ISLJ 2007-3-4

THE WATHELET REPORT:

Sport Governance and EU

Legal Order

WADA

Doping

FIFA Dispute Resolution

Chamber

Broadcasting Rights

White Paper on Sport

Match Fixing and

Corruption

2007/3-4

The International Sports Law Journal 2007/3-4

2007/3-4

CONTENTS

EDITORIAL 2

ARTICLES

Sport Governance and EU Legal Order: Present

and Future 3

Melchior Whatelet

Official Statement from WADA on the Vrijman

Report 13

Olivier Niggli

Interplay Between Doping Sanctions Imposed

by a Criminal Court and by a Sport

Organization 15

Lauri Tarast

Doping in Sport, the Rules on “Missed Tests”,

“Non-Analytical Finding” Cases and the Legal

Implications 19

Gregory Ioannidis

Termination of International Employment

Agreements and the “Just Cause” Concept in

the Case Law of the FIFA Dispute Resolution

Chamber 28

Janwillem Soek

For Whom the Bell Tolls: Sports or Commerce?

Media Images of Sports: Ideology and Identity 46

Sermin Tekinalp

Sports Broadcasting Rights in the United

States 52

John T. Wolohan

Sports Broadcasting Rights in India 60

Vidushpat Singhania

South African Measures to Combat Match

Fixing and Corruption in Sport 68

Steve Cornelius

PAPERS

The European Commission’s White Paper on

Sport 73

Michal Krejza

Mass Searches of Sports Spectators in the

United States 76

Cathryn L. Claussen

Female Sport Participation in America: The

Effectiveness of Title IX after 35 Years 79

Cathryn L. Claussen

OPINION

Manifesto: “Stop the doping inquisition!” 84

Sports Law - Worldwide Enforcement Power

Switzerland? 85

Georg Engelbrecht

The “Specificity of Sport” and the EU White

Paper on Sport: Some Comments 87

Ian Blackshaw

Formula One in New Legal Battles Off the

Track 88

Ian Blackshaw

CONFERENCES

Conclusions of the 12th IASL Conference 91 Moscow International Conference: “Sports

Law - A Review of Developments” 92

There have been several recent landmark initiatives relating to the

relationship between sport and EU law. First of all, UEFA promoted

an “Independent European Sport Review”, best known as the “Arnaut

report”, which was published in October 2006. This report strongly

supports the increased autonomy of international sports-governing

bodies from EU law. In March 2007, the European Parliament adopt-

ed a resolution on “The Future of Professional Football in Europe”,

the content of which was partly based on the Arnaut report. On 11

July 2007, the European Commission published its “White Paper on

Sport”. On 13 July 2007, UEFA issued a joint press statement togeth-

er with other European federations (ice hockey, basketball, handball,

rugby and volleyball) calling for “firmer conclusions from the

European Union to aid the future development of sport”. In particu-

lar, these federations call for “the appropriate inclusion of sport in the

reform treaty”, aimed at “fully recognising the autonomy and speci-

ficity of sport as well as the central role and independence of the

sports federations in organising, regulating and promoting their

respective sports”.

In order to contribute to the diversity of the debate, the ASSER

International Sports Law Centre has commissioned Professor

Melchior Wathelet, Universities of Louvain-la-Neuve and Liège and a

former Member of the European Court of Justice, to analyse the rela-

tionship between sport and EU law, particularly in the light of the

above-mentioned documents. Professor Melchior Wathelet was asked

to analyse the findings of the Arnaut report, de lege lata and de lege

ferenda, also taking into account the economic and political aspects

of the issues at stake.

We are very pleased that Professor Wathelet has accepted our invi-

tation and has kindly made his expert opinions available to us in this

ISLJ’s leading article on “Sport Governance and EU Legal Order:

Present and Future”. The Wathelet Report’s content is officially sup-

ported by Professor Stephen Weatherill, Jacques Delors Professor of

European Community Law, University of Oxford, United Kingdom,

Professor Roger Blanpain, Universities of Leuven (Belgium) and

Tilburg (The Netherlands), co-founder and first President of FIFPro,

Professor Klaus Vieweg, Director of the German and International

Sports Law Research Unit, University of Erlangen-Nuremberg,

Germany, Dr Richard Parrish, Director of the Centre for Sports Law

Research, Edge Hill University, United Kingdom and Dr Stefaan van

den Bogaert, Lecturer in European Law, Faculty of Law, University of

Maastricht, The Netherlands, and other academics and practitioners.

We have further received an official response from WADA on Emile

Vrijman’s leading article in ISLJ 2007/1-2 entitled “The ‘Official

Statement from WADA on the Vrijman Report’: Unintentional Proof

to the Contrary?”. We considered it our duty to make this response

which was accompanied by the Official Statement’s full text our sec-

ond leading item.

Further in this issue of ISLJ, the contribution on the White Paper on

Sport by Mr Michal Krejza, Head of the Sport Unit at the European

Commission’s Directorate-General for Education and Culture, to the

7th Asser-Clingendael International Sports Lecture in The Hague on

6 September last is published. We proudly confirm that it was the first

time after its publication that the White Paper on Sport was present-

ed at a seminar to a wider audience.

Finally, we extend a hearty welcome to Professor Paul Anderson,

Associate Director of the National Sports Law Institute at Marquette

University Law School, Milwaukee, United States of America, to

Professor Wang Xiaoping, Managing Deputy Director of the Research

Center for Sports Law, China University of Political Science and Law

(CUPL), to Dr Huang Shixi, Director of the Sports Law Center,

Shandong University, China, to Professor Denis Rogachev, Member

of the State Academy of Law, Moscow, Russia, and to Mr Gary Rice,

Partner at Beauchamps Solicitors, Dublin, Ireland, as new members

of ISLJ’s Advisory Board.

The Editors

2007/3-4

BOOK REVIEW

European Sports Law - Collected Papers by

Stephen Weatherill 93

HISTORY

A Law unto Himself. The Lawyer Who Changed

the Face of Football 94

EDITORIAL

❖

DOCUMENTS

White Paper on Sport 99

Independent European Sport Review 106

European Parliament Resolution on the Future

of Professional Football in Europe 113

Council of Europe Enlarged Partial Agreement

on Sport 117

UNESCO International Convention against

Doping in Sport 119

Council of Europe Anti-Doping Convention 125

World Anti-Doping Code 128

2007/3-4

On the future relationship between governance in European sport and

in particular professional football and the European Union legal order

Although sport is part of a healthy lifestyle and is a means of fans

devoting themselves to the game and to competition, it has also

become a professional business and an economic sector in its own

right. To a greater or lesser extent, depending on the discipline, play-

er transfers, infrastructures, media rights, advertising and sponsorship

of major national or international events now run into billions of

euros or dollars.

At a time when a new European treaty is being drafted, when new

questions are being referred to the European Court of Justice (ECJ)

for preliminary ruling when there are conflicts between players and

their clubs or clubs and their national or European federation, after

the publication on 11 July 2007 of the EU Commission’s “White

Paper on Sport”

, we felt it opportune to focus, both in terms of ‘lege

lata’ and ‘lege ferenda’, on European law applicable to professional

sport and, more especially, football. We will do so by taking as a start-

ing point the so-called Arnaut report, named after its author José Luis

Arnaut, former deputy prime minister of Portugal and minister of

sport in charge of Euro 2004, entitled the “Independent European

Sport Review” (IESR)

published in October 2006 as well as the

European Parliament resolution on the future of professional football

in Europe

adopted in March 2007, for commenting on the findings

and proposals contained therein as well as, in turn, offering some

thoughts and suggestions for the future of relations between the gov-

ernance of European sport and, more especially, that of football, on

the one hand, and the Community legal system, on the other.

I. Introduction

To date, sport has been organised exclusively by Member States which

regulate (often in a specific and rigorous manner) - by means of

appropriate legislation - the activities of the various stakeholders in

the sporting arena (federations, clubs, players, etc.).

And so, by way of example:

- each Member State applies its national competition law to the cen-

tralised sale, by a federation or a league, or the individual sale, of

media rights to sporting events;

- each Member State applies its Labour law to the contracts conclud-

ed between professional players and sports employers (football

clubs, basketball clubs, volleyball clubs, cycling teams etc.);

- in each Member State, it is usual for ordinary courts to decide - on

the basis of national law - on conflicts which may arise between the

various stakeholders in the sporting arena. This has resulted in a

thriving and consolidated jurisprudence.

No claims have ever been made with regard to the fact that this appli-

cation of national law to the sports sector was going against the

“autonomy required” by the federations in order to perform their

duties or that this application could be a source of “legal uncertain-

ty”. As with all other sectors of society, the sports sector and its pro-

tagonists conform - at national level - to the constraints of the rule of

law.

The European Union has no explicit competence conferred on it

when it comes to sport.

Consequently, it only intervenes in this sector by means of the

implementation of other powers invested in it, particularly with

regard to free competition and free movement for persons, services

and capital.

By means of numerous judgments and decisions, the ECJ and the

European Commission have gradually developed a jurisprudence:

- which ensures that the various stakeholders in the sports sector,

including international federations, respect fundamental freedoms

of movement and competition law;

- which, as for all other sectors, including self-employed profession-

als, rejects the concept of routine exemption for sports federations

but, on the other hand, takes into consideration the specificity of

the sport (such as its social role, the need for a certain sporting

equilibrium between the participants in a given competition, the

need to support training, etc.);

- which, consequently, decides on a case by case basis - in view of all

the circumstances of the case in point - on the question of whether

restrictions of fundamental freedoms or of free competition creat-

ed by a rule issued by a federation or by the conduct of a club or a

federation are justified by an objective of general interest and are

proportionate to the pursuit of this objective. A summary of this

jurisprudence can be found in the recent MECA-MEDINA and

MAJCEN judgment of 17 July 2006 which we will discuss later.

In short, the EU is limited to having marginal control (namely respect

for free competition and fundamental freedoms) over any abuse of

power by sports sector stakeholders, including national and interna-

tional federations.

International federations (mainly UEFA and FIFA) and to a lesser

extent the IOC, disputing European jurisprudence, believe that this

case by case approach by the ECJ and the Commission generates an

intolerable level of “legal uncertainty and confusion” and that in order

to remedy the situation it would be necessary to exempt sport from

the application of Community law (by virtue of its claimed specifici-

ty) and to reaffirm the regulatory autonomy of the federations (par-

ticularly international federations) over Community law.

This approach is clearly recommended by the so-called “ARNAUT

report” which we must stress, although entitled “independent”, is also

clearly marked “commissioned” by UEFA

. This is no surprise since,

although it wishes to focus on sport in general, it mainly concentrates

on the world of football.

* This report was distributed also in its

original French version throughout

Europe by means of a press-release; see

also www.sportslaw.nl/NEWS

** Universities of Louvain-la-Neuve and

Liège (Belgium) and a former Member

of the European Court of Justice. The

content of this Report is supported by

Professor Stephen Weatherill, Jacques

Delors Professor of European

Community Law, University of Oxford,

United Kingdom, Professor Roger

Blanpain, Universities of Leuven

(Belgium) and Tilburg (The

Netherlands), co-founder and first

President of FIFPro, Professor Klaus

Vieweg, Director of the German and

International Sports Law Research Unit,

University of Erlangen-Nuremberg,

Germany, and Dr Richard Parrish,

Director of the Centre for Sports Law

Research, Edge Hill University, United

Kingdom.

1 Available at this address:

http://ec.europa.eu/sport/whitepaper/

wp_on_sport_en.pdf

2 Available at this address:

www.independentfootballreview.com/

doc/Full_Report_EN.pdf (only in

English).

3 Available at this address:

http://www.europarl.europa.eu/sides/

getDoc.do?pubRef=-

//EP//TEXT+TA+P6-TA-2007-

0100+0+DOC+XML+V0//EN

4 In its 2006 annual report, the

“Independent Football Commission”,

created in 2001 at the behest of the

British government and various British

football stakeholders, with a view to

monitoring the world of football, also

examines this idea of “independence”:

“Arnaut promotes the desire for UEFA to

control all national leagues and FA’s. It

would be interesting to discover how

much input and influence UEFA had

over the compilation of the Arnaut

report” (p. 18). In its White Paper on

Sport, the European Commission indi-

cates that the Arnaut report was

financed by UEFA (Commission Staff

Working Document - The EU and

Sport: Background and Context; page 7).

Sport Governance and EU Legal

Order: Present and Future*

by Melchior Wathelet**

ARTICLES

II. The state of Community law

As stated, we will try to describe the state of Community law by start-

ing from the approaches that we feel are being upheld by the Arnaut

report.

A. What would be the rules adopted by the sporting federations

which, on the basis of European Court of Justice jurisprudence,

are beyond the scope of Community law?

Rules which, according to the Arnaut report, would certainly be

beyond the scope of Community law and would, therefore, be up to

the “sole discretion of the sports governing bodies” would, in partic-

ular, include the rules of the game, rules relating to the structure of

competitions, rules making it possible for federations to establish

sporting calendars, the “home and away” rule, rules relating to the

fight against doping and finally, rules relating to the obligation placed

on clubs to make their employees available, free of charge, to nation-

al teams, this rule being “motivated by purely sporting considera-

tions” and having, therefore, to be “considered as a prime example of

a ‘sporting rule’ which should fall outside the scope of EU law”

The authors of the report could have been able to base their find-

ings on a phrase from an already outdated judgment by the Court of

Justice, known as the WALRAVE

judgment where, for the first time,

the Court had applied rules relating to free movement of workers to

the field of sport and had stated that sport was only subject to

Community law when it constituted an economic activity in the sense

of article 2 of the EC Treaty, tempering this approach to rules of pure-

ly sporting aspects and (which) as such (have) nothing to do with eco-

nomic activity (paragraph 4).

Subsequent jurisprudence ought to have already convinced the

authors of the Arnaut report of the non-existence of the principle of

widespread exemption for “purely sporting rules”. In fact, both in the

BOSMAN judgment of 1995 (which decided that the system of fee

paying transfers at the end of an employment contract was contrary

to Community law and, likewise, the quota rule, fixing the maximum

number of players from other Member States able to take part in a

match between clubs) (paragraph 76) and in the DELIEGE judgment

of 2000 (the only case in jurisprudence where the Court recognised

the purely sporting nature of a rule in respect of a regulation not

involving the composition of national sports teams but relating to the

selection of athletes for high-level international competitions) (para-

graph 43), the Court had already specified that any restriction of the

scope of Community provisions “must remain limited to its proper

objective” and henceforth, cannot “be relied upon to exclude the

whole of a sporting activity” from the scope of the Treaty

Even on this now outmoded basis, it certainly does not appear rea-

sonable to believe that arranging sporting calendars, which in fact

consists of distributing all the production capabilities of the “football

product” between clubs and federations, or the obligation to make

players available, which makes it possible, for example, for FIFA to

organise a World Cup with a commercial value running into billions

of Euro (this event being, by its very nature, in direct competition

with products offered by the clubs) should, a priori, escape investiga-

tion by Community judges.

It is, however, above all, highly surprising that no major reference

is made in the Arnaut report to the MECA-MEDINA and MAJCEN

judgment, even though this was given prior to publication of the

report in question and which, in relation to anti-doping rules, very

clearly moved the boundary between sporting regulations which

escape the application of Community law and those falling within its

scope

. The moment that any sporting rule has an economic effect,

even if this is an ancillary economic effect, it will fall within the scope

of the major freedoms of movement and competition law. The Court,

in effect, states that “the mere fact that a rule is purely sporting in

nature does not have the effect of removing from the scope of the

Tr eaty the person engaging in the activity governed by that rule of the

body which has laid it down” (paragraph 27) and that “if the sporting

activity in question falls within the scope of the Treaty, the conditions

for engaging in it are then subject to all the obligations which result

from the various provisions of the Treaty” (paragraph 28)

Let us remember that, in this case the Court quashed a judgment

of the Court of first instance which, basing its judgment on the prem-

ise that “the prohibition of doping is based on purely sporting consid-

erations and therefore has nothing to do with any economic consid-

eration” (paragraph 47) had concluded that anti-doping rules, and

more particularly, the disputed anti-doping regulation, did not fall

within the scope of treaty provisions on economic freedoms and free

competition, did not pursue any discriminatory purpose and, there-

fore, constituted a purely sporting rule, even though it did have eco-

nomic repercussions (paragraph 49 and paragraph 52). In contrast, the

Court of Justice applies the so-called Wouters jurisprudence

to anti-

doping regulations, mindful of the fact that compatibility of a regula-

tion with Community law cannot be applied in an abstract manner,

that it is necessary to take into consideration the global context in

which the rule has been enacted or in which it deploys its effects prior

to investigating whether or not the resulting restrictive effects on

competition are inherent to the pursuit of the legitimate objectives

sought by it and are in proportion to said objectives.

Let us remember that the fact that a regulation falls within the

scope of Community law does not mean that it is necessarily incom-

patible with said law. The Court did, in fact, state in the same judg-

ment that an anti-doping regulation does not “necessarily constitute a

restriction of competition incompatible with the common market,

within the meaning of Article 81 EC Treaty, since they are justified by

a legitimate objective. Such a limitation is inherent in the organisa-

tion and proper conduct of competitive sport and its very purpose is

to ensure healthy rivalry between athletes” (paragraph 45).

That said, once a legitimate objective has been defined, it is once

again necessary to determine whether the regulation is proportionate,

i.e. limited to what is required in order to achieve the objective in

question, in this case, the correct conclusion of sporting competi-

tions.

In the case in point, in the Court’s opinion, examination of the

proportionality of an anti-doping rule must relate both to the level at

which the margin of tolerance over which doping is punishable is set

and the severity of the sanctions laid down.

In this regard, let us take two other examples.

In quoting the decision given by the Belgian Competition Council

(on the licensing system put in place by the Royal Belgian Football

Association), the authors of the Arnaut report believe that rules relat-

ing to “club licensing” - intended to encourage strong governance and

financial stability and transparency within clubs - should “also fall

within the legitimate autonomy of the sports authorities” (p.45).

The Belgian Competition Council, in its decision No. 2004-E/A-

25 of 4 March 2004

, did not confirm “the autonomy” of the Royal

Belgian Football Association in terms of the “club licensing system”.

In effect, the Competition council judged that: “The two provisions

are necessary for the organisation of sporting events. They aim to ensure the

equilibrium of sporting events, uncertainty in respect of results and to pro-

vide the sector with sound financial management. Although they may

2007/3-4

ARTICLES

5 Page 42.

6 Judgment of the Court of 12 December

1974, B.N.O. Walrave and L.J.N. Koch

v. Association Union Cycliste

Internationale, Case C-36/74, European

Court reports 1974, page 1405.

7 Judgment of 15 December 1995, Bosman,

Case C-415/93, European Court reports,

page I-4921 and Judgment of 11 April

2000, Deliège, Case C-51/96, European

Court reports, page I-2549.

8 Judgment of 10 July 2006, Case C-

519/04, not yet published. This lack of

reference is even more surprising since

the judgment did not fail to draw the

attention of UEFA. In fact, UEFA’s

Director of Legal Affairs, Gianni

Infantino, talked about it as “a step

backwards for the European Sports

model and the Specificity of Sport”, as

“a strange twist” and as a judgment that

is “unsatisfactory from a legal point of

view” (article available at this address,

http://www.uefa.com/uefa/keytopics/kin

d=2048/newsid=574246.html# under the

heading “Sport specificity - UEFA analy-

sis”).

9 See in the Jurisprudence Liège Mons

Bruxelles, 2006, page 1792, “L’arrêt

MECA-MEDINA et MAJCEN: plus

qu’un coup dans l’eau”, by Melchior

Wathelet.

10 Judgment of 19 February 2002, Case C-

309/99, European Court reports, page I-

1577.

11 Competition Council, Decision No.

2004-E/A-25 of 4 March 2004, case

CONC-E/A-01/0039, published in the

“Revue trimestrielle de jurisprudence du

Conseil de la Concurrence” 2004/01,

page128.

2007/3-4

ARTICLES

impose constraints, the Council notes that these are inherent to the pursuit

of the legitimate objective sought and are proportionate to this objective.

In this sense, the Royal Belgian Football Association has perfectly ful-

filled its role as regulator.

Consequently, it is necessary to decide that the provisions are beyond the

scope of article 2, paragraph 1, of the law”.12

It is, therefore, in application of the “inherent” test, as formulated

by the ECJ in the WOUTERS judgment

and - more specifically for

sport - in its recent MECA-MEDINA and MAJCEN judgment,

mentioned above, and, therefore, on the basis of a concrete examina-

tion of the disputed provisions that the Competition Council has

concluded that there was no breach, in the case in point, of Belgian

competition law.

By basing its findings on the judgment given by the Court of

Arbitration for Sport in the ENIC case and on the positions taken by

the European Commission on this same case, the authors of the

report believe, with regard to rules aiming to prevent multi-ownership

or the influencing of clubs by third parties, that “the discretion of the

football authorities to take the necessary steps to safeguard the integrity of

the competitions that they organised should also be respected as matters

falling within their natural sphere of competence».

Once again, the authors of the Arnaut report seem to confuse com-

patibility with Community law of the UEFA rule prohibiting - to a

certain extent - multi-ownership, and non-application of Community

law.

In fact, in its decision to dismiss the complaint filed on 27 June

2002 (in the case COMP/37806: ENIC/UEFA)

, the Commission in

no way believed that the UEFA rule was beyond the scope of

Community law (and, so, would come under the sole “discretion” and

the UEFA’s “natural sphere of competence”).

On the contrary, by invoking the WOUTERS judgment, men-

tioned above, the Commission decided that said rule falls within the

scope of article 81 of the EC Treaty but that its restrictive effects on

competition are inherent “in the pursuit of the very existence of credible

pan European football competitions “

and that “the limitation of the

freedom of action of clubs and investors which the rule entails does

not go beyond what is necessary to ensure its legitimate aim: i.e. to

protect the uncertainty of the results in the interest of the public.”

Once again therefore, it is after a concrete examination of the rule’s

objective and its effects, within the field of application of Community

law, that a compatibility report can be drawn up, with no means of

deducing, a priori, compatibility with Community law of any rule on

multi-ownership (and even less so the non-application of this law to

such rules).

In other words, in the light of the MECA-MEDINA and MAJ-

CEN judgment, even the fact that a rule is adopted and implement-

ed by a federation or the IOC in its capacity as regulator (anti-doping

rules certainly being one example of this) and not as an economic

agent, under no circumstances results in this rule being exempted

from the scope of Community law in general and articles 81 and 82 of

the EC Treaty in particular, the moment that it has economic conse-

quences and affects one or more freedoms drawn by third parties from

the EC Treaty.

B. What criteria have to be fulfilled for rules issued by sporting

federations and falling within the scope of Community law to be

declared acceptable?

Here again, we believe the Arnaut report’s analysis to be disputable in

so far as it systematically neglects the fact that a declaration of com-

patibility with Community law is only ever made after analysis, in

each individual case, of the suitability of the rule as regards the gen-

eral interest objective sought and its proportionality.

Let us take some examples:

1. Organisation of competitions

The rules under which federations may impose total acceptance of

competitions forming part of the European pyramid on clubs would

be compatible with Community law.

And so, both at national and European level “the football authori-

ties may legitimately require their members to commit to participation in

the pyramid or co-operative structure as a whole and not merely in one or

other part of it”

To this end, the authors of the report invoke ECJ jurisprudence

under which it is lawful for a cooperative’s articles of association to

prohibit its members from participating in other organisations in

direct competition with said cooperative.

Upon reading the GØTTRUP-KLIM judgment invoked

, it is

hard to see how this jurisprudence could be used to prove the essen-

tial nature of the pyramidal organisation. In fact, paragraphs 32, 34

and 35 of this judgment lay down that:

32. In a market where product prices vary according to the volume of

orders, the activities of cooperative purchasing associations may,

depending on the size of their membership, constitute a significant

counterweight to the contractual power of large producers and make

way for more effective competition.

34. It follows that such dual membership would jeopardize both the

proper functioning of the cooperative and its contractual power in rela-

tion to producers. Prohibition of dual membership does not, therefore,

necessarily constitute a restriction of competition within the meaning

of Article  () of the Treaty and may even have beneficial effects on

competition.

35. Nevertheless, a provision in the statutes of a cooperative purchasing

association, restricting the opportunity for members to join other types

of competing cooperatives and thus discouraging them from obtaining

supplies elsewhere, may have adverse effects on competition. So, in order

to escape the prohibition laid down in Article  () of the Treaty, the

restrictions imposed on members by the statutes of cooperative purchas-

ing associations must be limited to what is necessary to ensure that the

cooperative functions properly and maintains its contractual power in

relation to producers.

We have, therefore, noted that the ECJ did not authorise, in abstrac-

to, the prohibition of dual membership but that upon completion of

a concrete examination of the objective sought and the necessity of

the means employed, decided - in the case in point - that this type of

ban does not breach Community competition law.

In addition, in the GØTTRUP-KLIM case, the ban on dual mem-

bership aimed to make it possible to place a “counterweight to the con-

tractual power of large producers” and make way for “more effective com-

petition”. In professional sport, a ban on existing, in part, outside the

pyramid would appear both in its aims and effects to prevent the

appearance of competing producers. Here we have two very different

situations.

In any event, it is clear that it would be wrong to try to prevent (a

priori and on the grounds of the allegedly lawful nature of the pyram-

idal organisation) the players or clubs involved from raising the ques-

tion, by means of appropriate recourse, of the legality under

Community law of certain rules involved in the construction of the

pyramidal model.

. Player transfers

The same reasoning can be applied to rules on player transfers.

In fact, in both the BOSMAN

and the LEHTONEN

judgments,

the ECJ judged that the transfer rules would restrict the free move-

12 Unofficial translation from the French

original.

13 See above.

14 Available in English at the following

address: http://ec.europa.eu/comm/com-

petition/antitrust/cases/deci-

sions/37806/en.pdf

15 Points 31 and 32 of the decision.

16 EC Press release of 27 June 2002, ref .

IP/02/942.

17 Arnaut report, page 36.

18 Judgment of 15 December 1994, Case C-

250/92, European Court reports. page. I-

5641.

19 ECJ, 15 December 1995, Bosman, Case

C-415/93, European Court reports, page

I-4921, pts 99, 100 and 120.

20 ECJ, 13 April 2000, Lehtonen, Case C-

176/96, European Court reports, page I-

2681, pts 49 and 50.

ment of players and would, therefore, constitute an obstacle on this

fundamental right invested by the EC Treaty. It was only in the sec-

ond instance that the Court verified “whether that obstacle may be

objectively justified”21, which may be the case - for example - if the

deadlines set for player transfers were required in order to ensure “the

regularity of sporting competitions”

Both in the BOSMAN and the LEHTONEN judgments, the

Court judged that the regulations in question went “beyond what is

necessary for achieving the aim pursued”.

It is, therefore, really by means of a case by case, rather than a gen-

eral examination, that certain rules relating to a transfer system may

possibly be declared to conform to Community law. A fortiori, it is

out of the question that some of these rules fall beyond the scope of

Community law, as is, however, maintained by the Arnaut report.

. The activity of players’ agents

Claiming a greater role for UEFA in this respect (at the present time

essentially managed by FIFA), the Arnaut report believes that these

rules are inherent “to the proper regulation of sport and therefore com-

patible with European Community law”24.

In referring to inherence criteria, the authors of the Arnaut report

fall neatly within the framework traced by WOUTERS and MECA

jurisprudence.

It cannot, however, be claimed, as they seem to do, that all rules

relating to the activity of players’ agents are inherent to the smooth

operation of the football market and, therefore, compatible with

Community law.

Once again, the Community judge will assess whether the

restraints on the freedom of action of players’ agents that the rule cre-

ates are inherent to the achievement of the legitimate objective

sought, on a case by case basis.

Finally, in its PIAU judgment

, encouraged to make a decision on

the compatibility of the FIFA judgment on the activity of players’

agents with articles 81 and 82 of the EC Treaty, the Court of first

instance judged that: “On the one hand, the Players’ Agents Regulations

were adopted by FIFA of its own authority and not on the basis of rule-

making powers conferred on it by public authorities in connection with a

recognised task in the general interest concerning sporting activity (see, by

analogy, Case C-309/99 Wouters and others [2002] ECR I-1577, para-

graphs 68 and 69). Those regulations do not fall within the scope of

the freedom of internal organisation enjoyed by sports associations

either (Bosman, paragraph 81, and Deliège, paragraph 47).

On the other hand, since they are binding on national associations that

are members of FIFA, which are required to draw up similar rules that

are subsequently approved by FIFA, and on clubs, players and players’

agents, those regulations are the reflection of FIFA’s resolve to coordinate

the conduct of its members with regard to the activity of players’ agents.

They therefore constitute a decision by an association of undertakings

within the meaning article 81 (1) EC (Case 45/85 Verband der

Sachversicherer v Commission [1987] ECR 405, paragraphs 29 to 32,

and Wouters and others, paragraph 71), which must comply with the

Community rules on competition, where such a decision has effects

in the Community.

With regard to FIFA’s legitimacy, contested by the applicant, to enact

such rules, which do not have a sport-related object, but regulate an eco-

nomic activity that is peripheral to the sporting activity in question and

touch on fundamental freedoms, the rule-making power claimed by a pri-

vate organisation like FIFA, whose main statutory purpose is to promote

football (see paragraph 2 above), is indeed open to question, in the light

of the principles common to the Member States on which the

European Union is founded.

The very principle of regulation of an economic activity concerning

neither the specific nature of sport nor the freedom of internal organisa-

tion of sports associations by a private-law body, like FIFA, which has not

been delegated any such power by a public authority, cannot from the out-

set be regarded as compatible with Community law, in particular with

regard to respect for civil and economic liberties.

In principle, such regulation, which constitutes policing of an econom-

ic activity and touches on fundamental freedoms, falls within the compe-

tence of the public authorities. Nevertheless, in the present dispute, the

rule-making power exercised by FIFA, in the almost complete absence of

national rules, can be examined only in so far as it affects the rules on

competition, in the light of which the lawfulness of the contested decision

must be assessed, while considerations relating to the legal basis that allows

FIFA to carry on regulatory activity, however important they may be, are

not the subject of judicial review in this case.”

These are the most relevant Court findings and they continue to be

topical.

. UEFA rules on “homegrown players”

Here again, the Arnaut report believes that the rules requiring each

club to have a certain number of players under contract who have

been trained either at the club or within the national federation to

which this club belongs

are necessarily compatible with Community

law.

Again, it would seem risky to uphold this principle, even acknowl-

edging that, to a certain extent, these rules may be justified by an

objective of general interest and are proportionate

In paragraph 106 of the BOSMAN judgment, the ECJ judged that:

“In view of the considerable social importance of sporting activities, and

in particular football in the Community, the aims of maintaining a bal-

ance between clubs by preserving a certain degree of equality and uncer-

tainty as to results, and of encouraging the recruitment and training of

young players must be accepted as legitimate” (our underlining).

UEFA invokes these two justifications but also maintains that this

system provides “a large reservoir of talent for national teams as a con-

sequence”.

Likewise, UEFA acknowledges that its rule favours the recruitment

of “homegrown” nationals rather than nationals from other Member

States, thereby creating an indirectly discriminatory obstacle.

Furthermore, it is doubtful that this rule contributes to competi-

tive equilibrium on a transnational level. In effect, nothing will pre-

vent - in a given Member State - the richest club from acquiring the

best “homegrown players” prior to training. This was, in addition,

explicitly judged by the ECJ in point 135 of the BOSMAN judgment,

in respect of nationality clauses (the “homegrown players” clause, as

only constituting, in our opinion, a positivised and “restyled” version

of the nationality clause) ; “although it has been argued that the nation-

ality clauses prevent the richest clubs from engaging the best foreign play-

ers, those clauses are not sufficient to achieve the aim of maintaining a

competitive balance since there are no rules limiting the possibility for

such clubs to recruit the best national players, thus undermining that bal-

ance to just the same extent”.

What is more, this rule will penalise clubs in small Member States,

which will be disadvantaged by the narrowness of their national

labour market.

. The centralised marketing of media rights

Here again, the authors of the Arnaut report believe that the concept

of the sale or individual ownership of television rights cannot be

accepted from an intellectual point of view.

Referring to the findings of Mr Advocate General LENZ in the

BOSMAN case (“certain restrictions may be necessary to ensure the prop-

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ARTICLES

21 ECJ, 13 April 2000, Lehtonen, Case C-

176/96, European Court reports, page I-

2681, pt 51.

22 ECJ, 13 April 2000, Lehtonen, Case C-

176/96, European Court reports, page I-

2681, pt 53.

23 Arnaut report, page 105

24 Arnaut report, p.47.

25 Judgment of the Court of first instance

judgment of 26 January 2005, Case T-

193/02, European Court reports, page.

II-209 (paragraphs 74 to 78).

26 Arnaut report, p. 49 and 50.

27 On page 7 of the “White Paper on

Sport” of July 2007, to which we will

return later, the Commission does not

state otherwise. “Rules requiring that

teams include a certain quota of locally

trained players could be accepted as

being compatible with the Treaty provi-

sions on free movement of persons if

they do not lead to any direct discrimi-

nation based on nationality and if possi-

ble indirect discrimination effects result-

ing from them can be justified as being

proportionate to a legitimate objective

pursued, such as to enhance and protect

the training and development of talented

young players. The ongoing study on

the training of young sportsmen and

sportswomen in Europe will provide

valuable input for this analysis.”

2007/3-4

ARTICLES

er functioning of the sector”) and the decision of the European

Commission in the UEFA Champions League Media rights case, the

authors of the report conclude that “It is both acceptable and necessary

for the football authorities to require clubs to commit to a central market-

ing model as a condition of their participation in a sporting competition

and compatible with European law”

Firstly, when we are talking about media rights, we must avoid any

confusion between the question of ownership of rights, entitlement to

said rights, and their mode of marketing.

Contrary to what is maintained by the authors of the Arnaut

report, the principle of individual ownership of these media rights is

not only intellectually conceivable but is part of substantive law.

There is no unified or harmonised system of ownership within the

European Union, the organisation of these systems coming under the

jurisdiction of each Member State. The question of a property own-

ership system (and, therefore, in particular, that of knowing if said

right belongs individually to a club or is jointly owned by several

clubs) is governed by national law in each Member State. This was

noted by the European Commission in its decision of 23 July 2003

relating to the joint selling of the commercial rights of the UEFA

Champions League

. In a certain number of Member States, the

individual ownership formula was upheld

It should then be analysed whether the joint sale of these rights,

grouped together by an agreement between the individual owners or

the co-owners, is compatible with article 81 (1) of the EC Treaty, as the

Commission states in paragraphs 122 to 124 of its decision as referred

to above:

122. (...) on the basis of the information submitted by UEFA,

UEFA can at best be considered as a co-owner of the rights, but never

the sole owner. The question of ownership is for national law and the

Commission’s appreciation of the issue in this case is without prejudice

to any determination by national courts.

. The Commission therefore proceeds on the basis that there is co-

ownership between the football clubs and UEFA for the individual

matches, but that the co-ownership does not concern horizontally all

the rights arising from a football tournament. It is not considered nec-

essary for the purpose of this case to quantify the respective ownership

shares.

. It suffices to note that there are multiple owners of the media

rights to the UEFA Champions League. An agreement between the

three owners (the two football clubs and UEFA) which are indispensa-

ble to produce one unit of output (the license to broadcast one match)

would not be caught by Article  () of the Treaty and Article  () of

the EEA Agreement. However, since the agreement regarding UEFA’s

joint selling arrangement extends beyond that, Article () of the

Treaty and Article () of the EEA Agreement apply to the arrange-

ment.

After a detailed investigation, the Commission considered that this

joint sales agreement would generate restraints on competition in the

sense of article 81 (1) of the EC Treaty but could, to a certain extent,

benefit from the exemption provided for in 81 (3) of the EC Treaty, by

virtue of improvements in production and distribution brought about

by these restraints and by virtue of the fact that an adequate share of

the resulting profits would return to consumers.

The Commission decided, however, that: “Exemption should (...) be

subject to the condition that football clubs must not be prevented from

selling their live TV rights to free-TV broadcasters where there is no rea-

sonable offer from any pay-TV broadcaster”.

In conclusion, once again, it was after concrete analysis that, to a

certain extent, some joint sales agreements were declared to conform

to Community law.

Furthermore, it should be noted that the Commission based its analy-

sis on the premise that this joint sale resulted from the free consent of

the clubs involved. It is, therefore, wrong for the Arnaut report to

deduce from this decision that it would permit federations to impose

a “central marketing model” on clubs as a condition of their partici-

pation in a sporting competition.

It is, on the contrary, the free consent of the clubs involved which

makes it possible for this model to be conceived and, to a certain

extent, to benefit from the exemption laid down by article 81 (3) of

the EC Treaty.

III. The specificity of sport

Apart from the fact that they have never been taken into considera-

tion or accepted by the Court of Justice, certain arguments presented

in the Arnaut report attempt to demonstrate that sport should merit

different treatment from that reserved for other sectors of economic

life.

We admit that on the basis of this type of reasoning, numerous sec-

tors of socio-economic activity could claim a right to exemption from

the application of Community law on the grounds of their exception-

ality. Do the aeronautics, forestry, health, energy, waste and telecom-

munications industries not have their own specificity? In any event,

both Court of Justice and Commission jurisprudence upholds, by

way of justification of restraints on fundamental freedoms or on free

competition, objectives of legitimate interest which may differ

according to sector and the sports sector has, furthermore, benefited

from this.

Blanket exemption from Community law of sporting regulations

cannot, of course, be justified, as in the Arnaut report, due to the need

to give the relevant bodies a guarantee of being able to act “without

fear of their decisions being undermined by the application of

European Community law” (page 31 of the Arnaut report). Legal dis-

putes are created and legal decisions are given in all sectors of social and

economic life. There is no more legal uncertainty in the field of sport

than in other sectors, both with regard to fundamental freedoms and

competition regulations and only legislation and jurisprudence can

reduce this uncertainty which also results from the changing behaviour

of the stakeholders in a given sector. In any event, the solution to legal

uncertainty is never to adopt “soft law” or to leave the law to private

stakeholders, even if UEFA and the national federations could be con-

sidered to be pure regulators, which they are not. They are also leading

economic agents in a market that they are also called upon to regulate.

With very few exceptions, they are called upon to adopt regulations

and decisions of a mixed nature which contribute both to the regula-

tion of the professional football market and to the promotion of their

own economic and commercial interests. And so, when UEFA fixes

the dates of the final phase of the European Championship which is

held in June, it reserves this period of production for itself and makes

it unavailable for clubs, with the positive or negative economic conse-

quences that this may bring for either party.

