not
members of association? Pre-contractual relationships, licence agreements. Customary rules- can
apply without your consent- example is skiing rules in the Alps on slopes. Only for these rules you are
bound.
Licence agreement- look very much like memberships, but are not memberships. The purpose of
licence agreement is to give an athlete a position very similar to member, but has no voting rights.

Membership contra- organizational issues, you are fully bound, those who are bound have full rights,
hard to administer, millions of members, international federations want small memberships.
Licence agreement contra- takes time.
There are actually two ways in licence agreements- you are allowed to compete in the competitions if
you obey the rules. It is much easier to practice licence agreement to administer sports.
16.03.2015

Freedom of association- one of the principles of the association is that you can basically design the
rules the way you want. One of the main problems we find in sports is to bring the rules to those who
should comply these rules. You have to apply to membership and on the other side the federation
accepts your application.
By time the rules come down to athlete years come by (membership model). Everybody is bound to
the same rules at the very same time.
You are only bound to rules if there is some kind of contractual agreement with the rule maker, either
by membership or some other kind of contractual agreement.
Who else is bound?
Association itself, third parties, members.
Interpretation of rules in sports:
What would be the typical principle of the interpretation of contractual agreement in sports law?
Intention of the parties (subjective will), only if you dont find the subjective will, you look for the
objective will.
You cannot look for the subjective will of the parties in the sports law. The objective contents are
important, because millions of people are bound with the rules and regulations.
You cant look for the subjective will of the parties because there is so many of them.
Hierarchy of norms

FIFA has a lot of rules. It is quite interesting that we dont find one legal framework. The question is,
what is the reason for that? There are different layers of norms that you have to comply. The reason of
different norms is that charter of association can be changed only by members, so these rules can be
changed easily.
The hierarchy:
- Mandatory statutory provisions (the highest rules, Magna Carta of association)
- Charter of association
- Lower ranking regulations
- Dispositive statutory provisions (Civil Code, they apply subsidiary)
- Customary practice (if there is a lacuna)
- Resolutions / decisions by organs (if you want to take on the fact of a specific case)

Statutes have to be enacted by the General Assembly (the highest organ in association).
Can a third party which is not an association itself have influence in changing or amending the statute
of the association?
Can I give a larger influence to a member to change the statute? Changes on a national level are only
possible with the consent of international federation.
The rule has to be formed within the association, no influence from the third parties when it comes to
amending of the charter of association.
You have to differentiate between highest level and the lowest level, like rules and regulations.

Membership
Complex legal relationship.
Predominant view- you enter the relationship with association.
Is it possible by becoming member of association that you enter a relationship with other members of
associations (horizontal level)? Of course it might well be that you have plenty relations with members
of association.
Plenty of provisions that are dealing with how to become a member of associations.
In practice you will distinguish a whole range of memberships.
Types:
- Honorary (a member that you want to have as member, no rights and no obligations, ordinary
members, passive (they dont vote, quite often not bound with the rules) etc.
How do you become a member?
- Being a party when it comes to founding the associations.
- Second way is by being granted membership (most important thing is that you acquire
membership through a contract, association admits you, its up to federation to choose whether
they will accept you, as a part of the autonomy of the association, even if you fulfil the
conditions they can refuse your membership)
 Rights and obligations
Rights:
- Participation rights (voting rights in decision making process, electoral rights- active and
passive, accessory rights- invitation, information, admission, right to file motions, right to
speak)
- Financial rights (allowed to participate in competition, allowed to use infrastructure of
international federation- most important right, monetary claims
- Protection rights (1. right to equal treatment- you cannot challenge the relationship between
association and the other member, you can request the same treatment from the association-
most important protection right, 2. right to appeal is the most important protection right- you
can ask the association to change someones behaviour if they dont comply the statute)
Membership is not transferable nor heritable. You cannot acquire membership from another member,
you cant inherit it. Its up to federation to specify what individual rights and obligations are going to
be. Is it possible within the organization to give certain member special rights? It is possible, but the
criteria is quite strict. All these rights have to be exercised in person (you cannot send someone to vote
instead of you).

Prerequisites for right to appeal (Art. 75 CC)

Purpose: it serves the purpose of good corporate governance of federations. This provision is
mandatory because it is so important. There has to be an access to justice.
The idea behind Art. 75 CC is that the provision is valid until it is squashed by the court. If it hasnt
been challenged it is valid. (Original idea)
There are certain decisions and provisions that are void from very beginning. You can apply Art. 75 to
them without any restrictions. Two different kinds of claim hidden in Art. 75.
It aims only against resolutions (Art. 75). Is it only applicable to decisions of General Assembly? Any
decision taken by any organ of association can be challenged with the Art. 75 CC.
90% of decision that are being challenged are disciplinary measures.
You can only attack final and binding decisions.
State courts are happy that something like internal review associations exist. (Germany 500 000
reviews in one year)
FIFA is the biggest law firm in Zurich, 10 000 cases a year.
What kind of procedural rules do apply to these internal tribunals?
Two different types of procedure- criminal or civil procedure?
The procedure has to be fair. Otherwise you cannot be obliged to go through these instances.
What is the standard of scrutiny?
They will look at the infringements of statutory law, statutes and regulations, Art. 2 ZGB.

Art. 75 tells you where to go in order to challenge the decision- you have to go to state court.
According to Swiss jurisprudence you can also go to private tribunals or arbitrary tribunals in order to
exercise this protection right.
Art. 75 gives to state court only casatory power, if there is an infringement they squash the decision.
You can give to an arbitrarily tribunal much higher powers.
Art. 75 is only possible in certain time frame. You have 30 days to file your appeal. If you exceed this
time limit youll lose the claim. If some really important rights or obligations were infringed, there is
no time limit to challenge the decision.

Obligations:
- Financial obligations (principle of subscriptions)
- Non-financial obligations

Governance
One sporting federation that has its HQ in Zurich has problems with the corporate governance.
Governance:
- Distribution of tasks (according to CC these organs are: 1. Assembly 2. Board (Committee) 3.
Auditors) first two are mandatory.

