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Regulatory activities of sports governing bodies have been attracting more and more attention of courts and competition authorities. Indeed, the remedial potential of competition law has been steadily growing in recent years and is currently becoming the most viable instrument of protection of commercial freedom of athletes and other stakeholders from abusive policies implemented by national and international sports federations. The recent case of the International Skating Union is very likely to contribute to a considerable liberalisation of the markets for organisation and for commercial exploitation of sports events. However, SGBs, including the powerful IOC, resist this—it seems to be—inevitable process, invoking, inter alia, the importance to safeguard the European sports model. The paper examines the perspectives of this model, and, more particularly, the question of whether it still measures up to the realities of the sports industry. It provides insight into the cases illustrating potential dangers of breakaway leagues. The author of the article comes to the conclusion that the solution of the problem of eligibility rules represents only an intermediate step in the search for a steady balance among all interests involved, and that the European sports model should be ready for further compromises in order to survive as such.
Therapeutic Use Exemptions (‘TUEs’) provide athletes a route to take prohibited substances for medically supported therapeutic reasons without violating anti-doping rules. They were instituted for the purpose of protecting an athlete’s right to medical care; however, the current retroactive TUE policy under the World Anti-Doping Program fails to uphold this right. In order to obtain a retroactive TUE, athletes are required to prove not only that they meet the criteria for obtaining a prospective TUE (i.e., their use of a prohibited substance or method is medically necessary and will not enhance their performance above a normal state of health) but also that their circumstances fall into one of four ‘exceptions’. The ‘fairness provision’—the last of the four exceptions—is the ‘catch-all’ provision that permits athletes to receive a retroactive TUE only if both the World Anti-Doping Agency (‘WADA’) and the relevant Anti-Doping Organization agree that fairness requires the grant of a retroactive TUE. Since its inception, this ‘fairness provision’ has been narrowly interpreted by TUE Committees, thus preventing athletes from avoiding anti-doping rule violations even in instances where they have met the test to obtain a prospective TUE. The Ultimate Fighting Championship’s (‘UFC’) TUE Policy, in contrast to WADA’s policy, more broadly permits athletes to obtain retroactive TUEs, in the end helping them avoid getting caught up in the anti-doping system. As the fourth edition of the WADA Code will be approved in the next year, we believe WADA stakeholders should consider a broader and more equitable use of the ‘fairness’ provision or adapt its policy to better protect all athletes’ right to medical care.
Following the major scandals that have recently stained the reputation of the world of professional sports, it has become clear that rules should be set out in order to ensure that sports organisations are governed in a proper and ethical manner. While the Sport Movement engaged in a major reform process, especially at the level of regional and international sports federations, States in Europe also consider it necessary to regulate in the field of sports governance in its micro-sense, namely the organisation and management within sports organisations. As a result, one is witnessing the emergence of a new trend among European States to include sports governance as a topic of Sports Governance in its macro sense, namely the relationship between the State and the Sport Movement. In doing so, States have adopted all kinds of measures. While examining different types of measures, ranging from compulsory codes of conduct or covenants on ethical sports to voluntary codes on good governance and selfevaluation tools, this paper will in particular focus on mandatory codes on sports governance, namely a measure designed to encourage good governance within sports organisations by making public funding conditional upon compliance with a defined set of sports governance requirements.
A central tenet of the international sports movement is that sport should be unfettered by politics—in other words, there must be a separation of sport and State. This is regulated by many governing bodies, such as the IOC and FIFA, which prohibit almost all forms of political statements. Nonetheless, sports events can be powerful platforms and many actors have utilised them for political means. This article addresses the now-common phenomenon at US professional sport events of paying homage to the military. This assumes various forms, often consisting of announcers directing the audience to pay tribute to the US armed forces or veterans prior to or during a match. A 2015 enquiry by two US Congresspersons exposed that the US Government had paid over USD 10 million to US professional sports leagues for such tributes, without disclosing the paid nature thereof to sports events audiences, a practice termed ‘paid patriotism’. Focusing on Major League Soccer, one league whose teams were documented to have held paid military tributes, this article argues that, paid or unpaid, such military salutations are impermissible political statements and thus inconsistent with the applicable (FIFA) regulations. Parallels are drawn to the wearing of poppies and associated homages on Remembrance Day organised by the English, Scottish, Welsh and Northern Irish Football Associations. As a result of the poppy controversy, IFAB modified the Laws of the Game leading up to the 2018 Russia World Cup to permit commemorations of a ‘significant national and international event’. Nevertheless, military salutations remain impermissible political statements within the modified rule.