There is, therefore, no reason why, in the name of the specificity of

the sports sector, sports federations should be exempted from the

application of a law which is applied, for example, to certain associa-

tions of professionals, as in the WOUTERS judgment, which relates

to a national Bar Association.

The Arnaut report also refers, at great length, to the “European

sporting model”, the principles of which would be respected, in full,

by UEFA. This model would be based on democratic operation, the

separation of powers, the representation of the various stakeholders

(players, supporters, clubs, federations) within consultative bodies,

the principle of promotion/relegation (with the resultant pyramidal

structure), financial solidarity guaranteeing a certain degree of equi-

librium in respect of the sporting powers-that-be and recourse to arbi-

tration.

Prior to commenting on some of these points, even if we suppose

that these points have all been made, we do not see why said points

would justify the exemption of sport from Community law, and more

specifically, from provisions relating to the freedom of movement and

competition.

28 Arnaut report, p. 52.

29 COMP/C.2-37.398, Official Journal of

the European Union L291/25, 8.11.2003.

30 See points 121 and subsequent points of

the decision and, in particular, footnote

59.

Although the impression given by sports federations is sometimes that

of public authorities, they are still no more than private entities

involved in economic and commercial activities and are, moreover,

generally constituted under Swiss law.

In the aforementioned PIAU judgment, the Court of First Instance

demonstrated the purely private nature of an international federation,

acting “on its own authority and not on the basis of rule-making powers

conferred on it by public authorities in connection with a recognised task

in the general interest concerning sporting activity...”. Even though a Bar

Association receives this type of mission from the national legislator,

its decisions are still subject to competition law

. Even more so for

sports federations.

Consequently, it would seem to be inappropriate to compare the

division of tasks put in place within UEFA, a purely private entity,

with a separation of powers, as practised by democratic States gov-

erned by the rule of law and falling within public law.

In addition, it is public knowledge that some clubs, particularly

those in the G-14 group

, do not share the analysis made by the

authors of the Arnaut report, that clubs within UEFA are fully satis-

fied, particularly with regard to democratic requirements and mecha-

nisms of “representation” .

In this respect, the authors of the Arnaut report believe that a pure-

ly consultative representation is sufficient. In our opinion, this is not

the case since the degree of participation of clubs in decision making

has necessarily to vary according to the issues in question.

And so, simply by way of example, the proven status of the clubs

participating in the UEFA Champions League as co-owners, necessar-

ily requires co-management of the commercial rights on which this

co-ownership is based. In effect, in view of general legal principles on

the subject of managing ‘res communis’, UEFA’s claim for exemption

from said management for all the other co-owners is not reasonably

justifiable and, consequently, abusive

Even if the principle of promotion/relegation, which means that

the clubs at the top of the sporting pyramid never have a legal guar-

antee that this situation will continue, can be accepted, there can be

no question of requiring clubs to waive any right of criticism of these

procedures, if necessary, by legal means, whether these criticisms

relate to the format of the different competitions or the sporting cal-

endar and of requiring application of the principle of proportionality

to be monitored.

Although financial solidarity and revenue sharing are certainly one

means of serving an objective deemed worthy of protection, i.e.

maintaining a degree of equilibrium of the sporting powers-that-be,

there is no question that any income sharing would necessarily be

acceptable under Community law. It suffices to remember that in

paragraph 228 of the opinion in the BOSMAN case, Mr Advocate

General LENZ prudently expressed himself as follows: “Mr

BOSMAN submitted a number of economic studies which show that dis-

tribution of income represents a suitable means of promoting the desired

balance. The concrete form given to such a system will of course depend

on the circumstances of the league in question and on other considera-

tions. In particular it is surely clear that such a redistribution can be sen-

sible and appropriate only if it is restricted to a fairly small part of

income: if half the receipts, for instance, or even more was distributed to

other clubs, the incentive for the club in question to perform well would

probably be reduced too much”.

In addition, there is a certain degree of contradiction, indeed

incompatibility, between the principles of “promotion/relegation” and

“competitive balance” (used for revenue sharing).

In effect, revenue sharing is a concept deriving from American pro-

fessional sports, which are characterised by closed leagues (NBA,

NFL, etc.). In the United States, although revenue sharing exists, it is

only between members of the same elite, guaranteed not to be relegat-

ed to a lower category.

In other words, it is the absence of “promotion/relegation” which

makes the widespread practice of “revenue sharing” acceptable.

Furthermore, the reticence of the major clubs in each league to

support revenue sharing is accentuated by their desire to be competi-

tive in Europe.

Finally, if arbitration is an acceptable method of conflict resolution,

it is not acceptable for the various stakeholders within professional

sport to have to waive the right to take action through the ordinary

courts, in particular, in order to contest the legality of certain federa-

tion decisions in respect of Community law.

This obligation to permit the ‘ordinary man in the eyes of the law’

to appear before ordinary courts was one of the conditions imposed

by the European Commission on FIFA to put an end to the infringe-

ment proceedings relating to transfer rules that it had instituted

against FIFA

The lack of restrictive and exclusive recourse to arbitration does not

in any way harm its efficacy, as illustrated by the FIFA Regulations

“for the Status and Transfer of Players”, as modified following the

intervention of the European Commission which, in its article 22, lays

down that recourse to arbitration is optional, any player or club

retaining the right to “seek redress before a (...) court”.

What’s more, in practice, it seems that just a small percentage of

disputes relating to this ruling are referred to civil courts, most dis-

putes ending up in the Court of Arbitration for Sport.

Without doubt, the fact that this rule was subject to amendments

required by the European Commission, prior to its entry into force,

and that its Community legality was thereby guaranteed, is not

unconnected with this state of facts.

In its judgment of 15 May 2006, ruling in the first instance on the

dispute between Sporting de Charleroi, backed by G-14, and FIFA

and UEFA, the Charleroi Commercial Court judged that: “... it is

clear that the ban issued by the second paragraph of article 51 (FIFA

statutes) on recourse to ordinary courts, only applies under the hypothesis

that an arbitration agreement in proper and due form would keep the dis-

pute out of these courts.

Any provision that would lay down a general ban on going before the

ordinary courts would, in fact, be contrary to public order and, conse-

quently, ought to be put aside by our court”

We may question UEFA and FIFA’s true motives, relayed via the

Arnaut report, for wishing so ardently that arbitration should be the

sole means of recourse against their decisions.

Does the answer not lie, once again, in the alleged desire of these

organisations to escape the application of Community law?

And from this perspective, it is not so much arbitration that has

garnered the favour of FIFA and UEFA but rather the fact - not by

chance - that the place of arbitration is Switzerland.

In fact, the Court of Arbitration for Sport, set up in Lausanne, is

an international court of arbitration in the sense of the federal Swiss

law on private international law of 18 December 1987.

Consequently, rulings given by the Court of Arbitration for Sport

are only open to appeal before the Swiss Federal Court, which main-

ly limits itself, when it comes to reviewing legality, to serious viola-

tions of international procedural public order.

This concept does not, however, include Community law, in par-

ticular, on competition, as explicitly judged by the Swiss Federal

Court, in a ruling of 8 March 2006

And so arbitration, provided that it is implemented, on an exclu-

sive basis, by a court of arbitration in Switzerland, incidentally makes

it possible to escape Community legal order.

According to article 1704 of the Belgian Judicial Code, sentences

given by a court of arbitration sitting in Belgium can only be subject

2007/3-4

ARTICLES

31 See the Wouters judgment.

32 For further information, see

www.g14.com

33 In this respect, see Stephen Weatherill,

“Is the pyramid compatible with EC

Law?”, The International Sports Law

Journal, 2005/3-4, p. 3 et s.; also in:

Stephen Weatherill, “European Sports

Law: Collected Papers”, ASSER

International Sports Law Centre/T.M.C.

Asser Press, The hague 2007, p. 259 et s.

34 EC press release IP/01/314, available at

this address:

http://europa.eu/rapid/pressReleasesActi

on.do?refrence=IP/01/314 , in which the

Commission reiterates that: “arbitration

is voluntary and does not prevent recourse

to national courts”.

35 Unofficial translation. This ruling is

available on the Charleroi Commercial

court website: www.tcch.be .

36 Case 4P. 278/2005. See, in particular, this

link:

http://www.semainejudiciaire.ch/DATI/

DATI_JUR/2006/06_31.htm

2007/3-4

ARTICLES

to appeal before the territorially competent Court of first instance,

whose judicial review will mainly focus on conformity to public order.

Belgian public order does, of course, include Community public

order (in particular, therefore, articles 81 and 82 of the EC Treaty).

Where necessary, the Belgian judge may reverse the arbitration ruling

given in violation of Community law, i.e. refer to the ECJ any prelim-

inary issue that it may deem necessary.

The Court of Arbitration for Sport already has local chambers in

Sydney, in Australia, and in New York, in the United States. The

establishment of a headquarters within the European Union, for

example, in Brussels, would make it possible to reconcile arbitration

and Community legal order.

This would also mean that we would no longer be obliged to ques-

tion the sincerity of the attraction that arbitration holds for FIFA and

UEFA.

In conclusion, although certain measures may be envisaged on the

basis of current law (for example, certain practices mentioned by the

Arnaut report could be liable for exemption by category in the sense

of competition regulations) there is no argument to say that

Community law should be applied to the sports sector rather than to

other sectors, apart from under the specific circumstances already

acknowledged in some Commission decisions or Court of Justice rul-

ings

IV. Towards a change in Community Law?

As we have seen, the relationship between Community law and pro-

fessional sport is at the level of the EC Treaty itself. If, however, it

were to be necessary to amend the law in this matter, particularly to

institutionalise or consolidate the powers of the sporting federations,

new regulations or directives would not be enough, and it would

mean radical change in primary Community law, namely of the

Tr eaty itself, in some of its most fundamental principles.

There is currently no legal or political factor likely to lead to such

radical change. Let us look at the texts currently in circulation.

. Declaration of the European Council of Nice, - December .

The authors of the Arnaut report make much of this declaration “on

the specific characteristics of sport and its social function in Europe,

of which account should be taken in implementing Common poli-

cies”.

The authors admit that this declaration is not enforceable at law

because they claim that it should be transformed into positive law

but it should also be stressed that it is not even joined with the Treaty

of Nice, it contains no proposal to amend the Treaty agreed by the

Member States, even if, on certain points, the text echoes the view-

points of the sporting federations.

. European Parliament resolution of  March  on the future of pro-

fessional football in Europe

This resolution clearly originates from the Arnaut Report, since it

contains similar findings and suggests similar solutions.

This said, the resolution contains no formal proposal to change the

Tr eaty; it expresses a wish that the application of Community law to

professional football “does not compromise its social and cultural pur-

poses, by developing an appropriate legal framework, which fully

respects the fundamental principles of specificity of professional foot-

ball, autonomy of its bodies and subsidiarity”. This overlooks the fact

that the jurisprudence of the Court of Justice and the Commission

take this specificity into account since their decisions analyse the

objective of general interest which, provided that it is in proportion,

can inspire the rules of sporting federations and justify the restriction

of the fundamental freedoms or freedom of competition.

It overlooks that this same jurisprudence in no way undermines the

autonomy of professional sporting authorities acting as regulators, but

it is to be expected that, as an economic agent in a market represent-

ing billions of euros, the rules of the internal market and competition

should apply to them.

The Parliament also takes up the problem of legal uncertainty

resulting from an approach based solely on treating cases individual-

ly. We have already answered this argument, which applies to all eco-

nomic sectors and it is furthermore interesting to note that, according

to the European Parliament, it is not at all clear whether “the Union

of European Football Associations (UEFA) rule stipulating that teams

must contain a minimum number of home-grown players (...) would,

if it were reviewed by the Court of Justice, prove to be consistent with

Article 12 of the EC Treaty”. We feel that it is today in no way impos-

sible to make rules compliant with Community law.

We should also add that the European Parliament is careful not to

propose any automatic derogation of the competition rules and has

proved stricter with regard to UEFA and, above all, to FIFA, with

regard to the need to reinforce their internal democracy.

Last but not least, a resolution of the European Parliament obvi-

ously has no legally binding effect and the European Parliament has

no powers of decision or co-decision to change the founding treaties.

. Article III- of the Treaty establishing a Constitution for Europe

The Treaty establishing a Constitution for Europe (which we now

know will never be ratified as such by the 27 Member States) includes

an article III-282 with specific reference to sport.

It is no exaggeration to say that this article does not propose any

change to Community law in the sense of the conclusions of the

Arnaut Report.

If the article provides that action of the European Union in matters

of sport should take into account “the specific nature of sport, its

structures based on voluntary activity and its social and educational

function”, this phrase gives no particular jurisdiction to the European

Union and, furthermore, concerns both amateur and professional

sport.

When that same article states that the intention of the European

Union to develop “the European dimension in sport, by promoting

fairness and openness in sporting competitions and cooperation

between bodies responsible for sports, and by protecting the physical

and moral integrity of sportsmen and sportswomen, especially young

sportsmen and sportswomen”, it in no way means that this action

could derogate the direct provisions of the Treaty as to freedom of

movement and competition.

Finally at the level of legislation which could be used to implement

article III-282, its paragraph (3) only allows the European Union to

adopt recommendations (which are not legally binding) or European

laws or framework laws to establish incentive measures, excluding any

harmonisation of the laws and regulations of the Member States. This

obviously implies that no exception can be made to the provisions as

to freedom of movement and competition.

We know that, since the signature of this Treaty establishing a

Constitution for Europe in 2004, it transpired that, despite eighteen

ratifications out of 27 Member States, the text of the Treaty had no

chance of being agreed by all Member States, which was indispensa-

ble to its entry into force. After a period of reflection, at the instiga-

tion of a very dynamic German presidency, the European Council of

June 2007 agreed on the text of a so-called “simplified” treaty, which

would include those parts of the Treaty establishing a Constitution for

Europe on which the 27 Member States could agree. The general idea

adopted in June 2007 was that, except for specific exceptions, the pro-

37 In our opinion, there is no question of

allowing sports federations to benefit

from the exemption provided for by arti-

cle 86 (2) of the EC Treaty which stipu-

lates that undertaking entrusted with the

operation of services of general economic

interest shall be subject to the rules con-

tained in the Treaty, in particular to the

rules on competition, in so far as the

application of such rules does not

obstruct the performance, in law or in

fact, of the particular tasks assigned to

them. Apart from the fact that this type

of tasks is generally entrusted to public

companies, we cannot really see that a

“service of general economic interest”

would be entrusted to sports federations.

Furthermore, let us remember that arti-

cle 86 (2) only results in the companies

in question being protected from the

application of Community law whilst

still being subject to administrative and

civil and, of course, Community courts.

38 See Arnaud Report p. 21: “In plain

terms, the aim of the current project is to

suppoyt and give practical effect to the

principles set out in the Nice Declaration,

in other words, to implement the

Declaration in sport and more particu-

larly in the specific case of football”.

2007/3-4

ARTICLES

posals in the Treaty establishing a Constitution for Europe should be

incorporated into the new treaty.

It is therefore not surprising to find in the first draft of the amend-

ed treaty, prepared by the Portuguese presidency on the basis of the

mandate from the European Council of June 2007, the practically

unchanged text of article III-282 of the Constitutional Treaty, which

was to become article 176 B of the EC Treaty. Nothing else on sport,

despite the publication of both the Arnaut report and the Resolution

of the European Parliament between the signature in 2004 and the

European Council of June 2007.

4. The “White Paper on Sport” of the European Commission published

on 11 July 2007

Far from the proposals in the Arnaut Report, the European

Commission recalled the relevance of existing jurisprudence, stressing

that the MECA-MEDINA and MAJCEN judgment made an impor-

tant legal point by rejecting the theory of the existence of “purely

sporting rules”, falling a priori outside the EC Treaty (and therefore

its articles 81 and 82) and affirming to the contrary that each sporting

rule should be studied case by case in the light of the provisions of

articles 81 and 82 EC.

In this context, quoting the principle of subsidiarity, the European

Commission refused to take an interventionist approach and - in the

main - intends to restrict itself to ensuring the respect of the basic

freedoms when necessary. It is appropriate here to quote the passage

which the Commission devotes to the “specificity of sport”:

“ Sport activity is subject to the application of EU law. (...)

Competition law and Internal Market provisions apply to sport in so far

as it constitutes an economic activity. Sport is also subject to other impor-

tant aspects of EU law, such as the prohibition of discrimination on

grounds of nationality, provisions regarding citizenship of the Union and

equality between men and women in employment.

At the same time, sport has certain specific characteristics, which are

often referred to as the “specificity of sport”. The specificity of European

sport can be approached through two prisms:

• The specificity of sporting activities and of sporting rules, such as sepa-

rate competitions for men and women, limitations on the number of

participants in competitions, or the need to ensure uncertainty con-

cerning outcomes and to preserve the competitive balance between clubs

taking part in the same competitions;

• The specificity of the sport structure, including notably the autonomy

and diversity of the sport organisations, a pyramid structure of compe-

titions from grassroots to elite level and organised solidarity mecha-

nisms between the different levels and operators, the organisation of

sport on a national basis, and the principle of a single federation per

sport;

The case law of the European courts and decisions of the European

Commission show that the specificity of sport has been recognised and

taken into account. They also provide guidance on how EU law applies

to sport. In line with established case law, the specificity of sport will con-

tinue to be recognised, but it cannot be construed so as to justify a gener-

al exemption from the application of EU law.

As is explained in detail in the Staff Working Document and its annex-

es, there are organisational rules that - based on their legitimate objectives

- are likely not to breach the anti-trust provisions of the EC Treaty, pro-

vided that their anti-competitive effects, if any, are inherent and propor-

tionate to the objectives pursued. Examples of such rules would be “rules

of the game” (e.g. rules fixing the length of matches or the number of play-

ers on the field), rules concerning selection criteria for sport competitions,

“at home or away from home” rules, rules preventing multiple ownership

in club competitions, rules concerning the composition of national teams,

anti-doping rules and rules concerning transfer periods.

However, in respect of the regulatory aspects of sport, the assessment

whether a certain sporting rule is compatible with EU competition law

can only be made on a case-by-case basis, as recently confirmed by the

European Court of Justice in its Meca-Medina ruling. The Court provid-

ed a clarification regarding the impact of EU law on sporting rules. It dis-

missed the notion of “purely sporting rules” as irrelevant for the question

of the applicability of EU competition rules to the sport sector.

The Court recognised that the specificity of sport has to be taken into

consideration in the sense that restrictive effects on competition that are

inherent in the organisation and proper conduct of competitive sport are

not in breach of EU competition rules, provided that these effects are pro-

portionate to the legitimate genuine sporting interest pursued. The neces-

sity of a proportionality test implies the need to take into account the indi-

vidual features of each case. It does not allow for the formulation of gen-

eral guidelines on the application of competition law to the sport sector”.

The Commission does not therefore propose any change to the

Tr eaty to meet the general central aim of the Arnaut Report, namely

the institutionalisation and consolidation of the authority of the

sporting federations.

Finally, the Commission:

- strongly supports the development of the “European Social

Dialogue”, and finds that “in the light of a growing number of chal-

lenges to sport governance, social dialogue at European level can con-

tribute to addressing common concerns of employers and athletes” and

that “a European social dialogue in the sport sector, or in its sub-sec-

tors (e.g. football) is an instrument which would allow social partners

to contribute to the shaping of employment relations and working con-

ditions in an active and participative way. In this area, such a social

dialogue could also lead to the establishment of commonly agreed codes

of conduct or charters, which could address issues related to training,

working conditions or the protection of young people”. Therefore, “the

Commission encourages and welcomes all efforts leading to the estab-

lishment of European Social Dialogue Committees in the sport sector”,

recalling that authentic representatives of employees and employers

must take part in them.

- states that “the White Paper has taken full advantage of the possibili-

ties offered by the current Treaties. A mandate has been given by the

European Council of June 2007 for the Intergovernmental

Conference, which foresees a Treaty provision on sport. If neces-

sary, the Commission may return to this issue and indicate further

steps in the context of a new Treaty provision.

V. Conclusion

Since UEFA, an association under Swiss law, is not purely a regulator,

but also clearly an economic agent in the professional football market,

its basic claim is to be given the monopoly in the management of

European football and not just its regulation, and to carry out this

management without any control of a Community judge.

UEFA’s and FIFA’s resistance to any form of organised competition,

even embryonic, was recently made clear by their Presidents’ open call

at their last respective congresses to the eighteen member clubs of the

G-14 to disband their EEIG and withdraw any litigation, in return for

which FIFA and UEFA promised to open dialogue with them

In passing, we would stress the paradox of suggesting the disband-

ing of a EEIG of clubs as a precondition for dialogue with them. In

effect, because of the complexity and diversity of the subjects to be

tackled, a structured negotiating partner would be required, suffi-

ciently representative of the interests it defends, and with a legal per-

sonality.

This is what is done with regard to the dialogue between on the one

hand, FIFA and UEFA and on the other FIFPro, which represents the

players. The difficulty which these international federations experi-

ence in reproducing this model in their relationship with the clubs is

- in our minds - a reflection of the commercial reality mentioned

above, namely that the clubs active in the transnational sphere are per-

ceived by FIFA and UEFA as competitors on the international foot-

ball market, which is not so with the players, although they are inter-

nationally organised within FIFPro.

Furthermore, we would recall that the international federations,

without waiting to obtain the privileged status claimed by the Arnaut

Report, are trying to achieve a similar result procedurally by making

recourse to CAS arbitration compulsory with the intention, or at least

39 See pp 14 and 15. Underlining is ours.

40 P. 21 of the “white paper on sport”

41 P 21. of the “white paper on sport”

2007/3-4

ARTICLES

the effect of suppressing any litigation between stakeholders in the

football sector (of which they are themselves members) and the com-

munity rule of law.

However, respect by these international federations of Community

law as it stands and the smooth performance of their regulatory role

within the current legal framework of the Community are in no way

utopian.

Furthermore, the “European sports model” as postulated in the

Arnaut Report, is not a common heritage shared by all sports.

For example:

- in cycling, the role of the International Cycling Union (UCI) is

close to that of a pure regulator, the organisers (who are private

organisations) and the teams share management and operation of

commercial activities generated by the sport;

- in basketball, after a brief breakaway period, the main professional

leagues, reunited within the Euroleague Basketball

, have succeed-

ed in maintaining the International Basketball Federation (FIBA)

as regulator and have won management of the organisation and

implementation of European inter-club competition.

Finally, the vision of football promoted by UEFA and FIFA (and

reflected in the Arnaut Report) is intrinsically national. It is organ-

ised on a national basis (one federation in each state), with manage-

ment arising out of that structure, and FIFA and UEFA wish to per-

petuate this organisational model, not only for competitions between

national teams (which is legitimate) but also for club football.

In other words the not only hierarchical but compartmented

“European sports model” promoted by these federations is in fact a

“national model of European sport”

. This model, if adapted to the

needs of competitions between national teams, also has the effect -

with regard to club football - of rendering the economic fate of clubs

dependent to a large extent on the size of their respective national

markets, leading specifically to the relative pauperisation of clubs in

the “small States”.

This said, our analysis of current Community law and our opinion

that primary Community law should not be changed in the sense

required by the Arnaut Report, does not preclude modernisation of

the current model of the governance of professional sport. Although

it is appropriate to reaffirm the legitimacy under Community law of

the preponderant role of national and international federations with

regard to the organisation and management of competition between

national teams, this should not mean that the federations should have

absolute freedom because these competitions affect the rights and

interests of third parties, namely the clubs, who see themselves

deprived of their employees, whom they continue to pay, and there-

fore of the ability to play matches whenever there is a competition

between national teams.

Questions of sporting calendar and player availability are the two

points of contact which produce the most important friction between

“club football” and the “national football team”.

In effect, the international calendar is neither more nor less than

the production timetable for the “football product”. In other words,

in compiling the calendar and rendering organisation of football

matches by anyone else subject to prior authorisation, FIFA is setting

the production periods reserved for itself and its members and those

left for the clubs.

As to availability of players, this is the means by which FIFA and

its members assume authority over the “raw materials” (services of

players) so that matches between national teams can be arranged

within those parts of the calendar which FIFA reserves for the pur-

pose, and this appropriation has the effect of depriving the clubs of

the “raw material” whose services they have, however, acquired under

contracts of employment.

Further dialogue with the clubs would in no way prevent the

national and international federations from maintaining their role as

guardians of the sporting ethic, responsibility for all matters connect-

ed with refereeing of matches and the discipline guaranteeing the

respect of the different rules of the game and the sporting ethic on

and off the pitch.

Community law in no way prevents the organisation of a real

European social dialogue, which should go further than pure consul-

tation and have a bearing on all participants who could, together,

tackle the matters which are important for the future of professional

football.

As we see it, the future of professional sport should not be outside

Community law which, as interpreted by the European Court and the

European Commission, is probably the best guarantee of maintaining

flourishing competition between national teams on the one hand and

the development of truly European club football on the other.

When the need really arises, as is the case with regard to questions

of the international match schedule and player availability for nation-

al teams, there can be no doubt that the scope of the application of

Community law in the sporting sector will be refined by the ECJ, in

particular during proceedings for a preliminary ruling. Far from

being a source of legal uncertainty, this jurisprudence would help to

consolidate and clarify the rights and obligations of the sector’s vari-

ous parties under EU Law.

42 See Le Monde of 2 June 2007, p. 15 and

in particular where it states that “Michel

Platini, new president of UEFA, thus, on

Monday 28 May rated G14 an associa-

tion which incorporates the 18 most pow-

erful clubs in Europe, which it described

as an ‘elitist group’. It demanded ‘offi-

cially’ that it should be dissolved and

asked its members to ‘engage in a fruitful

dialogue with other members of European

football’. ‘I agree with Platini’ said Sepp

Blatter, Thursday 31 May, on his re-elec-

tion to the head of the International

Football Federation (FIFA), and I say to

the clubs ‘Come back into the family and

withdraw your complaints’. (unofficial

translation from the French original)

43 Website: www.deloitte.com.

44 Note that UEFA in implementation of

its own commercial activities, does not

restrict itself to respecting the territorial

logic. For example, on 21 May 2007, on

the launch of the Chinese version of the

UEFA website (http://cn.uefa.com - the

CEO of UEFA Media Technologies SA

said : “This is a major step forward in

our efforts to bring the passion of

European football to the football fans

around the world. With SINA, we have

found a partner to help us bring our

vision of the world’s biggest game to the

world’s biggest audience”, this site offer-

ing in particular pay-per-view services.

Montreal,  June 

Emile Vrijman’s paper published in the 2007 1-2 edition of the

International Sports Law Journal

Dear Sirs,

WADA has read the above-mentioned article and is deeply troubled

that a journal of the International Sports Law Journal’s standing could

publish such an obviously self-serving document, in which the author

of a supposedly independent report that was fatally flawed in all

respects - methodological, legal and factual - makes an inherently

biased attempt to justify and critique his own report.

WADA commented publicly on the so-called Vrijman Report one

year ago, upon its release. That statement, which was published on

WADA’s website, is attached to this letter. Vrijman claims in his self-

serving article that “WADA reserves no more than four pages for its crit-

icism” of his investigation. To be accurate, WADA’s official statement

includes twelve pages of detailed criticism. Although Vrijman’s com-

pletely unprofessional report arguably did not deserve such attention

due to its lack of impartiality, independence, and total disrespect of

proper legal process, WADA felt it was necessary to correct the record.

We are concerned that your journal has allowed itself to be manip-

ulated by affording Vrijman an apparently credible platform to defend

his exceptionally unprofessional work.

WADA respectfully requests that you publish this response.

Yours truly,

Olivier Niggli

Director, Legal Affairs

LETTER TO THE EDITORS

2007/3-4

ARTICLES

Background

WADA is effectively, the world watchdog

for all matters related to anti-doping.

WADA was formed in 1999 and, pur-

suant to its mandate delivered by its gov-

ernance, 50 percent of whom come from the Sports Movement and

50 percent from world Governments, it has been responsible for the

introduction of the World Anti-Doping Code which took effect from

1 January 2004. WADA has no other interest or mandate but to fight

against doping in sport and to provide for all athletes a level playing

field. WADA in this particular case is not a concerned party, such as

Lance Armstrong, not a lawyer mandated and paid by UCI, like Mr.

Vrijman, nor is it responsible for the sport of cycling, like UCI. In

1999 EPO was not detectable in the urine sample of the athletes. A

valid test was only available as of the year 2000.

In 2004 the French Laboratory decided, on its own initiative, to

start a project on stored samples from the 1999 Tour de France in order

to evaluate a number of scientific facts, including the use of EPO prior

to the test being in place and the stability of EPO in urine samples.

When informed about the project WADA expressed its interest in

its outcome. Neither WADA nor the French Laboratory had any pos-

sibility of linking any sample involved in this project with any partic-

ular individual and therefore any sanctioning process was out of ques-

tion. It was very clear for both entities that this was a research proj-

ect. Linking a sample with a name could only be done by UCI who

was in possession of the doping control forms used in the 1999 Tour

de France. As far as WADA and the French Laboratory were con-

cerned, confidentiality of the results was fully guaranteed.

The result of the research was sent to WADA headquarters in

Montreal by the French Laboratory on 22 August and opened by

WADA on 25 August.

L’ E quipe published an article in its newspaper on 23 August 2005

headlined “The Armstrong Lie.” The article published six doping con-

trol forms pertaining to Mr. Armstrong and a summary of the find-

ing from the French laboratory in conducting its research from sam-

ples collected during the 1999 Tour de France.

The article suggested that Mr. Armstrong had not been truthful in

his many utterances that he had never taken performance enhancing

drugs, as the author was suggesting he could show through the items

exposed during his personal research and discovery, that on six occa-

sions, during the 1999 Tour, Mr. Armstrong’s samples showed EPO.

The contents of the article need no clarification here, but suffice to

say it led to voices of outrage from various quarters, including Mr.

Armstrong and UCI.

WADA had nothing to do with l’Equipe’s publication and learned

about it by reading the paper.

It appeared later, and this fact is not contested now by UCI, that 15

doping control forms from Mr. Armstrong had been given with his

consent and UCI consent to l’Equipe.

Following such publication which linked six samples containing

EPO with the name of Lance Armstrong WADA did nothing else but

ask UCI, as the responsible international sport federation for the

sport of cycling, to look carefully into the matter.

Process

a. In respect of newspaper articles containing defamation or alleged

defamation of individuals, the person so defamed can exercise the

process provided by law and sue for damages. This is the right of

the individual and the process accorded by most countries, includ-

ing France. In France, where the article was published, Mr.

Armstrong did not issue proceedings for defamation against

L’ E quipe. We are not aware of any proceedings elsewhere either.

There are time limits provided for the initiation of such proceed-

ings, and in this case they have now expired. In other situations

involving newspaper articles and books, in varying jurisdictions

around the world, Mr. Armstrong has sued and some of these pro-

ceedings are still awaiting hearings in courts. One involving The

Sunday Times in England has a hearing shortly.

b. As part of its role, WADA accepts the responsibility for ensuring

that all allegations of breach(es) of anti-doping rules are properly

and professionally investigated. On this occasion, WADA immedi-

ately suggested that the responsible organization, namely the inter-

national federation for cycling, UCI, conduct an appropriate

enquiry to determine whether the facts revealed by the article could

lead to any sanction process or to any other steps within the juris-

diction of that federation.

c. After the exchange of several letters between WADA and UCI, it

became obvious to WADA that UCI was not interested in accept-

ing such responsibility. Accordingly, on 5 October 2005, WADA

determined that it would accept the responsibility and embarked

upon an enquiry by seeking responses to questions issued by it

from each of the interested parties, Mr. Armstrong, UCI, the

French Ministry, and the French Laboratory as well as L’ E quipe.

Letters were sent to all on 5 October 2005.

d. After receiving this correspondence from WADA, on 6 October

2005, UCI announced that it would conduct an “independent”

enquiry through the offices of a lawyer, Emile Vrijman.

e. UCI neglected, in making this announcement, to prepare and

agree to terms of reference for this enquiry and to properly man-

date Mr. Vrijman, pursuant to its rules, to carry out such an inves-

tigation. Accordingly, when Mr. Vrijman wrote to WADA on 6

October 2005, WADA replied, on 13 October 2005, seeking the

terms of reference and seeking his legal mandate to carry out an

investigation.

f. It was not until 24 November 2005 that WADA had any further

correspondence in relation to this matter. On that day, WADA

received a letter from UCI, not Mr. Vrijman, with the contents

being its mandate to Mr. Vrijman and terms of reference, which

seemingly had been issued on 15 November 2005. WADA replied

to this correspondence from UCI on 15 December 2005.

g. Over the next months there was no approach made by Mr. Vrijman

to WADA, nor any approach made by UCI. At the Winter

Olympic Games in Torino, in February 2006, a pre-arranged meet-

ing between the former President of UCI, Hein Verbruggen, and

the President of WADA, Richard Pound, was convened under the

auspices of the IOC President, Jacques Rogge. This meeting was

convened as one of conciliation to ensure that any differences

between the two Presidents could be resolved. At that meeting, Mr.

Pound showed Mr. Verbruggen copies of 15 doping control forms

relating to samples collected from Armstrong in the 1999 Tour de

France. All 15 doping control forms had been released from UCI

with the consent of Mr. Armstrong to the author of the article in

L’ E quipe.

Mr. Verbruggen accepted these facts. Prior to this revelation, Mr.

Verbruggen had denied publicly on many occasions that any dop-

ing control forms had been released by him, and that perhaps only

one had been released by UCI. Consequently, UCI issued a state-

ment indicating a member of its staff would be suspended for the

releasing of this confidential information to a newspaper reporter.

Dr. Mario Zorzoli was suspended immediately (but later reinstated

in March 2006).

Also at this meeting, Mr. Verbruggen advised Mr. Pound that he

had sighted a draft report authored by Mr. Vrijman, in which

WADA was severely criticized and the report would make extreme-

ly bad reading for the World Anti-Doping Agency. In response Mr.

Pound advised Mr. Verbruggen that WADA had not yet been

approached by Mr. Vrijman with any requests for information nor

for interviews.

h. On 10 March 2006, Mr. Vrijman wrote to WADA. Mr. Vrijman

wrote again on 15 March. These letters included a list of questions

which Mr. Vrijman asked WADA to respond to. WADA respond-

ed in full to the list of questions.

Official Statement from WADA on the Vrijman Report

2007/3-4

ARTICLES

i. WADA subsequently provided, through UCI, two boxes of mate-

rials which WADA felt would be of interest to Mr. Vrijman.

j. WADA heard no more from Mr. Vrijman. WADA received no

request for any personal interview, nor any follow up to the

responses to the questions that WADA had provided to Mr.

Vrijman. WADA was not shown the report in draft form (although

this was accorded to UCI, with at least two drafts being provided

to the federation), nor was it asked to respond to allegations made

against WADA within the report so that its comments would be

fully and properly investigated and recorded. In most jurisdictions

around the world, this blatant demonstration of bias and lack of

proper and professional process is seen as a breach of natural jus-

tice.

k. This breach of natural justice is further exacerbated by Mr.

Vrijman’s allegations that WADA refused to participate in the

inquiry. As noted above, WADA responded to all two of Mr.

Vrijman’s letters in a complete and timely manner and offered to

provide additional information. WADA cannot be faulted for the

inquirer’s lack of follow up.

l. The report was published and personally announced by Mr.

Vrijman, so that the media received copies prior to it even being

delivered to UCI. WADA learned of this publication through the

media.

Substance of report

a. The process used by the French Laboratory in conducting its

research was not the process used for analysing samples for the pur-

pose of sanctions. Mr. Vrijman, at all times, confuses this funda-

mental difference and seems to indicate that, in conducting

research, the laboratory was required to carry it out in the same

manner as for analysing samples for adverse analytical findings.

This is not the case, and Mr. Vrijman, in directing himself to the

rules relating to samples collected for analysis rather than under-

standing the difference for research, has totally misdirected himself

in his inquiry. This very basic error leads to ill-informed and incor-

rect outcomes. The laboratory has indicated publicly that it has no

doubt whatsoever in the results of its analysis, and that no sample

used for the research project was contaminated, manipulated or

interfered with. There may be appropriately stored residue still

available for DNA and other further analysis.

b. Mr. Vrijman does not inquire at all into why Mr. Armstrong gave

his consent, through his advisers, to UCI to provide 15 doping con-

trol forms to the L’ E quipe reporter who was the author of the arti-

cle published on 23 August.

Mr. Vrijman does not likewise ask or inquire in any depth of UCI

management and executives of why they sought Mr. Armstrong’s

consent, and why they authorized the release of the documents with

some redactions in relation to medication. That failure indicates

both a lack of professionalism and a distinct lack of impartiality in

conducting a full review of all the facts. Indeed, despite Mr.

Verbruggen’s concession that all 15 forms came from UCI, Mr.

Vrijman only suggests it may have been more than one. Why did he

fail to review all the files, and interview the responsible personnel?

Mr. Vrijman suggests that the article would have been published by

L’ E quipe without these doping control forms, and therefore he did

not need to enquire further into why, how, and when they were

released. This is a serious factual and process deficiency, which can-

not now be remedied in any fashion.

c. Mr. Vrijman forms views he calls conclusions, based on speculation

and the threading together of comments made by various individ-

uals to various journalists. He does not ask any of the individuals,

whom he quotes, whether the quotes were accurate, truthful, or

otherwise. He does not establish facts, as necessarily required by

lawyers before reaching conclusions on the law.

d. As there are no proper factual conclusions, there can be no proper

legal analysis. In this case, however, it is even worse. Mr. Vrijman

fails to cite any rule or regulation, by number nor reference, where

he can establish that his speculations show a breach. Without a

breach of rule, there cannot be allegations of misbehaviour or

wrongdoings. There have not been any.

e. Mr. Vrijman suggests that WADA was formed in 2003. As any

expert in antidoping matters knows, WADA was formed in 1999.

The Code, for which WADA is responsible, and its allied

Standards, have been in place since 1 January 2004. The events at

issue which led to the research occurred in 1999. Mr. Vrijman does

not establish the rules and laws, which were fully in place at that

time. He does not, therefore, establish the facts which lead to prop-

er analysis of those rules, but he reaches conclusions which simply

become farfetched and chooses rules which he hopes might be in

place but does not specify nor determine when or how they are

applicable.

f. There was no pressure put on the laboratory by WADA. There was

no leak from WADA. There has been no discussion of matters with

the journalist prior to the publication of the article, and there has

been no information given to the journalist which would lead to

the identification of the individual, Mr. Armstrong. WADA con-

doned a research project carried out by the laboratory in an appro-

priate manner, and sought the results of such research as part of its

mandate to continue the fight against doping in sport. Mr. Vrijman

insists that WADA exercised inappropriate pressure on the French

laboratory. WADA solely advised the laboratory it would be inter-

ested in the findings, and disclosed this in the response WADA

gave to Mr. Vrijman’s questions. There was no other action taken

by WADA in relation to the publication of the results of the

research.

g. When the facts are wrong the conclusions that are built on these

facts are wrong. Mr. Vrijman’s report is fallacious in many aspects

and misleading.