Organs in practice: 1. Commissions 2. Association tribunals

Lot of discretion when it comes to these non-mandatory organs.
Little autonomy when it comes to mandatory organs.

Mandatory organs are found in Art. 63 CC.

Board- how do you elect them? The General Assembly in principle appoints the committee (board).

23.03.2015

Limits to autonomy (The European perspective)

Literature:
Sport, Law and practice, Lewis/Taylor 3rd 3d Part F
Lars Halgreen, European Sports Law, 2nd ed. Chapter 3 and chapter 4

Introduction

There are quite a few provisions that regulate restrictions on the autonomy of federations. If we give it
a first sight it is quite interesting that you hardly find any provisions that deal with sports in general.
The sports was completely ignored in the past. Things have changed rather late. Sport is mentioned for
the first time in Nice Declaration 2000 on Sport. There is a provision in this declaration that the
European Community must take account of the social, educational and cultural functions inherent in
sport and making is special in order that its social rule may be respected and nurtured.
Social aspect of sport is very important or much more important than economic activity and aspect of
sport. Its much more complex than just economic activity.
Another provision in this declaration says that the independence of sports organisations and their right
to organise themselves through appropriate associative structure.
These aspects of protecting sports didnt really enter into treaty. Art. 65 TFEU is very important- for
taking account of the specific nature of sports. Sports should have autonomy to decide what sport
should look like.
Sport doesnt play eminent role today in provisions. The only competence EU has is to encourage
sports, they are not allowed to formulate comprehensive policy in the sport sector. EU has a lot to do
with the sports. The ECJ jurisprudence is very important for the sports. The reason- lots of rules
dealing with the common market aspects- more of these rules apply to sports because of the
commercialization. Complying with the internal market laws. Huge impact by the ECJ on the sports
sector. Not the legislator, it is the jurisprudence that has such an influence. Of course there is a
European sports model, it is ECJ that is every now and then passing a decision, and it is stipulating
certain aspects of the sports. It is not the legislator that has a certain vision how sport should look like.

Overview ECJ jurisprudence (internal market law)

Art. 18 TFEU:
One thing you cannot do is discriminate on ground of nationality.
Art. 45 TFEU:
Freedom of movement of workers shall be secured without any discrimination on nationality of
workers- workers can freely move around within the EU. Important thing is that it is prohibited to
have any kind of discrimination on the basis of nationality. This provision is much larger than just
discrimination.
Art. 49 TFEU:
There must be free establishment in whatever EU country you want to. This article speaks about
restriction of freedom establishment.
Art. 56 TFEU:
The free provision of services. Individual freedom guaranteed by the TFEU.

Addressee of the internal market rules?

What are the boundaries of this kind of autonomy?
The most important question is- do these provisions apply to international sports organizations? They
do apply! This has been decided for the first time in the case of Walrave & Koch v/ UCI
The question is are these provisions applicable only to private entities or also to public entities?
These provisions guaranteeing the fundamental rights are so important that they must be applicable to
private entities under two conditions

Everybody has to submit to these rules.

Material scope of application?

The idea of these fundamental rights is to establish common market. The goal is enshrined in Art. 26
TFEU. These individual rights have to be secured in order to establish an internal market.
Is it economic activity that we want to regulate? The first case which the ECJ had to address the issue
was again Walrave & Koch v/ UCI.
The practice of sport is subject to Community law only in so far as it constitutes an economic activity
within the meaning of Art. 2 TFEU. No exceptions. The ECJ said that there may be sporting aspects
that dont relate to economic activity. The treaty also applies if it has a goal of employment.
Provisions that relate to non-economic aspects of sports (national teams) then the ECJ allows
discrimination. (Non-economic issue)
Material scope of application of these provisions is extremely large. It will deal with athletes and clubs
that are probably professionals.

Territorial scope of application?

Applies in judging all legal relationship in so far as these relationships, by reason either of the place
where they are entered into or of the place where they take effect, can be located within the territory of
the Community. Internal market- intra member market must be affected. (Entering relationship with
EU or affecting outside the EU).

Breach of the internal market regulations?

The only thing you had to look at was there discrimination based on nationality? Yes (case Walrave &
Koch) - the objective of the article is prohibit any case of discrimination based on nationality.

The case so far- the provisions designed for economic activity were applied to sporting activity.
Isnt there a social, cultural aspect of sports that we have to take into account? In early days of the
ECJ, this aspect didnt play a huge role. The only thing the ECJ said is the exact nature of the legal
relationship under which such services are performed is of no importance since the rule of non-
discrimination covers in identical terms all work or service- there is no jurisprudence on sports.

This is the only exception on the base of sports specify that the ECJ allowed in early days.
Room for sport specific justification?

Hardly any

These prerequisites have been refined in the ECJ jurisprudence.

1. Dona v/ Mantero: makes it clearer why we are treating public entities the same way as private
entities. Aim at collectively regulating gainful employment and services. Whole number of
different cases, these kinds of rules feel exactly the same as the rules of sporting associations.
Only a little refinement why we treat both the same.
2. Dona v/ Mantero: case on Italian football- recruiting foreign players for Italian league. We are
talking about economic activity when we are talking about professionals and semi-
professional football players. The border is rather low if it is an economic activity.
3. EU market must be affected and intra members must be affected (not just a single country).

Bosman v/ ASBL, UEFA case

Two provisions that are obstacles for Mr. Bosman to transfer in another football federation
league: 1. Nationality clause 2. Transfer rules
UEFA said that their HQ is in Switzerland and it doesnt apply to them. The second thing they
said, is the common market affected as such, its not the internal market that is affected. The
ECJ said that it is true that the provisions of treaty are not to be applied to situations which are
purely internal situations. However it is clear that Mr. Bosman entered a contract in another
state. Of course there is another member state affected. This affects also the French market, he
tried to get employment agreement in another state. The internal market is affected.
4. Does it make a difference when we talk about transfer rule or a nationality rule? Is Art. 45 an
obstacle for transfer rule? It prohibits undue restrictions. Art. 45 is applicable to national
clause and to transfer rule.