In its governance of football, FIFA claims to be democratic. In addition, FIFA purports to apply standards of democracy to its members. This article examines the nature and validity of the basis of these claims to democratic legitimacy. In particular, it considers the application of the principles of representative democracy within the governance of football by reference to the governance structure of FIFA and by reference to the example of one of its members, Football Federation Australia. It is argued that the governance structure of FIFA is not democratic, notwithstanding the associations’ pretensions to democracy, and that fundamental reform is required to make both FIFA and its member associations democratic.
The sole governing body in the field of football, the Turkish Football Federation (TFF), performs official tasks assigned to it by the legislation and has been furnished with the opportunity to benefit from public privileges. The Arbitration Board of TFF is the compulsory and ultimate legal forum for disciplinary and administrative issues, and no appeal is allowed to court in accordance with Article 59 (3) of the Turkish Constitution and the relevant provisions of the Law No. 5894. However, constitutional law and human rights concerns are almost totally neglected in the field of Turkish football. TFF has rejected to apply human rights standards, and the Turkish Constitutional Court has approved TFF’s approach. That is why victims of alleged human rights violations have applied to the European Court of Human Rights (ECtHR) for the actions and decisions of TFF. ECtHR has very recently started to examine the disputes regarding football matters brought against Turkey and has invited the Turkish Government to provide its responses in eight applications pending before it. Possible outcomes of these pending cases are not yet known. Thus, this article seeks to analyze whether and under which circumstances TFF’s activities and decisions can be attributed to the Turkish State under the ECHR, and the applicability of fair trial standards to compulsory arbitration. The article argues that taking into account of TFF’s legal nature as a quasi-public authority and the existence of the compulsory arbitration as a sole legal remedy in football-related disputes, governmental human rights responsibility, is triggered under European Convention on Human Rights.
Since the days of the first Olympics in Ancient Greece, women have been barred entry into sports and have fought for their place on the field. That fight continues throughout the world today, with varying levels of success. With the right to equal opportunity in sports comes equal opportunity in other human rights, and women are demanding access to both. This paper will explore the correlation between women’s equal opportunity in sporting events and other human rights. First, this paper will examine the history of women’s rights in sports, including legislation around the world either denying or guaranteeing equal access. Second, this paper will analyze the link between women’s participation in athletics and other human rights, focusing on equal pay, bodily autonomy, and education. Finally, this paper will discuss the hurdles modern women are facing in their fight for equality both on and off the field, including social perception, classism, and objectification.
The protection of fundamental human rights in sport has increasingly been at the forefront of public consciousness over recent years. The response from the sport sector has been a number of measures that purport to bolster its own human rights credentials, with a number of key governing bodies taking steps to implement principles of international human rights law through soft regulation and institutional initiatives. With access to remedy representing a key pillar of human rights protections, however, the extent to which these measures can be enforced via third party adjudication is key to understanding the effectiveness of these developments. This article makes two key assertions. First, that the current system for adjudicating human rights complaints in sport lacks cohesion, effectiveness and credibility; it is consequently a ‘phantom regime’. Second, it will argue that the best means of addressing the accountability gap created by this phantom regime is through a closer alliance with principles of public international law—it will then proceed to examine the case for a specialist Court of Arbitration for Sport and Human Rights. In doing so, it will seek to emphasise the value of a functional adjudicatory system to the overall effectiveness of human rights protections in sport, and consider how best this objective might be achieved.
The ‘lawmaking’ of arbitral institutions has been a recurring issue in international arbitration. It is widely accepted that international arbitral tribunals do not have a forum, thus are relatively autonomous from the legal orders constituted by the states. Nevertheless, their adjudicative powers are always limited by the concept of international (transnational) public policy. Due to that arbitral institutions often aim at the creation of a consistent jurisprudence based on the universally accepted general principles of law. This has also been true for sport arbitration, where the ‘supreme court’ for sport CAS developed a set of principles called lex sportiva, governing transnational sport competition. Nonetheless, in sport, also BAT—established to solve contractual disputes in basketball—has become a true ‘lawmaker’. The uniqueness of BAT arbitration creates vast opportunities to unveil the general principles of law governing contractual relations in basketball. At the heart of it lies the default decisional standard ex aequo et bono that allows arbitrators for a certain degree of flexibility in their decision-making. In addition, a simple and flexible procedure equips them with a unique power over arbitration process. Finally, the voluntary character of BAT arbitration (unparalleled in sport arbitration) and its popularity within the basketball community reinforces arbitrators’ mandate to decide what is just and fair in basketball contracts. Due to that BAT established a significant presence in the landscape of sport arbitration and contributed to the development of contractual standards that global basketball relies on.