WADA is presently looking at all its available legal recourses in

respect of the report .

h. UCI now asks questions publicly of WADA. Whilst surmising that

UCI cannot be happy with the conduct of its investigator, WADA

has no difficulty in answering the questions, and making the

answers public. However, when the process is so flawed as it is to

date, there can no longer be professional confidence in the author.

Therefore, providing further answers to more questions, surprising-

ly not asked during the inquiry leading to the report, does not rem-

edy a flawed and partial document.

❖

2007/3-4

ARTICLES

1. Introduction

Doping has originally been an internal problem of sport. Anti-doping

rules have been included into other competition rules and their con-

tent has varied from one sport to another. When it became evident

that doping is a problem in all top sports, the battle against doping

needed stronger measures and harmonization both between different

sports and between different countries. At the same time sports

organizations became aware of their insufficient possibilities to battle

against doping without the juridical means of public power.

In a world-wide anti-doping conference organized at the intiative

of the International Olympic Committee in Lausanne in 1999 sport

organizations and governments decided to establish a new interna-

tional organisation World Anti Doping Agency (WADA) for the bat-

tle against doping. The WADA is a private foundation whose domi-

cile is in Switzerland and headquarters in Montreal in Canada. This

unique international foundation is based on the cooperation between

sport organizations and governments, and the WADA is financed and

lead half by sport organisations and half by governments.

The biggest achievement of the WADA has so far been the first

world-wide anti-doping code World Anti Doping Code (WADC)

which was accepted in Copenhagen in 2003 and which is just now

under the revision.

As the governments could not be signatories of the WADC with its

doping sanctions accepted by the juridically private foundation

WADA, it was necessary to bind the governments with this interna-

tional policy through other means. This took place under the auspices

of the UNESCO and in accordance with the International

Convention Against Doping in Sport which came into force in

February this year.

2. Doping in legislation and in sport rules

The state gives its norms by legislation. The state has a monopoly to

make laws. Lower-level norms can be issued by municipalities, if a law

allows it. Thus only public power can issue generally binding norms. If

somebody breaks these binding norms, he/she will be sentenced in a

state criminal court if the violation of the norms is considered a crime.

Authorities have the right to use coercive powers as seizure and

search as well as internet search in accordance with law when it is

needed for the detection a crime, to study on the case by hearing

whomever etc. Authorities can also execute the punishments with

force, for example collect fines through execution.

Doping has been criminalized in many countries, especially in

Europe, but only seldom outside Europe. A special act on doping has

been issued in some countries of the member states of the Council of

Europe and also in other member states some forms of doping are pun-

ishable as drug abuse, smuggling of medicines or in some other way. A

criminal court imposes sanctions in these cases. A usual punishment is

a fine and in some cases imprisonment. Doping has, however, not been

usually defined in criminal code exactly in the same way as in sport.

Doping in the criminal code is often more limited than in sport.

Doping matters in legislation belong to public law.

Sport rules are formulated by sport organizations themselves. They

are not generally binding, but only applied to own activity. They can

concern not only the athletes but also other people taking part in one

or other way in the sport concerned. If these rules will be broken, the

question is not of a crime but of a violation of the rules. The doping

offence in the WADC is called an anti-doping rule violation.

A sport organization can impose a sanction for this violation in

accordance with its rules. This is not a punishment in the same sense

as in the criminal code, but a disciplinary consequence. These sanc-

tions can include consequences only within the power of a private

organisation.

Sport organiations do not have such coercive powers as authorities.

Their means are limited within their sport, for example they can pre-

vent the athlete to compete. Likewise the execution of the sanctions

is limited.

All major sport federations have today their own anti-doping rules.

The WADC obliged them to apply the obligatory articles of the

WADC as such and also otherwise to follow the principles of the

WADC. A sport tribunal established by a national or international

sport federation or in some cases the sport organization itself impos-

es sanctions, normally ineligibility and loss of medals, prize money

etc. The last instance to which it is usually possible to apply is the

Court of Arbitration for Sport (CAS).

Anti-doping rules of sport organizations belong to the area of pri-

vate law.

These two systems carried out on one hand in criminal courts

applying the state law concerning doping punishments and on the

other hand in the sport organizations or their tribunals applying their

anti-doping rules with disciplinary sanctions have acted so far nearly

totally separately. The difference between public law and private law

has kept these two procedures far from each other.

What has been said above is juridically generally accepted and also

the CAS has followed and indicated these principles in many decisions.

3. Doping sanctions imposed by a criminal court and a sport organi-

zation or its tribunal

The same anti-doping violation can be, and often is punishable both

as a crime in a criminal court and as a disciplinary offence in a sport

organization or its tribunal. These cases have increased strongly last

years for many reasons. More countries have included doping crimes

into their criminal code, the supervision of doping offences has

expanded and, when previously only athletes were punished, today

also coaches, doctors and other support people have been convicted

guilty of doping crime.

The consequence has been that the same person has been sanc-

tioned twice, in two separate processes, for one act of doping. We

have many examples of that.

In Sweden Ljudmila Enqvist, a hurdler and later a bobsleigher, was

sanctioned by her national sport federation for life after being detect-

ed twice for anti-doping rule violations.

Later she was also punished in the local criminal court with a fine

for the possession of doping substances which is a crime in accordance

with the Swedish legislation.

In Finland Kari-Pekka Kyrö, a coach in skiing, was sanctioned by

the Finnish Ski Association for life after providing his skiers with sub-

stances for blood manipulation, and later he was punished with a fine

(about 500 euros) in a criminal court for smuggling of drugs. In addi-

tion he was imposed to compensate trial costs about 16.000 euros.

Stephane Desaulty, a French athlete in 3000 m steeplechase, was

arrested in possession of EPO by the French Police and was sentenced

by a French criminal court to 4 months suspended imprisonment

after having used medical prescriptions which he had forged. The ath-

lete admitted doping and the matter was subsequently dealt with as

an anti-doping rule violation first in the French Athletic Association

and then in the CAS. The sanction was two years ineligibility.

* The basis of this article has been the lec-

ture which Mr Tarasti presented in the

Sports and Law Berlin 2007 Conference

in May 2007.

** Jur.lic. Lauri Tarasti is a member of the

ICSSPE Executive Board, the chairman

of the IAAF Juridical Commission and a

member of the IOC Sports and Law

Commission.

1 The Council of Europe´s Anti-Doping

Convention is already from 1989.

Interplay Between Doping Sanctions Imposed by

a Criminal Court and by a Sport Organization*

by Lauri Tarasti**

2007/3-4

ARTICLES

Ridouane Es-Saadi, a Belgian athlete in 5000 m, was arrested in pos-

session of doping substances, including EPO, growth hormone and

clenbuterol. He was banned at a sporting level by a Disciplinary

Commission of the Belgian Ministry according to the Belgian legisla-

tion. After his return to competition he tested positive and was sanc-

tioned therefore for life.

A cyclist, Mr Johan Museeuw, was sanctioned in Belgium under

the international federation UCI`s rules. Afterwards the public pros-

ecutor initiated criminal proceedings, because the doping offence was

also a crime according to the Belgian legislation. At the end of the

investigation, the examining chamber decided that the rider had to

appear before the criminal court. Mr Museeuw appealed this decision

arguing that the court no longer had jurisdiction, because the case had

already been determined, but the appeal was dismissed.

When looking at these processes it can be noticed that as a rule the

sanction of a sport organization or its tribunal has been made first and

the conviction of a criminal court thereafter. However, in the

Stephane Desaulty case the situation was opposite. In addition, the

police investigation often starts the process, but the sanction has been

imposed by a sport organization or its tribunal before the punishment

imposed by a criminal court due to the speed of the first mentioned

procedure. One might say that this order is not of major importance

as they are two separate procedures, but the reality is another.

When the first sanction has been imposed, it can have a great sig-

nificance as evidence in the latter process. When Stephane Desaulty

had admitted in the criminal court doping, this was the main and

convincing evidence in his federation´s decision to impose ineligibil-

ity. This issue has also been of relevance in the Balco doping cases in

the USA where some athletes have chosen not to give evidence before

the CAS evidently for fear of repercussions before the national

authorities and/or court.

4. Influence of a criminal court´s conviction

In the Aissa Ddhoughi case, this Moroccan athlete in 10 000 m was

first arrested in possession of doping substances and sentenced there-

fore to 4 months suspended imprisonment. This resulted in no con-

sequence from the sport organizations´ side, he was not at that time

a licensed athlete. But later when he again committed an anti-doping

rule violation, the conviction of the criminal court was adduced as the

evidence of his prior record and he was banned for 3 years by the

Moroccon Federation.

This raises a question, whether the conviction for a doping crime

by a criminal court has to be taken into account when estimating

multiple violations in another case in accordance with the World

Anti-Doping Code. If the answer is positive, the sanction is much

harder. The WADC itself gives no clear answer. We could think that

these two systems to impose sanctions are also in this point totally

separate systems.

Doping crimes can in some special cases differ from anti-doping

rule violations in the WADC, especially concerning doping sub-

stances, the division of the burden of proof or the level of required

evidence. Normally the requirements for a doping crime in a criminal

court are a bit higher than for a doping offence in a sport organiza-

tion or its tribunal. This makes it easier for the sport organization or

its tribunal to accept the results achieved in a criminal court than the

criminal court to accept the decision and its arguments presented by

the sport organization or its tribunal.

Articles 10.2 and 10.3 of the WADC mention only second violation

and third violation without any explanation which violations must be

taken into account when determining the second and third violation,

but it is quite evident that here it has been considered only anti-dop-

ing rule violations in accordance with the WADC, not doping crimes

imposed by a criminal court.

However, Article 15.4 includes regulation on Mutual recognition as

follows:

Subject to the right to appeal provided in Article 13, the Testing,

therapeutic use exemptions and hearing results or other final adju-

cations of any Signatory which are consistent with the Code and

are within that Signatory´s authority, shall be recognized and

respected by all other Signatories. Signatories may recognize the

same actions of other bodies which have not accepted the Code if

the rules of those bodies are otherwise consistent with the Code.

Governments or criminal courts are not signatories of the WADC,

but it might be possible to make an analogical interpretation that they

are considered as the above mentioned other bodies whose rules (i.e.

legislation) are consistent with the WADC. However, the comment

under Article 15.4.2 of the draft for the revised WADC shows that this

possibility has not been considered in this connection. Therefore it

should be reasonable to clarify this article or the comment under it to

consist of criminal courts.

In accordance with Article 3.1 of the UNESCO´s International

Convention Against Doping in Sport, States Parties undertake to

adopt appropriate measures at the national and international level

which are consistent with the principles of the Code (WADC) and

according to Article 4.1 the States Parties commit themselves to the

principles of the Code, as the basis for the measures provided for in

Article 5 of this Convention.

Taking into account what has been said above, it seems to me well

argued that the sport organization or its tribunal can approve that the

question is of the second or third anti-doping rule violation when a

previous violation has been shown in the decision of a criminal court.

This is of great importance when imposing the sanction. But I think

in addition that the sport organization or its tribunal should explicit-

ly mention in its decision that it has recognised the previous decision

of a criminal court before imposing a sanction for the second or third

violation. This course of action offers to the athlete concerned - when

appealing against the decision of the sport organization or its tribunal

- a possibility to show that the conviction of the criminal court has

not been correct related to the matter according to the sport organi-

zation´s anti-doping rules.

In favour of this interpretation is Article 3.2.3 in the draft of the

revised WADC:

The facts established by a conviction or finding of a court or profes-

sional disciplinary tribunal of competent jurisdiction which is not

the subject of a pending appeal shall be irrebuttable evidence of the

substance of the conviction unless the Athlete or other Person

establishes that the conviction violated principles of natural justice.

5. Some comparisons

If we compare the punishments in a criminal court and the sanctions

in a sport organization or its tribunal including the CAS, we can

notice that a normal punishment for a doping crime has been a fine

or in some cases suspended imprisonment and a normal sanction for

an anti-doping rule violation has been two years ineligibility.

For the top-athlete the last mention sanction is much stricter than a

fine or suspended imprisonment because it interrupts the athlete´s car-

rier and prevents him/her to carry on his/her occupation. This results

in often big economic losses compared with relatively low fines.

But for many athlete´s support persons the situation can be oppo-

site. For them two years ineligibility in sport is often only minor con-

sequence, but a fine and especially suspended imprisonment can be of

major importance. This can have a great impact on their civil profes-

sion.

This is one reason why in some countries the use of doping sub-

stances is not a crime in criminal code but trafficking in any prohib-

ited substance or prohibited method and administration or attempt-

ed administration of a prohibited substance or method to any athlete

are punishable. This results in a situation where the athletes (if only

using doping substances) are mainly imposed sanctions for anti-dop-

ing rule violations in a sport organization or its tribunal, and other

persons involving doping affairs are mainly imposed punishments for

doping crimes in a criminal court. This division seems to be rational

in many respects. Germany has this year accepted this kind of the

solution in its new doping act and in Finland this system has been

included into the criminal code some years ago.

2007/3-4

ARTICLES

Special difficulties can arise if the decisions made by a criminal court

and by a sport organisation or its tribunal are opposite i.e. one indi-

cates the guilt of the athlete and another the innocence of the athlete.

In the famous Butch Reynolds case the Arbitration Panel of the IAAF

considered Butch Reynolds guilty of doping offence but Mr Reynolds

home court, federal district court in Ohio exonerated him and orded-

ed the IAAF to compensate 27,3 milj. dollars to Mr Reynolds. The

IAAF announced that it will not accept this conviction and appealed

to the federal appellate court which decided that the local court had

had no jurisdiction in the case and dismissed totally the action of Mr

Reynolds. In the Torino Winter Olympic Games in 2006 an Austrian

skiing coach Mr Walter Mayer was sanctioned for life for an anti-dop-

ing rule violation, but an Austrian court was of the opinion that Mr

Mayer had not been shown guilty of any crime according to the

Austrian legislation.

When the sanctions are different or deal with different kinds of

sanctions, it can be possible to execute both decisions, even though

opposite. The question is of two separate processes also in the execu-

tion. The execution of the conviction of a criminal court is naturally

enforcable in the country of the court. But it depends on internation-

al conventions, especially between the countries concerned, whether

the conviction is enforcable in other countries.

The decisions made by a sport organization or its tribunal will be

executed in all countries and in all sports in accordance with the

WADC, but it can be difficult to enforce these decisions outside

sport. The international conventions (Lugano, Brussels and New

York) on jurisdiction and the enforcement of judgements in civil and

commercial matters can have a great influence also on the decisions

made by sport organizations or their tribunals including the decisions

of the CAS. The Swiss Federal Court has confirmed twice that the

CAS is an internationally accepted arbitration court whose jurisdic-

tion is exclusive under these above mentioned conventions.

The

same conclusion was reached by the US Supreme Court in the Mary

Decker Slaney case.

However, all these conventions are binding only

for the state parties to the conventions and even in some contracting

parties it has been unclear how to apply these conventions.

The international sport federation cannot demand its member fed-

erations to stand against the decision made by the court, civil or crim-

inal, of the federation´s own country, because naturally all athletes,

clubs and national federations are bound by their own country´s law

and are under the jurisdiction of the national courts. But the interna-

tional sport federation can keep its decisions in all other countries,

where the decision of a court of another country is not entitled to

recognition and enforcement. The international sport federation can

normally be refused to do so only in its own domicile´s civil court.

6. Ne bis in idem

One of the leading principles in criminal law is that in one and the

same crime only one punishment can be imposed, “Ne bis in idem”.

Can or ought it to be applied also in doping sanctions?

Theoretically the answer is clear and generally accepted. A punish-

ment in a criminal court and a doping sanction in a sport organiza-

tion or its tribunal are not against the principle Ne bis in idem. The

question is of two separate matters. Only the punishment by a crim-

inal court is a punishment in the sense of criminal law. The doping

sanction by a sport organization or its tribunal is a disciplinary meas-

ure. The first one belongs to the area of public law, the last one of pri-

vate law.

Many examples of this separateness has been presented under Point

3 above. An example to opposite direction is just pending in Belgium.

In this case a cyclist Mr Frank Vandenbroucke was sanctioned for

doping in a disciplinary proceedings of the sport federation. He was

also prosecuted before the criminal court for the same facts. Mr

Vandenbrouke pleaded that he already had been sanctioned with a

disciplinary sanction and that any criminal proceedings had to be dis-

missed. The criminal court of first instance did not accept this

defence and imposed a punishment, but the court of appeal accepted

the appeal, based on Vandenbroucke´s argumentation. The case is

now pending in the Supreme Court “Cour de Cassation”.

This distinction between a punishment imposed by a criminal

court and a sanction imposed by a sport organization or its tribunal

has so far been easily noticable. Fine and imprisonment have been

measures by courts and ineligibility and loss of prize money measures

by sport organizations or their tribunals. In fact, it would be strange,

if public power would start to determine ineligibility in sport as long

as the sport has its more or less autonomous position.

This situation is not unique in society. For example, doctors have

their licenses to carry on their profession. If a doctor makes

himself/herself guilty of a crime, he/she will be punished in a crimi-

nal court according to the criminal code, but he/she can lose his

license in a separate process, in an administrative procedure.

But this answer will not be anymore easy to accept, if the draft of

the revised WADC will be brought into force. In accordance with its

Article 10.12 Imposition of Financial Sanctions

Anti-Doping Organizations may, in their own rules, provide for

financial sanctions on account of anti-doping rule violations.

However, no financial sanction may be considered a basis for

reducing the period on Ineligibility or other sanction which would

otherwise be applicable under the Code.

If this happens, in a same doping offence there can be two fines, one

imposed by a criminal court and another imposed by a sport organi-

zation or its tribunal. The first fine goes to the state and the latter to

the sport organization depending on its rules. Can the separateness of

these two sanctions still stay?

I am doubtful. Regarding the athlete he/she has to pay twice for

one act, only the address is separate. From his/her point of view there

is no difference in fines between public and private law because the

consequence is same. However, Ne bis in idem -principle has been

valid as a part of human rights only in criminal processes, not related

to disciplinary sanctions. If this kind of situation would arise, the civil

court or the execution authority would be obliged to deal with and to

solve whether Ne bis in idem -principle shall be applied or not. The

fine imposed by a state court can be executed directly by execution

authorities, but the fine imposed by a sport association or its tribunal

can not be executed without a separate decision, normally of the civil

court. When making this decision the court should accept the ground

for execution and at the same time whether or not to apply Ne bis in

idem -principle.

But the same result or more from the point of view of doping con-

trol´s effectiveness can be obtainable by purely means of private law.

Very often the top athletes have made or make an agreement with

their sport federation for different kinds of economic and other ben-

efits and rights. In these agreements it is possible and often used, that

the athlete commit himself/herself to compensate to his/her federa-

tion the image and/or economic losses in the case of doping offence

of which he/she is guilty. This kind of a contractual penalty can be

quite high. Contractual penalties are normal in business contracts.

7. Cooperation in detecting doping offences

Cooperation is not possible between courts and sport organizations,

when a matter has reached the stage of court handling. The court

must decide the case independently. However, the WADA has filed

in the Operatio Puerto Case in Spain a formal request to be accepted

as a civil party in the court. The WADAs request was firstly dismissed

on 27 March 2007, but after the appeal it was accepted which can be

internationally an important precedent. The aim of the WADA was

to get all material in the case to be used as evidence later before the

CAS.

Instead cooperation is very useful at the earlier stages in the inves-

tigation process. Before a doping case is dealt with before a criminal

court, the police has conducted its investigations and the prosecutor

2 I was the chairman of this Panel.

3 The judgements 15 March 1993 and 31

October 1996.

4 The New York Convention was the main

reason to dismiss Ms Decker Slaney´s

claims in the Southern District Court of

Indiana, Indianapolis Division Nov. 5,

1999.

2007/3-4

ARTICLES

decided to prosecute. They have strong powers for these purposes.

Police can hear whomever person as witness, make home search, con-

fiscate property, take samples, conduct telephone and internet surveil-

lance including email etc. depending on the severity of the case.

Doping procedures in sport organizations have today started from

police investigations more often than previously as a result of more

active involvement by the police.

A sport organization´s or its tribunal´s powers are limited to meas-

ures in connection of sport. The athletes are obliged to give samples

in doping control whenever and they can be requested to give neces-

sary evidence and come to a hearing with the consequence that if

they do not fulfil their obligations they will be sanctioned for an anti-

doping rule violation. These powers are still more limited related to

the athlete´s support personnel.

This imbalance in means has resulted in that sport organisations

have needed and need in many cases investigation help. Such cases are

numerous and most important.

The Tour de France doping scandal in cycling in 1998 started from

police investigations, and the Chinese doping scandal in swimming in

1998 started from Australian customs´ seizure. Obscurities in the

Balco laboratorium began to be detected in the USA originally in the

tax authorities´ investigations. The Operatio Puerto in Spain is the

investigation conducted by the Spanish authorities into doping prac-

tices that followed the seizure of prohibited substances and other

material by the Spanish police in 2006. It has concerned so far main-

ly cycling. In the Athens Olympic Games in 2004 two Greek sprint-

ers, Kenteris and Thánou, escaped from doping control. The IAAF

waited as long as possible for the results of police investigations with

the purpose to get better evidence before imposing sanctions.

It can be pointed out from these examples that many major disclo-

sures have happened and evidently will happen from inquiries and

investigations conducted by police or other governmental agencies.

They have sufficient powers for that. The sport organizations are not

able to detect effectively trafficking, smuggling, distribution etc. of

doping substances. They do not have any mandate to conduct neces-

sary investigations outside sport. On the other hand police has usual-

ly not sufficient resources nor interest to take urine or blood samples

from individual athletes. This part of doping contol is and will stay in

the hands of sport organisations. Anti-doping organisations in the

whole world have conducted nowadays about 180.000 tests yearly.

The lack of powers to make investigations is a big problem for the

sport organizations and for the WADA. In the last publication of the

WADA “Play true” (1/2007) is a strong appeal: “The challenge put

before the anti-doping movement now is, in what ways can coopera-

tion and the sharing of information - between governments agencies

and law enforcement on the one hand, and sport and anti-doping

authorities on the other - be improved to bring greater efficiency to

the fight against doping in sport.”

The aim to achieve better cooperation between governments and

sport organizations can be seen in some new articles of the revised

WADC when the WADC will be accepted in a big doping conference

in Madrid in November this year. According to its Article 3.2.3 men-

tioned already above

The facts established by a conviction or finding of a court or profes-

sional disciplinary tribunal of competent jurisdiction which is not

the subject of a pending appeal shall be irrebuttable evidence of the

substance of the conviction unless the Athlete or other Person

establishes that the conviction violated principles of natural justice.

The sport organizations´ obligation to announce significant anti-dop-

ing rule violations to the public authorities has been determined in

the last sentence of Article 10.3.2 of the draft. In the Comment to this

sentence it has been said that “Since the authority of sport organiza-

tions is generally limited to Ineligibility for credentials, membership

and other sport benefits, reporting Athlete Support Personnel to com-

petent authorities is an important step in the deterrence of doping.”

In fact, already Article 10.4.2 in the present WADC includes the same

rule but only in the milder form “may be reported”.

The information exchange from the opposite direction i.e. from

governments to sport organizations has been regulated in Article

22.1.1 of the draft as follows:

Each government shall encourage all of its public services or agen-

cies to share information with Anti-Doping Organizations which

would be useful in the fight against doping where to do so would

not otherwise be legally prohibited.

Article 13 in the UNESCO Convention Against Doping in Sport

includes a respective principle.

These are steps towards closer cooperation, but not at all sufficient

in the battle against doping. In all circumstances certain powers, such

as those of house search, seizure, internet surveillance etc. will remain

in the realm of law enforcement. It seems to be juridically very diffi-

cult to give any such kind of powers to private organs such as a sport

organization or its tribunal. Consequently, the sport organizations´

large scale anti-doping investigations are possible also in the future

only through cooperation and coordination with state agencies. The

cooperation between the police and other governmental authorities

and the sport organizations seems to be the most effective way to

improve the battle against doping.

❖

Marquette University

Master of Laws (LL.M.)

in Sports Law

The Master of Laws (LL.M.) in Sports Law program offers foreign-educated lawyers a unique

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international, and comparative sports law issues. LL.M. students take the same courses as

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other) and must complete an LL.M. Directed Research Project on an international or compar-

ative sports law topic. Detailed information on the LL.M. in Sports Law program can be

found at

http://law.marquette.edu/jw/llm

2007/3-4

ARTICLES

Much discussion has been generated with the introduction of a new

rule to combat the use of performance enhancing substances and

methods in sport. This discussion has been initiated and subsequent-

ly became an integral part of the sporting public opinion, as a result

of the application of this rule on high profile professional athletes,

such as the Greek sprinters Kenteris and Thanou.

Before, however, an analysis of the application of this rule can be

produced, it is first of all necessary to explain and define the opera-

tion of the rule and perhaps attempt to discover the reasons for its cre-

ation.

The article would concentrate on the IAAF’s [International

Association of Athletics Federations] rule on missed tests and critical-

ly analyse its definition and application, particularly at the charging

stage. This would enable us to test the validity of the rule, by exam-

ining its application on potential alleged offenders and would also

provide us with a unique opportunity to interpret the intention of the

legislator. The relevant rule under examination is the IAAF’s Rule

32.2.d which states:

“Doping is defined as the occurrence of one or more of the following

anti-doping rule violations: (d) the evaluation of 3 missed tests (as

defined in Rule 35.17) in any period of 5 years beginning with the

date of the first missed test.”

Further, Rule 35.17 goes on to

“define” what a missed test is. It states: “If an athlete fails on request

to provide the IAAF with his whereabouts information, or to provide

adequate whereabouts information, or is unable to be located for test-

ing by a doping control officer at the whereabouts retained on file for

that athlete, he shall be subject to an evaluation by the IAAF Anti-

Doping Administrator for a missed test. If, as a result of such evalua-

tion, the IAAF Anti-Doping Administrator concludes that the athlete

has failed in his obligation to provide whereabouts information or ade-

quate whereabouts information, the IAAF Anti-Doping Administrator

shall evaluate the failure as a missed test and the athlete shall be so

notified in writing. If an athlete is evaluated as having 3 missed tests

in any period of 5 years beginning with the date of the missed test,

he shall have committed an anti-doping rule violation in accor-

dance with Rule 32.2(d).”

It is clear from the above rules that doping does not only relate to the

use of prohibited substances and methods, but also to the “occurrence

of one or more anti-doping rule violations”. These anti-doping viola-

tions may incur in situations where the athlete did not use perform-

ance enhancing substances, but simply, where he “missed”, “failed”

and/or “evaded” the test. For the purposes of analysing these rules, we

would call these specific cases “non-analytical finding” cases.

The reason for the examination of the IAAF’s rule, concentrates on

the fact that it is attracting intense criticism, in relation to its applica-

tion on anti-doping violations. In addition, this regulation in ques-

tion has been associated with high profile cases, and has also become

the source of a unique form of questioning. A series of questions arise

out of its construction, interpretation and application in practice.

These questions cannot be answered without a further examination

of the factual issues that surround the application of this regulation.

This work aims to explore the operation of these rules, in order to be

able to explain and test the application of the regulations in question.

It further aims to interpret the construction and the reasoning behind

the creation of the said regulations.

Factual Analysis

The significance of this regulation lies in the fact that it does not con-

cern positive tests for the use of performance enhancing substances,

but instead the so-called “non-analytical finding” cases.

Such cases, as

mentioned above, do not include positive tests on behalf of the ath-

letes, but rather anti-doping violations, in a form of a strict liability

offence, where the accused athlete missed, failed, refused and/or evad-

ed the test. The last two ingredients of the offence form the subject of

a separate analysis, as they require, it is submitted, a mental element

on behalf of the accused athlete. The analysis would examine all of

these provisions and it will show that, not only are they mutually

incompatible, but they are also unworkable because of their specific

definitions.

An independent observer would produce, not surprisingly, the fol-

lowing questions: what is a “missed test?” How does it operate? Is it a

strict liability offence? Does it require knowledge (of the test) on

behalf of the athlete? Does it create injustice? Does it breach recog-

nised principles of law? Does it violate rules of natural justice and due

process? Does it breach human rights? Are the Doping Control

Officers, responsible for conducting the tests, adequately trained for

the application of the rule and most importantly, are they independ-

ent, fair and unbiased?

The answers to these questions reveal significant findings, which

they would, without a doubt, call for a review and re-examination of

the propriety and fairness towards the application of this regulation.

It would come as no surprise when the time arrives where a case

attempts to test the legality and fairness of this rule before a national

court of law. I was certainly privy, and still am, to the doubts

expressed as to the specific elements of the offence in the analysis of

this regulation.

Despite the fact that certain regulations of sporting governing bod-

ies attempt to exclude the resolution of a private dispute before

national courts of law

, it is submitted that where an error of law

and/or injustice have occurred, immunisation from judicial interven-

tion may not so easily be achieved.

Under English law, an attempt to exclude the courts from their

effort to interpret the law is considered to be against public policy. To

this effect, Lynskey J has argued in the past:

“The parties can, of course, make a tribunal or council the final

arbiter on quotations of fact. They can leave questions of law to the

decision of a tribunal, but they cannot make it the final arbiter on a

question of law.”

*Dr. Gregory Ioannidis is a lecturer in

Sports Law and Master of the Moots at

the University Of Buckingham School

Of Law and a Barrister. He is Counsel

for the Greek sprinters Konstantinos

Kenteris and Ekaterini Thanou.

1 The author advised and acted as Counsel

for the Greek sprinters in an appeal

brought against them by the IAAF [Track

and Field’s governing body] before the

Court of Arbitration for Sport in

Lausanne and against their clearing of

any anti-doping violations at first

instance. This appeal was eventually

withdrawn by the IAAF, last June, with

both sides reaching an out of court settle-

ment. The analysis of the present article

does not, in any way relate to the above-

mentioned Appeal, nor does it describe

factual or otherwise situations arising out

of this case. The author concentrates

solely on his personal interpretation of

the current regulatory framework.

2 The IAAF proceeded with a modifica-

tion to this rule in 2006. Prior to the

modification, the rule required “3 missed

tests in 18 consecutive months”.

3 Examples include the cases of the

American sprinters Tim Montgomery,

Chirstie Gaines, Kelly White and the

well-known and highly publicised case

which arose out of the Athens Olympic

Games with the Greek sprinters

Konstantinos Kenteris and Katerina

Thanou.

4 Take for example the IAAF’s Rule 45.1:

“Anti-Doping rules are, by their nature,

competition rules governing the condi-

tions under which the sport of Athletics

is to be held. They are not intended to

be subjected to or limited by the require-

ments and legal standards applicable to

criminal proceedings or employment

matters.”

5 Baker v Jones [1954] 2 All Er 553, p. 558.

Doping in Sport, the Rules on “Missed Tests”, “Non-

Analytical Finding” Cases and the Legal Implications

by Gregory Ioannidis*

F O R T H C O M I N G

The Sporting Exception

in European Union Law

Richard Parrish and Samuli Miettinen

The Sporting Exception in European Union Law is the definitive, comprehensive and up-to-date

account of EU sports law. It provides a detailed critique of major European Court of Justice judg-

ments including Walrave (1974), Donà (1976),Heylens (1989), Bosman (1995), Deliège (2000),

Lehtonen (2000), Kolpak (2003), Piau (2005) and Meca-Medina (2006) and a modern framework

for the application of ECJ jurisprudence to sport. It also provides advanced commentary on major

sports-related competition decisions of the European Commission. The book examines the appli-

cation of EU law to broadcasting issues, to rules affecting player mobility in Europe and to issues

of sports governance. In doing so it provides comprehensive coverage of all the current issues in

EU sports law including the Oulmers case, the home-grown player debate, the regulation of play-

ers’ agents, the impact of the Services Directive, the impact of the Audiovisual Media Services

Directive, the influence of the 2006 Independent European Sports Review, the details of the 2007

Commission’s White Paper on Sport, the likely impact of the Treaty Article for sport in the

Reform Treaty and prospects for social dialogue within the sports sector.

The Sporting Exception in European Union Law is a reference tool for all those involved (aca-

demics, practitioners, researchers, advisers, administrators, marketers and broadcasters) in the

field of international sport and the challenges that the interface between European law and sport

provides in daily law.

Dr Richard Parrish is Director of the Centre for Sports Law Research, Edge Hill University,

United Kingdom, and Chairman of the Association for the Study of Sport and the European

Union. Samuli Miettinen is a senior lecturer at the Centre.

This book appears in the ASSER International Sports Law Series, under the editorship of

Dr Robert Siekmann and Dr Janwillem Soek.

Publication date: December 2007

www.asserpress.nl

The Sporting Exception in European Union Law

- Richard Parrish and Samuli Miettinen

- Publication date:

December 2007.

Send me more information upon appearance

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port is not mentioned in the EC Treaty. And yet sport-

ing practices may have profound economic implica-

tions, and they may cut across basic assumptions of the EC

Tr eaty such as non-discrimination on the grounds of

nationality, free movement across borders and undistorted

competition. So if the EC Treaty is to be interpreted in a

manner apt to achieve its objectives it cannot afford sport

unconditional immunity from its scope of application. On

the other hand, sport has characteristics which are not

shared by other sectors of the economy and, moreover, the

Tr eaty is deficient in setting out any helpful framework for

understanding just what is ‘special’ about sport. So the

EU’s institutions, most of all the Court and the

Commission, are wisely circumspect when invited to inter-

vene in sport. Add in a host of actors with incentives to

argue for maximum autonomy for sport - sports federa-

tions and governing bodies, most obviously - and others,

particularly those adversely affected by the choices made

by governing bodies, with incentives instead to promote

the aggressive application of EC law, and the scene is set

for the shaping of a fiendishly complicated and hotly con-

tested area of law and policy.

The European Court has a rather spotty record in keep-

ing the law on track. Plenty of sporting practices have been

challenged but found to suffer no rebuke when examined

in the light of EC law. But why do some sporting rules

escape condemnation under EC law? Usually, in my view,

it is not because they exert no economic effects. In fact

there are few such ‘pure’ rules. Usually it is because their

economic effects are a necessary consequence of their con-

tribution to the structure of legitimate sports governance.

This is true of nationality rules governing the composition

of national representative teams, of rules governing selec-

tion for international competition, of ‘transfer windows’,

of rules forbidding multiple club ownership, of anti-dop-

ing rules and procedures, and so on. But in its first great

case on sport, Walrave and Koch, the Court referred to ‘a

question of purely sporting interest’ which ‘as such has

nothing to do with economic activity’. And it thereby

introduced the idea of rules which lie beyond the reach of

the Treaty. For governing authorities in sport this is a

delightful notion, for it helps their interest in maximising

the scope of their autonomy from legal supervision. This is

the widest possible version of the ‘sporting exception’. But

I think it is misleading. Most sporting practices do fall

within the scope of the Treaty - because they have econom-

ic effects - but this is not to say they are incompatible with

it. In my view the correct way to understand the so-called

‘sporting exception’ in EC law is simply to regard it as the

space allowed to sports governing bodies to show that their

rules, which in principle fall within the EC Treaty where

they have economic effects, represent an essential means to

protect and promote the special character of sport. There

is no blanket immunity. There is case-by-case scrutiny. EC

law applies, but does not (necessarily) condemn. And I

think that recently, in Meca-Medina and Majcen v

Commission the Court adopted this approach.

This is the territory explored by this very fine book. It

examines the development of the law and it then applies

the analysis to particular areas of controversy, including

broadcasting and the labour market. It richly repays close

reading and it is the product of deep thinking and consci-

entious research. Richard Parrish has already shown us the

way in his pioneering book Sports Law and Policy in the

European Union (2003), in which he built his narrative

around the appealing notion of ‘separate territories’,

according to which there is ‘a territory for sporting auton-

omy and a territory for legal intervention’ (p.3). In this

book, with the reinforcement of his co-author Samuli

Miettinen, Richard Parrish shows us a great deal of overlap

between those territories, and the writers pore over the

frictions that exist at the boundaries.

In general sports governing bodies remain wearyingly

reluctant to engage seriously with the need to demonstrate

intellectually durable reasons why their structures and

practices should be treated as necessary and therefore com-

patible with EC law. Even today they frequently complain

about having to do what every other commercially active

party has to do - comply with the law. ‘Sport is special!’

They declare. So it is - but not that special. If governing

bodies want to take seriously the space which EC law

allows them to show why and to what extent sport is truly

special, while also generating large amounts of money,

then this book provides them, their members and their

legal advisers with a platform from which to develop bal-

anced and well-informed arguments. I congratulate

Richard Parrish and Samuli Miettinen on their scholar-

ship. This book is a terrific addition to the literature on

sport and the law and, I am sure, will be welcomed by all

those with a professional, regulatory and academic interest

and stake in this developing and important subject.

Stephen Weatherill*

* Jacques Delors Professor of European Community Law, University of

Oxford, United Kingdom.

FOREWORD

2007/3-4

ARTICLES

This is obviously an encouraging statement which should allow some

latitude for the accused athlete, where an obvious error of law has

occurred, or some other principles of law have not been observed. The

truth of the matter, however, is that the Court of Arbitration for Sport

in Lausanne (CAS) remains the final arbiter, for both the facts and the

law, and as such is followed by the parties to a dispute.

Lynskey J’s

statement, however, would not find application in practice, if the

accused athlete feels that his rights have been breached and CAS has

failed to produce an appropriate remedy. In my experience and in

recent cases before CAS, the panel has remained silent on questions

relating to human rights.

On a different issue, that of the lifting of

the provisional suspension, the Panel suggested that CAS is not a

court of law, but a tribunal, and therefore not the appropriate forum

to deal with complex legal issues, such as the one raised by counsel for

the accused athletes! And with the ECJ’s recent decision in Meca-

Medina v Commission of the European Communities [C519/04]

it is

clear that actions that take a different road from that to Lausanne may

also conventionally fail.

The Need for Stricter Rules

There is no doubt that the objects of the rules of sporting governing

bodies are simple: healthy competition, equal or level-playing field for

all and punishment for those who do not obey the rules. The rules

themselves, however, are not always straightforward. As my learned

friend, Michael Beloff QC suggests:

“In my experience, rules of domestic or international federations tend

to resemble the architecture of an ancient building: a wing added here,

a loft there, a buttress elsewhere, without adequate consideration of

whether the additional parts affect adversely the symmetry of the

whole.”