5. The ECJ elaborated much more than previous decision. The only exemption was it was non-
economic when it comes to national teams. The question was, do we have to refine that?
Bosman v/ ASBL, UEFA

If you look at sports specific justification, look at them carefully. It is important to look at the
five points in the slides. Summary.
Justification: is it legitimate to pursue such goal, is it necessary to obtain that legitimate aim,
and is it proportionate, are there other means?

Effects of the Bosman case

- Lot of clubs went bankrupt by abolishing the transfer system. They were all insolvent.
- The rich clubs adapted to system straight away. The most dangerous thing were short-term
contracts. They entered into long term-contracts (rich clubs). Existent transfer system had
detrimental effect on players. Salaries for players raised by 40% in 3 years
 - Markets globalized dramatically, wave of sports migration into strong national leagues. Within
few years Bundesliga had 50% of strangers. Highest wages are in England. 75% players in
EPL are foreign players.
- Globalization of labour market- how can I save money and secure the best players. Clubs are
searching for young talents at even younger age they used to. They send out scouts, and buy
young players at the age of 10-12.
- Necessity of redrafting the transfer rules

30.03.2015

Lecture 6 - Introduction to the Problem of Match-Fixing:

Slide 4:
Criminalize match fixes can be special or general offences

Slide 5:
Competition, fair play, equal opportunity (same conditions)
Principle of Uncertainty is the most important

Slide 6: The threat of the sports values:

Commercialization in sports, reason why increase in MATCH FIXING.
Betting market sports betting is not bad thing; federation makes profit of the revenue. Sports
betting too much money is involved, there is criminal activity and manipulate the whole system
i.e. match fixing.
Yearly turnover of 350 million greater than wall street
Internet aided the development internationality of the betting market,
o MAKES IT HARD FOR STATES TO CONTROL THE MARKET -
Organized crime within betting market activity of the mafia i.e. bribes players, coaches, and
referees. Betting market best for place for MAFIA to invest money from drug cartels
Harder for prosecutors and association to prove is the MATCH FIXED was it intentional or
not.
This threatens UNCERTAINTY OF SPORT if every match fixed, then sports would be boring
and loose spectators and sponsors

Slide 7: Definition of Match-Fixing:

Sports bet
o Office physical and online betting (internet)
o Odds relations between wager (amount you bet) and possible profit you earn if you will
win the bet. Fixed bet before KICK OFF. Variable not sure how much you will get
back (impossible for commissioner to make loss)
o LIVE BETTING we can bet during the live event (i.e. win next rally)
TWO PROBLEMATIC ASPECTS (1) Addiction risk gamblers loose control
over betting behavior (2) there is always MANIPULATION RISK time
difference between live event and television event. So commentators
(spectators) can tell people goal and then phone the better due to delay on the
broadcast, then person can make money
Matching fixing:
o MATCH fixing WITHOUT betting business GOAL SPORTING ADVANTAGE ON
PITCH infringement of sports integrity
Ice hockey team already qualified for play offs, then play a team that has not
qualified agreement that the qualified team loose so the other team qualifies
 o WITH BETTING BUSINES GOAL = FINANCIAL ADVANTAGE infringes
additionally financial loss for betting operator and infringement of sports in
o INSIDER BETTING undue advantage over bettor and operator, i.e. Key information
about the line up of the team or injury to players

Slide 8: Possible participants on the manipulation

Referees money problems with an addiction always in PRESSURE SITUATIONS
Players most match fixing with UNKNOWN PLAYERS, (these competition are faraway from
broadcast and popular players have more money = they do not need extra cash like unknown
players)
Coaches coaches only have influence on the starting line of the team key player or top scorer
on the bench.
Officials like coaches
(d) Match fixing: Not only football cases
Easier to manipulate INDIVIDUAL SPORT if you try and manipulate team sport (Harder due
to 21 players involved)
Football and Cricket Are largest

Slide 9: Measures aganst Match Fixing

The measures of Associations:
Some only have general rules and others have specific rules
Slide 10:
No simple definition of match fixed
Most by lists INTERNATIONAL ICE HOCKEY FEDERATION

Slide 11-12
No touch rules FAILURE TO COMPLY WITH THIS = similar to match fixing. REPORT
SUSPCICIOUS OFFER the problem with SUCH RGEUALTION = PROPORTIONALITIY
if he didnt manipulate anything or didnt offer anything to sport

Slide 13:
Different sanctions = bans, fined
Principle of Legal Certainty = Athletes and referees must know what is banned and sanctions

Slide 14:
Sanctions are always appealable before the CAS
Burden of proof = lies with the organization (i.e UEFA) if there is manipulation of game
Standard of Proof = depends on different standards i.e. BRD or BOP
Match fixing impossible to proof with 100% that a walking event was fixed
CAS Something in-between = COMFORTABLE SATISFACTION between BOP or BRD
POBEDA qualification for championship, more than 10 times betting on that game that
normally and huge amount of money was POBEDA would loose. Some players of Pobeda
placed money on defeat. UEFA could prove that was match fixing,(i.e. banning players).
Revoked the Captains sanctions, as they were not comfortable fixed.
Slide 15:
Problem in match fixing you need to PROTECT WITNESS
ECHR Art 6 para 3 lit. D ECHR

Slide 17:
Witness can stay anonymous as long as solid reasons and concrete threats. Panel must know
identity but DEFENDANT will not.
Panel must comply with the proper interests of the party and the witness

Slide 18:
 Zero Tolerance federation pursue aim of consequent prosecution of match fixing, principle of
zero tolerance Oriekhov Case FCB game in 2009)
o He get a concrete offer from betting agency, he didnt report it but match not fixed. He
got banned from UEFA and CAS confirmed it.
o READ DEICISION

Slide 18:
Preventative Measures
Early warning systems system have all information from the betting operators, if there is
unexpected betting behavior. An alarm will be raised. This is deterrent in Match fixing. Biggest
system monitors of 35,000 .
IOC international sports monitoring system a lot of federation different educational
programs.
Players and referees should know match fixed. They should learn normal betting behavior and
they should know how fast involved in the case
Hotlines call anonymous to hotline and report these are very important, good to collect
information
Specific department
Lie detectors Singapore makes players. Lie detectors in EUROPE because of invasion on
privacy

Slide 19:
Limits of the measures:
Only players and referees are bounded by the revelation, the betting operators or the gamblers,
The repeatability of a fixed game. If you repeat a fixed game of last season change whole
ranking and qualification. The federation cant change that cant repeat every single fixed game
Lack of evidence match fixing are international and hard for them to prosecute. I
Lack of investigation powers cannot make house calls, monitor phone calls
Associations can not solve match fixing by themselves they need state measures

Slide 20:
Regulation of the betting market
o Prohibition: USA betting in betting office on allowed in certain offices NEVADA.
Online betting is not allowed in AMERICA. It is very strict.
o Reason for strict law in USA minimize risk of addiction and keep away organized
crime out of SPORT
o 2 disadv: (1) is important to prevent sports betting (2) Circumvention if it is
prohibited then citizens go undercover/illegally
o Americans still invest between 80-380 million in the foreign betting market
Monopoly: Switzerland
o People must be protected of addiction risk of sports bet, Swiss los and lotterie Romande
establish specific rules according for the prevention of the addiction risk. They limit
the age of gamblers. Is a monopoly really necessary to prevent an addiction risk, Swiss
higher addiction of slot machines or tobacco/proportionality?
o Risk of Circumvention cheaper to bet with foreign operators

Slide 21:
Geldspielgesetz - Swiss keep monopoly system
Monopoly Germany:
Germany bound by Euro Law (Art. 49 and 56 TFEU)
ECJ monopoly system of Germany in violation of European Law
Germany couldnt explain why it could only allow 20 licenses why not open the entire market.

Slide 22:
Licensing system: Great Britain:
Gambling Act 2005 every British betting operator needs licenses, licenses are unlimited
only if you fulfill different conditions for prevention of addiction risk and match fixing
Only British operators need licenses those established in foreign countries did not need
Licence
Gambling 2014 act every operator needs a license who is active on the market and includes
foreigners

Slide 23:
Regulation in offshore states:
In Malta very strict even stricter conditions to receive than other states
Regulation two advantages compliance with European law (German state operator can be
legally active in the betting market of offshore state)

Slide 24:
Reduction of unregulated markers and increase of regulated markets. The regulated markets
must be LIBERAL otherwise it will not work
Need for harmonization, which kinds of bets are allowed over the world.
Strict provisions to prevent match fixing (e.g. prohibition of bets with a large manipulation risk)

Slide 25:
Fraud 146:
o NEEDS DIRECT FINANCIAL DAMAGE if there is betting business involved, if
there is not betting damage, there is no direct damage, there may be loss of sponsors but
no direct damage. (11:37 ) NEED BETTING BUSINESS!
o NEED NATURAL PERSON
o If company involved in online betting, neither the betting mafia and the players on the
pitch on Swiss applicable
o Federal criminal court: acquittal although one player acknowledged role in match fixing
this shows BIG GAP
Planned law change - Geldspielgesetz

Slide 26:
Art.1 <<Legge>> Nr. 401
In Italy criminal offence to be involved protection of integrity of sport
Now 9 years imprisonment

Slide 27: How to prevent best solution in CRIMINAL LAW

State resources state have criminal offences
But is there really interest of criminal prosecution, should state fight against match fixing when
its sport problem. Should it use money of society?
o States have different views
o DISTINGUISH BETWEEN with business or without business,
o BUINESS NEED IT FOR THE MAFIA (i.e. drugs) this SHOULD BE REGYLATED
DUE TO ORGANISED CRIME
o Without business only infringement of integrity

Slide 28: LIMITS

Principle of territoriality can criminalize match fixing only on state territory
Different legal situations makes it difficult

Slide 29: 11:44

 Enlarged partial agreement on sport (EPAS)
to draft a convention against match fixing and convention against match fixed
Convention on the manipulation of sports competition
o MAIN objectives and purpose

Slide 30 -31:
Enter into force when five states ratified the convention and three members of convention
Article 15 not a uniform criminal offence if you want harmony station, you need specific
uniform. The convention obligation no harmonies in question, which bet, should be allowed
and which should be forbidden.

Slide 32: the Global solution:

Preventative is the KEY the task of the states state regulate whole betting market.
Tasks of states: Regulation and uniform criminal offence (so all states understand)
Common tasks (1) coordination have to work together and exchange information for state
prosecutor that they have information from early systems. (2) Zero tolerance only then
possible to achieve the most important deterrent effect
Slide 33:
Implementation: WAMFA:
o Need a world match fixing agency anti,
o Members: we need all protagonists to be member in the state.
o Tasks: uniform regulations/laws and draft regulations for associations (WADC) then
association would be obliged to regulate
o Construct international database all protagonists sit on one table may be a possible
solution in the fight against match fixing

20.04.2015

Recapitulation
The specific nature- it has structures based on voluntary activity. Differentiates sports from other
sectors of internal market.
It would be wrong to say that EU law has nothing to do with the sports.
Couple of provisions, decisions on EU Competition law relevant to the sports law.
Any discrimination based on the grounds on the nationality is prohibited. Freedom of movement for
workers shall be secured within the EU. It is addressing issues of putting various access to internal
market, not just discrimination.
Art. 49 TFEU- two folded provision, not just branch on discrimination, but also on prohibition.
Art. 56 TFEU- freedom to provide (freedom of obstacles) and freedom of discrimination.
Recapitulation
There is no immunity granted to sports- freedoms.
Who is the addressee of these freedoms? International or national sport federations. Those federations
behave the same as national legislators would behave.
Territorial field of application of the freedoms- whenever the EU freedoms are affected.
Contents of the freedoms- discrimination on one hand and restrictions on the other hand of the internal
market.
Limits of the freedoms- within justification we have to look if these regulations pursue a legitimate
aim, if they are necessary, whether the means are proportional in relation to the legitimate aim.
This kind of test applies to various typical clauses that you find in regulations of international sporting
federations.