This is an element which gives rise to intense criticism, particularly

from the penalties’ point of view. The issue of proportionality or the

argument that the punishment is disproportionate to the offence

committed has given rise to many different interpretations before

national courts of law. It has been suggested that a four year ban is

contrary to German law

, whereas it was held valid under English

law.

The case of Meca-Medina certainly confirms that a ban which is

over a certain number of years could be held disproportionate. The

introduction of WADA [World Anti-Doping Agency], with the main

aim to harmonise different rules and penalties from different sports,

suggests that a two year ban could be upheld as reasonable and pro-

portionate to the offence committed. The European Court of Justice

appears to agree. There are, however, exceptions to this general rule.

If a second offence is committed and the accused is found guilty, then

the ban takes the form of life ineligibility from international and

national competitions.

There may be cases where the accused athlete

is able to establish “exceptional circumstances” and have his lifetime

ban reduced to 8 years.

Or there may be a case where an athlete is

found to have committed two separate anti-doping rule violations,

which have not arisen from the same test, and could receive a sanc-

tion of a three-year ban.

To make things even more complicated and perhaps disadvantageous

for the accused athlete, the sporting governing bodies, with the assis-

tance of CAS, have devised a specific standard of proof. This indicates

that the standard of proof in doping cases should be below the crim-

inal standard but above the civil standard.

In addition, the CAS has

already argued

that the ingredients of the offence must be estab-

lished “to the comfortable satisfaction” of the court, bearing in mind

“the seriousness of the allegation” made. The CAS has also suggested

that the more serious the allegation, the greater the degree of evidence

required to achieve comfortable satisfaction.

The “comfortable satis-

faction” standard of proof is rather subjective and is not always the

same for prosecution and defence. As Michael Beloff suggests

“The CAS held in the Chinese swimmers cases that the standard of

proof required of the regulator, FINA, is high: less than the criminal

standard, but more than the ordinary civil standard.The Panel was

also content to adopt the test, set out in Korneev and Gouliev v IOC,

that ingredients must be established to the comfortable satisfaction of

the court, bearing in mind the seriousness of the allegation made. To

adopt a criminal standard [at any rate, where the disciplinary charge

is not one of a criminal offence] is to confuse the public law of the State

with the private law of an association. The CAS went on, in Korneev,

to reiterate the proposition that the more serious the allegation, the

greater the degree of evidence required to achieve ‘comfortable satisfac-

tion’.”

With respect, I would have to disagree with the above statement,

regarding the disciplinary nature of the anti-doping offences. In my

personal view, the disciplinary charge and the sanction that follows

such a charge, produce elements of a criminal law regulation. If one

considers the penalties that follow the exclusion of an athlete from his

trade, one would arrive at the safe conclusion that such penalties not

only exclude the offender from his trade, but they also have as an aim

to “exhaust” him financially. The harshness of the rules in relation to

the application of the penalties

not only is disproportionate to the

offence committed, within the disciplinary framework, but it also cre-

ates an anathema of a kind that usually the criminal law regulates. It

follows that the nature of the disciplinary proceedings and the subse-

quent penalties imposed on the offender meet the criteria established

in many criminal codes, whether in common law jurisdictions or civil

law ones.

But what is the standard of proof required of prosecutor and defen-

dant where the burden shifts? Although in English criminal law the

defendant could use the civil standard when making out his defence,

the matter before CAS is still open to interpretation. And the “degree

of evidence” is also an issue which could cause legal “headaches”. For

example, what is the degree of evidence required to achieve comfort-

able satisfaction? What is the admissibility of such evidence? How do

you assess its probity? What rules do you apply in relation to disclo-

sure of such evidence?

Despite the fact that professional athletes are now considered

employees

, or self employed in the case of many individual sports-

people and should be treated in the same way as other professionals,

6 See Dr. Gregory Ioannidis “WADA Code

draft revision: questions remain”, World

Sports Law Report, January 2007, pp 14-15.

7 IAAF v SEGAS, Kenteris & Thanou

CAS A/887/2006 [unreported].

8 The ECJ dealt with the issue as to

whether sporting governing bodies’ anti-

doping rules were exempt from review

under EC competition law because they

concerned purely sporting matters which

did not affect economic activity.

9 “Drugs, Laws and Verspapaks”, in

“Drugs and Doping in Sport: Socio-Legal

Perspectives”, Cavendish, 2000, p. 42.

10 That was the view of the German Federal

Court in the case of Katrin Krabbe

against the IAAF [1992], unreported, 28

June.

11 In the case of Paul Edwards v BAF &

IAAF [1997] Eu LR 721, Ch D.

12 Not always the sporting governing bodies

appear to follow the application of this

regulation as it could be seen in the

recent case of the American sprinter and

former world record holder Justin Gatlin.

13 See IAAF Rule 40.3.e.

14 See IAAF Rule 40.8.

15 See the CAS’ decision in Wang v FINA

CAS 98/208, 22 December 1998, para 5.6.

16 In the case of Korneev and Russian NOC

v IOC; Gouliev and Russian NOC v

IOC, Mealey’s International Arbitration

Report, 1997, pp 28-29.

17 Ibid.

18 “Drugs, Laws and Verspapaks”, in

“Drugs and Doping in Sport: Socio-Legal

Perspectives”, Cavendish, 2000, p. 50.

19 Wang v FINA CAS 98/208, 22 December

1998, para 5.6.

20 Korneev and Russian NOC v IOC;

Gouliev and Russian NOC v IOC,

reported in Mealey’s International

Arbitration Report, February 1997, pp

28-29.

21 See the case of Torri Edwards v IAAF &

USATF CAS OG 04/003, where the

Panel notes: “The Panel is of the view

that this case provides an example of the

harshness of the operation of the IAAF

Rules relating to the imposition of a

mandatory two-year sanction.”

22 It is not my intention to analyse the issue

of criminalization of doping in sport.

This has been done elsewhere. For fur-

ther discussion see: Dr. Gregory

Ioannidis, “ Legal regulation of doping in

sport and the application of criminal law

on doping infractions: can a coercive

response be justified”, I.S.L.R. 2006,

1(MAY), 29-39.

23 See the decision of the European Court

of Justice in Case C-415/93 Union Royale

Belge des Societies de Football

Association ASBL v Jean-Marc Bosman

[1996] 1 CMLR 645

2007/3-4

ARTICLES

it is submitted that the special nature of sport has led tribunals to

adopt different ways of dealing with issues of disclosure and admissi-

bility of evidence. It is evident from the CAS’ jurisprudence, that the

sporting tribunal is not bound by the rules of evidence which apply

in English courts or indeed in any other common law or civil law

jurisdiction. It is hardly ever the issue before the CAS as to whether

there is a distinction between relevance and admissibility. Whatever is

relevant to the issues of the case could be admissible, as long as the

evidence is direct, which of course carries more weight than the indi-

rect evidence. In certain circumstances, and I have certainly been

privy to such development, the sporting tribunal may even allow

hearsay evidence to be admitted, as long as it is fair. This, in essence,

may prove to be helpful towards establishing a stronger case for the

prosecution, but it violates procedural rights afforded to the defen-

dant, that would, otherwise, have been protected in a procedure

before a national court of law.

Finally, there is another obstacle for the athletes when they prepare

their defence. The majority of the offences covered in the sporting

governing bodies’ regulations are strict liability offences. Athletes are

responsible for the substances found in their bodies, but strict liabili-

ty could operate rather unfairly where the rules themselves are unclear

and their applicability to the facts of the cases doubtful. This is cer-

tainly the issue in the majority of the circumstances, as the rules in

force do not clearly and in a concise way establish the intention of the

legislator or their actual, correct and proper application. Although

there may be an opportunity, for an athlete, to put a case in rebuttal,

it is submitted that in cases where there is a prohibited substance pres-

ent, the athlete may find himself in a very difficult situation rebutting

the allegation. Testing laboratories usually operate under the auspices

of the sporting governing bodies and there may be cases where issues

of independence and bias may be put into question.

It is submitted that the above analysis indicates the degree of diffi-

culty accused athletes face when they are against charges of anti-dop-

ing violations. The reason behind such difficulty relates to the argu-

ment that without rules supporting strict liability, the prosecuting

authorities will never be able to prove the charges and therefore the

war against doping in sport would become futile. Furthermore, the

whole process would become unnecessarily expensive and sporting

governing bodies could face the threat of legal action being taken

against them. The issue of bankruptcy is not a new one for sporting

governing bodies.

The CAS seems to support the idea of strict liability and has in the

past rejected the principle of nulla poena cine culpa, or at least, tried

not to apply it or interpret it too literally.

To a certain extent, the use

of strict liability rules on behalf of sporting governing bodies, or at

least, the reasoning behind their use, could be understood. What

would, however, find itself labouring under great difficulty, is the

argument that the CAS should be seen to support the operation of

strict liability rules. This, however, appears to support the contention

that if the non-intentional use of performance enhancing substances

were to be allowed, it would then create a legal minefield and eventu-

ally bankrupts the sporting governing bodies. This would appear to be

the reason as to the CAS’ propensity to support the operation of strict

liability rules. But where is the balance to be struck? Strict liability

rules are arbitrary and capricious and when the rights of the individ-

ual are breached and general principles of law are violated, the accused

is left with no remedy and the whole system becomes unfair, unjust

and offensive. This as a result offends against fairness and justice. The

following pages will attempt to test the rules on missed tests and

therefore try to establish as to whether the above arguments could be

justified in terms of striking a balance between the fight for a healthy

and fair competition and the rights of the accused athletes.

The Rule on Missed Tests: “Dead Man Walking”

It has already been suggested that the rule on missed tests relates to

the so-called “non-analytical finding” cases. This means that if sanc-

tions were to apply on an athlete for an anti-doping violation, the ath-

lete must have missed the test. What does this mean and how does it

apply in practice? Let us test this in practice, by creating a hypotheti-

cal scenario

Test Case :

Fred Bloggs is a well-known and famous athlete. Prior to his event,

during an international competition, he is notified that he has missed

 anti-doping controls and he is therefore subject to a sanction under

his sporting governing body’s regulations. The regulation on missed tests

states that if the athlete misses  tests in a period of  years, he would

be deemed to have committed an anti-doping violation. The regulation

also states that the athlete must be informed in writing about the

alleged missed test, must be given the opportunity to produce his expla-

nation and then the governing body must proceed with the evaluation

of the alleged missed test. No decision should be taken before the ath-

lete is fully informed of the missed test at a time. It is now the  of

January . The first recorded attempt to test the athlete was on 

December . The second on  January , and the third on 

January . The athlete is unaware of the number of the missed tests

he has, as he has not been informed in writing and no evaluation has

taken place yet for any of them.

Let us now analyse this scenario. As it has been explained above the

provisions for missed tests are set out in at Rule 35.16. The Rule

requires the athlete to miss 3 tests in a consecutive period of 5 years,

before any sanctions could be applied. In order to understand the leg-

islator’s intention for the correct application of this rule, it is first of

all necessary to explain the procedure and the operation of this rule.

The appropriate governing body has to notify the athlete in writing

that a missed test has been recorded. The athlete is then given the

opportunity to respond and provide an explanation to the allegation.

If the explanation is not accepted then the Anti-Doping Admi-

nistrator has to proceed with the evaluation of the test. If the Admi-

nistrator concludes that the test has been evaluated as a missed test,

he has to notify the athlete in writing.

It is submitted that the intention of the legislator is not to make

one missed test an offence, but to give the opportunity to the athlete

to realise that the completion of 3 missed tests is a serious anti-dop-

ing offence which carries an equally serious sanction. The legislator,

following the principles of natural justice and basic human rights,

provides the athlete with the opportunity to process in his thought

the seriousness of such an offence, by giving him the ability to be

more diligent. It is submitted therefore, that the number 3 which car-

ries the penalty for the offence, provides the athlete with the flexibil-

ity to organise his professional career accordingly. This flexibility,

however, cannot be achieved, unless the athlete in question has the

knowledge as to the correct number of missed tests.

It is submitted that from the facts of the test case above it is obvi-

ous that there are procedural breaches, which would have a serious

effect on the accused. There may be a possibility that the accused

missed the test because he was trying to avoid detection or be subject-

ed to a test. This is a speculation and it is based on mere suspicion,

which of course runs counter to every principle of fairness and justice

in law. We also need to remember that the regulation under analysis,

so far, does not include evasion of the anti-doping control. It is sub-

mitted that notification here is the essential ingredient before the rule

24 Quigley v UIT CAS 94/129, para 14.

The Panel notes: “Furthermore, it

appears to be a laudable policy objective

not to repair an accidental unfairness to

an individual by creating an intentional

unfairness to the whole body of other

competitors. This is what would happen

if banned performance enhancing sub-

stances were tolerated when absorbed

inadvertently. Moreover, it is likely that

even intentional abuse would in many

cases escape sanction for lack of proof of

guilty intent. And it is certain that a

requirement of intent would invite costly

litigation that may well cripple federa-

tions - particularly those run on model

budgets - in their fight against doping.

For those reasons, the Panel would as a

matter of principle be prepared to apply

a strict liability test. The Panel is aware

that arguments have been raised that a

strict liability standard is unreasonable,

and indeed contrary to natural justice,

because it does not permit the accused to

establish moral innocence. It has even

been argued that it is an excessive

restraint of trade. The Panel is uncon-

vinced by such objections and considers

that in principle the high objectives and

practical necessities of the fight against

doping amply justify the application of a

strict liability standard.

2007/3-4

ARTICLES

can start operate in a proper and fair way. It is important therefore,

for the athlete to have knowledge as to the correct number of the

missed tests he has. In such case, it is also important to establish either

intention or negligence and allow an effective application of the sanc-

tion. It offends against fairness and justice to apply a sanction when

the athlete does not know that what he was doing was wrong and con-

trary to the rules. It also offends against the intention of the legislator

who clearly states that the athlete needs to be informed in writing.

Again the legislator indicates that the elements of communication and

knowledge are the necessary ingredients before any sanction could be

applied.

Variation to Test Case :

“Fred Bloggs is also informed that he is subject to another sanction for

breaching an additional rule and therefore committing another anti-

doping violation. That on the same day [24 January 2006] he missed a

test, he also refused the test and tried to evade it. The sanction for this

offence carries a penalty of  years’ ineligibility from national and

international competitions. No successful notification of the test was

communicated to the athlete.”

It is obvious now that the application of two different rules on the

same alleged test creates controversy and confusion. There may be a

case where the prosecutors do not know which charge to proffer

against the athlete and the athlete’s defence is thereby undermined by

having to defend multiple counts. The sporting governing body

alleges that the athlete missed the test and also refused it at the same

time, on the same day. In a purposive interpretation of these two

rules, on missed tests and refusal that is, the outcome not only is

ambiguous, but also extremely absurd! You cannot miss a test and

refuse it at the same time! The tribunal obviously must interpret this

according to the surrounding circumstances, the intention of the leg-

islator and of course the intention of the party who drafted it, to apply

it in a way that suits its case. Lord Denning’s judgment is Reel v

Holder provides useful guidance on this issue.

The Master of the

Rolls argues:

“One can argue to and fro on the interpretation of these rules. The peo-

ple who drew them up could not possibly have envisaged all the prob-

lems which would have to be coped with in the future in regard to them.

The courts have to reconcile all the various differences as best they can.”

This is also true in the case where the rules create conflict. The rules

must be interpreted purposively and not pedantically. In the case of a

conflict or injustice the rules must be interpreted contra preferentem

in favour of the athlete. And this is true when rules of strict liability

are involved.

It is submitted that the tribunal must have some sort of evidence

before it in order to support the finding. The evidence must be over-

whelming. Not hearsay, not doubtful. Strong, good evidence which

proves beyond doubt, considering the seriousness of the allegation

and the severity of the action that the accused had knowledge and

intended to commit the alleged offence. This evidence however, must

be supported and fit into the purposive interpretation of the rules that

dictate the relationship between the prosecuting authority and the

accused. The Tribunal must apply valid rules correctly interpreted.

And in doing so, it must consider, at the same time, the probity of the

evidence. The surrounding circumstances of the evidence submitted,

while suspicious could not and should not form the basis for conclud-

ing that the athlete might have offended. The surrounding circum-

stances cannot be evidence of the subjective suspicion that the athlete

knew, so therefore tried to do a runner! The surrounding circum-

stances should form the basis of the objective fact that the athlete had

not been notified, so therefore did not know about the test. And as

Rule 32.2.c of the IAAF explains, it is an offence if you fail or refuse,

or otherwise seeking to evade an anti-doping control, after having

been requested to do so by a responsible official!

The legislator is

clear: after having been requested to do so by a responsible official.

The purposive interpretation clearly suggests that prerequisite for the

application of the rule is the request to the athlete by a responsible

official. This is the first stage. Then the second stage follows, where

the prosecuting authority has to establish whether the athlete failed,

or refused or even evaded the test.

It is submitted that the intention of the legislator and its true

meaning must be followed at all times. The prosecuting authorities

should not be allowed to re-write the rules so they could be given the

opportunity to circumvent, the otherwise ill-drafted provision, or

their inability to apply the rule properly and fairly. As the Panel notes

in the case of Baxter v IOC

“The Panel is unable to rewrite or to ignore these rules unless they were

so overtly wrong that they would run counter to every principle of fair-

ness in sport.”

Furthermore, the application of two different rules on the same test

and the allegation that the athlete refused to undergo a test and also

that he missed the same test, at the same time, is confusing and

absurd. The Panel in the case of IAAF V Qatar Associations of Athletics

Federations

clarified the difference between refusal and a missed test:

“A missed test is defined as a consequence of a failure by an athlete to

keep the IAAF informed of his or her whereabouts. It is completely dif-

ferent in nature and quality to a failure or refusal to provide a test

when asked to do so.”

The jurisprudence of the CAS on this point is extremely helpful and

suggests that it is important for the sporting community that the

sporting governing bodies establish clear and concise rules. As the

Panel noted in USOC v IOC & IAAF

“The rationale for requiring clarity of rules extends beyond enabling

athletes in given cases to determine their conduct in such cases by ref-

erence to understandable rules. As argued by the Appellants at the

hearing, clarity and predictability are required so that the entire sport

community are informed of the normative system in which they live,

work and compete, which requires at the very least that they be able to

understand the meaning of rules and the circumstances in which those

rules apply.”

The Panel also sites a passage from Quigley

at p. 24, para 74:

“The fight against doping is arduous, and it may require strict rules.

But the rule-makers and the rule-appliers must begin by being strict

with themselves. Regulations that may affect the careers of dedicated

athletes must be predictable. They must emanate from duly authorised

bodies. They must be adopted in constitutionally proper ways. They

should not be the product of an obscure process of accretion. Athletes

and officials should not be confronted with a thicket of mutually qual-

ifying or even contradictory rules that can be understood only on the

basis of the de facto practice over the course of many years of a small

group of insiders.”

Similarly, it is equally important that the athletes are informed not

only of the regulatory framework in force at any given time, but most

importantly, be given the opportunity to comprehend the application

of this regulatory framework in order to plan their lives and careers

accordingly. As our test case indicates, the regulatory framework must

be followed and interpreted in a proper and fair way, if sanctions are

to be applied on the accused athlete. At the same time consideration

must be given to the fact that such sanction would have serious and

incalculable consequences in the, otherwise, short career of an athlete.

In any other event, we should not expect from an athlete to follow a

25 Reel v Holder [1981] 3 All ER 321

26 IAAF Rule 32.2.c states: “...the refusal or

failure, without compelling justification,

to submit to doping control having been

requested to do so by a responsible offi-

cial or otherwise seeking to evade doping

control.”

27 Alain Baxter v IOC, CAS, 2002.

28 Unreported, April 19, 2004, CAS

29 CAS 2004/A/725 p. 23, para 73

2007/3-4

ARTICLES

standard pattern of behaviour when we fail miserably to explain to

him the exact precepts of the rules in force! In the case of USOC v

IOC & IAAF

the Panel cited another relevant passage from Quigley

which stated:

“To take every step to ensure that competitors under their jurisdiction

were familiar with all rules, regulations, guidelines and requirements

in such a sensitive area as doping control” And the Panel continues by

stating: “It is important that the fight against doping in sport, nation-

al and international, be waged unremittingly. The reasons are well

known...it is equally important that athletes in any sport...know clear-

ly where they stand. It is unfair if they are to be found guilty of offences

in circumstances where they neither knew nor reasonably could have

known that what they were doing was wrong. For this purpose, it is

incumbent both upon the international and the national federation to

keep those within their jurisdiction aware of the precepts of the relevant

codes.”

Similarly, in the case of Tori Edwards v IAAF & USATF

the Panel

clearly states its dissatisfaction with the operation of the IAAF rules

and cites two examples. The first one at page 16, para 5.14 where the

Panel states:

“The Panel is of the view that this case provides an example of the

harshness of the operation of the IAAF Rules relating to the imposition

of a mandatory two-year sanction.” The second example could be

found on page 17, para 5.18 “The Panel notes with unease that the

IAAF Rules are unclear and that they make it almost impossible to

establish that there are exceptional circumstances.”

This also indicates the argument submitted in the introduction of this

work that strict liability rules could operate in a harsh and unfair way

against the accused athlete. Unfairness becomes operative in a situa-

tion where punishment is applied to the innocent athlete in a case

where the rules themselves are unclear or their applicability to the

facts of the case doubtful. The CAS in the case of KABAEVA v FIG

analysed the correct application of strict liability rules. The Panel stat-

ed that

“The Respondent contends that the doping regime put in place by the

Respondent’s rules is one of strict liability. According to the Respondent

it is sufficient to prove that an athlete used a forbidden substance. The

Respondent submits that there is no room for any consideration of guilt.

The Panel disagrees.

The Respondent’s rules (Section 1.4 of the DCR) expressly provide that

an athlete is “liable to sanctions” if he/she “is found guilty of doping”

(emphasis added). In the Panel’s view this is a clear indication that the

Respondent’s doping rules require an element of fault, i.e. intent or neg-

ligence, in order for the athlete to be sanctioned for doping.

In addition, the Panel wishes to point out that there is recent CAS case

law according to which federation rules allowing for a suspension of an

athlete for doping (as opposed to disqualification from a particular

event) without fault on the part of the athlete would not sufficiently

respect the athlete’s right of personality as established in Articles 20 and

 et seq. of the Swiss Civil Code which CAS Panels are required to

apply (Article  of the Code; see CAS /A/, A v FILA, Award

of  July , p.  et seq.) According to this view, it is necessary for

the federations to put forward the objective elements of the doping

offence. If the federations succeed in doing so the athlete is presumed to

be guilty of a doping offence but he/she has the opportunity of rebut-

ting this presumption by proving that he/she did not act with intent or

negligence. The Swiss Federal Tribunal has repeatedly considered this

system of reversal of the burden of proof to be compatible with public

policy (see judgement of  December ,  p. /, R v IOC at

 a), not published; judgement of  March , P. /, N. et al.

v FINA, in Digest of CAS Awards II, at  d), p. ; judgement of 

March , G v FEI, in Digest of CAS Awards I at  b), p. ).”

Furthermore, the Panel, in the same case, goes on to analyse the stan-

dard of proof. The Panel states that:

“As to the standard of proof, the Panel appreciates that because of the

drastic consequences of a doping suspension on a professional athlete’s

exercise of his/her trade (Article  Swiss civil code (ZGB)) it is appro-

priate to apply a higher standard than the generally required in civil

procedure, i.e. to convince the court on the balance of probabilities.

Following established CAS case law, the disputed facts therefore have to

be ‘established to the comfortable satisfaction of the court having in

mind the seriousness of the allegation’ (cf CAS OG//, CAS

OG//, K & G v IOC, .; CAS /, N. et al v FINA, Award

of  December , CAS Digest II, p. , ; confirmed by the

Swiss Federal Tribunal, Judgment of  March  [P. /],

unpublished).”

As it has been argued above, the CAS held in the Chinese swimmers

cases that the standard of proof required of the regulator, FINA, is

high: less than the criminal standard, but more than the ordinary civil

standard.

The Panel was content to adopt the test, set out in Korneev

and Gouliev v IOC, that ingredients must be established to the com-

fortable satisfaction of the court, bearing in mind the seriousness of

the allegations made.

The CAS went on, in Korneev, to reiterate the proposition that the

more serious the allegation, the greater the degree of evidence

required to achieve ‘comfortable satisfaction’.

In the case of French v Australian Sports Commission and Cycling

Australia

, the Panel went one step further towards defining the stan-

dard of proof. The Panel states:

“The Appellant submits that pursuant to the Australian authority of

Briginshaw v Briginshaw and CAS jurisprudence, the standard of

proof required to be met by the Respondents is somewhere between the

balance of probabilities and beyond a reasonable doubt. The Appellant

further submits that although the CAS jurisprudence itself is silent on

the issue, Briginshaw further stands for the proposition that the more

serious the offence, the higher level of satisfaction the Panel should

require in order to be satisfied of the offences charged. It is further sub-

mitted that given the serious allegations with respect to trafficking and

aiding and abetting and the consequences thereof, a very high standard

almost approaching beyond a reasonable doubt is required for the

Panel to accept that the offences have been proven. The Panel accepts

that the offences are serious allegations and that the elements of the

offence must be proven to a higher level of satisfaction than the balance

of probabilities.”

It is submitted that particular emphasis should be given to the cir-

cumstances that give rise to an allegation for an anti-doping violation.

Careful consideration should be given to the status of the accused, the

publicity it has attracted and most importantly the serious breaches of

the regulatory framework, if any, on behalf of the sporting governing

bodies, which would allow the escalation of the negative publicity

with the main aim to paint a bad picture for the athletes, which would

also allow the sporting authorities to reduce considerably the burden

of proof. This, it is submitted, cannot reduce the standard of proof to

a mere probability, a mere suspicion. The degree of comfortable satis-

faction of the Panel should be extremely high in order for it to meet

the objective criteria required for a decision which would affect the

livelihood of a dedicated and highly celebrated athlete. This appears

to be in line with the Panel’s judgment in the case of USADA v

Montgomery

where the Panel states:

“As often becomes evident when the question of standard of proof is

debated, the debate looms larger in theory than practice. Counsel for

30 Arbitration CAS 94/129, USA Shooting

& Q. / International Shooting Union

(UIT), award of May 23, 1995, at p. 24,

para 74

31 CAS 2004/A/725 pages 24-25, para 75

32 CAS OG 04/2003

33 CAS 2002/A/386, page 10, paragraph V

1.2

34 Wang v FINA CAS 98/208, 22

December 1998, para 5.6.

35 CAS 2004/A/651, page 10, para 42

36 CAS 2004/O/645, p. 13.

2007/3-4

ARTICLES

all parties concurred with the views expressed by the members of the

Panel during the 21-22 February  hearing to the effect that even if

the so-called ‘lesser’, ‘civil’ standard were to apply, - namely, proof on

the balance of probability, or, in the specific context in which these cases

arise, proof to the comfortable satisfaction of the Panel bearing in mind

the seriousness of the allegation which is made (what might be called

the ‘comfortable satisfaction’ standard) - an extremely high level of

proof would be required to ‘comfortably satisfy’ the Panel that

Respondents were guilty of the serious conduct of which they stand

accused.”

The Panel, in the same case, goes on, to explain the threshold of the

standard of proof

. The Panel states:

“In all cases the degree of probability must be commensurate with and

proportionate to those allegations; the more serious the allegation the

higher the degree of probability, or ‘comfort’, required. That is because,

in general, the more serious the allegation, the less likely it is that the

alleged event occurred and, hence, the stronger the evidence required

before the occurrence of the event is demonstrated to be more probable

than not.”

I submit that it is not a question of being more probable than not.

Such a test has an enormous degree of subjectivity and it cannot pro-

duce certainty or explain the precepts of reasonableness of the proba-

bility in question, given the gravity of the allegations and the effect

that such allegation could have in an athlete’s personal and profession-

al life. It is my contention that on a balance between the gravity of

the allegation, followed by the severity of the sanction and the

destruction of the personal and professional life of an athlete, the

standard of proof should approach the level of certainty and not the

level of suspicion. In other words, the more serious the allegation,

considering at the same time the special characteristics of the accused

and the effect of the allegation on him, the higher the degree of a

compelling evidence or justification required to meet the standard of

proof.

Finally it is submitted that the present rules operate in an extreme-

ly harsh way without regard to the individual’s rights. I would like to

reiterate the point that it is important for the observation of justice

and fairness that the rules of the sporting governing bodies are con-

structed in a way that produce consistency, proportionality and they

do not offend against the rules of natural justice. In the case of

Squizzato v FINA

the Panel argued:

“Applying the above explained principle was all the more necessary

within sport, because regulations of sport federations, especially their

doping rules, were often too strict and did not leave enough room to

weigh the interests of the federation against those of the athlete con-

cerned, in particular his personality rights [see Aanes v FILA, CAS

2001/A.317]”.

In para. 10.24, the Panel goes on to note that:

“The mere fact that regulations of a sport federation derive from the

World Anti-Doping Code does not change the nature of these rules.

They are still - like before - regulations of an association which cannot

(directly or indirectly) replace fundamental and general legal principles

like the doctrine of proportionality a priori for every thinkable case.”

In conclusion, it is submitted that there is a need to protect the expec-

tation of athletes to participate in competitions for which they are

likely to have prepared for several years, if not their entire life.

Although this need has to observe the quest for a healthy competition,

it also needs to create clear and reliable measures in order to provide

athletes with the highest degree of certainty about their rights as well

as their duties.

It is also equally important for the sporting governing bodies to

observe the rules on confidentiality and public disclosure. There are

always examples where high-ranking officials from within the

Olympic movement demonstrate an undisputable bias against ath-

letes, before the athletes had the opportunity to have a fair hearing.

Public statements to that effect not only breach the rules of natural

justice, but they also create a field of fear. Athletes should not have to

worry about high-ranking officials who make statements that indicate

a certainty as to the guilt of the athletes. High-ranking officials should

refrain from branding innocent athletes guilty, before all the internal

disciplinary mechanisms have been observed and exhausted. This

seems to be in line with the judgment of Mr Christopher Campbell

in the case of USADA v Tyler Hamilton

“However, if it is at all desirable for athletes to believe they will obtain

a fair hearing, it is imperative that high-ranking officials within the

Olympic community refrain from making statements demonstrating

bias against an athlete before the athlete has a hearing. Mrs Hamilton’s

statements are by no means an exaggeration or unreasonable. As she so

eloquently stated, athletes should not have to worry that high ranking

officials are sending clear messages to the arbitrators to find the athlete

guilty regardless of the facts of the case. The IOC and WADA should

consider making rules prohibiting such conduct to comply with a very

important fundamental principle of the Olympic movement, fairness.”

Conclusion

It has been argued that the main aims behind the creation of rules

controlling anti-doping in sport, is to create a safe level playing field

and to protect the image of sport. These justifications are well-docu-

mented and followed by the sporting governing bodies in public state-

ments all over the world. In theory, there is nothing sinister in sup-

porting and condoning such principles. In practice, however, the

application of these rules causes exactly the opposite effect of the one

they are supposed to protect: the sport and the individual athlete.

There may be many and different reasons as to why the application

of anti-doping rules on anti-doping violations lacks certainty and fair-

ness. It may be the lack of clarity in the drafting; or the realisation that

sport has been commercialised and commoditised and it would not

be in the best interests of the SGBs if the athletes were to be banned;

or, perhaps, the inability of the sporting governing bodies to prose-

cute the offence. Sometimes, the way the sporting governing bodies

prosecute the alleged offence, is similar to something Christopher

Columbus wrote when he finished his adventure in America. He said:

“When I was traveling to America, I didn’t know where I was going;

when I arrived in America, I didn’t know where I were; when I left

America, I didn’t know where I’d been”!

Finally, it is submitted that healthy competition demands attention

and action at every level, where medicine, sport and the law merge.

Doctors, lawyers, parents, schools, club coaches and governing bodies

must all address the issues raised and the implications for modern

sport. The detrimental side effects of the use of performance enhanc-

ing substances must be constantly stressed in order that sports partic-

ipants who are tempted to use them will understand that a better per-

formance is not the only effect of this practice. To this effect the sport-

ing governing bodies must ensure they create clear and concise rules

that can be understood by all those concerned. Athletes, in particular,

must be informed clearly about the behaviour they are required to fol-

low. Rules such as the ones analysed in this work must be scrapped

altogether, as they offend against fairness and justice, they fail to

observe basic human rights and they violate the rules of natural jus-

tice and due process. They can only be described as “a relic from the

middle ages” and they have no place in a democratic society which

equally respects the rights of the individual and that of the public.

37 ibid

38 CAS 2005/A/830, p.13, para 10.23

39 United States Anti-Doping Agency

Appeals Committee, 2004, p.7.

2007/3-4

ARTICLES

Introduction

Every employed individual has a contract of employment, and the

same applies to professional footballers. The majority of contracts are

served out without any difficulty. This contribution considers the

employment relationships which do in fact culminate in disputes

between the employer (the club) and the employee (the professional

footballer). As a general principle employees have a right to terminate

their employment with an employer and employers have the right to

terminate the employment of employees. But these rights come with

responsibilities. Among the reasons for FIFA drawing up Regulations

for the Status and Transfer of Players are to compel parties to respect

the employment agreements they have signed. Because circumstances

can always arise which make continuing an employment relationship

impossible, the Regulations specify rules covering cases where

employment contracts are terminated prematurely. In labour law in

general, personality conflicts, general dissatisfaction with perform-

ance, petty issues or one incident of inappropriate behaviour or mis-

conduct, are usually not serious enough to warrant dismissal for just

cause. In football however such aspects can indeed be a reason for ter-

minating the contract with just cause. According to the Regulations,

on the basis of the documents provided by the parties the Dispute

Resolution Chamber (DRC) must establish whether just cause for ter-

minating an employment contract applies in any such situation.

However just cause for dismissal is not defined in the Regulations.

Over the years the DRC has handed down numerous rulings on the

issue. In each case the DRC carefully investigates the facts and cir-

cumstances surrounding the employment contract breach by one of

the parties. It investigates whether general conclusions can be derived

from the DRC’s jurisprudence in terms of the concept of ‘just cause’.

The high-profile decisions have not been selected from the substan-

tial number of published rulings. The main fact that the parties cov-

ered by the published rulings are entirely anonymous means this is

not possible. One cannot conclude from the judgements whether they

involve players who enjoy global fame. A selection has been made

from the judgements with a view to a better understanding of the ‘just

cause’ concept. The rulings which pass muster have been grouped into

central themes. This method has been used to discover whether the

connotation of the concept of ‘just cause’ is related to a specific case,

or whether it is in fact entirely insensitive to this.

The main focus in this contribution is on the stipulations in the

FIFA Regulations for the Status and Transfer of Players covering the

termination of employment contracts with and without just cause.

No further consideration is given to the consequences which the

absence of just cause can have, given that this would involve its own

comprehensive investigation. After dealing with the relevant stipula-

tions in the Regulations, attention switches to the body which is

tasked with establishing whether the reasons for termination are valid

or not based on the Regulations: the FIFA Dispute Resolution

Chamber (DRC). Thereafter, before moving to a description of a

number of DRC judgements in instances of employment contracts

being terminated with or without just cause, a few words are dedicat-

ed to the way in which parties are required to substantiate their con-

tentions. But before tackling any of this, something should be said

about the two versions of the Regulations for the Status and Transfer

of Players, which applied for some considerable time, depending on

the moment at which a claim was lodged with FIFA.

1. The FIFA Regulations for the Status and Transfer of Players of 2001

and 2004

Following the Bosman judgment

a new situation arose for both clubs

and players at the end of an employment contract’s term. The club

then had no further influence on the player and could no longer - as

was previously the case - require a transfer fee for the transfer of a

player to a new club. The European Court maintained the principle

of the free movement of employees within the context of the football

industry. In the view of the Court however that principle was not hin-

dered by the phenomenon of the transfer fee. The Bosman judgment

even embodied a dual justification of such a fee.

On one hand this

meant the ‘competitive balance’ could be maintained, while on the

other the training and development of young players could be encour-

aged. In the new situation which arose, the clubs explored the possi-

bilities for not being left empty-handed financially following the

switch in employment contracts. One solution was found in transfer-

ring a player before the ending of the employment relationship. Here

when a player was transferred to a new club, the clubs could still

demand a transfer fee. On this basis employment contracts covering

an unusually long term were signed with players. In practice new

restrictions were created which frustrated the free movement of play-

ers. Under pressure from the European Commission

the FIFA

Executive Committee drew up rules to harmonise the free movement

of players and the practice of transfer fees. 2001 saw the introduction

of the FIFA Regulations for the Status and Transfer of Players, which

addressed the criticism of the European Commission.

At the end of

August 2001, FIFA and FIFPro reached agreement on FIFPro’s partic-

ipation in the implementation of FIFA’s new regulations on interna-

tional transfers of football players.

In 2004 FIFA drew up a new rule

which came into effect on July 1, 2005. Drolet

believed that the FIFA

Regulations for the Status and Transfer of Players 2005 “should be

considered more an adjustment than a new set of rules. [...] They

attempt to fix some of the problems that were found in the 2001

rules.” When one puts the two versions side by side, as has been done

in the Annexe, it becomes apparent that the differences in these two

texts, where they concern contractual stability, are certainly substan-

tial, and that they go a lot further than just ‘adjustments’.

As mentioned above, the moment at which a claim is lodged with

FIFA determines the applicability of one or the other of the versions of

the Regulations for the Status and Transfer of Players. The 2005 edi-

tion of the Regulations came into effect from July 1, 2005. In a large

number of cases, which were processed by the Dispute Resolution

Chamber long after July 1, 2005, the 2001 edition was declared to be

applicable because they had been submitted before that date.

* Senior Research Fellow, ASSER

International Sports Law Centre, The

Hague, The Netherlands.

1 Union Royale Belge des Sociétés de

Football Association and Jean-Marc

Bosman, 15.12.1995, Case C-415/93, 1

CMLR 645.

2 Consideration 106.

3 See: The Complaint of the European

Commission against FIFA Regarding

International Transfers on the website of

the Professional Footballer’s Association

www.givemefootball.com/pfa.html?newsI

D=299.

4 EU Press release Outcome of discussions

between the Commission and FIFA/UEFA

on FIFA Regulations on international

transfers, IP/01/314. The fact that the

Regulations address the criticism of the

European Commission does not detract

from the fact that the Regulations lack a

legal foundation. The issue of the status

of the Regulations is not considered

here. See also FIFA’s Principles for the

amendment of FIFA rules regarding

international transfers, www.europa-

kommissionen.dk/upload/application/ba

42b081/fifi-regler.pdf.

5 EU Press release IP/02/824.

Memorandum of Understanding,

Barcelona, 2.11.2006

www.sportslaw.nl/documents

/cms_sports_id78_1_FIFPro-MOU-

FinalSig2-E-20061102%5B1%5D.pdf.

6 Jean-Christian Drolet, Extra Time: Are

the New FIFA Transfer Rules Doomed?,

in ISLJ 2006, no. 1-2, p. ...

Termination of International Employment

Agreements and the “Just Cause” Concept in the

Case Law of the FIFA Dispute Resolution Chamber

by Janwillem Soek*

2007/3-4

ARTICLES

2. Respect for the Employment Contract

According to Art. 13 of the FIFA Regulations for the Status and

Transfer of Players 2005, an employment contract between a profes-

sional footballer and a club may in principle only be ended at the con-

clusion of the agreed term or by means of a mutual agreement.

The

intention of this principle is that when a player and a club choose to

enter into an employment relationship, they will respect the agree-

ment. A unilateral severance of a contract without a valid reason - par-

ticularly during the so-called ‘protected period’

- should be discour-

aged to the full.

Honouring the contract is however not a principle

which can be evaded. Although Art. 16 prescribes that “[A] contract

cannot be unilaterally terminated during the course of a Season”

, at

the same time Art. 14 stipulates that a contract may be terminated

prematurely by one of the parties - without this having any conse-

quences - if a valid reason (‘just cause’) can be shown. For a player a

valid reason could be that he has not received a salary from the club

for a considerable time. For a club such a reason could lie in the recal-

citrant attitude of a player. In the explanation with the article one

reads that interpretation of the concept of ‘just cause’ should be deter-

mined afresh “in accordance with the merits of each particular case”.

Art. 14 must be regarded as a lex specialis in terms of Art. 16. “It rep-

resents the only situation in which either party is entitled to unilater-

ally terminate the contract at any time, i.e. also during the course of

a season” according to the explanation with Art. 16. Should a contract

be terminated on the basis of a just cause, FIFA can take provisional

measures.

The most important measure is to allow the player to reg-

ister with a new club. “Particularly so as not to endanger the existence

of the player”, according to the explanation.

A valid sporting reason (‘sporting just cause’) can also be grounds

for the premature termination of the employment relationship.

Such

a reason could be that a player cannot play for more than 10% of the

playing time of official matches during a season. It is however the case

that a player may only claim sporting just cause within 15 days follow-

ing the final official match of the season. A ‘legal’ just cause can

indeed terminate an agreement during the season, but a ‘sporting’ just

cause cannot.

In summary the following principles are embodied in the

Regulations:

1. Contracts should be respected;

2. Contracts can be ended by one party, without this having any con-

sequences should there be a just cause;

3. Contracts can be ended by a professional footballer if there is a

sporting just cause;

4. Contracts cannot be ended within the course of a season;

5. Should there be termination without just cause, compensation

should be paid, which can be stipulated in the contract; and

6.Should there be termination without just cause, a sporting sanction

should be imposed on the party breaking the contract.

3. Consequences of Termination with and without Just Cause

Chapter IV of the Regulations specifies the consequences of terminat-

ing an employment contract for clubs and players.

1. Should the player have a sporting just cause to terminate the con-

tract, then neither the club nor the player will be penalised with a

sporting sanction; however the club may be obliged to pay the

player compensation.

2. Should the player have a just cause to terminate the contract, then

no sporting sanction will be imposed on the player but it will be

imposed on the club; the club may be obliged to pay the player

compensation.

3. If during the protected period the player has no just cause to ter-

minate the contract, then a sporting sanction will be imposed on

the player and he is obliged to pay compensation to the club.

4. If after the protected period the player has no just cause to termi-

nate the contract, then no sporting sanction will be imposed on the

player but he does have to pay compensation to the club.

5. Should the club have just cause to terminate the contract, then no

sporting sanction will be imposed on the club; it will however be

imposed on the player and he will have to pay the club compensa-

tion.

6.If during the protected period the club does not have just cause to

terminate the contract, then a sporting sanction will be imposed on

the club and it will have to pay the player compensation.

7.If after the protected period the club does not have just cause to ter-

minate the contract, then no sporting sanction will be imposed on

the club but it will be obliged to pay the player compensation.

Breaking an employment contract during the protected period or

after its conclusion leads to the imposition of compensation.

The

amount of such compensation is calculated on the basis of objective

criteria. The following criteria should be considered in determining

the compensation: the remuneration and other payments to which

the player is entitled under the existing contract and/or under the new

contract; the remaining duration of the existing contract to a maxi-

mum of five years; the fees and expenses paid by the previous club (to

be paid off during the contract’s term); and whether the contract ter-

mination occurred within the protected period.

When a player has

to pay compensation to his old club, the club with which he registers

following the contract break will also be responsible for payment of

the compensation.

Alongside the payment of compensation, a sporting sanction can

also be imposed on the player. This sanction can comprise a ban on

playing in official matches during four months. If aggravating cir-

cumstances are involved, the ban can stretch to six months. The sanc-

tions take effect from the start of the next season at the new club. A

unilateral termination of the employment contract after the protect-

ed period does not lead to a sporting sanction. In such a case discipli-

nary measures can certainly be taken against the player. The club

which terminates a contract during the protected period risks a ban

on being allowed to register new players.

What should be understood under the concepts ‘just cause’ and

‘sporting just cause’ and whether these are issues in specific cases,

should be decided by the Dispute Resolution Chamber (DRC) or the

FIFA Players’ Status Committee

within the context of each individ-

ual case. Before moving on to looking at which reasons are considered

valid by the DRC to terminate an employment contract since the

Regulations came into effect, something needs to be said about that

body. What are the duties and powers of the DRC?

7 According to Art. 26(1) of the 2005 edi-

tion of the Regulations, “[A]ny case that

has been brought to FIFA before these

Regulations come into force shall be

assessed according to the previous regula-

tions”.

8 An equivalent of this rule was not present

in the Regulations of 2001.

9 Regulations, Definitions 7, “Protected

Period: a period of three entire Seasons or

three years, whichever comes first, follow-

ing the entry into force of a contract, if

such contract was concluded prior to the

28th birthday of the Professional, or to a

period of two entire Seasons or two years,

whichever comes first, following the

entry into force of a contract, if such con-

tract was concluded after the 28th birth-

day of the Professional.”

10 See also FIFA Circular no. 769, Zürich,

24.8.2001,

access.fifa.com/documents/static/regula-

tions/PS%20769%20EN.pdf.

11 Art. 21(1)(c) Regulations 2001 stipulated

that “unilateral breach of contract with-

out just cause is prohibited during the

season”.

12 Art. 6 Regulations.

13 Explanation with Art. 6 Regulations.

14 Art. 15 Regulations. This article is identi-

cal in essence to Art. 24 Regulations

2001.

15 Art. 14 Regulations.

16 Art. 14 Regulations.

17 Art.17Regulations.

18 Art.17Regulations.

19 Art.14Regulations.

20 Art.17Regulations.

21 Art.17Regulations.

22 It is not possible to distil a guideline for

calculating the extent of compensation

from the DRC decisions, given that the

relevant monetary amounts are set aside

in the decisions.

23 In their contracts parties can include a

clause establishing the amount of com-

pensation the player should pay if he ter-

minates the contract unilaterally. With

this so-called ‘buy-out clause’ parties

agree that the player has the right at any

time which suits him and without pro-

viding valid reasons, to terminate the

employment contract, even during the

protected period. In such an instance no

sporting sanction will be imposed on the

player.

2007/3-4

ARTICLES

4. The Dispute Resolution Chamber

Although Art. 61(2) of the FIFA Statutes lays down that proceeding

to a normal court of law is forbidden unless otherwise established in

the various FIFA rules, in principle a player enmeshed in an industri-

al law dispute with his club is empowered to present this dispute

before a court.

If legislation in the country in question does not pre-

scribe mandatory jurisdiction of a court in labour disputes, a dispute

may be subjected to national or international sport arbitration. Yet

according to the principle of ‘litispendency’, a case pending before

civil courts cannot be dealt with by the decision-making bodies of

sports arbitration.

After a dispute has been notified to FIFA, it is transferred to the

DRC for processing. If the DRC is called on to settle a case, it checks

in the first instance whether it is empowered to handle the case. In

this respect, it refers to Art. 18(2) and (3) of the Rules. Thereafter the

DRC must determine whether the Rules Governing Procedures on

Matters Pending before the Decision Making Bodies of FIFA are

applicable to the matter at hand. With reference to the competence of

the DRC, Art. 3(1) of the Rules states that the Dispute Resolution

Chamber shall examine its jurisdiction in the light of Arts. 22 to 24 of

the Regulations. In accordance with Art. 24(1) in connection with

Art. 22(b) of the Regulations, the DRC shall adjudicate on the

employment-related dispute between a club and a player having an

international dimension.

The DRC can therefore only declare itself competent when it

comes to “employment-related disputes between a club and a player

having an international dimension”

. Such an “international dimen-

sion” applies when it involves a footballer holding a different nation-

ality than the country in which the club is based. If the player is a sub-

ject of the country where the club is based, then in principle the DRC

must declare that it has no authority

. In principle, because “in the

absence of a national sports arbitration tribunal [... the DRC] is com-

petent to deal with a dispute, even if written agreements signed

between the parties involved in the dispute contain a clause by means

of which the (exclusive) jurisdiction of another body is chosen”.

Even if a national sports arbitration tribunal exists, the DRC could

still declare it holds authority if it cannot be guaranteed that the tri-

bunal is composed of members chosen in equal numbers by players

and clubs with an independent chairman.

Before declaring itself competent in an employment dispute with

an international dimension, the DRC must ascertain whether the par-

ties have expressed a preference for a written agreement, or whether a

collective bargaining agreement has provided for an independent arbi-

tration tribunal. A condition is however that such an independent

arbitration tribunal guarantees fair proceedings and respects the prin-

ciple of equal representation of players and clubs. Once parties have

made their choice for resolution of their dispute by a body other than

the DRC, then the DRC acts in compliance with the general legal

principle whereby electa una via non datur recursus ad alteram - once

the parties have agreed to refer their dispute to a certain decision-

making body, this authority will be held to decide on the entire mat-

ter.

It still needs to be noted that the competence of the DRC only

stretches to resolving disputes arising from an employment contract.

In one case the termination of a training agreement was presented to

the DRC. A training agreement is independent from any employment

contract possibly signed between the player and the club, and it there-

fore does not have the status and binding effect of an employment

contract. This view is clearly reproduced in French law.

A training

agreement does not constitute an employment contract but is rather

an instrument meant to safeguard and protect the rights of a player in

formation. The DRC judged that it was not competent to issue a

decision on the consequences of any possible termination of the train-

ing agreement.

Before proceeding to deal with a case, the DRC must first ascertain

whether it is empowered to do so. Here the DRC refers to Art. 18(2)

and (3) of the Rules Governing the Procedures of the Players’ Status

Committee and the Dispute Resolution Chamber. Should the issue

have been presented to FIFA prior to the procedure, the DRC must

conclude that the Procedural Rules on Matters Pending before the

24 The DRC comprises an equal number of

representatives of players and clubs and

has an independent chairman, i.e. the

chairman of the Players’ Status

Committee. The 10 members represent-

ing the players are nominated by FIFPro

and the 10 representing the clubs are

nominated by associations and leagues

from the whole world. The Executive

Committee of FIFA appoints the nomi-

nated members. Panels are drawn up

from members of the DRC of at least

three people responsible for settling

industrial law disputes. The rulings of

the DRC are open to appeal at the Court

of Arbitration for Sport (CAS).

25 Compare Roger Blanpain, The Legal

Status of Sportsmen and Sportswomen

under International, European and

Belgian National and Regional Law, The

Hague, London, New York 2003, p. 103.

Although a judge can issue an opinion on

a unilateral and premature termination of

an employment contract without just

cause, “[...] then it is the DRC alone

that is exclusively competent to deter-

mine what sporting sanctions should be

imposed under article 42 para. 1(b)(ii)

and what financial compensation should

be awarded pursuant to article 42 para.

1(b)(iii)”, according to the Court of

Arbitration for Sport, CAS 2006/A/1192,

Chelsea v. Mutu, consideration 58.

26 Case 1161241 of 21.11.2006. In that case

the DRC deemed it of utmost impor-

tance to underline that the practice of

parties of having their legal cases heard

by several decision-making bodies with

the aim of getting the most favourable

ruling, known as ‘forum shopping’, can-

not be upheld at all by the DRC.

27 Despite the fact that this is established in

the Regulations and the DRC has no

interpretation latitude here, the DRC

refers in various judgements to “the well-

established jurisprudence of the Dispute

Resolution Chamber according to which,

in general, in employment-related dis-

putes between a club and a player having

an international dimension, i.e. the par-

ties do not belong to the same country,

both parties were entitled to refer the dis-

pute to FIFA’s bodies, unless, if the par-

ties have expressed a preference in a writ-

ten agreement, or it is provided for by

collective bargain agreement, an inde-

pendent arbitration tribunal respecting

the principle of equal representation of

players and clubs with an independent

chairman has been established at national

level”. See Cases 65349 of 1.6.2005,

631290 of 23.3.2006, 46610 of 27.4.2006,

861174 of 17.8.2006, 1061318 of

26.10.2006.

28 Art. 22(b) Regulations.

29 A player resident in country G submitted

his dispute with a club based in country

T to the DRC. At the time of signing the

employment contract he held the nation-

ality of both countries T and G. The

player submitted that he had relinquished

nationality of country T, adding a sub-

stantiating document from the Ministry

of the Interior of country T. The football

association of country T notified FIFA

that the petitioner was registered as a

subject of country T and held a licence in

country T. In addition the player had

played 18 times for the U-21 national

team of country T. The association main-

tained that the dispute between the play-

er and the club must be settled by the

association because the dispute did not

have an ‘international dimension’. The

club believed that the player was “... tak-

ing advantage of his dual citizenship in

bad faith”. The DRC considered “that a

dispute is international when two parties

of clearly different nationality are claim-

ing against each other. However, when

both parties have the same nationality,

the dispute shall be considered as nation-

al or internal, with the consequence that

the rules and regulations of the Member

Association concerned shall be applied on

the matter and the deciding bodies in

accordance with the relevant provisions

are compelled to decide on the issue.

Therefore, in situations where a player is

claiming outstanding amounts or com-

pensation for breach of contract from a

club, which has its domicile in a country

different to the one of which the player is

a national, FIFA is competent to deal

with the matter and intervenes, subject to

all formal requirements being given, if

one of the parties institutes legal proceed-

ings before its legal bodies. Inversely, if

the player has the nationality of the

country of domicile of the club involved,

FIFA is not competent. If FIFA would

deal with such cases and intervene in the

matter, the internal competence of FIFA

Members would be violated. These prin-

ciples of delimitation between the com-

petence of FIFA and the competence of

the Member Associations are primordial

for the reciprocal recognition of the

organisations and autonomy of FIFA and

the Member Associations. Hence, all

national disputes fall within the exclusive

competence of the Member Association

concerned and only the legal bodies of

this Member Association shall hear

respective claims.” Case 11527 of

2.11.2005.

30 Case 86833 of 17.8.2006. See also, inter

alia, cases 64357 of 10.6.2004, 11475 of

26.11.2004, 35284 of 11.3.2005, 65412 of

1.6.2005, 65414 of 1.6.2005 and 86833 of

17.8.2006.

31 Case 14288 of 15.1.2004. See also, inter

alia, Cases 6400276 of 10.6.2004, 114415

of 26.11.2004, 35283 of 11.03.2005. In

Case 730291 of 4.7.2003 the issue was

that the Arbitration Body of the Greek

League of Football Clubs had already

issued a ruling in a ‘national’ case. It did

not appear that the right of parties to be

heard had been respected in this proce-

dure, nor that there was a proper and

clear motivation of the decision taken.

The DRC considered that “it could be

concluded that decisions taken by nation-

al sports arbitration tribunals, which do

not fulfil all of the [...] fundamental pro-

cedural principles, cannot be considered

as binding for the Chamber and as a con-

sequence, in such cases, the Chamber can

re-examine the entire affair de novo”. See

also Cases dec_res_ch_4_07_2003 of

4.7.2003. and 631290 of 23.3.2006.

2007/3-4

ARTICLES

Decision Making Bodies of FIFA apply. With regard to the compe-

tence of the Chamber, Art. 3 par. 1 of the abovementioned Rules states

that the Dispute Resolution Chamber shall examine its jurisdiction in

the light of Arts. 22 to 24 of the Regulations. In accordance with Art.

24(1) in combination with Art. 22(b) of the Regulations, the Dispute

Resolution Chamber shall adjudicate on employment-related disputes

between a club and a player having an international dimension. If the

international dimension is also present, the consequence is that the

DRC is the competent body to decide on the present litigation

involving a player and a club regarding the alleged breach of contract

and allegedly outstanding compensation in connection with an

employment contract. In Art. 42(1)(b) of the Regulations of 2001 it

was determined that “[T]he triggering elements of the dispute (i.e.

whether a contract was breached, with or without just cause, or sport-

ing just cause), will be decided by the Dispute Resolution Chamber”.

Although a determination was not included in the wording of the

2005 Regulations, the assignment of the DRC did not change.

The procedures of the DRC run in accordance with the Rules

Governing the Procedures of the Players’ Status Committee and the

Dispute Resolution Chamber (DRC) (the Rules). These Rules have

been drawn up on the basis of Art. 31(1) of the FIFA Statutes.

De DRC does not award any amount as a contribution to legal

expenses.

In a number of cases the DRC had to establish whether one of the

parties in an employment contract had just cause to terminate the

contract. Since 2002 FIFA has published on its site a considerable

number of rulings from the DRC involving labour disputes.

The

DRC’s duty is to consider the arguments of parties to determine

whether the party who ended the contract had a just cause for this.

Before moving on to handling a number of decisions, demonstrating

the way in which the DRC reaches its rulings, attention will first be

devoted to the way in which the arguments put forward by the par-

ties must be proved.

To conclude this section the various principles to which the DRC

considers itself to be committed must be pointed out, where these are

not raised elsewhere in this contribution.

- The principle of venire contra factum propia. The DRC maintains

that only the employment contract which is lodged with the foot-

ball association may be applied, where it is in conflict with that

principle.

- The principle of no ultra petita. The award shall not exceed the

claimant’s claim.

- The principle of culpa in contrahendo. According to this principle a

party to a negotiation for a contract has to compensate causal dam-

ages incurred by the other party, if through its own fault it has

infringed its obligation to act in good faith during the negotiations

and has thereby breached the confidence of the other party in the

negotiations.

- The principle of res iudicata. According to this principle judicial

decisions that have become definitive can no longer be called into

question.

- The principle of pacta sunt servanda. When parties have signed an

agreement, they are then required to fulfil that agreement and to

comply with it.

5. He Who Alleges Must Prove: the Burden of Proof

Everything concerning an employment relationship agreed between

parties must be established in writing. The employment contracts

agreed with players, together with their annexes, must be registered

with the relevant football association.

The DRC resolves industrial

law disputes on the basis of the documents submitted by the parties.

In a number of decisions the DRC emphasised that “In view of the

principle of the burden of proof, which is a basic legal principle in

every legal system, a party to a procedure is obliged to provide evi-

dence proving its allegations presented in a legal action if it wishes to

use them as the basis for its position. In other words, any party deriv-

ing a right from an alleged fact shall carry the burden of proof (Art.

12 par. 3 of the Rules governing the Procedures of the Players’ Status

Committee and the Dispute Resolution Chamber).”

If, for example,

a player fails to present any evidence for his claim that he is entitled

to receive a salary, the claim of the player cannot be taken into con-

sideration due to lack of evidence. In a case in which the player

alleged that he had been deceived into signing the employment con-

tract in question, but that he had neither outlined how this might

have happened, nor submitted any clear evidence corroborating such

allegation, the DRC, in application of the principle of the burden of

proof, and due to lack of evidence, rejected the argument of the play-

er.

“[...] a document signed by the relevant parties, is in principle a

written proof of a valid contract and cannot be declared invalid for a

simple allegation.” The DRC also remarked that the party making an

allegation has the burden of proof to sustain it reasonably in order to

preserve the legal principle of legal security.

In another case, cover-

ing a player’s requests for the reimbursement of medical costs that he

had allegedly incurred due to his injury, the DRC acknowledged that

the player did not present any written document substantiating such

costs, which was the reason why, in accordance with its well-estab-

lished jurisprudence, the DRC rejected these requests.

According to

Art. 12(4) of the Rules the DRC may also consider evidence not

offered by the parties. From the determination in a case, “[...] that the

allegation of the claimant [...] cannot be upheld due to the lack of

documentary evidence and the lack of probative force of the

claimant’s allegation”

, one could presume that proof could also be

provided in another manner than in the submission of items; howev-

er no ruling is known in which the ‘probative force’ of an allegation

was the deciding factor. What if the defendant does not respond to

the demand? In such a case the DRC reaches a decision only on the

basis of the facts and proof provided by the claimant, since with its

conduct, the respondent renounces its right of defence and thus

accepts the claimant’s allegations.

As a rule the burden of proof lies with the party making the allega-

tion. From that point of view, the provision included in Art. 17(4) of

the Regulation 2005 is noteworthy. It states that “[I]t shall be pre-

32 Case 106176 of 26.10.2006.

33 Art.15-4 of the French Loi du 16 juillet

1984, reviewed by the Loi no. 99-1124 du

28 décembre 1999, provides that the inte-

gration of a player into a formation cen-

tre is subject to the conclusion of a train-

ing agreement.

34 Case 114667 of 26.11.2004.

35 Compare the explanation with Art. 24

Regulations.

36 SeeCases 34545 of 24.3.2004, 114635 of

26.11.2004, 65723 of 1.6.2005, 95473 of

23.9.2005, 6585, 115999 of 2.11.2005,

16246 of 12.1.2006, 26332, 261043 of 21.2.

2006, 36460 of 23.3.2006, 86999 of

17.8.2006.

37 www.fifa.com/en/organisation/commit-

tee/detail/0,1474,1889876,00.html.

Rulings from November 2006 were

recently placed on the site. According to

Art. 17 of the Rules Governing the

Procedures of the Players’ Status

Committee and the Dispute Resolution

Chamber (DRC) “[D]ecisions, should

they be of general interest, may be pub-

lished by the general secretariat in a form

determined by the Players’ Status

Committee or the DRC, e.g. condensed

in the form of a media release. Due

restraint shall be exercised when publiciz-

ing decisions. On substantiated request

by a party, certain elements of the deci-

sion may be excluded from publication.”

The published rulings have been made

anonymous. Sometimes the nationality of

the player and the club’s country of estab-

lishment are indicated. The number of a

case begins with the month in which the

ruling was issued, followed by the last

figure of the year, which in turn is fol-

lowed by a figure. 1151234, for example,

concerns a ruling issued in November

2005.

38 Case 34325 of 24.3.2004.

39 Cases 114707, 114708 of 9.11.2004, 115236

of 2.11.2005, 16309 of 12.1.2006.

40 Case 16830 of 12.1.2006.

41 Case 861307 of 17.8.2006.

42 Cases 25485 of 4.2.2005, 55532 of

13.5.2005, 115236 of 2.11.2005, 16723 of

12.1.2006, 36619, 36882, 361145 of

23.3.2006, 106678, 106715 of 26.10.2006.

43 As a consequence, and following the

jurisprudence of the DRC, the missing

registration of the annexe cannot be to

the detriment of the player.

44 Case 361095 of 23.3.2006. See also, inter

alia, Cases 26332 of 21.2.2006, 36811 of

23.3.2006, 361095 of 23.3.2006. In ruling

106876 of 26.10.2006 the DRC referred

to its well-established jurisprudence,

according to which at least the essentialia

negotii must be proven by the party who

derives any rights from a labour relation-

ship (cf. to the legal principle of the bur-

den of proof). These are: the parties of

the employment, the duration of the

employment period, the remuneration

and the signature or the approval of the

parties to the relevant employment.

45 Case 36882 of 23.3.2006.

46 Case 116339 of 21.11.2006.

47 Case 862 of 17.8.2006.

48 Case 116611 of 21.11.2006.

49 Cases 75377 of 28.7.2005, 115999 of

2.11.2005, 16716 of 12.1.2006, 461150 of

27.4.2006, 96392 of 28.9.2006, 611814 of

21.11.2006.

2007/3-4

ARTICLES

sumed, unless established to the contrary, that any club signing a

Professional who has terminated his contract without just cause has

induced that Professional to commit a breach.”

With this rule the

club is placed in a tricky predicament; it is after all difficult - if not

impossible - to prove that something has not occurred.

6. The Interpretation of ‘Just Cause’ by The Dispute Resolution

Chamber

If a club does not pay a player the salary agreed in the employment

contract for reasons which do not concern the player, then there is a

clear breach of the contract on the club’s side and the player has just

cause to terminate the contract. In a considerable number of rulings

the DRC has expressed its opinion that “the persistent failure of a club

to pay the salaries of a player, without just cause, is generally to be

considered as a unilateral breach of an employment contract”.

delay of three to four months in the payment of salaries must clearly

be considered a ‘persistent failure’. The club has just cause for termi-

nating the employment contract if, for example, the player absents

himself from the club without its permission for generally personal

reasons, which are not considered to be appropriate for the conduct

of the club. It goes without saying that the situation is never as sim-

ple as just sketched. The clubs and the players generally have a reason,

presented to the opposing party, to consider themselves no longer

bound by the agreement. Each time anew the DRC must decide on

the basis of the provisions of the employment contract and other

items submitted by the parties, which party is or is not in contraven-

tion or has given the opposing party just cause to terminate the agree-

ment. The selection of DRC rulings which follows is intended to pro-

vide an impression of the way in which the DRC interprets the con-

cept of ‘just cause’. The decisions which will be highlighted are

grouped thematically. As already noted above, recognition that one

party has a just cause to terminate the contract leads to such termina-

tion having no consequences for that party. If by contrast it is deter-

mined that there is no just cause, then “[I]n all cases, the party in

breach shall pay compensation”, furthermore - when the breach

occurs during the protected period - “sporting sanctions shall [...] be

imposed”, according to Art. 17(1) and (3) of the Regulations (2004).

The cases which will be highlighted below serve only to provide an

insight into the way in which the DRC reaches a conclusion as to

whether a just cause applies or not. Given the framework of this con-

tribution, no further consideration will be given to the way in which

compensation is determined or whether there are grounds to impose

a sporting sanction.

6.1. Terminating the agreement because of a player’s absence

– When a player arrived in the country of his new club, he immedi-

ately gained the impression that the club was no longer interested in

his services. Instead of being able to move immediately into an

apartment with satellite television, a phone and heating, he had to

wait five weeks before such accommodation was made available.

The apartment which was eventually provided had no heating, so

that his wife became ill. When he went back to his own country on

holiday, he discovered that the club had only obtained a visa for two

weeks. The club had also not arranged a work permit. The player

eventually had to arrange his own visa in order to return to the club.

Because the club had relocated to another city, he had to leave his

wife behind. Because his wife felt lonely the player returned to col-

lect her. The player had not turned up for the training session

because he had to collect his wife. The club took his absence as a

reason to impose a fine on him and to terminate the employment

contract. The player submitted the case to the DRC. The issue the

DRC had to address was whether dismissing the player was justified.

The DRC acknowledged that a club had the right to impose a dis-

ciplinary sanction on a player when such a player did not comply

with the contract obligations. This sanction did have to be in pro-

portion to the seriousness of the player’s breach of contract. The

player had conceded that he had been absent without the club’s per-

mission to collect his wife. In such an instance the club was justified

in imposing a disciplinary sanction. This disciplinary sanction,

comprising the payment of a fine equalling an entire month’s salary,

was the heaviest penalty which could be imposed in accordance with

the contract. In light of the circumstances the DRC approved the

imposition of such a disciplinary penalty; the other penalty - dis-

missal of the player - was felt by the DRC to be undeniably out of

proportion. The DRC could not accept such a sanction. The DRC

thus believed that the club had terminated the employment contract

without just cause.

– A football association called up a player to participate in a

friendly match against the team of a European football association.

The association notified the club that it had taken all the necessary

steps to ensure that the player would return to his club after the

match. However after the match the player travelled at his own

expense to his country of birth. The club demanded compensation

from the player on the grounds of a breach of contract. The football

association received a letter from the player - before the club had

implemented its claim - in which he detailed the reasons for not

returning to his club. The player stated that he had gone home after

the match because he had received verbal permission from the club’s

president to visit his family and be present at the birth of his child.

He was surprised that the club took his absence badly and had barred

him. Furthermore, he stated reasons for being surprised, because the

club had begun negotiations with his old club regarding transfer to

the old club. In addition the political instability in the region scared

him from returning to his club. Given that there was no proof of the

alleged verbal permission, the DRC declared this point to be irrele-

vant. The DRC then judged that the negotiations on transfer to his

old club did not constitute a valid reason for the player to ignore the

club’s request that he return. The player could not assume a positive

outcome to the negotiations, nor could he make any assumption of

the time the negotiations would take in advance. Neither did the

political instability provide a reason for the player not to return,

because the country in which the club was established was not

involved in any conflict. The DRC thus concluded that the club was

justified in claiming compensation from the player, on the basis of a

unilateral termination of the employment contract without just

cause, losses suffered.

– Following the ending of a contract of hire, a player was still under

contract to his club for a month. In contravention of the employment

contract the player did not return to his club. The DRC regarded this

conduct as a breach of the contract. It provided a reason for a penal-

ty to be imposed on the player. The relevant football association

decided that the player was suspended from playing in official match-

es for four months. The association applied the four-months rule of

Art. 23(1)(a) of the Regulations. The DRC raised queries about the

proportionality of such a sanction. The proportionality principle

requires that the extent of the sanction must be in agreement with the

extent of the offence. The DRC noted that during the month in

which the player was absent from his club, there were no official

matches on the programme. The player’s absence did not therefore

pose any serious problems for the club. The DRC reached the conclu-

sion that the sanction imposed on the player was out of proportion.

It would have been in proportion to impose a fine on the player. The

DRC ruled that the suspension should be retracted and that the play-

er should immediately be entitled to register with a club of his

choice.

– After he had been absent from the club without authorisation,

the club fired a player. The employment contract provided for a fine

50 The sanction with which the club was

threatened was not minimal: “The club

shall be banned from registering any

new players, either nationally or interna-

tionally, for two Registration Periods.” A

similar stipulation had already appeared

in the Regulations of 2001, in Art. 21(a)

and (c).

51 Cases 35131, 35243 of 11.3.2005, 65332,

65349 of 1.6.2005, 16309 of 12.1.2006,

261091 of 21.2.2006, 36460 of 23, 36811,

361095, 361145, 361206 of 23.3.2006,

461150 of 27.4.2006, 96315 of 28, 96454

of 28.9.2006, 611631 of 21.11.2006.

52 Compare Arts. 21 and 23 of the

Regulations (2001).

53 Case dec_res_ch_22_11_2002 of

22.11.2002. Cf. Case 300702 of

22.11.2002.

54 Case dec_res_ch_6_06_2003 of

6.6.2003.

55 Case 6400276 of 10.6.2004.

2007/3-4

ARTICLES

as a sanction, equal to three months’ salary. The player challenged the

course of events and demanded that a sanction be imposed on the

club, as provided for in the employment contract, comprising a spe-

cific amount. The club defended itself by suggesting that right from

the start of the employment relationship the player had exhibited

extremely unpleasant conduct. The player was not willing to follow

instructions from the coach and only wanted to train when it suited

him. In a variety of instances he had refused to take part in his team’s

training. All this was grounds for the club to impose the fine stipulat-

ed in the employment contract, and to declare the agreement to be

terminated. The club was justified in imposing a fine of one month’s

salary on the player. The DRC accepted such a disciplinary sanction,

but could not accept the dismissal. It was the DRC’s opinion that

such a response was unquestionably disproportionate. The DRC

believed that the club terminated the employment contract with the

player without just cause. The player was thus justified in demanding

a sanction provided for in the employment contract, consisting of a

specific sum to be paid by the club.

– After an unauthorised absence from training for a period extend-

ing to 30 days, a club stopped paying a player’s salary. An article in

the Regulations concerning the Players’ Status and Transfer from the

relevant football association stated that: “Players and clubs may

invoke just cause and sporting just cause for unilateral termination

of contracts for the following reasons: ...Clubs: a player absent with-

out leave from the training sessions and official matches of the team

for a period extending over 30 days, where such can be proven”. The

club was in default in not corroborating this with documentary evi-

dence. The club in fact alleged that the player had been absent from

training for a period extending 30 days as from 31 March 2005. The

DRC noted that the 30-day time limit had not yet expired on 1 April

2005, the date on which the club confirmed having ceased its pay-

ment to the player. The DRC reached the conclusion that the club

breached the employment contract signed with the player without

just cause.

From a variety of decisions it is apparent that the DRC does not regard

the absence of a player without the club having given permission, as

direct justification for the club to terminate the employment contract.

As a general rule, a long-lasting absence of a player from his club with-

out authorisation and without other just cause is to be considered as an

unjustified breach of the employment contract by the player.

– According to his employment contract a player was entitled to

receive a monthly salary, which should be paid over a period of two

years. Prior to the definitive signature of the contract the player and

the club’s most important shareholder, in his capacity as the club’s

president, signed a ‘private agreement’ which referred to the employ-

ment contract. According to this agreement the player would receive

a supplementary amount for his services during the first year. After

some time the player left the club without a valid reason. The club

demanded repayment of all the costs the club had paid in the player’s

favour, because the player had breached his contract without just

cause. The player defended himself by stating that the club had not

met the obligations towards the player which the club had agreed to

prior to signing the employment contract in the ‘contract proposal’.

The player pointed out that what the club had paid him was substan-

tially less than indicated in the proposal. The player asked the DRC

to rule that he had terminated the employment contract with the club

legitimately. The DRC stated first that only the employment contract

signed by the parties could be considered. This could not be the case

when it came to the documents the parties had exchanged prior to

signing the agreement in the context of the negotiations. From the

written evidence which the club had submitted the DRC felt it was

clear that the club had complied with the obligations arising from the

employment contract. The DRC rejected the player’s claim. He could

not argue a valid reason for leaving the club. This was grounds for the

DRC to rule that the player had breached the contract unilaterally

without just cause.

– After medical treatment by the club doctor had not brought about

the recovery of a player, the club gave the player permission to return

to his country of birth to be treated medically there. Two weeks later

the club asked the player to return to investigate his physical condi-

tion. The player had not recovered fully and the club again permitted

him to return to his own country to recuperate fully. The player did

not return to the club after this. In his view the club had defaulted on

the payment of a variety of amounts to which he believed he was enti-

tled. In its submission to the DRC the club stated that the player had

not been injured during a match, but while on holiday. The club

believed that it had no financial obligation. The club had not submit-

ted any items of evidence to FIFA which would support its position.

– A player notified his club that he had to go to France to conclude

the procedure involved in acquiring French nationality. The club still

owed the player his inducement fee and a month’s salary. He asked the

club to pay the money so that he could finance his return trip to the

club. The French footballers’ union notified FIFA some time later

that the player had still not received the money from the club, and

that the player could therefore not return to the club. Three months

later the player had still not received the money and he asked that the

employment contract be terminated. FIFA authorised the player to

seek a new club. The club defended itself by suggesting that it could

not agree to the player’s demand for the money. The club maintained

that the player had breached the employment contract. The DRC

regarded the player’s non-return to the club as a contract breach, but

it needed to be established whether the player had just cause for his

conduct. After studying all the relevant documentation the DRC

ruled: “[...] that it had no reasons to doubt the explanations and evi-

dence put forward by club A. Moreover, the Chamber felt that the

player had attempted to mislead this deciding body by simply claim-

ing that he had not been paid.” The DRC judged that the player had

breached the contract without just cause by not returning to the club

and that there was no plausible explanation for this conduct. The

player had to return excess payments to the club. The player’s eco-

nomic situation restrained the DRC from imposing further financial

sanctions. But the DRC did impose a sporting sanction: he was

barred from playing any official matches for four months.

– A club and a player signed an employment contract with two sup-

plementary addenda. The first addendum stipulated that the player

would receive an additional salary, and a new salary was established in

the second addendum. “[...] From the moment of signature of this

Agreement, all other arrangements between the parties regarding the

Football player’s salary [...], are to be considered invalid”. The player

maintained that from the start of the employment relationship, the

club had defaulted in paying the salary, or had paid the salary irregu-

larly and late. During the winter break the club notified the player

that he would be placed on the transfer list. The club then notified

him that the club would be going on a training camp, and that dur-

ing this time they would attempt to find a new club for the player.

Although the club’s leadership put pressure on him to return home

and find a new club, the player participated in the training camp.

After conclusion of the training camp the pressure on the player to

sign an agreement ending the employment relationship increased. At

that stage the player was still owed a substantial amount by the club.

The player was under the impression that his agent had launched a

legal procedure against the club for ending the employment contract.

The player became ill and mononucleosis was diagnosed. The club

instructed the player to report to the club. The player responded that

he could not travel because of his illness. However the player had not

provided the club with a medical certificate confirming his condition.

In its submission to the DRC the club contended that the player had

breached the employment contract. According to the contract the

player was required to notify his medical condition to the club doc-

tor. The doctor would then be able to launch an investigation. The

club asked the DRC to declare the employment contract to be termi-

nated and to declare the player to be the guilty party. The DRC reject-

ed the player’s request regarding calculation of the salary and ruled

56 Case 96317 of 28.9.2006.

57 Case 14381 of 15.1.2004.

58 Case 74025 of 22.7.2004.

2007/3-4

ARTICLES

that arrangements about salary prior to signing the addendum were

not applicable. The DRC then focused on the issue of the alleged con-

tract breach and on the time at which the employment relationship

between the parties was ended. The DRC was not convinced by the

player that he had received permission to be absent. Such absence

required a written declaration from the club and this could not be

produced. The DRC also believed that in terms of the employment

contract, the player had an obligation to contact the club doctor to

apprise him of his medical condition. The fact that the player was not

in a condition to travel should not have prevented the player from

approaching the club doctor by telephone. The DRC believed that

neither of the parties to the employment contract had acted in com-

pliance with the contract’s provisions. On one hand the club had not

complied with its contractual obligations to pay the player his salary

because he was absent, and on the other the player was in default by

being absent without permission and not contacting the club doctor.