ALWAYS APPLY THE FIVE STEP TEST

Typical provisions that pertain to Lehtonen case:

- FIBA with the seat in Munich- transfers were dependant on the transfer zones (five transfer
zones)
- Finnish player- going to play in Belgium because the season in Finland was over earlier
- He did get a contract, but didnt get a licence from Belgium national basketball federation
- He appealed to Belgium courts
- Art. 45 TFEU- not an infraction based on discrimination on nationality, but on restrictions
- Restrictions are prohibited even if Art. 45 TFEU doesnt say so.
- Restrictions on free movement
- Justification for restrictions of transfer and transfer window- you want to know whos got the
best team at the end of the season. You have to stick to transfer windows twice a year.
- The second question- Is this kind of regulation able to attain this
The ECJ said
- Proportionate- is one transfer window enough, do we need three windows- ECJ- it fulfils the
five prong test.

Deliege Case:
- Deliege is a judo fighter from Belgium. Problem at the time was that there are couple of judo
competitions in Europe. The event organizer would go to national federation and asked them
with the letter who would they send to competition from their national judo family. They had
quotas based on ranking to have an international representation. As long as you have those
national quotas, you wont have the best athletes competing against each other, but youll have
a lot of nations. The national federation didnt enter her into the competition.

Is this compatible with the individual freedoms? Do we have problems in the five pronged
test?
- Economic activity has to be involved.
- It is a question of freedom- any kind of economic activity, doesnt matter if someone earns
500, 1000, 100 000 and if it is a part time work.
- For Art. 45 to apply- she has to be worker- is she a worker/employee? Does she take
instructions?
- She provides her services, therefore Art. 56 applies. Depends whether you provide services
dependently or independently.
- In the context of justification- is there a justification for this provision? Yes, this is a
legitimate aim, because you want to involve as many nations as possible.
 - Second question, does this provision attain this quota? Who is allowed to enter the
competitors in the international competition? The event organizer allocates this to a third
party- national federation. It is legitimate to have a provision like that because national
federation is best suited to know who their best athlete is.
- There are some soft factors that national federation could use to make choice of the athlete.
- There is a certain level of discretion in designing the rules by international sports federations.

Bernard Case:
- The first four steps of the test are covered
- Is there any justification for such provision?
- Is there a legitimate aim? You have to form young players in order to have strong sport. It is
an absolutely legitimate aim. If you dont form young players, the sport would die?
- The means put in this, are they able to attain this goal? Is there incentive for sports clubs to
form young players? There is some kind of rule and the goal they are trying to achieve? Is this
proportional?

Sporting regulations and Competition law

Art. 101 TFEU
There may be restrictions in the public interest.
Prohibition of cartel-like arrangements between two or more undertakings which have as their object
or effect the restriction or distortion of competition within the Internal market.

Undertakings: any legal or natural person engaged in own economic or commercial activity involving
the provision of goods and services.
Clubs or athletes- depends whether you have team sports, in most cases athletes only provide
Team sports-you provide dependently, worker per se doesnt qualify, the second condition
Agreements- try to influence behaviour of the others. Behaving in a certain manner yourself. Irrelevant
how you influence the behaviour may be a resolution.
You try to have broadest scope for Art. 101.

Is the agreement done with purpose of restricting something?

There has to be an effect on the market that can be felt.
One implicit restriction- that is not negligible.

Art. 102
Fundamental difference between Art. 101 and Art. 102 is- we have to have agreements between one or
more undertakings, 102 looks at behaviour of undertaking, who is the counterpart to the undertaking, it
can be abusive behaviour against Vis a Vi consumer.

If your behaviour isnt influenced by your competitors, you have the dominant position. Position of
economic strength.
The dominant position is always in a relation with relevant market.
Is the sporting market for ECL, football as such, how you define the market? Important thing is the
relevant market.
What relevant market is- you have to put yourself in the shoes of the consumer? Can I substitute one
commodity for the other commodity? Could I substitute a CL match with a national team match? Most
people would say no.
Abuse is a matter of balancing interests. You try to enforce your dominant position on the other one. It
has to affect the trade between the member states.
Selling a CL tickets in the package within national league tickets- is it abuse of dominant position?
Some courts said that it was an abuse of dominant position.

Definition of undertakings:

- The legal form doesnt matter.

- Doesnt matter if you make profit or not.
- If you are public entity then there are particular provisions how public entities should behave.
In principle competition law provisions dont apply.
- You have to look exactly what is exercise of public power.
- What do we do with sport in another context? We dont have to differentiate between
exercising public powers and

Piau v. European Commission

- FIFA enacted new rules on becoming and behaving as an agent

- If you engage in services as non-licenced agent, they are not going to respect those contracts-
only to act with FIFA licenced agents.
- Every agent must pay 100 000 to act as an agent
- FIFA- are they an undertaking in enacting these rules? The players agents are undertakings.
- What about FIFA? If you act as an undertaking in one respect, then you are viewed as
undertaking in all other respects.
- Differentiating between various aspects of entities.
- International federations act as an undertaking in every single respect because they organize
international competitions.
Wouters case
If you have an agreement that has its object or condition- they refer to Wouters decision- it has nothing
to do with sports, but thresholds decisions applied in all sporting matters.
Every agreement that restricts the competition is unlawful.
The overall context must be taken into the account.

This Wouters test applies also in the sporting matters.

27.04.2015
Recapitulation

Designing the rules of the game, youth development, the question is if we have different sectors,
whether all these sectors become an economic activity, or are some sectors exempted from economic
activity. The ECJ tries to differentiate between public and private function.
If the object of the agreement is not to restrict the competition, even if the restriction is practically
inherent, it could be an exempt from Art. 101.
Wouters decision:
- Objective
- Consequential effects inherent to the pursuit of objective
- Proportional

If you have a dominant position on the market you are not allowed to abuse it as an undertaking.
Prohibition of abuse of one or more undertakings of a dominant position within the IM or in
substantial part of it in so far as may affect trade between states.

Sporting Regulations and Competition Law

Doping ECJ 18.7. 2006 Meca-Medina v Commission

Meca and Medina were professional swimmers, they took Nandrolone- steroid. They took an average
humane, and if the level of this steroid in the body was over the average limit it would be considered
as doping. These two athletes went to the Commission. If
They filed a claim which ended up at the ECJ, and they had to look if these provisions were
compatible with EU Competition law or not.
ECJ said that the IOC must be considered as an undertaking (first question)
Second question is (would Meca and Medina be considered as undertakings)
Is there some kind of agreement, and what could be the agreement?
Of course there is an agreement. You have to fill in the form by the IOC.
What else could be an issue? If we have two undertakings that have entered the contract- the question
of the effect.

If an investor acquires more than 50% shares of a club and also more than 50% of the other club, then
one of these clubs wouldnt be allowed to play in the UEFA competitions.

Fight Against Doping

History- if we think about doping, we think on individual athletes that were caught doping.
Doping is a modern phenomenon, modern phenomenon. Doping has been here during the history. It is
a word that comes from South Africa- The Africans fought Zulus, and they took something to increase
their strength. The Africans used a word dope to describe this. During the Greek Olympics athletes
would eat huge amounts of meat or bull testicles, the idea was to increase the strength by eating these
substances. Roman times- horse races, the owners gave them special drinks in order to make them
more aggressive, faster
When it comes to modern times, the first time doping was recognized was in cycling. Cycling at the
beginning was connected to betting. It forced to do something impossible- to take substances to do the
impossible.

Professionalism and dependence

If you are a professional you are much more vulnerable to take prohibited substances. If you make a
living out of sport, if you can make huge amounts of money, you will do something prohibited to win
this money.
Sport as a tool in the battle between political systems
East Germany- oppression, selection system- in the kindergarten, they started to measure kids. Second
thing is that they said if you become good sportsman and represent your country, you get more
freedoms. Through sport you may be able to demonstrate that your political system is better than every
other political system. If they wanted to make medals, they dont want to go to team sports. They
supressed team sports to the advantage of the individual sports.
All these coaches were fired afterwards, and all of them found new jobs in other countries.

External pressure from media, sponsors, advisors

The environment creates a huge incentive to people to take some prohibited substances.

The history of the fight against doping is the law and order arms race.
There are quite some IF that introduced some kinds of rules to fight against doping.
People take doping in the periods between the competitions. They come clean to competition. OOC
(Out of Competition Test) - logistically huge problem- you have to know any time, any date where the
athlete is staying, domiciled, lives
First time EPO test were introduced in 2001/2.
90% of professional sportsmen used EPO without being noticed. It was a game changer in the sports
industry.

04.05.2015

Lecture 9
Anti-doping:
Anti-doping policy constantly moving forward
MOVING TARGET principle - moving target, have to be alert
International federation trying to implement INVASION OF PRIVACY,
Is international federation best suited to combat doping i.e. UCI and Armstrong, if you are
promoting your sports, you need stars, (good athletes), if the same person is promoting the event,
there is an inherent conflict of interest, what is the interest of big federation to go after stars. It
would be detrimental to there business project,
Conflict of interest
Athletes Rights
Financial Resources to go after athletes; The other side trying to find out a new technique,
BIG SHIFTS with cases
Ben Johnson they realized that out of competiton testing is important
Festina (1998) one of the cars, seized and people realise
Fluentes - blood manipulation doctor, advised athletes how to cheat with these techniques, in
the offices of doctor, there was 100 of bags of blood advising athelests how to cheat
Armstrong biological passport,

Policy:
Why are we trying to find a solution for the doping problem what is the reason for why are
we trying to find solution for doping problem, why allocate so many needs and resources, what
is the underlying idea
o Not good for health = poor argument (sport is unhealthy i.e. marathon running)
o YOU HAVE TO PROTECT SPORTING ACHIEVEMENT OF ATHELETE &
excellence of performance
o
World anti-doping code regulation in the fight against doping PRINT OUT NEEDED
FOR EXAM.
Commercialized sport we have economic competition we have to protect the sponsors who
put huge amounts of money, all the underlying values would change.
FESTINA team festina involved in doping 1998, one cars of festina hundreds of ebo doses,
people tried to ask festina, why dont you fly a claim for damages, you have sponsored a team
because you thought it was a clean sport, festina said there was NO damage, everybody knew
about it, there brand was so well known and they continued to sponsor. Difficult to argue that
you need to protect the economic value, this is poor as evident above,
Dopers banned and then they have a comeback,
o If
It is the social value underlying SPORT why would you look at that, most people think sport
is idealistically copy of SOCIETY,
 o Society where performance counts, talent if you do whatever you can, then you achieve
certain goals, - everybody is equal footing, whether you are rich or poor, doesnt matter,
as long as you train and have talent you will have results. The performance aspect
doesnt depend on where you come from, everyone is bound to the same rules. Sport is
used as an educational tool
o Sport one easy way of SUBMITTING TO RULES, i.e. prisoners paly sport and
enforced ins chool
o This performance aspect and equality aspect is WHAT WE ARE TRYING TO
PROTECT sport has always been an image of society, sport was a religious
activity

(2) Competence in the field of anti-doping

Public entities, especially with govt, sport is a public good, if we entrust the govt in the fight
against doping.
o Enforcement measures, you are bound by this rule,
GOVT = legislative/investigative powers you have police/prosecuting machinery to
investigate matters. DISADV, differing national concepts/no global strategy, it is quite difficult
to coordinate on an international level.
Sports organization = knowledge of sport, what is the specificity of cycling what techniques
would be used, and they have licenses with athletes (Easy access to athletes)
o Conflict of interest
o Democractic deficit - if govt is enforcing rules there is legitimacy as we elect those
people, what about those governors of international sports organizations, the rules being
enacted,
o
we either entrust a public entity or private
Need to solve two questions:
o 1. Who is in charge of solving uniform standards who should take the lead uniform
standards
o 2. Who should that be?
After Festina scandal we cannot longer trust international sport federations, IOC, headquarters
are in montreal Canada, the underlying idea of this entity we have both partners that have
adv/disadva who are cooperating through this entity. PRIVATE AND PUBLIC ENTITY
o We have the Olympic movement and govt represented in the moment. We have article
4
Foundation Board article 6 maximum of 18 members will be appointed, 18 members are on
foundation board, the governing body of this foundation is the board, we have equal
representation of private and public entities. First time we see coordination, between 2 players
with one structure of world doping. Equal distribution depends on financial contribution.
Second organ difficult to manage such a large organization meet four times a year we have
executive board, elected by foundation board. Vital you have equal representation in the
foundation board.