The DRC concluded that the contract was terminated through the

agency of the conduct of both parties. The club was required to pay

the player his outstanding salary. Neither party was entitled to receive

compensation from the other.

– A club submitted a complaint to FIFA involving a player who had

not reported to the club, in contravention of the employment con-

tract. The club learned from the press that the player had signed a

contract with another club. The club asked FIFA not to authorise

transfer to the other club’s country and if necessary to impose disci-

plinary sanctions on the player. To FIFA the player declared that a

friend who worked for the club had sent him a written proposal. He

had signed the proposal on the assumption that this was a pre-con-

tractual agreement which would only bind him if he decided to go to

the club’s country at the end of the season. One of the agreement’s

provisions stipulated that the validity of the agreement was depend-

ent on a medical examination before a specific date. Given that the

club had not made contact with him regarding the medical examina-

tion, nor that it had requested his transfer certificate, the player

assumed that the agreement was no longer valid and he was free to

sign with another club. The club believed that the player had under-

stood the content of the agreement fully when he signed. The club

had made several attempts to contact the player, but without success.

The club immediately notified FIFA that the player had not report-

ed. The DRC ruled that neither party had complied with the employ-

ment contract. But at the same time it believed the situation was

largely attributable to the club’s negligence. It was the club’s responsi-

bility to ensure that its football association would request the player’s

ITC, even if the sportsman had not reported to the club. It was only

with such a request that the club would have expressed its actual

intentions adequately. A player cannot be transferred without the

ITC. The player signed one month later than the latest date for the

medical examination specified in the employment contract. All this

caused the DRC to doubt the credibility of the club’s allegations.

Given the lack of effort by both parties, the DRC declared the con-

tract to be null and void and rejected the club’s demands.

– After the final playing day of the season and before the end of the

contractual term, a player left club A to join club B. The football asso-

ciation of club B asked the association of club B to send it the play-

er’s ITC. Club A responded that the player was still under contract.

Through the DRC club A requested compensation from the player on

the grounds of a breach of contract without just cause. Club A also

held Club B liable to pay compensation because the club had prompt-

ed the player to breach his contract. Club B stated that it had made

attempts to enter into discussions with Club A, but that it had given

up because club A did not want to cooperate. The player signed an

employment contract with club B one day following expiry of the

contract with club A. The DRC’s opinion was that the player had

breached his contract if he had signed an employment contract with

club B before expiry of the contract with club A, or, if he had partic-

ipated in official matches of club B. The DRC pointed out that a club

which requests that an ITC be sent does not necessarily already need

to have signed a contract with a player. From all the above it could not

be concluded that the player had acted in conflict with the employ-

ment contract of club A. The DRC believed a club has the right to

impose a sanction on a player if the latter acts in conflict with the

obligations in the employment contract. “Such an entitlement serves

to caution the player without having to revert to the ultimate meas-

ure, the rescission of the employment contract, and it serves to pro-

tect the interests of the employer.” In this case, as in every case where

a club is considering a disciplinary sanction, the club must ascertain

whether the player can provide reasons to justify his conduct. The

DRC considered that the player had not harmed the interests of club

A by his absence and by attending the trials of club B, given the fact

that this occurred during the holiday period of club A. In addition it

was in the player’s interests to ensure a new employment contract

before the expiry of the term of the old one. The DRC ruled that it is

important for a player to be able to make arrangements for his future

and that he may do so even during an ongoing employment, provid-

ed he does not violate the interests of his current employer. As a result,

the Chamber determined that the sanctions envisaged by club A

against player B were misplaced and that it should therefore not inflict

them on the player. Did club A have the right to claim compensation

from club B in accordance with Art. 23 (2) (a) of the Regulations? The

DRC could not establish that club B had prompted the player to

breach his contract given that they could not detect a breach of con-

tract in the player’s conduct. The DRC rejected the demands of club

A against the player and club B.

– In a case the DRC again had to decide whether a player had

breached his contract with or without just cause by not reporting to

his club. What makes this case exceptional is that the DRC, after care-

ful consideration of the items of written evidence submitted by the

club, determined that the signatures on the various items differed. It

was impossible to establish which signature was the player’s and which

was not.

The DRC considered that: “[N]otwithstanding the fact

that claims pertaining to falsification of documents merely fall with-

in the jurisdiction of criminal courts, [it] confirmed that, in this spe-

cific case, it had to take a decision on whether the parties had actual-

ly signed a contract before turning to the question as to whether this

contract had been breached or not.” Because the signatures on the

items produced by the club differed individually from each other, the

DRC was unable to determine whether the player had actually signed

the employment contract. On the basis of the Regulations the DRC

could only proceed from documents which were properly signed.

Verbal agreements could not be taken into account. The DRC found

it surprising that the player had admitted he had received the most

important amount, i.e. the signing-on fee, but not the amounts aris-

ing from the receipts submitted by the club. This fact convinced the

Chamber of the player’s good faith and of the plausibility of his alle-

gations. In this light, the DRC concluded that it was not established

that the player signed a contract with the club. The DRC rejected the

club’s claim, that the player had terminated the employment contract

without just cause.

Alongside the foregoing personal reasons - not those involving the club

- not to return to the club, reasons of another nature could apply to the

player. One of these reasons could lie in the irregular or even complete

non-payment of the agreed salary. Is the inadequate payment regime of

the club a just cause for ending the contract by the sportsman, or will

the absence of the player in fact be a reason for the club to suspend pay-

ment of the salary and ultimately to end the contract with just cause?

The DRC’s duty is to ascertain the triggering element in such a case. If

the player can prove that the club was negligent in paying his salary, he

then has a just cause to terminate the employment contract.

59 Case 74210 of 22.7.2004.

60Case 74378 of 22.7.2004.

61 Case 114632 of 9.11.2004.

62 In Case 46294 of 27.4.2006 the DRC

considered that “[...] as a general rule

and with the possible exception of cases

of evident divergence of the signatures,

as long as the falsification of a signature

or a document is not established by a

final and binding decision of a compe-

tent criminal authority, the DRC has to

presume the authenticity of the signature

or the document in question”.

63 Case 74165 of 22.7.2004. See also Cases

611631 and 611727 of 21.11.2006.

2007/3-4

ARTICLES

6.2. Te rminating the contract because the player is not permitted

access to the training

– After a club had recommended that a player train with the club’s

youth team, the parties signed a document in terms of which the

player was released from attending the club’s training sessions for an

unspecified period. The player alleged that from that time he was no

longer allowed back at the club. He refused to sign an agreement

with the club relating to the premature termination of the employ-

ment contract, because the club did not wish to pay him any com-

pensation. The club’s position was that the employment contract had

been terminated on the basis of mutual agreement. Consequently the

player was at liberty to sign with another club. The club ignored

FIFA’s request to submit a copy of the relevant agreement. The play-

er claimed payment of his salary up to the time that the employment

contract would have ended based on the club’s unilateral termination

of the contract without just cause. The DRC pointed out that the

club had submitted an inadequate explanation to FIFA, referring

only to the fact that both parties had reached agreement on ending

the employment contract. The club had not submitted a copy of the

agreement. The DRC considered that the respondent’s inability to

prove its position in the matter left the DRC with no other choice

but to accept the statement of the claimant. The DRC concluded

that the club had ceased to meet its contractual obligations to the

player, by refusing to allow him to train with his team. The DRC

reached the conclusion that the club had unilaterally breached its

employment contract with the player without just cause. The DRC

established the time at which the employment relationship had

ended and ordered the club to pay out the salary arrears and payment

of compensation arising from unilateral breach of contract without

just cause.

A club which believes that termination of an employment contract

between parties has been agreed and which, based on this, bars the play-

er from joining training, must prove the mutual termination. If they

cannot, then there is a unilateral breach of contract without just cause.

6.3. Te rminating the contract for disciplinary reasons

– A club terminated the employment contract with a player because he

had misbehaved during an official match. “After scoring a goal the play-

er celebrated in a way which was considered indecent.” The disciplinary

committee of the football association in question initially barred the

player from playing matches for seven months. This sanction was con-

firmed on appeal. FIFA believed that the sanction imposed was dispro-

portionate, particularly given the list of sanctions to be imposed for such

offences in the FIFA Disciplinary Code. Concurrently FIFA issued per-

mission to the football association in another country to register the

player immediately. The club maintained to the DRC that the contrac-

tual breach was entirely attributable to the player’s misbehaviour, and

requested compensation, partly for damage suffered to the club’s image.

For his part the player asked the DRC to instruct the club to pay salary

arrears and other remuneration. The items submitted showed that the

player’s salaries were not paid regularly before he was suspended by the

Disciplinary Committee of the relevant football association. The club

had to be deemed responsible for not having complied with its contrac-

tual obligation to pay the player’s salaries. Apart from the DRC being of

the opinion that the disciplinary sanction had been disproportionate, it

rejected the club’s claim for compensation and agreed the player’s

claim.

A club cannot be denied the right to impose a disciplinary sanction on

a player if such player does not comply with the execution of his con-

tractual obligations. However such sanction must be in proportion to

the seriousness of the offence. Unilateral and premature termination of

the employment contract with the player is a just cause in this context.

6.4. Te rmination of the agreement because of drug use

–A player under contract to a club was hired for a season. During that

season the player was tested positive for drug use. At the end of the

season the player and hiring club broke their employment relation-

ship prematurely. Then the relevant body of the club’s football feder-

ation decided to suspend the player for one year for drug-taking.

Around the time that the penalty was announced the player and his

employer signed a cancellation agreement whereby the club commit-

ted itself to pay a certain amount to the player, “unconditionally” and

“irrevocably”. The player was transferred to club V. A little later the

FIFA Disciplinary Committee extended the player’s suspension to a

worldwide basis. Club Y notified the player that it considered the can-

cellation agreement null and void. According to the club, the player

had concealed his 12-month suspension and therefore he had obtained

the club’s agreement fraudulently. The club added that had it been

informed of the player’s suspension, it would never have concluded

the said cancellation agreement, but would rather have terminated the

player’s contract with just cause. The club believed it had a right to

terminate the player’s contract unilaterally. The player submitted a

claim to FIFA. According to the cancellation agreement, he had the

right to an agreed amount. According to the club, an agreement based

on illegal grounds is null and void, since it can never represent the

true intention of the parties to that agreement. The DRC agreed with

the club that the positive result of the drugs test could possibly have

constituted a just cause for the club to terminate the employment

contract unilaterally. Was the player not aware of a drugs procedure at

the time of signing the cancellation agreement? And did the club

therefore not have the right to regard the agreement as invalid? The

DRC found it was not arguable that the player was aware that a drugs

procedure was pending. What is more, the DRC had difficulty in

accepting that the player would not have been interested in the result

of the drugs test that had been carried out. Even just in light of the

fact that the player had changed his address subsequent to the drugs

test, the DRC could not find any indication that the player had tried

to obtain knowledge of the result of the test for a considerable period

of time. The player’s reasoning as to why he was not or could not have

been aware of his suspension had to be considered too simple and

superficial. The player had to be held responsible for the circumstance

that he might not have been aware of his suspension which was com-

municated by letter to his former address. The drugs test was carried

out well in advance of the date on which he signed the disputed agree-

ment with the club. The player had also not notified the club of the

fact that he had undergone a drugs test. The player should have done

this. By failing to do so, the player had withheld an important fact

from the knowledge of the club during the negotiations relating to the

premature rescission of their employment relation, a fact which would

presumably have brought about a different outcome to such negotia-

tions. In the event of the player having informed the club of the mere

fact that he underwent a drugs test, the club would at least have been

in a position to postpone negotiations until it could gain knowledge

of the drugs test result. The DRC felt justified in its belief that the

behaviour of the player was in anticipation of possible events in the

near future related to the drugs test he had undergone, and that the

player had induced the club into entering into the disputed agree-

ment, in accordance with which the club agreed to pay an amount to

the player “unconditionally” and “irrevocably” in light of the early ter-

mination of the relevant employment contract by mutual consent.

The DRC’s conclusion was that the player had deceived the club

through his behaviour. When signing the cancellation agreement, the

club was acting in ignorance. Had the club known the factual circum-

stances, it would not have concluded a cancellation agreement with

such contents with the Claimant. The club could not be held liable

for execution of the cancellation agreement it entered into with the

player.

Among the published rulings of the DRC only one case can be found

where drug use plays a role. The DRC considered - very reservedly - that

the positive result of a drugs test could possibly have constituted a just

cause for the club to terminate the employment contract unilaterally.

64 Case 34624 of 24.3.2004. See also, inter

alia, Case 55472 of 13.5.2005.

65 Case 14558 of 15.1.2004.

66 Case 26439 of 21.2.2006. See also: CAS

2006/A/1192, Chelsea v. Mutu.

2007/3-4

ARTICLES

6.5. Terminating the contract because of the player’s physical con-

dition

– A provision in an employment contract stipulated that the agree-

ment would not be valid until the player had undergone a medical

examination successfully in a hospital designated by the club. The

medical examination did in fact occur the day after the agreement was

signed. The club maintained that the player had concealed an injury,

one which was present when he signed the agreement. The club

believed that the contract should therefore be declared null and void.

As a result the club refused to pay the player his salary and other

remunerations. Art. 30 of the Regulations stipulates that the validity

of an employment contract may not be dependent on the positive

result of a medical examination. Such an examination should occur

before signing the agreement, or the club would be liable to pay the

entire salary amount. The DRC believed that Art. 30 of the

Regulations offers clear and unmistakable indications involving the

relationship between a medical examination and the validity of an

employment contract. Given the clear wording, the provision allows

no latitude for interpretation. The provision is compulsory and

requires strict implementation. The provision in the employment

contract should be regarded as null and void given that the provision

- in conflict with the requirements of Art. 30 - makes the employment

contract dependent on the positive result of the medical examination.

The club should have ensured the medical examination was held

before signing the contract (cf. Art. 30(2) of the Regulations). Even if,

for whatever reason, the club had decided to have the medical exam-

ination carried out after a training camp, that would be at their own

risk. The DRC believed that the club had breached the contract with

the player. The player had just cause to terminate the contract unilat-

erally.

In the abovementioned case the club wanted to terminate the

employment contract with the player on the basis of concealed phys-

ical indisposition at the start of the contract period. A case now fol-

lows where the club ended a contract on the basis of an injury which

occurred during the term of the contract. The DRC uses the general

principle according to which it falls under the club’s obligations to be

responsible for its players in case of injury occurring during the valid-

ity and performance of the employment contract, especially if the

injury is caused during a match played by the player for his club in

fulfilment of his contractual obligations.

– A player was seriously injured during a match. “As a consequence of

such injury, [the club] informed him in front of his team colleagues,

that the club could no longer count on him.” The player left the club

and departed for his home country to undergo an operation and then

to recuperate. The player claimed payment of his salary from the club

for the entire season, as well as the expenses he incurred with the oper-

ation and the subsequent rehabilitation. The club resisted by referring

to Art. 12 b) of the player’s standard contract, which permitted the

club “to release players at any time prior to July 1, unless the contract

is guaranteed”. Such a guarantee was not included in the addendum

linked to the contract. In the view of the club, termination of the con-

tract was thus valid. Yet not entirely certain of its case the club added

that the trainer “has no records of [the player] being injured while he

was there. The club paid for his flight to country X and paid him for

his services until he was released”. The DRC believed that the fact

that the player’s salary was not explicitly guaranteed in the addendum

to the employment contract “[...] cannot and does not constitute just

cause for a club to unilaterally terminate its employment contract

with a player, as happened in the present case, and even less to be

‘under no further obligation to a player for payment of future contract

payments’”. In fact, the Chamber deemed that in view of its potesta-

tive nature, the aforementioned contractual clause shall not have any

effect.” The DRC rejected the validity of the contractual provision

and came to the conclusion that the club had terminated the player’s

contract without just cause. The DRC awarded the player’s financial

claim.

– A player was unable to complete the remainder of his employment

relationship because of serious illness. The DRC outlined that the

incapacity of the player to fulfil the terms of his employment contract

creates a particular situation according to which one party, the player,

can no longer perform his obligation and the other party, the club, is

free to withdraw from the agreement. Consequently, the responsibil-

ities for the contractual non-fulfilment, in this case, had to be shared

between the club and the player.

– According to a club an employment contract had been terminated

prematurely because the player became injured. The club believed it

therefore had no obligation to continue paying the player any salary

and bonuses. The DRC pointed out that in industrial law there is a

fundamental principle that if an employee (player) becomes injured,

this does not constitute just cause for the employer (club) to termi-

nate the contract prematurely and unilaterally, and does not consti-

tute a reason for the employer to cease paying the employee’s salary.

– A player was injured twice in the space of three months. After the

second injury the club doctor and the coach recommended that the

player should undertake light training. The player refused to consid-

er this and stayed away from training repeatedly. Given the ongoing

absence of the player on the grounds of his injury, it was not possible

to register him for the first phase of the championship. The club had

asked the player to continue training and to wait until the champi-

onship’s second phase. The player did not agree to this, and the club

thus offered him the opportunity to seek a new club. The player

requested compensation. The club refused and requested the player to

continue with training. The player refused. The club decided not to

pay the player any further salary and ended the contract. The DRC

took into consideration that the player’s absence had to be explained

from the fact that he was unable to offer his services to the club for

several months. The DRC concluded that in stopping payment of the

salary and attempting to terminate the employment contract, the club

had breached the contract without valid reason.

– With regard to the question as to whether a club committed a unilat-

eral breach of the employment contract without just cause, the DRC

took note that the club indicated the player’s injury as the reason for the

premature termination of the employment contract. The DRC stated

that - in accordance with its established and persistent jurisprudence -

the premature and unilateral termination of an employment contract

by a club because of a player’s injury was always considered to be an

abusive termination of the contract without just cause.

In one of the rulings the DRC considered “that according to its

established jurisprudence the premature and unilateral termination of

an employment contract by a club because of an injury or its closest

consequences must be considered as a termination of the contract

without just cause”.

According to Art. 30 of the Regulations the validity of an employ-

ment contract cannot be made dependent on a positive medical

examination. The same applies to obtaining a residence or work per-

mit. This latter issue was the subject of the next case.

It falls under the club’s obligations to be responsible for its players in

case of injury which occurred during the validity and performance of

the employment contract, especially if the injury is caused during a

match played by the player for his club in fulfilment of his contractu-

al obligations. According to the DRC’s established jurisprudence the

premature and unilateral termination of an employment contract by a

club because of an injury or its closest consequences must be considered

as a termination of the contract without just cause.

6.6. Te rmination of the contract because of a dubious provision in

the contract

– A Polish player signed an employment contract with a Swiss club,

based on the standard contract of the Swiss Football League. The

player was not given a licence because the maximum number of for-

eign players had been fulfilled. At the end of the season the player was

barred from training with the club. The player was then notified that

67 Case 113291 of 21.11.2003.

68 Case 55230 of 13.5.2005.

69 Case 75570 of 28.7.2005.

70 Case 75570 of 28.7.2005.

71 Case 16493 of 12.1.2006.

72 Case 16828 of 12.1.2006. See also, inter

alia, Case 26332 of 21.2.2006.

73 Case 26332 of 21.2.2006.

2007/3-4

ARTICLES

the employment contract - in accordance with a provision it con-

tained - was terminated, because he had no work permit. Back in

Poland the player found a club for which he could play. The Swiss

club only wanted to release the player if he waived any claim on the

club. The player demanded payment of his salary to the end of the

term of the employment contract. In accordance with the standard

contract the club was required to take steps to obtain a work and res-

idence permit from the Swiss authorities. Art. 30 of the Regulations

stipulates that “1. The validity of a transfer contract or of an employ-

ment contract between a player and a club cannot be made condition-

al upon the positive results of a medical examination or upon the

acquisition of a work permit. 2. The player’s prospective new club

shall be required to make any necessary investigations, studies, tests

and/or medical examination or to take any appropriate action before

concluding the contract, otherwise it will be liable to pay the full

amount of compensation for training and development agreed upon

(and/or the amount of the salary due).” Standard jurisprudence of the

DRC is that no appeal to Art. 30 can be made if the termination of

an employment contract - on the grounds of one of its provisions - is

made dependent on acquiring a residence permit. The rationale of

Art. 30 is that a club should have taken all measures whereby a play-

er may start work after signing an employment contract, and that no

uncertainties should exist whether the player may or may not appear

with the club. The decision of the Swiss government took three

months. The DRC believed that a player should not have to be sub-

jected to uncertainty for this period as to whether he may or may not

join a club. The DRC ruled that the club had terminated the contract

without just cause.

– An employment contract featured a clause which stated: “Should

the player not live up to the performance requirements imposed by

the employer, the contract may be terminated at any time, at the ini-

tiative of the employer”. The DRC believed that application of such

a clause could not be upheld since it is arbitrary and based on non-

objective criteria.

It is the club’s responsibility to take any appropriate action before con-

cluding the contract, in particular, to ensure that the player is provid-

ed with the required work permit and residence permit. A provision in

the employment contract which maintains that not obtaining a work

or residence permit could be a reason for unilateral termination of the

contract, was declared by the DRC to be invalid.

6.7. Te rminating a contract because of a player’s lack of effort

– A club sent a letter to a player informing him that the second instal-

ment of the signing-on fee was ready to be paid, but that it would be

paid only once the player demonstrated his utmost performance. The

DRC believed the club had committed a breach of contract by failing

to pay the player’s salaries.

– A club maintained that a player had not met the contractual

obligations, particularly in terms of the level of his preparation and

skills. His performance was substandard and he did not exhibit the

necessary effort during training to improve this performance. The

DRC believed the player’s poor performance could not be regarded

as just cause to terminate the contract.

In a comparable case the

DRC ruled that the alleged poor performance of a player during a

competition did not constitute a valid reason to terminate the

employment contract.

In another case, in which a club terminated

a contract unilaterally because it was dissatisfied with the player’s

performance, the DRC pointed out that the contractual provision to

which the club referred to justify its unilateral termination of the

contract, could not produce the intended result. Application of the

provision would lead to an unacceptable result, based on subjective

criteria which, in terms of the relevant provision, could only be

invoked unilaterally. The DRC ruled that the club had breached the

contract without justification and the club therefore had to compen-

sate the player.

– According to a provision in the employment contract a player was

subject to a 30-day trial period. The same provision stipulated that the

club could end the contract at any time within the trial period if it was

dissatisfied with the player’s performance. The club was dissatisfied

and terminated the contract. The DRC ruled that trial periods were

unacceptable within the football context. “Indeed, probation periods

are generally solely in favour of the employer, i.e. the party that com-

monly has stronger bargaining power. What is more, by their nature,

probation periods principally go against one of the main pillars of both

the previous and the current version of the FIFA Regulations for the

Status and Transfer of Players, i.e. maintenance of contractual stabili-

ty, and the rules related to contractual stability.”

– According to a provision in the employment contract the club

had the unilateral right to terminate the contract with the player if the

player’s performance no longer met the club’s requirements. The club

terminated the contract. The player believed that he had the right to

receive compensation from the club on the grounds of the premature

termination. Given the fact that the provision did not stipulate any

compensation in favour of the other party at the moment the club

invoked the provision, the DRC concluded that the provision could

not be regarded as valid.

– A provision in the employment contract stipulated that “[the

player] has to follow the instructions regarding training and camps

and must maintain the level of performance upon which [the club]

signed the contract with him, otherwise this will be considered a ter-

mination of the contract [...]”. Based on this provision, the club

decided to terminate the contract unilaterally, given the player’s poor

performance. The DRC emphasised that, despite the content of the

aforementioned contractual clause, a player’s lack of performance can-

not and does not constitute just cause for a club to unilaterally termi-

nate an employment contract, as happened in the case at hand. In

fact, the DRC deemed that in view of its potestative nature, the rele-

vant contractual clause should not have any effect.

As a guiding principle the DRC maintains that the non-fulfilment

of such basic contractual obligations as the payment of salaries may

not be implemented as a tool to sanction a player for disappointing

performance levels.

The DRC’s established jurisprudence has also

maintained that the premature and unilateral termination of an

employment contract by a club because of a player’s alleged poor per-

formance must be considered as a termination of the contract with-

out just cause.

According to its established jurisprudence the premature and unilater-

al termination of an employment contract by a club because of a play-

er’s alleged poor performance must be considered as a termination of

the contract without just cause.

6.8. Te rmination of the contract because of the player’s political

asylum

– A player fled from country B and was granted political asylum in

country C. The player terminated his employment relationship with

his club in country B. The employment contract between the player

and the club had a five-year term. At the time of signing the contract

the player was 16 years old. Art. 35 of the old Regulations stipulates

that “a player who has not reached his eighteenth birthday may sign

a contract as non-amateur only for a period not exceeding three

years. Any clause referring to a longer period shall not be recognised

by FIFA or a national sports tribunal”. The DRC concluded that the

player was not permitted to sign a five-year contract at the age of 16.

The invalidity of the relevant contractual provision had no repercus-

74 Case 35931 of 11.3.2005.

75 Case 96315 of 28.9.2006.

76 Case 74653 of 22.7.2004. See also Case

46290 of 27.4.2006, in which the DRC

considered that, “as a general rule, poor

performance cannot be considered a rea-

son for the club to reduce payments to

the player, because it is unilaterally

determined by the club and based on

purely subjective criteria”.

77 Case 65657 of 23.6.2005.

78 Case 16695 of 12.1.2006.

79 Case 46552 of 27.4.2006.

80 Case 86833 of 17.8.2006. See also, inter

alia, Case 55359 of 13.5.2005.

81 Case 114534 of 26.11.2004, 65580 of

1.6.2005.

82 Case 75975 of 28.7.2005.

83 Case 3542 of 11.3.2005. See also, inter

alia, Cases 55769 of 13.5.2005, 361300 of

23.3.2006, 46290 of 27.4.2006, 96315 of

28.9.2006.

84 See for example Case 96315 of 28.9.2006.

2007/3-4

ARTICLES

sion for the entire contract. The DRC reduced the term of the con-

tract to three years. The football association of country C requested

the player’s ITC from country B. Country B’s football association

refused to provide the ITC, because it was based on the existence of

a valid employment contract between the player and the club in

country B. The player adduced that he was granted political asylum

in country C after having left club B’s country and, as a consequence,

even if a contract were found to exist, it would be frustrated by his

refugee status, since returning to club B’s country would constitute a

serious threat to his life or freedom. The player believed it was imper-

ative that he be permitted to continue his career outside country B.

The DRC ruled that granting him refugee status did not ipso facto

imply that the employment contract would be terminated with just

cause. Neither did the relevant provision automatically give him the

right to register with a club affiliated to a different football associa-

tion. The DRC acknowledged that the club in country B was not in

default in providing a detailed report of the situation and its ultimate

point of view. The DRC believed that both parties had defaulted on

meeting their respective contractual obligations. Their employment

relationship had been disrupted in such a way that proceeding with

it was no longer among the possibilities. This detail, and the fact that

the employment contract between the parties still only had four

months to run, motivated the DRC to consider that the player

would be jeopardised if he was to be prevented from registering

immediately for another club. As a consequence, the DRC decided

that the player should be released from his contractual relationship

with club B and be immediately authorised to proceed with his foot-

ball career; he was therefore considered free to sign for another club

of his choice without any compensation being due to club B.

The granting of refugee status does not ipso facto automatically imply

that a player’s employment contract with a club in the country from

which he has fled, is terminated with just cause.

6.9. Termination of a contract because of insufficient playing time

by the player

– Club A unilaterally terminated the employment contract with play-

er B. The club cited a provision in the contract which read: “If the

starting appearance is less than 70% of the entire CFA League A

matches (only starting appearance or total appearance time per game

of no less than 45 minutes can be counted) by his own will, Party A

has the right to terminate this agreement and transfer Party B to

another football club, except for injuries which should be confirmed

by the doctors or hospital appointed by Party A.” According to the

club the statistics of CFA League A demonstrated a 64% starting

appearance rate. The club believed that now that the player’s starting

appearance was less than 70% of the entire CFA matches, the club

had the right to terminate the contract. The DRC acknowledged that

if the provision in the employment contract could not be invoked by

the club at the end of every playing season, the incorporation of this

clause into the contract would be pointless. By virtue of the same

logic the Chamber could not agree with the player’s reasoning with

regard to the phrase “by his own will”, which he employed to mean

that any non-appearances that may have occurred outside of his scope

of influence, such as a decision by the coach not to field him, should

not be taken into consideration when calculating his appearance per-

centage. This, the DRC reasoned, would narrow the non-appearance

percentage down to comprise only the player’s deliberate absences,

which would be senseless considering that the club could deal with

such deliberate absenteeism, regardless, by way of disciplinary sanc-

tions or even the unilateral cancellation of the contract with just

cause. Should the club’s interpretation of the provision be dismissed?

It was particularly undesirable that the provision offered the club

ample opportunity to abuse its position and to cancel the contract

unilaterally, merely by preventing the player from playing more than

70% of the matches in a season. The fact was that the provision did

not offer the player the opportunity to terminate the contract prema-

turely. On the other hand it was considered important to point out

that the club could not invoke the provision at any given time during

the playing season, but that it was restricted to one period, namely on

conclusion of the entire season. This offered the player some legal cer-

tainty and security. The content of the provision was explicitly accept-

ed by both parties when they signed the contract. Taking everything

into consideration, the DRC decided that the provision was accept-

able, although it embodied some dubious aspects. The club had met

its financial obligations to the player, which offered no latitude for

other motives for the club to dismiss the player. The DRC concluded

that the club’s application of the relevant provision to terminate the

employment contract had not led to a termination without just

cause.

– In another case, where it had to be decided whether it was possi-

ble in terms of the employment contract that the player would only

be paid if he had played a specific number of matches, the DRC ruled

that application of such a provision was arbitrary. In such a case it

ultimately depended on the favour of the club as to how many match-

es it allowed the player to play. The DRC determined such a provi-

sion to be unacceptable.

It is noteworthy that amongst the considerable quantity of published

rulings there is not one involving ‘sporting just cause’. Certainly there

are rulings where it is not the player who terminates the contract

because of too little playing time, but the club. A clause in the employ-

ment contract which grants the club the unilateral right to terminate

the contract with the player if the player does not fulfil the agreed play-

ing time, can be acceptable if it can be shown that in signing the con-

tract the parties were aware of the content of this clause. In general such

an (arbitrary) clause should be regarded as non-binding.

6.10. Termination of the contract because of not being enabled to

play

– A player and a respondent signed an employment contract. With

the emphatic agreement of the player the club signed a loan contract

with club B. The contract was ended prematurely with the agreement

of all parties. Then club A signed a loan contract with club C, again

with the emphatic agreement of the player. The player accused club

A of being in default in not having accomplished the necessary

release prerequisites so that the player could be registered for the sec-

ond club with the football federation of the said club (C Football

Federation). Based on the submitted documents, the DRC stated

that no evidence was provided by the player for the allegation that

club A delayed the procedure concerning issuing the ITC for the

player so that he could be registered for club C with the C Football

Federation, and therefore, as accused by the player, that it had abu-

sively prevented the player from practising his professional activity.

The evidence convinced the DRC that club A had made the required

efforts to obtain issuance of the ITC. Club A could not be held

responsible for the non-registration of the player for club C with the

C Football Federation. The DRC acknowledged that club A affirmed

having had no knowledge of the player’s situation and residence from

the day it was last contacted about the player’s registration with club

C, until the day it was notified by FIFA of the claim lodged with

FIFA by the player. The DRC was of the opinion that following the

registration failure, it would have been the player’s obligation to

revert to his club of origin to offer his services immediately. Until the

day it was informed of the present claim, club A could assume in

good faith that the player had been registered with club C. The evi-

dence showed that once club A had learned of the situation from

FIFA, it tried to find a new club for the player, again on a loan basis.

Given this approach of club A to negotiate a further loan of the play-

er with club D, the DRC considered that club A had shown its will-

ingness to continue the contractual relationship with the claimant.

The player refused to sign the employment contract with club D.

85 Case 74234 of 22.7.2004. The 2001 ver-

sion of the Regulations includes the pro-

vision in Art. 33: “Any problems arising

in connection with the status of refugee

players shall be settled definitively by the

FIFA Players’ Status Committee.” A sim-

ilar provision is not included in the 2005

version.

86 Case 25247 of 4.2.2005.

87 Case 16107 of 12.1.2006.

2007/3-4

ARTICLES

The loan contract with club C would end on a certain day. From that

day the player should have offered his services to club A. But on that

day the player signed an employment contract with club E. By act-

ing this way, the player manifested having not fulfilled his contractu-

al obligation towards club A by not offering his services to the

employer after the loan period with another club expired. The play-

er had also adduced that club A had not paid his salary for some

months. According to the DRC, salary payment was the obligation

of club B. As far as the salary during the two loan months was con-

cerned, the DRC determined that club A, in good faith, could have

assumed that the player was regularly registered with club C. In par-

ticular, it was emphasised that the player did not render, nor even

offer, his services to club A. Therefore the DRC concluded that club

A was not responsible for payment of the player’s salaries for this

period of time. All in all, only the payment of one month’s salary was

outstanding and non-payment of one monthly salary is no valid rea-

son to terminate the employment contract unilaterally with just

cause. The DRC concluded that a valid employment contract

between the player and club A still existed and had to be respected

by both involved parties throughout its validity.

If a club which has loaned a player from a foreign club is not provid-

ed with the player’s ITC, the player should offer his services to the orig-

inal club. The argument that he could not play for the foreign club does

not offer the player just cause to terminate the employment contract

prematurely.

6.11. Terminating the contract by not taking up the option to

extend the contract

– A Tunisian player and a Libyan club signed an employment con-

tract for three seasons. The contract stipulated in Art. 14 that at the

end of the first season the parties should reach agreement on revis-

ing the contract’s value for the second season. After returning from

holiday following the first season, the player was told by the club

that it no longer wished to make use of his services. The player was

free to register for another club outside Libya. The player, who did

not agree with this course of events, attempted to rejoin the club,

but without success. The player approached FIFA because the club

had breached the contract without just cause. The player believed he

had the right to compensation. The DRC had to find an answer to

the question as to whether the relevant employment contract could

be considered valid for a three-year period. According to the DRC

the employment contract contained all elements necessary to be

binding for the first season (e.g. salary, contract duration, parties,

etc.). However the contract said nothing about the salary for the

next season. The DRC was of the opinion that inclusion in the con-

tract of the player’s salary, payable in compensation for the services

rendered, was a prerequisite for the contract to be considered valid

and binding upon the parties involved for the specific period.

Taking into consideration the wording of Article 14, the DRC

agreed that the relevant employment contract had to be considered

valid and binding upon the parties for the period of one year, with

the option for both parties to extend it on condition that a mutual

agreement be found. Now that the Libyan club did not want to

extend the contract past the first season, the relationship was thus

terminated. The DRC decided to reject the claim lodged by the

player.

– That such a ruling is strongly dependent on the specific circum-

stances is apparent from the determination of the DRC in another

case. There the DRC indicates its established jurisprudence which

states that “[...] a clause which gives one party the right to unilateral-

ly cancel or lengthen the contract, without providing the counter-

party with same rights, is a clause with questionable validity.

Specifically, in general, a unilateral option in favour of a club cannot

be considered, since it limits the freedom of the player in an excessive

manner and leads to an unjustified disadvantage of the player’s rights

towards the club. [...] the unilateral extension option in the case at

hand does not fit with the general principles of labour law. [...] as a

general rule, the unilateral extension option in the relevant employ-

ment contract is not legally binding on the player [...]”

If a club does not take up the option to continue an employment rela-

tionship, then the relationship is terminated under certain circum-

stances. Generally such an option is declared not to be binding.

6.12. Te rminating the contract because of a competing employ-

ment contract

– A player signed an employment contract with club Z. Club X’s

football association refused to provide the ITC, because the player

was still considered to be under contract with club X. The player

stated that he was registered with club X as an amateur. Club Z sub-

mitted a declaration from the player and his agent in which they

maintained that the player was not under contract with another

club. This had been a precondition for club Z to sign the employ-

ment contract. Club X maintained that the player was under con-

tract to it, and submitted a copy of the contract as well as docu-

ments which would show that it had met its financial obligations to

the player. According to club X club Z was fully aware of the exis-

tence of a contract between it and the player. Club X claimed that

the player had violated his contract with it. The player denied hav-

ing signed the contract submitted by club X or having ever received

the money stated on the submitted receipts. The player could not

substantiate his position with documentation. But club X could,

and submitted a fax addressed to it, in which club Z notified it of

its interest ‘in transferring’ two players, including the player in ques-

tion. In this fax club Z offered an amount for this player and anoth-

er player. Club X would obtain the right to 15% of the total amount

club Z would receive should the players be transferred in the future.

On the basis of that offer to pay a transfer compensation, the DRC

concurred that club Z must have been aware that the player in ques-

tion was contractually bound to club X, in contradiction of the

statements it had made throughout the proceedings. The DRC con-

cluded that the player was bound by the employment contract with

club X and that by signing a contract with club Z, he had terminat-

ed the contract with club X unilaterally without just cause during

the protected period. Articles 21(1)(a), 22 and 23(1)(a) of the

Regulations applied and the player should pay compensation to

club X.

– The agreement between a player and club A stipulated that the

club had an option to extend the contract by two years after the first

season. Should the club decide to take up the option then the owner

of the transfer rights should be paid compensation. The club took up

the option, but did not pay the compensation. The player asked FIFA

to authorise him to sign with a club of his choice. The club had not

paid because it was not clear who it should pay the compensation to,

and it did not want to run the risk of having to pay twice. On expiry

of the contract’s term and in anticipation of a ruling from the DRC

on the unilateral option of the club, FIFA permitted the player to sign

for another club provisionally. The player signed a four-year agree-

ment with club B. This contract contained a penalty clause should the

player be guilty of breach of contract. The football association of club

B asked the association of club A to provide the player’s ITC. This lat-

ter association refused, citing the contractual dispute between club

and the player pending with the DRC. The player changed his mind

88 Case 631290 of 23.3.2006.

89 Case 11475 of 26.11.2004. See also, inter

alia, Case 114628 of 26.11.2004.

90 Case 261245 of 21.2.2006. See also Case

36858 of 23.3.2006, in which the DRC

determines that, in accordance with its

established jurisprudence, a clause which

gives one party the right to unilaterally

cancel or lengthen the contract, without

providing the counter-party with same

rights, is a clause with disputable validi-

ty.

91 In this section the issue is not a situation

in which two identical contracts are

signed by a player and a club, which dif-

fer only in terms of salary. Regularly, the

contract stipulating a lower remunera-

tion is deposited with the respective

Federation, whereas the other agreement,

indicating the actual salary, is only

known to the parties to the contract. In

such cases, on the occasion of disputes

regarding the salary effectively agreed

upon, the DRC takes the higher salary

into account in order to prevent the

respective players from being victimised

by this practice. Case 106678 of

26.10.2006.