The main task is to enact UNIFORM STANDARDS

They devised World Anti- Doping Code
Private Institutions all rules enacted by them lack legitimacy is there legitimacy to apply
them on world wide scale
o The code must be approved by Executive and foundation board, there is legitimacy
as equal representation of private and public
More transparent system that more people can review
BINDINF FORCE
Once devised the code how do I bind the athlete to these rules
This book is not binding on the athlete per se, people are not bound by it. How are the rules
binding on private sector i.e. atheltes, the privat sketor, there is no binding force, people have
 to SIGN UP To THE CODE i.e. IOC, NOC and IFS and national anti doping organizations
(NADOS),
Whoever is not signing up to the world anti-doping code you will be expelled, for some sports
this will not be detriemental. For most sports, this is detrimental, as money comes from
Olympics. If you do not sign up you will be expelled . IOC will secure and enforce, if you do
not sign up
Big professional leagues, i.e. baseball, do not participate in code because revenue does not come
Some
International federation will have licence agreement and there will bass onto individual athletes
how do you know it will done Verbatim you have interest in not deviating

Binding Public Sector:

Traditional instrument between govt can only sign conventions with equals other states, not
privates
Lets enact a convention among governments with UNESCO, lets make that part of UNESCO
convention, the individuals states can bind themselves,
Article 1: UNESCO these definitions are too be understood with world anti-doping code.
Public entity that makes explicit reference to public code, what is the reason they have to enact
private convention, the only way you can do traditionally by signing the convention.
Article 3: In order to achieve purpose of this convention, states have to undertake and adopt
appropriate measures, which are consistent with the code (WADA)
Article 4:

WADA:
In order to implement the policy, there are national and international tools, if there are all the
global players, WADA formulates a comprehensive anti doping code:
o ADRVS: Anti doping rule violations
o WHO COMPLIES ADDRESSES who is the addressee the addressee is = coaches,
support personnel,
o Enacted rules on how to plan anti-doping testing, you have to devise a plan, who are
you going to test, when are you going to test, you to do testing,
o Results/management give them a chance to comment on the results you have to
think about how you deal with positive tests. There has to be some access to justice,
some one has to check on this. Appeals are an integral part, the world anti-doping code,
say something on monetary and compliance, monitor whether the individual signatories
have duly incorporated in there rules, monitoring whether the rules have been enacted
properly, somebody has to tell you how to coordinate your efforts. There is a big deal
of coordination between govt entities and sport entitles, who has competence for that.
o THIS ARE ALL QUESTIONS YOU NEED TO LOOK AT.
Not just through rules but also through EDUCATION, you always have to stay upfront with
science in order to protect prohibited substances, there are couple of provisions of science

Enforcing (implementing + monitoring doping stratergy)

o Internation federation will pass on the rules to the national federation and will pass on
to the athletes
o National Olympic Comittee not members but recgonised by IOC, if you do not comply
we take away the recognition
Signatories to the code are not international stakeholders but also national, they can sign up to
the code, they are obliged/committed, they get it from the IOC
National Anti-doping organizations they sign up to the code and will implement in the are
Governments indirect link through UNESCO convention they enact this through UNESCO
convention GOVT fund research, they are sponsored and financed. Most laboratories are
financed by the state. Criminal investigations can make raids,
 o Govt coordinate through UNESCO convention, we see there is convention against
doping WADA as a say in the international WADA funds a lot of individual research
close links to the laboratory, LABAORTIES WADA ACCREDITED
o Special guest with council of Europe
o WADA permanent guest with EUROPOL
Quite complex how you enact this policy, there are a lot stakeholders involved, there is a huge
section on coordination.

3. Legal Challenges:
ADRVS, Testing/investigations, sanctions, appeals
Applicable legal framework rules enacted by a private entity, if I want to scrutinize these rules
do they stand up to legal standards what are the legal standards I am going to apply to this
rule.
International Standards, which are applicable, European fundamental freedoms, you might
scrutinize through fundamental rules and European convention on HR, European competition
rules.
National laws, which are applicable , labour/employment law, national competition law,
constitutional law. Some countries administrative and association law.
ARTICLE 75 of CIVIL CODE IMPORT
Evade national laws (AS SO MANY LAWS internationally), and you take away form state
court
CODE = depending on whether they are domiciled completely different environment, some
countries jurisdiction come to the conclusion, every single athlete submitted to the rules,
competitor bound to the rules, there is no meaning in having a competition. If we apply the
national standards, take the case away from national courts, this is the reason why arbitration is
so important in doping, this is how important is in taking away from national courts and applying
the standards

ADRV:
Article 2.1.2:
YOU NEED TO LOOK AT DEFINTION IN 2.1.2 and look at list of prohibited substances
(WADA publishes every single year)
o Two lists one list that is prohibited at all times and second list prohibited in
COMPETITION
PROBLEM 1: IN AND OUT OF COMPETITION we have substance prohibited in
competition, it is not an anti-doping policy. Most international federations would say
autonomy of IFS, competition period we have people that take the substance of the
competition and traceable to incompetition, is this an infliction, because it was taken out of
competition but found in take competition. It is the TIME OF DETECTION WHICH IS
DECISIVE NOT THE TIME OF INTAKE. i.e. Marijuanna can be in blood stream for 6 weeks
List and Discrimination:
o If you have certain defects you cannot compete in high level sport, question is what we
have to do with it
o Therautpic use exmeptions: you can take the exemptions:
o 4.1 : if allows you to achieve a higher level then there you cannot get this
o CAS 8.6.2005 2004/A/717: quiet a dramatic pain killer, he had to take the substance
otherwise he would not be able to survive, is there a reasonable therauptic alternative,
ETHICAL QUESTIONS ARISES