92 Case 35239 of 11.3.2005.

2007/3-4

ARTICLES

and asked FIFA to allow him to return to club A. The player signed a

two-year contract with club A. Club B asked the DRC via FIFA to

rule that the player had breached his contract without just cause by

breaking his contract unilaterally, and to rule that club A had incited

the player to do so. The player maintained that in his opinion, there

had never been a valid employment contract between him and club

B, because club A’s football association had not provided club B with

the ITC. In the first place the DRC investigated whether the contract

between the player and club B was in valid existence. The DRC

acknowledged that the player and club B were not contesting having

exchanged a common manifestation of intent and that the relevant

mutual aim covered all essentialia negotii of an employment contract.

Equally, none of the parties claimed having signed the contract in

mistake as to the motivation, the subject or the nature of the transac-

tion nor based on a factual error. Consequently, the DRC established

that, as a general rule, the employment contract concluded between

the player and club B was valid and legally binding for both parties.

The fact that club B had not been granted possession of the ITC did

not detract from this. “The validity of an employment contract is not

subject to the issuing of an ITC”, according to the DRC. “The con-

clusion of an employment contract constitutes an act of private law,

and it develops its effects inter partes only. Consequently, it is not

admissible to make the validity of an employment contract depend-

ent on an action, which lies within the power of disposition of a third

party - in the case of issuing the ITC, in the first place, the associa-

tion and moreover, the player’s former club.” The agreement between

the player and club B was valid and parties had to fulfil the obliga-

tions arising from such contract. Then the DRC investigated whether

there were valid reasons which could justify the premature departure

of the player. The player had not submitted such reasons and the

DRC stated that it could not see any just cause. For the sake of good

order, the DRC declared that the legal status of the contractual rela-

tionship between the player and club A was unclear. The dispute

about the validity of the unilateral extension of the employment con-

tract still had to be settled. FIFA’s authorisation to sign with another

club was issued provisionally, in anticipation of the ruling of the DRC

on the first employment contract. Should the DRC reach the conclu-

sion that club A had legally extended the contract, then the player

might possibly have an obligation to return to club A to serve out his

contract. The DRC stressed that under these hypothetical circum-

stances the player would have had, not only the right, but the obliga-

tion to terminate his engagement prematurely with club B. In casu,

this was, however, not the case. The player freely changed his mind,

withdraw his claim against club A and returned to the latter. The

DRC concluded that the player had broken the employment contract

with club B without just cause.

– In a recent decision

the DRC had to deal with a case in which

two identical employment contracts were signed between a player and

a club, differing only with regard to the indicated salary. The DRC

noted that, regularly, the contract stipulating a lower remuneration is

deposited with the respective federation, whereas the other agree-

ment, indicating the actual salary, is only known to the parties to the

contract. In such cases, on the occasion of disputes regarding the

salary effectively agreed upon - in line with the jurisprudence of the

DRC - the DRC takes the higher salary into account in order to pre-

vent the respective players from being victimised by this practice.

In general a player breaches his contract without just cause, if during the

term of an existing and valid contract with one club - and in particu-

lar during the protected period - he signs a contract with another club.

6.13. Termination of a contract because an accident insurance poli-

cy is not taken out

– Club C, club B and a player signed an agreement for the loan of

the player’s federative rights. The same agreement contained the pro-

visions of the player’s employment throughout the loan period. Club

B, which had taken on the player, was in default by not having

arranged an accident insurance policy on behalf of the player, as stip-

ulated in the loan agreement. The last contract had also established

that club C was entitled to terminate the relevant loan agreement with

just cause, should club B not take out the aforementioned accident

insurance policy. Club C and the player decided to terminate the rel-

evant loan agreement and the employment contract respectively with

club B. Club C, via his national association, requested the player’s

international registration transfer certificate, but the national associa-

tion of club B refused, based on the existence of a valid employment

contract between the player and its affiliated club, club B. Later a

decision taken by a labour court in the country of club B authorised

player A to join his previous club. The player claimed payment of his

outstanding salaries and asked FIFA to consider his employment con-

tract with club B as terminated with just cause and consequently, that

he be considered free to sign for the club of his choice. Club B sub-

mitted various arguments in defence, but failed to provide FIFA

Administration with evidence supporting its position. The DRC took

note of the fact that club B had failed to comply with its contractual

obligations; in particular, it failed to take out an accident insurance

policy on behalf of the player as established in the loan agreement

between it and club C. The DRC reached the conclusion that,

notwithstanding the fact that the player took advantage of club B’s

default to terminate their employment contract, he did in fact have

just cause to end the relevant contract, since club B failed to take out

the aforementioned accident insurance policy, as contractually estab-

lished.

If a club defaults by not arranging accident insurance with the player

as the beneficiary, this furnishes the player with just cause to terminate

the employment contract unilaterally and prematurely.

6.14. Terminating a disputed employment contract

– A Serbian player signed a three-year employment contract with a

Russian club. The Russian football association provided the associa-

tion from Serbia and Montenegro with the International Registration

Transfer Certificate (ITC). Not long afterwards the player notified the

Russian association that the club was not meeting its contractual obli-

gations, while at the same time he submitted a claim to FIFA. Three

or four days after the start of his service period the coach notified the

player - without any justification - that he would not be using his

services. The coach prohibited him from taking part in the team’s

training. Thereafter the player received no response from the club and

he left Russia. He asked the DRC to compel the club to meet its con-

tractual obligations. He maintained that refusal would constitute uni-

lateral contract breach without just cause. The player asked that he be

awarded an amount of compensation for breach of contract equalling

the full value of his employment contract. The Russian football asso-

ciation notified FIFA that the player had never signed an agreement

with the club. The DRC concluded that the document submitted to

it by the player was a contract, which contained the most important

elements of an employment contract. In addition the Russian football

association had received the player’s ITC from the player’s former

association, which could be regarded as a clear indication that the

player and the club had entered into an employment relationship.

The DRC felt that the player’s request to compel the club to meet its

contractual obligations was superfluous because both the Russian

association and the club denied the existence of the contract. The

DRC ruled in favour of the player’s financial claims.

– A club and a player signed an employment contract. The club

defaulted on payment of monetary amounts to which the player had

a contractual right. The player notified FIFA that his employer owed

him an amount. The club denied that it had an employment relation-

ship with the player. Because the player could not submit the docu-

ments necessary to obtain a residence permit and he could thus not

be registered with the football association, the club regarded the con-

tract to be void. In the first instance the DRC established that the

93 Case 114796 of 16.11.2004.

94 Case 106678 of 26.10.2006.

95 Case 14-270802lhv of 15.1.2004. In a

similar vein Case 1482 of 15.1.2004.

Compare, regarding an individual insur-

ance policy, Cases 35171, 35283 and 35284

of 11.3.2005.

96 Case 114707 of 9.11.2004.

2007/3-4

ARTICLES

club had failed to present any relevant documentary evidence corrob-

orating its allegation in this respect. The DRC then referred to its

well-established jurisprudence according to which it is the club’s

responsibility to take any appropriate action before concluding the

contract, in particular, to ensure that the contractual party, i.e. the

player, is provided with the required work permit. The obligation to

incumbent upon the club. According to Art. 30 of the Regulations,

the DRC concluded that the validity of a contract may not be made

subject to the granting of a work permit. The club had not remitted

any salary payment to the player on the basis of the relevant employ-

ment contract and its annex. The DRC reached the conclusion that

the club breached the employment contract signed with the claimant

without just cause.

Despite proof to the contrary, a club can deny that it has an employ-

ment relationship with a player. Enforcing the contractual obligations

is then superfluous. A contract is not void if a work or residence permit

is not obtained.

6.15. Terminating the contract on the basis of a provision in the

contract

– According to a provision in an employment contract both parties

had the right to terminate the contract on one month’s written notice.

The provision then went on to specify the financial arrangements

should the contract be terminated. The club notified the player by let-

ter that the employment contract would be terminated due to unsatis-

factory performance, with application of the relevant provision from

the contract. The player submitted a claim against the club to FIFA.

The player believed that the contract was still in force and that the

club therefore owed him his salary for a number of months. In its

defence the club maintained that the player had actually breached his

own contract, because after the club terminated the contract the play-

er had not continued to play for the club until the end of the notice

period, but had chosen instead to leave the country immediately. The

DRC concluded that the provision in the employment contract had

to be considered as totally valid and legally binding. As a conse-

quence, the DRC decided that the club did not breach the relevant

employment contract without just cause but in accordance with clause

[in question] of the relevant contract, which was signed and approved

by both parties. No compensation for breach of contract without just

cause (compare Art. 17 of the Regulations) was due. In other words,

the DRC decided that the player, in view of the legally valid termina-

tion of the employment contract, had no right to claim the salary for

the months following the one-month notice period. The club had also

argued that the player did not continue to play for the club until the

end of the notice period, choosing instead to leave the country imme-

diately and that he had thus failed to fulfil his contractual obligations

during the one-month notice period. The player’s contention was that

playing had been made impossible because the club prevented him

from returning to its premises. In this respect the DRC referred to

Art. 12(3) of the Rules, in accordance with which a party deriving a

right from an alleged fact shall carry the burden of proof. In view of

this, the DRC decided that the player was unable to prove that he

returned to the club after having been notified of termination of the

relevant contract, and/or that he was prevented by the club from

returning during the notice-period. The DRC thus determined that

the player had not fulfilled his contractual obligation towards the club

during the relevant notice period. The DRC ruled that the player was

also not entitled to receive the salary for the one-month notice period.

A clause incorporated in an employment contract which operates uni-

laterally to the club’s advantage, and which the club can use during a

number of seasons, is in conflict with the general principles of labour

law. Such a clause cannot be invoked because it is arbitrary and not

based on objective criteria. The situation differs however if both par-

ties have explicitly stipulated the right to terminate the contract in

accordance with a specific notice period.

7. Conclusions and comments

Once an employment contract has been signed it should be respected

by the parties involved. FIFA emphatically discourages unilateral and

premature termination, particularly during the protected period.

According to Art. 16 of the Regulations an employment contract may

not be terminated unilaterally during the course of a season. This dif-

fers if parties agree the termination mutually. Art. 13 which specifies

this also notes that the agreement “may [...] be terminated on expiry

of the term of the contract”, which is a truism. But not all employ-

ment contracts are signed under a fortunate constellation, and in the

Regulations it was necessary to include a provision which offers an

escape route for the apparently implacable rule of Art. 16. A general

prohibition on the unilateral termination of an employment contract

is of course not possible. An employment relationship could be affect-

ed by this to such an extent that it would be inhumane to force par-

ties to continue working together notwithstanding. There is a price

tag attached to breaching a contract unilaterally. The party responsi-

ble for the breach can be obliged to pay the opposing party compen-

sation. He is also threatened with a sporting sanction. Only if he can

indicate just cause does he not have to fear paying compensation or a

sanction, according to Art. 14. But the concurrent existence of Arts.

14 and 16 raises a number of issues, both in terms of their sequence

and their content. It is first stipulated that “a contract may be termi-

nated by either party [...]” and then that “a contract cannot be unilat-

erally terminated [...].” One might first expect the strongest provi-

sion, and then a stipulation which eases it. If one ignores for a

moment the consequences of unilateral termination in Art. 14, then

the contradictions inherent in the two articles become apparent to the

reader. The articles could have been interwoven: “A contract cannot

be unilaterally terminated during the course of a season, unless in the

case of just cause”. A second article could then have stipulated that the

assumption of a just cause would not entail any consequences.

Disputes involving employment contracts with an international

dimension are lodged with FIFA and settled by the Dispute

Resolution Chamber. This body has to decide whether the reasons for

terminating a contract unilaterally are valid or not.

A disrupted working relationship does not automatically lead in

general industrial law to termination of the employment contract, at

least not in Western European countries. In the legal systems of these

countries the employee is well protected against dismissal by the

employer. There is generally a compulsion to explore all available

options to reach an internal resolution of a conflict. In the

Netherlands for example an employer must launch a dismissal proce-

dure with a governmental body (the Centre for Employment and

Income) or the courts, before being able to terminate the employment

contract. These bodies assess whether the employer does in fact have

sufficient and valid reasons to carry out a dismissal. The employer

would not readily resign, because he would then be culpably unem-

ployed and would ultimately lose his right to official benefits pay-

ments. Things are different within the context of football. A team can

only function optimally and achieve the desired results if there is a

particular cohesion within the team’s members on one side, and the

team members and the club’s leadership on the other. A conflict with

a team member rapidly leads to the entire team no longer meeting

expectations. The short duration of a football career also plays a vital

role. If a player - for whatever reason - no longer fits within a team,

he will soon be inclined to sign for another club to further his career;

after all, if a footballer is unable to play for some time, or if his per-

formance is suffering under the existence of a conflict, that will be to

the detriment of his career opportunities.

“A contract may be terminated by either party [...]”, according to

Art. 14 of the Regulations. In the correct perspective this provision

addresses not so much the possibility of terminating an employment

contract, but the consequences of such termination. The termination

is “without consequences of any kind [...] in the case of just cause”. In

the notes to Art. 14 one reads that “[T]he principle of respect of con-

tract [established in Art. 16, JS] is, however, not an absolute one. In

97 Case 96317 of 28.9.2006.

2007/3-4

ARTICLES

fact, both a player and a club may terminate a contract with just

cause, i.e. for a valid reason”. In the notes with Art. 17 one reads the

mirror image of this: “Unilateral termination of an employment con-

tract without just cause is always inadmissible”. This cannot be so.

The concept of ‘just cause’ is after all not a concept which is hard and

fast, about which there can be no discussion and which can immedi-

ately be used to declare an employment contract to be terminated.

Art. 14 should rather be regarded as a provision with a content which

has retrospective force. ‘Just cause’ is a relative concept. The DRC’s

duty on the basis of the circumstances is to determine whether one

party had just cause to terminate an agreement. In a DRC procedure

a party who terminates an employment contract will always maintain

that he had just cause to do so, for example, because the opposing

party breached the contract. It is up to the DRC within the context

of the case to determine in casu what should be understood under

‘just cause’ and whether the party has based its case justifiably on this.

The DRC settles disputes purely on the basis of physical evidence.

One regularly encounters the pronouncement that “the Chamber

deemed it appropriate to declare that it could only decide on the basis

of documents duly signed by the parties and that, in accordance with

the Rules Governing the Practice and Procedures of the Dispute

Resolution Chamber, verbal agreements would therefore not be taken

into consideration.” The DRC is clear in terms of argumentation

which is not supported by physical evidence. In one of its rulings it

can be read that: “[...] the fact that [a player] did not present any evi-

dence confirming that he was effectively prevented from complying

with his contractual obligations towards [a club] and [the DRC]

means that the present claim must be rejected”. Only the facts sub-

stantiated by signed documents can be considered for assessment.

These documents must make it clear that one party had a just cause

to terminate the employment contract. In cases where the documents

do not invoke such a clear outcome, the DRC can fulfil the balance

towards just cause on the basis of reasonableness. The opposite can

also occur. In one of its rulings the DRC considered that “[...] if such

a termination would be accepted as a termination with just cause, this

would create a disproportionate repartition of the rights of the parties

to an employment contract, to the strong detriment of the player”.

Art. 17(4) of the Regulations 2005 stipulates that - unless evidence

to the contrary is submitted - a club which signs a contract with a

player who has terminated his contract with another club without just

cause, has incited the player to commit a breach of contract.

This

rule can lead a club into legal difficulties unnecessarily. The club must

prove it has no blame for the contract breach of a player, and legally

this is not very nice. According to Art. 17(1), for example, a player can

terminate a long-term contract unilaterally - under specific condi-

tions

- legitimately on conclusion of the protected period, without

running the risk of having a sporting sanction imposed.

100

It is not

logical to impose a sanction on the player’s new club if it can prove it

did not have a hand in the player’s transfer.

Art. 42 (1)(b) (i) of the Regulations (2001) began with the phrase

“[T]he triggering elements of the dispute (i.e. whether a contract was

breached, with or without just cause, or sporting just cause), will be

decided by the Dispute Resolution Chamber of the FIFA Players’

Status Committee”. Although this wording did not recur in the

Regulations (2004), it cannot thus be assumed that the DRC’s

method of operation has changed. In the notes to Art. 24 of the new

Regulations FIFA also declares that “the triggering elements of the

dispute will be handled by the DRC”. The DRC needs to isolate that

element which can be characterised as the cause of the dispute

between parties. In the most simple instance the persistent failure of

a club to comply with its financial obligations towards a player with-

out valid reasons, is generally to be considered as a unilateral breach

of employment contract without just cause. If the club can show that

the reasons for the persistent failure of a club to comply with its finan-

cial obligations lie in the fact that without providing reasons or hav-

ing permission, the player was absent from the club, then the trigger-

ing element can be found in this and the element that the club

defaulted on payment moves one link down in the causality chain.

Should no element be apparent in the sequence which offers justifica-

tion for the first element, then the conclusion can be based on the

assumption that the contract breach occurred without just cause.

Should the DRC’s analysis of the items and circumstances lead to the

conclusion that a breach of contract did indeed occur, which is blame-

worthy - i.e. without just cause - then they can attach consequences

to the contract breach, such as the payment of compensation and the

imposition of sporting sanctions.

8. Concluding Remarks

The right of dismissal in the football industry has a number of specif-

ic features which distinguish it from ‘normal’ industrial law. This is

partly because of the relatively short working lives of the employees,

partly through the flexible and global deployment of employees and

partly through commercial pressure. If a player does not fit in a team,

or because of his conduct on or off the field, a team can suffer and the

issue for the club is to get rid of him as quickly as possible. A profes-

sional club is geared towards winning results which will attract spec-

tators and which will encourage the commercial world to sign spon-

sorship agreements. The player considers his market value. If he is

unable to play, because he does not fit well within a team or doesn’t

have a good relationship with the trainer, then his market value drops

and he would like to relocate as quickly as possible to a club where he

will indeed be able to play. In a disrupted working relationship the

parties’ first instinct is not to restore that relationship. They want to

carry on, but without each other. An incident which would cause one

to simply shrug in normal life can lead to unprecedented conse-

quences in the football world. Newspapers’ sports pages have to be

filled, so that the media quickly latches onto an incident, fleshing it

out to influence public opinion. Football needs the facility of an

‘instant divorce’. On one hand, with an eye to contractual stability

FIFA wants to encourage respect for the employment contracts signed

by the various parties, but under practical pressure it has to offer the

possibility for parties to part quickly in the interim for a price. The

parties to an employment contract, who are blamed for breaching a

contract, can be obliged to pay compensation to their opposing par-

ties. The possibility of ruling the payment of loss or damage remuner-

ation in the form of compensation, is also at variance with normal dis-

missal law. It is particularly because dismissal law in the football

industry is so ‘idiosyncratic’ that FIFA created the Dispute Resolution

Chamber. It is the DRC’s task to steer the interim termination of

employment contracts in football in the right direction. Its only

restrictions are that it can only rule on contracts with an internation-

al character and that it can then only be approached if a national

court of law does not offer imperative conciliation of a contract. If it

is authorised, the DRC’s duty is to determine which party bears the

blame for terminating the agreement and to establish the degree to

which the opposing party has suffered loss or damage which must be

compensated. One finds a large number of DRC rulings on the FIFA

site. It is said that all rulings have been published since 2005 (with the

exception of those settled by FIFA’s Legal Department). Each in its

own way commands respect for the capability with which the DRC

tackles and resolves each dispute. Given the major importance this has

for dismissal rights in the football industry, the DRC’s jurisprudence

deserves greater recognition than it is now accorded.

98 See also FIFA Circular no. 769, Zürich,

24.8.2001,

access.fifa.com/documents/static/regula-

tions/PS%20769%20EN.pdf.

99 Three conditions: the player must cancel

the employment relationship within 15

days after the final official match of the

season, it must be a transfer with an

international dimension, and compensa-

tion must be paid to the club.

100 In The Times of 9.5.2007 To n y

Higgins, head of FIFpro, was inter-

viewed in connection with the Webster

case. “Basically, this rule was intro-

duced as a compromise between FIFA

and the European Commission to give

footballers the sort of employee rights

that anyone else would expect in the

workplace”, according to Higgins.

2007/3-4

ARTICLES

Factors such as the development of professionalism in popular sport, the

establishment of great sporting organizations, the building of magnifi-

cent stadiums, the interest of governing parties in football as a means of

power and national superiority, the development of new industries relat-

ed to football, the popularization of sports products, the increase in news-

paper circulation and the ratings of radio and television channels related

to national and international football matches are some of the incentives

that make football and other popular sports one of the most influential

industrial sectors. Live broadcastings from television channels and digital

facilities have both increased the fascination with and appeal of football

matches and have helped the sports industry to reproduce itself again and

again. The marriage between sports and the media has resulted in a

mushrooming of sports products and powerful actors in sports business.

This article mainly deals with the commercialization of sports and the

role of televised images to reproduce ideology and identity and their part

in the distribution of certain malpractices in sports.

1. Introduction

The backbone of sport and the highest-ranking state sports organiza-

tion in Turkey is the Directorate General of Youth and Sport which is

part of the Cabinet of the Prime Minister and was established in 1938.

Referees, provincial representatives, coaches and observers together

with appointed staff undertake voluntary duties in the organization.

Within the structure of the Directorate General, there are currently 37

separate federations, among which the Turkish Soccer Federation,

which became autonomous in 1992.

The most outstanding achievement of Turkey in the field of sports

was the European Championship of Galatasaray in the 1999-2000 sea-

son. Having been challenged by the most powerful soccer teams of

Europe, and becoming eligible for the final without losing a single

match, Galatasaray, in the final, defeated the British team Arsenal and

became the first Turkish team to win the cup. This was an event that

carried Turkish soccer to the world soccer arena.

The most important goal of the Directorate General of Youth and

Sports is to formulate programmes so that citizens of all ages will

engage in sports for the development of their physical and mental

health, to support handicapped citizens and to encourage the state to

become involved in sports. The general image conveyed by written

and audio-visual mass media is that the biggest and most important

sporting activity is football and that football provides the most enter-

tainment to the largest part of the public. The heroes reflected on the

screens are mostly healthy, well-known, rich, white male stars.

However, while the directorates draw up rules and principles and

many proposals are being made to develop and disseminate sport all

around the country to create healthy generations, the written princi-

ples are never realized. The style, manner and language used in the

presentation of sporting activities (mostly football) both by the offi-

cial state organizations and especially by the mass media fail to pro-

vide the envisaged physical and spiritual motivation for citizens of all

ages, genders and positions. Instead, football has become an arena of

fierce competition and violence among the male professionals of

teams and football clubs, male hooligans in the stadiums and streets

and football addicts. This is no different in the USA and in Europe.

Sports policy in Turkey is somewhat similar to the European sports

policy or, in broader terms, to the global sports policy. National sports

policies almost all over the world lack the legislative framework to

cope with the growing issues arising from the rapid development of

sports as an industrialized sector. In Europe the birth of a socio-cul-

tural sporting agenda can be traced to 1984 (R. Parrish 2003, pp. 162,

173, 205) when issues concerning youth, education exchanges and

sports were identified and steps were taken. For example, European

sport has been favouring free market broadcasting in England since

1996. The Sports Council favoured a free market in sports rights, thus

allowing sporting organizations to maximize their income from the

sales revenues generated from television rights. This has enabled

English football to invest in new and improved stadiums, better facil-

ities for fans and players and in grassroots investment in youth foot-

ball.

The tension between the EU’s regulatory ambitions on the one

hand and political policy ambitions for sport on the other has been

the drive behind the development of today’s EU sports policy. This

policy is not however legally rooted in the Treaty. In other words,

sport is not mentioned in the legally binding chapters of the Treaty,

which means that EU sports policy also lacks a legislative framework.

Today, football is a world phenomenon and its potential is working

in the direction of international capitalism. With the steering and

directives emanating from FIFA and multinational companies foot-

ball and its actors have become very profitable industrial products.

Factors such as the development of professionalism in popular sport,

the establishment of great sporting organizations, the building of

magnificent stadiums, the interest of governing parties in football as

a means of power and national superiority, the development of new

industries related to football, the popularization of sports products,

the increase in newspaper circulation and the ratings of radio and tel-

evision channels related to national and international football match-

es are some of the incentives that make football and other popular

sports one of the most influential industrial sectors. Live broadcast-

ings from television channels and digital facilities have both increased

the fascination with and appeal of football matches and have helped

the sports industry to reproduce itself again and again. With the

deregulation and commercialization of television, channels almost

competed to flirt with football and, to a certain extent, with other

popular sports like basketball. The marriage between them has result-

ed in a mushrooming of sports products. The new global image of

sports, mainly football, has led intellectuals and some sports profes-

sionals to question the problem of ethics in the structuring, organiz-

ing, broadcasting and dissemination of sporting activities in coun-

tries.

This article deals with certain examples of and reasons for malprac-

tices in sport and its production and reproduction by the media and

how they through their messages present a certain ideology and an

identity for hooliganism.

2. The Globalization and Industrialization of Sport

The relationship between sports and industry has other ideological

dimensions as well which foster the main priorities of capitalism,

namely those of the ‘consumption culture’ and of ‘power’ and ‘fame’.

All these notions indirectly stem from the idolization of football and

basketball stars. Famous players are presented in advertising as the

Gods of mount Olympus. There is a belief that the public only wants

reports of heroism and record-breaking shows. Huge masses are

numbed and depoliticized by sports programmes and news just like

they are by other hypnotizing forms of entertainment. Before and

during important football matches, people have been known to be so

pre-occupied with the tension caused by speculating on the victory of

their teams or the joy of play itself that governments in Turkey have

* This paper was presented at the 111th

Congress of the AISV-IAVS

International Association for Visual

Semiotics-Istanbul, 29 May-2 June 2007.

** Prof. Dr. Sermin Tekinalp, Istanbul

Kultur University, Communication Arts

Department, Member of the TOLUN

Consulting Sport Law Centre,

Neuchâtel, Switzerland.

For Whom the Bell Tolls: Sports or Commerce?

Media Images of Sports: Ideology and Identity*

by Sermin Tekinalp**

2007/3-4

ARTICLES

used these instances to pass crucial laws in parliament or to increase

petrol prices while the masses were given an overdose of football vic-

tories (S.Tekinalp 2003 p. 341).

Football clubs have greatly increased their ability to earn gate, tele-

vision and sponsorship revenues (S. Dobson 2001, p. 374). In the late

1980s and 1990s the pace of change accelerated as club owners and

players alike were deluged by an avalanche of new revenue from

sources such as television, sponsorship and merchandising. Conn (as

argued in Dobson p. 419) argues that a new breed of businessmen and

entrepreneurs are attracted into football, because there has been a shift

towards a more commercially oriented, profit-driven business ethos in

football.

Sponsorship has always been an industry in sports. Some business

organizations, driven by the belief that the sports industry is a busi-

ness sector, assist sports organizations and individuals involved in any

kind of sport in finding sponsors. Sponsorship has a very wide range

and may consist of the sponsoring of one-off events such as a tennis

or golf tournament, or can be the long term (e.g. three-year) sponsor-

ship of a league such as a football league. Sponsorship can be of indi-

viduals, such as the Adidas sponsorship of a tennis player, or can be

of a group of individuals forming a team, such as the JVS sponsorship

of the Arsenal Football Team. If a team is sponsored, it may attract

more and better players, thus raising the quality of the team. It means

better organization and high-quality coaching as well. Being spon-

sored gives a team status. That status is conferred by the status of well-

known international brands like Nike, Adidas, Coca Cola, or local

quality brands. The better known the sponsor is, the higher the status

of the team will be.

On the other hand, sponsorship may have disadvantages. The

most important of these in the light of our thesis is that sponsors

may heavily sponsor major sports such as football, basketball, crick-

et, or motor racing, but give little support to minor sports that

attract little or no public attention. This is a growing tendency in

sponsorship, which increases the gap in favour of popular major

sports and this damages the development of sport generally. Another

negative factor of sponsorship is related to personal human rights.

The players have to wear or use the equipment of the sponsoring

company whether they, as individuals, approve of the sponsor or

not. There is often no consultation with the persons who have to

wear the sponsor’s name.

Sponsors also hope to get credit from the public for encouraging

young people to take part in sport and to improve their ability. They

sometimes pay for running and teaching courses which lead to official

recognition. These awards are for adults in clubs, schools or sports

organizations. As sports becomes more marketable and thus attracts

sponsors, this in turn has enabled television and spectators to be

attracted to them. The media should also take the responsibility of

attracting more sponsors to make them support sport in general, i.e.

also investing in minor sports that are less well-known and to attract

young people, women and the disabled. All these factors combined

make all the sports actors and the audience condition themselves on

‘success’ and on ‘winning the game’ unconditionally. With the global-

ization of sport in the direction of the business world, the essential

aim, meaning and ethics of sport for humanity have almost become

lost. Before we analyze the media and the relationship between sport

and media messages, we need to look at some malpractices in sport to

shed some light on the problem.

3. Betting and Money Laundering in Sport

The relationships of sports clubs with the black market is another cru-

cial issue that should be dealt with. A recent example of this is provid-

ed by a modest London team, West Ham, which purchased two

Argentinian players, Terez and Mascherano. The sum involved in the

transfer, which was too high to be paid by such a team (1 million dol-

lars for each), was put forward by MSI (Media Sports Investment).

MSI is located in the Virgin Islands which is known as a tax paradise

and a haven for many types of black market money transfers. Upon

further investigation it was uncovered that MSI was backed by

Russian capital. MSI also controlled the Brazilian team Corinthias.

This relationship was investigated by the Brazilian Intelligence

Department (Agencia Brasileira de Intelligencia) and further findings

uncovered that their relationship was part of a black money launder-

ing scheme with the money in question belonging to a very rich

Russian businessman. This example highlights the need that those

operations of sports clubs that have economic dimensions should be

founded on principles of transparency with balanced access to the

market. Additionally contracts should be clear, legal and open to

inspection.

The increased level of investment in football clubs by undisciplined

or underground sources is a matter of great concern. Worries are fre-

quently voiced about the potential for money laundering, betting,

bribery and match fixing. For illegal gamblers and money launderers,

betting and fixing matches is a good way to make big money. UEFA

and Bet Fair detected irregular betting on last season’s UEFA Cup

Match between Badri’s club, Dinamo Tibilisi, and Panionias. Tibilisi

led 2-0 at half time only for Panionios to win by 5-2. There were fur-

ther rumours of a ‘fix’ predicting that Cyprus Omonia would beat

Dinamo Bucharest in the UEFA Cup. The heavily backed Cypriots

did win the second-leg tie.

A mushrooming epidemic of under-age gambling on the internet is

threatening some nations’ security as some internet bookies are

allegedly terrorist fronts. It is illegal to bet on sports in the USA,

unless you are in Nevada, but in the past five years many Americans

have started using the internet to bet with bookmakers in countries

that permit sports betting. This has turned sports betting into a huge

industry. British bookmakers were recently arrested by US Police

(http://www.newyorker.com/talk/content/articles). To prevent such

situations from continuing to occur, the power (human and financial)

of the supervising bodies, as well as that of the courts and tribunals,

should increasingly be used to deal with cases of international corrup-

tion and money laundering.

Betting in Turkey created a billion dollar informal economy through

an organized group of some 300 distributors and bookies (Turkish

Daily News, 24 February, 2007). These sites headquartered abroad are

fed mainly by south-eastern bookies who reportedly earn $50 billion

monthly. Virtual gambling has reached an alarming rate in Turkey.

Reports say that 400,000 people bet online on overseas websites. This

means that websites are creating a billion-dollar black market.

Terrorist groups headquartered in regions in the south-east are being

fed by this black money. Online betting on horse racing alone

accounts for $400 million annually.

4. Young Players’ Transfers

Another important issue in sports is the international transfer of

young players from developing countries. There is an unregulated

labour market for young (even under-age) players with affiliated and

non-affiliated clubs in developing countries. Clubs are involved in the

business of transferring players under 18 years of age through an

underground market. Although the new FIFA regulations prohibit

the transfer of minors under 18, illicit transfers still take place, because

European clubs continue to deal with unapproved agents, especially

among African and Latin American non-affiliated clubs. This illegal

activity becomes more prevalent with teenage players as these are

crowded out by approved agents from the most profitable market

transferring the most famous professional players (http://www.sport-

sanddev.org).

The lack of tight FIFA supervision (no legal penalty or economic

sanctions since the players’ agents permit is a source of revenue for

FIFA) is detrimental to the whole business. National states should

unite to enforce a uniform world-wide regulation for business. An

international professional association of players’ agents can be estab-

lished to supervise fees and honorariums and contracts between play-

ers and agents, especially if concluded by those who have committed

past misdeeds in the business.

5. Racial and Gender Discrimination

Analyses of reports on sports in the media (Wenner 1998, pp.36-38)

suggest that stereotyped renderings of black athletes attribute their

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achievements to “natural abilities and instincts” while white athletes

are portrayed as hardworking and intelligent. Marginalization and

sexualization of female athletes are primary means by which current

societal patterns of patriarchy in sport are reproduced.

We habitually witness the abuse of black and other minority play-

ers at both professional and grassroots levels of the game. Ethnic

minorities and migrants are mostly excluded from football federa-

tions, clubs and certain fan clubs across Europe. To counter football

racism and discrimination in Europe (FARE), a European Action

week is organized every year in Montecchio, Italy. The idea behind

FARE Action is the desire for greater participation of ethnic minori-

ties and migrants, for the inclusion of women and girls and for fair

play rules. The World Cup against Racism (Mondiali Antirazzi) has

been organizing alternative tournaments against racism. They are

propagating multiculturalism and challenging the “fortress Europe”

scenario which excludes different ethnic, religious and cultural

groups.

Gender discrimination is another huge problem. In terms of media

coverage, women are almost invisible. In other words, women in

sports reporting and broadcasting face discrimination in the predom-

ination of male sports in the media world. In the west, sexual harass-

ment of female sports writers has been reported. A football player can

run a razor up a woman writer’s leg or yell obscenities at them

(http//www.feminist.org/sports). We occasionally observe (on televi-

sion) a football player using humiliating language to the face of a

woman reporter who asks him questions he does not like.

The sexualization of women athletes in the media (where they are

portrayed as sexual objects available for male consumption rather

than as competitive athletes) may discourage young girls from engag-

ing in those sports deemed unfeminine. The media trivialize female

athletes by devoting disproportionally smaller amounts of time to

their performances as well as highlighting their physical attractiveness

or their domestic roles such as wife, mother or supportive girl friend

of a male. Female athletes are evaluated partially in terms of the extent

to which their physical characteristics or domestic roles correspond to

dominant notions of femininity (Wenner p. 38).

6. Hooliganism and Violence

Football hooliganism is defined by most as disorder involving football

fans (G. PEARSON). Usually this involves criminal activity and in

most - but certainly not all - cases occurs either at or just before or

after a football match. Much football-crowd disorder is spontaneous,

but many of it is also prearranged by gangs (or ‘firms’) who attach

themselves to football clubs and arrange to meet, and fight, firms

from other clubs. Incidents of crowd disorder at football matches have

been recorded as early as the 19

century. It is often claimed that

hooliganism at football matches became much more prevalent in the

1970s and 1980s, with more reported wide-scale violence at matches.

However, again it is difficult to say whether the amount of disorder

increased or whether the growing media interest in, and coverage of,

crowd disorder has meant it is reported far more regularly.

Football hooliganism was one of the first issues to attract academ-

ics to the study of football, with sociologists, historians and psychol-

ogists developing hypotheses explaining why football hooliganism

continues to occur. It is unlikely that football will ever be totally free

of crowd disorder. Whenever large groups of people get together,

often under the influence of alcohol, there is the potential for disor-

der, regardless of whether there is a football match taking place or not.

But political, social and cultural sanctions and legislative codes can

solve the problem or at least decrease the amount of disorder and vio-

lence.

The latest and most violent example of hooliganism in Turkey was

seen during the match between Galatasaray and Fenerbahce, the

biggest Derby game of the League, on 20 May 2007. Galatasaray fans

tried to attack the Fenerbahce bus and clashed with the police. After

the brawl between the fans and the police they were allowed into the

stadium. During the game they threw objects, water bottles, parts of

the plastic seats and even stones onto the pitch. Some commentators

wrote that the incidents were organized.

7. Sports Media

In a study covering four sports newspapers, Fanatik, which claims to

be the market leader, disclosed striking results about the presentation

and distribution of sports news (K. Dearn N. 2006) They randomly

selected a date -Monday, 27 May 2006- and analyzed the contents of

Fanatik. More than half of the contents (including the TV pages, the

crossword, the horse-racing results and other sports activities like ten-

nis, archery, yachting and equestrianism) consisted of football news.

This was even the case while other sports enjoyed more success and

the Efes Pilsen Basketball Team took the Stefanel Koraic Cup in

March. Only one of the sports news dailies, Taraftar, led its front page

on the story.

Football is also king among TV channels. The major commercial

channels virtually ignore other sports and only the government’s TRT

3 is active in covering minority sporting interests.

Television, which has grown into an effective and massively popu-

lar instrument of entertainment, attracting wide audiences and gener-

ating many new revenue streams from direct advertisers and advertis-

ing agencies, has used sports programming as a ratings increasing

device. The resulting higher audience totals have dramatically

increased network profit margins. Therefore, this globalization of

sports through the increased coverage of sporting events (particularly

football) and the subsequent increase of the audience as brought

about by the sports industry, which creates new and ever growing rev-

enue streams, are key to the growth of a new and exciting business

culture. Thus, the popularization and prevalence of sports (primarily

football) and the fact that it has simultaneously become an important

industrial sector is not a coincidence.

With the globalization of coverage and the subsequent industrial-

ization of football matches by the media, they have become a very

important source of revenue, attracting known brands such as Adidas,

Canon, Gillette, Snickers, Coca-Cola, McDonalds and Ford that

invest millions of dollars of sponsorship money in well-known, lead-

ing sports teams. The rivalry among these brands helped stimulate the

growth of the sports industry and the resultant ratings which yield

massive advertisement revenue through the coverage of sporting

events. In the Finals of the 2006 World Cup, for instance, it was not

only France and Italy that competed with each other but also two rival

shoe brands, Puma (Italy) and Adidas (France) (Hurriyet 9 July 2006,

p. 15). Sporting events of this magnitude attract huge and widely var-

ied audiences to stadiums and television screens, which only increas-

es the appetite of all commercial advertisers.