Problem 3: Are all substances equally bad?

o You have to act with intent or other substances that you take cough meidicne, quite
negiligently you can put substances in your body
o Specified susbtances for the purpose of sanctions, they are treated differently, if you
take speciifced substance inadvertly into you system, than other usbtances you can
take only by direct fault.
11.05.2015
Art. 201

The list of prohibited substances is published every year, because of new ways of cheating. Provision
concerning list is found in Art. 4.2.1.
There are two lists: list of substances prohibited during competition and list of substances prohibited at
all times. This mechanism differentiates between in and out of competition. Multitude of problems-
because, it may be that the substance has been taken long before the competition. The list of
prohibiting substances can lead to discrimination- because people can be dependent on some of these
substances. Final problem concerns how do we invent these prohibited lists? One provision in Art. 4.1.
WADC. They try to seek some kind of transparency before this list is published. Once the list is
published, a substance or method shall be considered for inclusion.
Two out of these criteria have to be fulfilled:
- Potential to enhance sport performance
- Potential health risk
- Violates spirit of sport
Or masking agent- substance that covers another prohibited substances.
Cannabis is on the prohibited list. The problem with it is that it is detectable for a long period (4-8
weeks). The reason for putting it on the list- it doesnt have any potential to enhance sport
performance, it has a potential of health risk, and it violates the spirit of sport. You have to find the
justification to put something on the list. Nevertheless, is there some kind of judicial

Once the substance is on the list, it cannot be challenged any longer. Is there a legal issue with the
impossibility of challenging the list? Maybe a violation of right to remedy.
Is there a justification for this limitation?
What is the problem whether the list complies with these prerequisites? The problem is that different
courts may come to different conclusions. Some courts may squash the sanction. Some courts might
confirm it. The idea is that everyone must be treated equally and in the same way. That is a
justification for excluding these kinds of things. You have to give something back in return if you
exclude the right to challenge the list. You can participate in the process that leads to making up the
list. What actually happens is that procedure is taken out of the individual context but is being looked
in abstract without viewing the individual case. We have some kind of evidentiary proceeding. There
is some justification in having such a rule, because it is vital for the principle of uniformity in anti-
doping.

The list of prohibited substances is an open list.

CAS 2004/A/726 Williams v/ IOC (para 6 et seq.)

Sample collection

One of the parts of the anti- doping policy that is fiercely battered. If you look at the level of expertise,
it is rather high. What people concentrate now is the process of sample collection. Something is wrong
with that.
Process at the moment:
Two different kinds of samples that are collected by the athletes.
Quite easy to collect, to control, logistically not difficult- tests in competition.
Logistically out of competition tests are hard to organize logistically.

There is a pool of top athletes who have to give their 24/7 whereabouts so they can be surprised.
An athlete has to provide a window of one hour during the day to be tested. If you cannot be reached
that doesnt consider as anti- doping rule violation. One of the biggest loop holes is that you cant be
tested between the hours of 11 pm and 6 am. Leads to possibility of abuse by cyclists. Therefore there
is a new provision that allows testing in these hours.
Once you have taken the test, the doping control officer notifies him of performing the test. This stage
is called the notification. The officer cant leave the athlete out of the sight for a single second. Athlete
signs the contact sheet.
Once he is notified comes the passing of the sample. If it is in competition test some doping control
stations are set up. Lots of forms that have to be filled out. Once it comes to passing of the sample, it
must be observed all the times. Once the sample has been taken, it is sealed in special containers with
the engraved numbers. Once you close them you cant open them without a special machine in order
to prevent manipulation. Finally, there is some kind of documentation of all these various chains and
steps. Most of the documents have places for statements, and for the research purposes.
This process of sample collection is highly invasive of privacy rights. Plenty of reasons to say that it
isnt proportionate. Of course it is highly invasive of personality rights.
The question- is it worth it?
Plenty of religious aspects
So far the common consensus is that we want the level of play, we need anti-doping policy, and in
order to have it we have invasion of privacy.

Types of sanctions:
Once you have analysed the samples, and if they are positive, there are different type of sanctions:
1. Disqualification (Art.9 WADC- (In-Competition test) automatically leads to disqualification
of results obtained in the competition, including forfeiture of any medals, points and prizes.

There is no concept of fault. Is it negligent, is it intentional? This provision applies regardless

of fault. This concept is called strict liability. The only justification is that you need the level
of playing field. For the competitor it isnt important whether you took the substance
intentionally or negligently.
2. Period of ineligibility (You are banned from participating in an event for a certain period of
time. These sanction should look like this: 1.uniformity- the same sanctions to everyone 2.
Just/equitable 3. Easy to apply- the courts arent applying the rules, sporting institutions, not
lawyers. All these conditions are impossible to apply.
The principle- standard period (10.2.1) if it is a standard intentional the period shall be 4 years,
if it is negligent the standard period shall be 2 years. There are ways to reduce the standard
period, depending on degree of negligence (no knowing of negligence in second case), little
negligence (from two years to certain thresholds) you are not allowed to participate in any
kind of competition. Martina Hingiss example- cocaine taking- social reasons, a ground to
reduce the sanction if there is negligence. There are cases where the ban has been reduced to
null.

Jack 3D- prohibited substance- it doesnt say on the label that it has prohibited substance

3. Publication- one of the most effect sanctions you can find. It is huge invasion in personality
rights. Automatic publication as each of every mandatory sanction. People are much more
afraid of this provision than of ineligibility.

Appeals/Procedure
18.05.2015