Because of competition among TV networks to attain the highest

ratings, sports programmes and sports content in news programmes

have been transformed into entertainment. Instead of serious sports

programming and sports documentaries, magazine-style sports pro-

grammes fill the airwaves (Yasin 1996, p. 283). The media’s regular

coverage includes season and big game previews, pre-game analysis

and interviews, post-game analysis and interviews and profiles of well-

known players, coaches and others who influence the world of sports.

They all target a male audience aged 8 and up (more specifically

between 18 and 49). In developing and underdeveloped countries the

situation is much worse. The media multiply this reality by promot-

ing only men in sports. Of course, media critics tend to ignore this.

They also ignore the multi-billion-dollar media domain, because it is

seen as an entertainment and profit arena and not the business of

investigative journalism. Media channels offer their perspectives for

this global industry, but it is not, in reality, investigative. In short, the

media ignore the fact that sports reporting is not only big business, it

is also a potent cultural force full of ethical issues. Research shows that

girls in the west have approximately one-half the sports opportunities

of boys (http://www.womensportsfoundation.org).

During national games, citizens of a country representing many

different cultures see themselves as members of a large unified com-

munity under the same identity. National sports has the power to

impose this collective identity upon the citizens of the country. Only

sports can create such a force and nationalistic feeling. Media repre-

sentations of sport, particularly international sport and the Olympic

Games, focus substantially on national unity and identity, champi-

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ARTICLES

oning the dominant values and ideals of the nations in which they

originated (Wenner 1998, p. 36). Yet, on the other hand, the common

metaphor used in football matches is that of war. The language used

to describe the matches between countries display elements of nation-

alism or even jingoism. They see the players as warriors going to bat-

tle. Years ago George Orwell already described sports as “an unfailing

cause of ill will” (http://elt.britcoun.org).

Media language can be used to inflame national tensions and thus

create a flammable mixture of sports and politics. The broadcasting of

national sports events is one of the most influential nationalistic ritu-

als within which the media operate. Some intellectuals criticize the

popularization of football in this way, because it increases rough

nationalistic sentiments on the part of the public by intensifying and

popularizing rough male violence and because it promotes sports as a

hobby and entertainment for men only. The language used by the

media and in the stadium by fans reflects male sexuality, masculine

violence and wild nationalistic terminology.

Football has been a very lucrative industry, especially where it

relates to television. In 1998, the international media earned 35 billion

dollars through advertising during the World Cup alone.

Organizations such as the League of Champions, the European

Championship, and the World Cup has over the years helped football

to develop more and more as an industrial sector. Reports say that

sporting events like these also cause an increase in the sale of televi-

sion sets (Talimciler 2001, p. 280).

8. Sport Images, Ideology and Althusser

Althusser mentions two major mechanisms for ensuring that people

within a state behave according to the rules of that state. The first is

what Althusser calls the RSA, or Repressive State Apparatuses, that

can enforce behaviour directly, such as the police, and the criminal

justice and prison system. Through these ‘apparatuses’, the state has

the power to force you physically to behave. More important for lit-

erature studies, however, is the second mechanism which Althusser

investigates, which he calls ISAs, or Ideological State Apparatuses.

These are institutions which generate ideologies which we as individ-

uals (and groups) then internalize, and act in accordance with. These

ISAs include schools, religions, the family, legal systems, politics, arts,

sports and the media. These organizations generate systems of ideas

and values, which we as individuals believe (or don’t believe); this is

what Althusser examines. How do we come to internalize, to believe,

the ideologies that these ISAs create, (and thus misrecognize or mis-

represent ourselves as unalienated subjects in capitalism)?

Broadcasting sports news and matches are associated with some ideo-

logical terminology which we reinternalize over and over again as the

messages are repeated.

Althusser claims that ideology is a structure (http://www.tamilna-

tion.org/ideology) that affects social life continuously at every level and

in different forms (Althusser 2003, Kazanci 2002). He derives this idea

of ideology as a structure from the Marxist idea that ideology is part of

the superstructure, but he links the structure of ideology to the idea of

the unconscious deriving from Freud and Lacan. Because ideology is a

structure, its contents will vary, i.e. you can fill it up with anything, but

its form, like the structure of the unconscious, is always the same. And

ideology works ‘unconsciously’. Like language, ideology is a

structure/system which we inhabit, which speaks us, but which gives

us the illusion that we are in charge, that we freely chose to believe the

things we believe, and that we can find many reasons why we believe

those things. Hence the final part of Althusser’s argument: How is it

that individual subjects are constituted in ideological structures? Or, in

other words, how does ideology create a notion of self or subject?

All ideology has the function of constituting concrete individuals

as subjects - of enlisting them in any belief system. According to

Althusser:

“We are born into subject-hood, if only because we are named

before we are born; hence we are always already subjects in ideology,

in specific ideologies, which we inhabit, and which we recognize only

as truth or obviousness. Everybody else’s beliefs are recognizable as

ideological, i.e. imaginary/illusory, whereas ours are simply true.

Think, for example, about different religious beliefs. Everybody who

believes in their religion thinks their religion is true, and everyone

else’s is just illusion, or ideology.”

How does ideology (as structure) get us to become subjects, and

hence not to recognize our subject positions within any particular ide-

ological formation? How do we come to believe that our beliefs are

simply true, not relative? Althusser answers this question with the

notion of interpellation. Ideology interpellates individuals as subjects.

The word ‘interpellation’ comes from the same root as the word

‘appellation’, which means a name; it has nothing to do with the

mathematical idea of ‘interpolation’. Interpellation is a hailing,

according to Althusser. The interpellated subject in the ideology of

the sport commercial would thus see bodybuilding, for example, as an

ideal way of development, would behave as if body building or rigor-

ous exercise was a necessity, something of central importance. The

subject here would be some notion of physical perfection, or body

cult, the rules that the subject is subjected to.

A particular ideology says, in effect, “hey you!” and we respond

“me?”, “you mean me?” And the ideology says, yes, “I mean you”. We

can see examples of this every day in commercials, in sports broad-

casting and sports commercials. You are a nationalist; you are a male

who has to win all the matches; you can swear and yell because you

have the right to do so, because you are a man; the disabled and

women do not attract your attention in a world of male sport; because

the capitalist ideology does not interpellate you as a responsible sub-

ject for them; you are a fan and admirer of well-known sportsmen;

you drink the Pepsi or Coca Cola that the famous athletes drink; you

wear the Adidas or Nike that they wear; you imitate their way of life,

love, deals, hair styles, etc. All the sports events call you as subjects

and say: “You belong in this world”, “HEY YOU!”, “I want you”,

“Remember, I am giving you the things that you want”. Althusser was

enchanted by Freud, and even more enchanted by Lacan; the ideas of

the imaginary, the mirror, the specular, and the subject/Subject have

all been derived from or are parallel to Lacanian notions.

9. Sport Images, Identity and Lacan’s ‘Mirror Stage’

We can describe the relationship of football heroes with the individ-

ual audience within the framework of Lacan’s “Mirror Stage” idea.

Lacan (1986) proposes that human infants pass through a stage in

which an external image of the body (reflected in a mirror, or repre-

sented to the infant through the mother or a caregiver) produces a

psychic response that gives rise to the mental representation of an “I”.

The infants identify with the image, which serves as a gestalt (“pat-

tern” or “figure”) of the infants’ emerging perceptions of selfhood, but

because the image of a unified body does not correspond with the

underdeveloped infant’s physical vulnerability and weakness, this

imago is established as an “ideal I” toward which the subject will per-

petually strive throughout his or her life (http://www.english.hawaii.

edu/criticallink/lacan).

For Lacan, the mirror stage establishes the ego as fundamentally

dependent upon external objects or another. As the so-called “individ-

ual” matures and enters into social relations through language, this

“other” will be elaborated within social and linguistic frameworks that

will give each subject’s personality (and his or her neuroses and other

psychic disturbances) its particular characteristics. Lacan’s ideas about

the formation of the “I” developed over time in conjunction with his

other elaborations of Freudian theory. When we ponder on Lacanian

“mirror stage” theory from the psychological situation of football fans

especially, the ideal “I” in the mirror through which he is striving to

catch the image throughout his life, is the team as a whole (of which

he is a part). When the team or the heroes that he identifies with are

down, he is also down. He internalizes everything related to them.

Lacanian theory, and specifically the model of the mirror stage, made

an ebormous contribution to leftist intellectual circles in Britain at the

time when cultural studies was emerging as a field. In this article the

effect of sports on individual audiences (specifically on football fans)

is evaluated through the theory of Lacan so as to point out how

important the effect of sports images is, and the language and the ide-

ology they impose on personal development.

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Violence in sport and especially football is another issue which is not

compatible with the ethics of sportsmanship. Most verbal abuse is

directed toward officials, referees and players and involves yelling,

profanity, taunts and insults. Physical abuse involves kicking, throw-

ing an object and spitting. These actions repeated in front of millions

of spectators confirm a role by demonstrating values, ways of think-

ing and acting. Sportsmanship expresses an aspiration or ethos that

could be enjoyed for its own sake, with proper consideration for fair-

ness, ethics, respect and a sense of fellowship with one’s competitors.

The on-field and off-field behaviour of some of our high-profile foot-

ballers continues to attract newspaper headlines. We admire their

actions so much on the field and off the field because of the sympa-

thy which we have for them When they get married or have a baby

this sympathy and interest is converted into commercial revenue.

They sell the story to a magazine or a TV show. A sportsman can be

regarded as a role model for young people which influences their aspi-

rations for their future.

10. Conclusion

The vast sums of money involved in international soccer have likely

led to some of the sport’s ethical problems. FIFA’s finances dramati-

cally improved through the financial success of the 2006 World Cup

in Germany which was watched by a cumulative audience estimated

at 26.3 billion. The World Cup in Germany produced a $207 million

profit of which FIFA received $60 million. This amount of money

flowing to the organizations, from the biggest to the smallest, cau-

tions us that money will induce some to act strangely. There is no

excuse for wealthy clubs locking up talent by handing out contracts

to more than 30 players when only 11 players take to the field.

If players are at each other’s throats and not educated; if the coach-

es do not impose a minimum ethical discipline on their players’; if we

do not offer help to the referees, who are supposed to be the guardians

of ethics of fair play; if the coach who humiliates or beats his/her play-

er in public and goes on doing the same thing without heeding the

least warning or punishment from the authorities, then there is a

problem in the world-wide sports arena. We really need a revolution

in sport, both at local and international level. Sport should advance

the joy and quality of life, be a vehicle of peace all over the world, but

instead modern sport is directed to unconditional “success” at the

expense of ethical, cultural and humanistic aims. It is in danger of

turning competitions into the kind of fierce fights as engaged in by

the gladiators in ancient Rome. Ukranian coach Mikhaylo who was

caught on camera when pushing and shoving his 18-year old daugh-

ter Kateryna who had lost in the swimming finals is the latest blatant

example of this motivation by unconditioned success at all levels.

UEFA and FIFA have recently taken action and have promoted

new regulations in order to prevent and sanction such discriminatory

behaviour. But this is not enough. In order to eradicate discrimina-

tion and malpractices in sports activities, more disciplinary controls

and sanctions and, most importantly, a radically new, open and wel-

coming culture are needed, as are long-term projects aiming at mutu-

al support and cultural exchanges. These should be implemented at

governmental, international and media levels.

The media has a powerful influence on the socialization of girls and

young women in sports. For this reason it is imperative that we

observe and challenge those media representations that perpetuate the

notion that only white, young, physically attractive non-disabled men

and rarely women can, and do engage in sports. Constantly promot-

ing this ideal image greatly restricts the availability of role models and

a representation that depicts a wider range of creating and sustaining

change. The media should not only increase the amount of coverage

of women’s sports, but also extend it to women with disabilities as

well as older women.

What should the aim of sports programmes be, besides entertain-

ment? The view that there is some sort of internal connection

between the practice of sports, games or other physical activities and

the development of qualities such as moral character or understand-

ing is an ancient and persistent one. It reaches back at least as far as

the philosophical writings of Plato (Car 1998, p. 119). Television chan-

nels can broadcast or illustrate sports for children, girls, women, eld-

erly people and the disabled. Sports programmes can be a develop-

mental aid and a public asset that enhances the physical and psycho-

logical well-being of people of different genders and ages.

An alternative would be to entertain the masses through education-

al messages rather than to corrupt the language; to improve the use of

correct terminology in both sports literature and native language itself

(S. RUHI 1999). Instead, what the masses are getting and thus what

society is getting is the creation of fanatics, encouraging violence and

corrupting the language by the use of profanity. In sports confronta-

tions, the use of vulgar and obscene language, physical violence and

even rioting by fanatic followers and sometimes even the players are

common sights. Neither laws nor the directives and warnings of the

sports federations and clubs have been able to stop this. Besides orga-

nizational principles and law, the media should also assume the

responsibility of playing an effective role against these malpractices in

sport.

Regarding the main issues of popular sports and the sports media,

the following topics are likely to be topics of investigation and solu-

tion.

- The media coverage of sports

- The trafficking of young players

-Money laundering, betting and match fixing

-Protecting the integrity of sports on an international level

-Governance in sports organizations of all levels

- Challenging ethnic racism and gender discrimination

-A developmental sports policy on national and international levels

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1. Introduction

In 2005, the National Football League (NFL) announced the largest

sport broadcast agreement in television history. The deal, which

involves all four of the major television networks in the United States,

plus ESPN, a national cable sport network, increased the NFL’s total

broadcast revenue by more than 50 percent, going from $2.45 billion

per season to $3.74 billion per season.

The NFL, however, is not the

only professional sports league generating large sums of money for

their broadcasting rights.

In 2006, Major League Baseball (MLB) signed a $3 billion deal

with two television networks: TBS and Fox, which will run until the

year 2013. Under the agreement, TBS will broadcast 26 regular season

Sunday games and some postseason playoff games. Fox received the

right to televise the World Series, MLB’s All-Star game, a Saturday

afternoon game of the week and one League Championship Series. In

addition, MLB in 2005, entered into an agreement with ESPN worth

about $2.4 billion over eight years for the rights to broadcast games

on Sunday, Monday and Wednesday nights. ESPN also agreed to pay

MLB an average of $11 million a year for radio broadcast rights and $

30 million a year to televise games on new media such as cell phones

and wireless devices.

In 2002, the National Basketball League (NBA) sold its’ broadcast-

ing rights to three networks for $4.6 billion over six years.

The agree-

ment, which averages $765 million a year, will allow ABC to show 15

Sunday afternoon games, as many as five playoff games and the entire

NBA Finals in prime time. ESPN acquired the rights to broadcast

games on Wednesday nights and a doubleheader on Fridays. ESPN

also received the right to televise 22 games in the first round of the

playoffs, as well as one of the conference finals. The third network,

Turner Sports, acquired the right to show 52 regular season games,

most of them as part of a Thursday night doubleheaders on its’ TNT

channel. Turner Sports also received the right to show 45 playoff

games, the conference final not on ESPN and the all-star game.

Even though television rating for the 2007 NBA Finals were the

lowest ever, the league in June 2007 was close to signing a long term

deal that would increase the revenue it annually received from televi-

sion. In addition to broadcasting rights, however, the new deal would

require the NBA to guarantee its’ broadcast partners international and

digital rights that will allow them to show game highlights via broad-

band, mobile and video on demand sources.

Even the National Hockey League (NHL) and Major League

Soccer (MLS) have been able to cash in by selling their television

rights. For example, in 2005, the NHL sold the cable television rights

to its games to Outdoor Life Network (OLN). OLN, a cable sports

channel owned by Comcast, the biggest cable provider in the United

States with 24 million subscribers, changed its’ name in September 25,

2006 to Versus.

Versus, which agreed to carry games on Monday and

Tuesday nights, will pay the NHL over $69 million per season for

three years. The NHL also has agreement with NBC, for seven regu-

lar season games and six Stanley Cup playoff games on Saturdays,

whereby the league and the network will share all revenue, after NBC

takes out the costs of production.

In 2007, MLS sold its’ broadcasting package for an estimated $20

million per year.

Under the deal, ESPN will pay $8 million to broad-

cast 25 regular season games, the All-Star Game in July and three play-

off matches. In addition to ESPN, MLS also has contracts with Fox

Soccer Channel and Fox Sports en Espanol for 28 Saturday broad-

casts, with Spanish-language network Univision for 25 Sunday games

and with HDNet. As a result of the contracts, 110 of the 195 regular

season matches will now be on television. ABC, one of the four major

networks in the United Sates and along with ESPN part of the Disney

Corporation, will broadcast MLS Cup.

As a result of all of the billions of dollars being generated by sports

broadcasting rights, the economics of professional sport has changed.

Whereas it use to be, a team survived or failed simply on the number

of tickets it could sell, today the wellbeing of the entire sports indus-

try has become inextricably intertwined with television.

To under-

stand the relationship between sports and television in the United

States, the rest of this chapter will attempt to examine the past, cur-

rent and future state of sport broadcasting rights. The chapter will

begin with a review of the development of sports broadcasting in the

United States. In particular, the chapter examines how early case law

had helped establish current ownership rights of the sport broadcasts.

Next the chapter will examine how teams and sports leagues sell their

broadcasting rights. This section will devote particular attention to

the impact of Federal Antitrust Law and the Sports Broadcasting Act

of 1961 on sport broadcasting rights. The chapter concludes by exam-

ining the potential future impact issues, such as regional sports net-

works, pay per view, the Internet and satellite radio and television

could have on sport broadcasting.

2. The Development of Sport Broadcasting Rights

Sports teams and leagues have been selling the rights to broadcast

their games on radio and television almost since the beginning of

sports. For example, in 1939, the Mutual Broadcasting System paid

Talimciler, A. 2001- in Medya Politikaları, “Football Maçlarının

Yayını ve Klüpler-Federasyon-Medya Iliskileri: Futbol Televizyon

Evliliginde Yeni Dönem”,ed. D.BEYBIN K., Ankara, pp.249-317.

Tekinalp, S. 2003- Camera Obscuradan Synopticona Radyo ve

Televizyon, Istanbul, Derin.

Tu r kish Daily News(2007). “ Turkish Bettings” February 24.

Wenner, L. 1998- Media Sport, Routledge.

http://www.english.hawaii.edu/criticallink/lacanwww.liv.ac.uk/foot-

ballindustry/hooligan.html

http://www.newyorker.com/talk/content/articles

http://www.sportsanddev.org.

http//www.feminist.org/sports.

www.liv.ac.uk/footballindustry/hooligan.html

http://www.womenssportsfoundation.org/cqi-bin/iowa/index.html

http://elt.britcoun.org.

http://www.tamilnation.org/ideology

* Associate Professor and Chair of the

Sport Management & Media

Department at Ithaca College, Ithaca,

New York, United States of America.

1 Bill Griffith, NBC is back in NFL,

Boston Globe, April 19, 2005, at F1.

2 Richard Sandomir, ESPN Increases

Budget in a Deal With Baseball, New

York Times, September 15, 2005, at D5.

3 Ken Denlinger, NBA Deal is $4.6

Billion; Pact With ABC/ESPN, Turner

Shifts Games Mostly to Cable, Washing-

ton Post, January 23, 2002, at D9.

4 Id.

5 John Ourand & John Lombardo, NBA

near deal with TV partners, Street &

Smith Sports Business Journal, June 4 -

10, 2007, at 1.

6 Larry Stewart, OLN Switches to `Versus’;

The sports network, which picked up the

NHL last year, changes to its new name

today to convey that its reach goes beyond

outdoors, Los Angeles Times, September

25, 2006 at D7.

7 Richard Sandomir, ESPN Passes on

N.H.L. Television Rights, Ending 21-Year

Relationship With League, New York

Times, August 18, 2005, at D2.

8 Steven Goff, MLS Tries to Make Waves

on Air; TV Deal Tabs Weeknight Games

as Key to League’s Wider Appeal,

Washington Post, May 3, 2007 at E1.

9 Id.

10 Robert Alan Garrett & Philip R.

Hochberg, Sports Broadcasting and the

Law, 59 INDIANA LAW JOURNAL 155

- 194 (1983).

❖

Sports Broadcasting Rights in the United States

John T. Wolohan*

2007/3-4

ARTICLES

the NFL $2,500 for the right to broadcast on network radio that year’s

NFL championship game.

The game was broadcast to 120 stations

nationwide. The NFL was also the first league to televise its champi-

onship game coast-to-coast, when it sold the rights to the game to the

DuMont Network for $75,000 in 1951.

To better understand the relationship between sports and television,

however, it is essential to go back to the time before television. In 1921,

MLB began selling the rights to the baseball World Series to various

radio stations. However, in 1934, WOCL, a radio station in

Jamestown, New York, conceived of a way to broadcast that year’s

World Series without paying MLB for the right to do so. While listen-

ing to the authorized radio broadcast of another radio station, WOCL

provided its audience with a running account of the games based upon

the information it received from the other radio broadcast.

When WOCL applied to renew its broadcasting license before the

Federal Communications Commission (FCC), MLB filed a com-

plaint challenging the license renewal. In particular, MLB alleged that

WOCL’s actions violated section 325(a) of the Communications Act

of 1934, which states that: ... “nor shall any broadcasting station

rebroadcast the program or any part thereof of another broadcasting

station without the express authority of the originating station.”

While the FCC found that WOCL’s conduct was “inconsistent

with fair dealing, and amounts to an unfair utilization of the results

of another’s labor,” and was “deceptive to the public,” it found that

such conduct did not violate Section 325 of the Communications

Act.

The Communications Act, the FCC held, defines rebroadcast

as “actually reproducing the signal of another station mechanically or

by some other means.”

Therefore, since the FCC concluded that

WOCL did not technical rebroadcast the 1934 World Series, it

renewed WOCL’s license.

Having lost the right to control the dissemination of play by play

accounts of their games by the FCC, MLB and its teams shifted their

attack into the state and federal courts. In Pittsburgh Athletic Co. v.

KQV Broadcasting Co.,18 the Pittsburgh Athletic Company, owner of

the MLB Pittsburgh Pirates sued KQV, a Pittsburgh radio station, to

stop the station from broadcasting play-by-play descriptions of the

Pirates’ home games without the consent.

The Pittsburgh Pirates, who had already entered into contracts

with two local radio stations, giving the stations the exclusive right to

broadcast all of the Pirates home and away games, sought to prevent

KQV from broadcasting play-by-play descriptions. KQV, which

secured the game information by paying observers whom it stationed

at various vantage points outside the Pirates’ Field, claimed that the

broadcasts were legal because it was simply broadcasting news.

addition, the station argued that because it received no compensation

for its broadcasts from sponsors, the broadcasts did not represent

unfair competition to the Pirates and their radio broadcast partners.

In ruling against KQV, the court found that the Pirates “by reason

of its creation of the game, its control of the park, and its restriction

of the dissemination of news therefrom, has a property right in such

news, and the right to control the use thereof for a reasonable time

following the games.”

As a result, when KQV broadcast the games

without the teams consent, the court held that KQV had interfered

with, and misappropriated the Pirates property rights. Such misap-

propriation, the court ruled unjustly enriched KQV to the detriment

of the Pirates and their radio broadcast partners.

The decision by the court Pittsburgh Athletic Co. v. KQV Broad-

casting Co., for the first time clearly establishes that sports teams and

their leagues

have an exclusive property rights to the play-by-play

broadcasts of their games. In addition to a property right, in 1976,

teams and leagues acquired copyright protection. Under the

once a live sports broadcast is “fixed in any

tangible medium of expression,”

such as video or audio tape, it qual-

ifies for copyright protection

and the owners of the broadcast

receives the exclusive right to “reproduce,” “prepare derivate works,”

“distribute” and to “perform the copyrighted work publicly.”

3. Ownership of the Broadcasting Rights

When the United States Congress passed the Copyright Act of 1976,

there were only three national television networks in the United

States. Since then, however, the number of television networks has

grown tremendously. As a result of all the additional channels, of

which some are 24 hour sports channels, the networks have turned

more and more to sports to fill their programming needs. For exam-

ple in the 1980s, television and cable networks went from an average

of approximately 4,600 hours of sports programming to 7,500 hours.

In the 1990s, television and cable networks broadcast over 14,000

hours of sports programs.

As the number of hours dedicated to

sports programming has increased, television and cable networks have

continued pay higher and higher rights fees to broadcast sporting

events, especially the most popular sports like football. With so much

money involved in sports broadcasting rights, it is not surprising that

there should be legal challenges over who owned the rights to such

broadcasts, the teams, players or broadcaster.

3.1. Te am v. Players

In Baltimore Orioles v. Major League Baseball Players Association,29 the

Seventh Circuit Court of Appeals was asked to determine who owned

the players televised performances the teams or the players. The

Major League Baseball Players Association (MLBPA), after decades of

negotiations concerning the allocation of television revenue, in 1982

sent letters to the each team and MLB’s television and cable partners

claiming that the players owned the property right in the televised

performances of their games and that any use of those performances

and images without the players’ permission was an illegal misappro-

priation of the players’ rights.

In response to the Players’ letter, the teams sought a declaratory

judgment from the court showing that the teams owned the exclusive

rights to the broadcast revenues. In addition, the teams argued that as

the employers of the players, they possessed all broadcast rights in the

games. In support of this position, the teams argued that the games

constituted copyrighted “works made for hire”

under the Copyright

Act. As owners of the copyrighted work, the teams argued they had

the exclusive right to “distribute” and “perform the copyrighted work

publicly”

and that the players had no rights to the broadcast.

After determining that the broadcasts were protected under the

examine whether the players performances were works for hire with-

in the meaning of Copyright Act. Under the Copyright Act, the

Seventh Circuit Court ruled that a work made for hire “is defined in

pertinent part as a work prepared by an employee within the scope of

his or her employment.”

Using this definition, the Seventh Circuit

Court ruled that since the players were clearly the employees of their

respective clubs, and that their employment encompassed performing

in front of both live and televised audiences, the teams own the entire

copyrighted broadcast of the game.

11 http://www.nfl.com/history/

chronology/1931-1940

12 http://www.nfl.com/history/

chronology/1951-1960

13 In re A.E. Newton, 2 F.C.C. 281, 283 (1936).

14 47 U.S.C. § 325(a) (2006).

15 In re A.E. Newton, 2 F.C.C. 281 (1936).

16 Id.at 284.

17 Id. at 285.

18 Pittsburgh Athletic Co. v. KQV

Broadcasting Co., 24 F. S upp. 490 (W.D.

Pa. 1938).

19 Id. at 492.

20 Id. at 493.

21 Id. at 492.

22 Id. at 494.

23 Madison Square Garden Corp. v.

Universal Pictures Co., 255 A.D. 459, 7

N.Y.S.2d 845 (N.Y. App. Div. 1938)

(hockey); Tw entieth Century Sporting

Club, Inc. v. Transradio Press Serv., Inc.,

165 Misc. 71, 300 N.Y.S. 159 (1937) (box-

ing); Southwestern Broadcasting Co. v.

Oil Center Broadcasting Co., 210 S.W.2d

230 (Tex. Civ. App. 1947) (high school

football); Johnson-Kennedy Radio Corp. v.

Chicago Bears Football Club, Inc., 97 F. 2d

223 (7th Cir. 1938) (professional football).

24 17 U.S.C. §§ 101 - 1332 (2006).

25 17 U.S.C. §102 (2006).

26 17 U.S.C. §101 (2006).

27 17 U.S.C. §106 (2006).

28 Symposium, The Future of Sports

Television, 14 Fordham Intellectual

Property, Media & Entertainment Law

Journal 641 (2004).

29 Baltimore Orioles v. Major League

Baseball Players Association, 805 F. 2d 663

(7th Cir. 1986).

30 Id. at 665.

31 17 U.S.C. § 201(b) (2006).

32 17 U.S.C. §106 (2006).

33 Baltimore Orioles v. Major League

Baseball Players Association, 805 F. 2d 663,

667 (7th Cir. 1986).

34 Id. at 670.

2007/3-4

ARTICLES

The Seventh Circuit Court concluded by noting that “in this litiga-

tion the Players ... seek a judicial declaration that they possess a right

- the right to control the telecasts of major league baseball games -

that they could not procure in bargaining with the Clubs.”

If the

players want to receive a direct share of the broadcast revenues, the

Seventh Circuit Court ruled that the Players’ Association must use the

negotiating table to attain their goal. As of 2007, none of the profes-

sional sports unions have negotiated for a direct share in broadcast

revenues.

3.2. Teams v. Broadcasters

Another group seeking to share in the revenue generated by sports

broadcast were the television networks themselves. Under Section 111

of the Copyright Act of 1976, cable operators are required to pay roy-

alties to the creators of copyrighted program material that is used by

the cable systems.

In order to facilitate this requirement, the Act

requires that cable operators obtain a copyright license and periodi-

cally pay royalty fees into a central fund.

To distribute the royalty

fees to the creators of the copyrighted works, the Act created an inde-

pendent Copyright Royalty Tribunal.

In making its’ initial royalty distribution in August 1979, the

ble for 12% of the $ 15 million Fund. In an effort to recoup the some

of the rights fees, the television networks argued in National

Association of Broadcasters v. Copyright Royalty Tribunal that they have

a copyrightable interest in the sports telecasts they produce and that

therefore they should share in the distribution of cable royalties.

While agreeing with the broadcasters that they had a copyrightable

interest in producing sports broadcast, the court upheld the

ties to the broadcasters. In citing the Tribunal, the court held that

work of television stations in broadcasting sports events has minimal

market value because “the public tunes in sports broadcasts mainly to

see the sports performance, not the activities of the director and the

cameramen.”

As a result, the court ruled that “the Tribunal’s award

of 3.5 % to commercial television broadcaster clearly falls within the

‘zone of reasonableness’ in terms of compensating broadcasters for

their activities.”

3.3. Teams v. Teams

Since you can not have a game without two teams, the question of

who owns the right to distribute audio and video broadcast of any

game can be an important one. For example, could station A after

acquiring the rights to broadcast all of the New York Yankees home

and away game, contract with a Boston station to broadcast the

Boston Red Sox away games against the Yankees into the Boston mar-

ket? If so, clearly this would impact the value of the Red Sox local

contact, since it could not offer an exclusive contact.

Fortunately, due to the amount of money involved in local radio

and television contracts, this question has been resolved by the leagues

and their own internal league wide policies which give each team cer-

tain territorial rights. However, as we will also see, as technological

advances continue to develop, it is getting harder and harder for teams

to keep other teams from infringing into their local media markets.

4. How are Broadcasting Rights Sold?

In examining how sports broadcasting rights are sold, there are a

number of important factors to keep in mind. First, since profession-

al sport in America developed before television, most of the rules reg-

ulating television broadcasts are the same rules the leagues developed

for radio. Second, due to the size of the United States, every profes-

sional sports team has two television markets: local and national.

While both television markets are an important revenue source, for

many professional sports teams, the local television market is the most

important market. This is true, even though the national broadcast-

ing rights generate more money, because the national money has to be

shared with all the other teams and the league office. Therefore,

except for the NFL, whose teams do not sell their local right because

all league games are televised as part of their national package, sports

teams are allowed to sell and control the television rights within their

own local market.

Another important factor affecting sports broadcasting rights is

that even as teams and leagues seek ways to maximize revenue from

television and other media outlets, team owners are at the same time

trying to protect their home attendance and ticket sales. For example,

in 1950, before the league agreed to pool their television rights, the

Los Angeles Rams of the NFL entered into an agreement to televise

all of their games, both home and away, into the Los Angeles mar-

ket.

The Rams, however, reversed their television policy in 1951 after

they suspected that people were staying home and watching Rams

games on television instead of attending the games. Under the new

policy, the Rams would only televise their road games.

Today, even with all the influx of television and radio money, pro-

fessional sports clubs still make a large percentage of their revenue

from ticket sales. As a result, team owners need to perform a delicate

balance between maximizing revenue from television and protecting

their home ticket sales.

To help solve this problem, the leagues and team owners have

developed league wide rules governing when certain games could be

broadcast into a team’s home territory and which teams controlled the

broadcasting rights within certain markets. For example, as individual

teams began to sell the broadcasting rights to their games, the NFL

developed a by-law that prohibited any clubs from broadcasting their

games into another team’s home territory (75 miles radius of a Club),

on the day that such other club was playing a game and broadcasting

it into its’ own home market.

In developing the rule, the NFL

claimed that the by-law, by preventing potential spectators from stay-

ing home to watch other games on television, actually protected

weaker teams by adding to their home game attendance.

Unfortunately for the NFL, however, the rule was challenged by

the United States Justice Department in United States v. National

Football League.

In particular, the Justice Department argued that

the rule violated Federal Antitrust laws

by restricting the rights of

the other NFL teams to sell their games within another team’s local

market. In support of this argument, the Justice Department pointed

to the fact that since most NFL games are played on Sundays, and

since the teams, when they are not playing at home, almost always

either broadcast or televise their away games back into their home ter-

ritories, the restrictions effectively prevented live broadcasts of practi-

cally all outside games in all the home territories.

In upholding the legality of the NFL’s by-law, the court held that

while it is essential that teams compete as hard as they can against

each other on the playing field, it was not necessary and indeed

unwise for teams to compete as hard as they could against each other

in a business way. If all the teams competed as hard as they could in

a business way, the stronger teams would likely drive the weaker ones

into financial failure.

Which in turn, would not only cause the

weaker teams to fail, but eventually the entire whole league, both the

weaker and the stronger teams, would fail.

Therefore, under these

circumstances it was reasonable that the league would establish rules

to help the weaker clubs in their competition with the stronger ones

and to keep the League in fairly even balance. In addition, the court

noted that since the greatest part of the NFL’s income was derived

from ticket sale, reasonable protection of home game attendance was

essential to the very existence of the individual clubs, and the

League.

As for the NFL’s restriction on televising other teams’ games into

35 Id. at 679.

36 17 U.S.C. § 111 (2006)

37 17 U.S.C. § 111(c) (d) (2006).

38 17 U.S.C. §§ 801 - 810 (2006).

39 National Association of Broadcasters v.

(1982).

40 Id. at 379.

41 Id.

http://www.nfl.com/history/chronology/

1941-1950

43 www.nfl.com/history/chronology/

1951-1960

44 United States v. National Football

League, 116 F. S upp. 319 (1953).

45 Id. at 325.

46 Id.

47 15 U.S.C. § 1 et seq.

48 United States v. National Football

League, 116 F. S upp. 322 (1953).

49 Id. at 323.

50 Id.

51 Id. at 325.

2007/3-4

ARTICLES

another teams home territories when the home teams was playing an

away game and telecasting it back into their home territories, the

court held that since there was no home gate attendance to protect,

any prohibition of outside telecasts were unreasonable and an illegal

restraint of trade.

While the court’s decision allowed the NFL’s teams to continue to

individually negotiate and sell their television rights with local broad-

casting networks, the league was forced to return to Federal Court a

few years later to try and overturn their own victory. In 1960, when

the American Football League (AFL) was created, the individual

teams of the AFL pooled their television rights together and sold the

rights to all of their games to a single national television network

(ABC) for $1.6 million. The AFL than distributed the money evenly

among all its teams. As a result, the AFL was able to compete for play-

ers against the more established NFL and in most cases outbid the

NFL teams for the best players.

With the NFL losing all of the best young players to the new AFL,

the NFL in 1961 pooled all of their television rights together and

entered into a contract with CBS granting the network the exclusive

right to televise all league games for a two year period. In exchange for

the right to televise all NFL games, CBS agreed to pay the league

$4,650,000 annually.

Before the NFL could implement the new

contract, however, it first sought a declaration from the courts that the

new contract with CBS did not violate the court’s 1953 decision.

The court, in ruling that the NFL’s contract with CBS violated its’

1953 decision, noted that the new contract marked a basic change in

how NFL teams sold their television rights. Up until this contract,

each team individually negotiated and sold the television rights to its

games. Under this contact, however, the teams have agreed among

themselves and with the League, that each club will pool its television

rights with those of all of the other clubs, and that only the resulting

package of pooled television rights will be sold to a purchaser.

As a

result, the court found that the teams and the league have eliminated

competition among themselves in the sale of television rights to their

games.

Unable to enter into the new television contract with CBS by the

court, the NFL immediately petitioned Congress for special legisla-

tion allowing it to pool its members’ television rights. In support of

their petition, the NFL argued that if it were not allowed to pool the

league’s television right and share all television revenues among the

teams, the smaller market teams would be at a competitive disadvan-

tage with larger market teams like New York and Los Angles. Should

these weaker teams be allowed to flounder, the league argued, there

would be a real danger the league would become impaired and its

continued operation imperiled.

As a result of the NFL’s request,

Congress passed the Sports Broadcast Act of 1961.

5. Sport Broadcasting Act

The Sports Broadcast Act of 1961 states that:

The antitrust laws ... shall not apply to any joint agreement by or

among persons engaging in or conducting the organized professional

team sports of football, baseball, basketball, or hockey, by which any

league of clubs participating in professional football, baseball, basket-

ball, or hockey contests sells or otherwise transfers all or any part of

the rights of such league’s member clubs in the sponsored telecasting

of the games of football, baseball, basketball, or hockey, as the case

may be, engaged in or conducted by such clubs.

By granting professional sports leagues a limited exemption from

antitrust laws to pool their television broadcast rights, the Sports

Broadcast Act has allowed the leagues to negotiate single television

packages to sell to the network. By pooling the television rights, the

leagues have has forced the networks into a continuous bidding

process that has seen the value of all sports broadcasting rights

increase. It should also be noted here that although the Sports

Broadcast Act specifically only mentions the professional sports of

football, baseball, basketball, and hockey, newer sports like profes-

sional soccer have pooled and sold their television broadcast rights

too.

Professional sports are not the only sport organizations, however,

that have had their broadcasting policies involving pooled rights chal-

lenged under Federal Antitrust law. For example, in National

Collegiate Athletic Association (NCAA) v. Board of Regents of the

University of Oklahoma

a group of colleges and universities chal-

lenged the television restrictions imposed by the NCAA on the num-

ber of college football games each school could play on television.

Under the television restrictions, colleges and universities were pro-

hibited from participating in more than two nationally broadcast

football games during any single year, and no more than three over a

two year period.

In finding that the NCAA’s television policy acted

to restrict the total number of college football games on television, the

United States Supreme Court held that the NCAA rules constituted

an unreasonable horizontal restraints that in violation of the Federal

Antitrust laws.

As a result of the Supreme Court’s decision, the

number of college football games on television has increased dramat-

ically. In addition, colleges and universities have been able sell their

television individually and as a league, without sharing the revenue

with the NCAA or other NCAA member schools.

Besides granting the sports leagues a limited antitrust exemption,

under Section 2, the Sports Broadcast Act excludes from the Act’s

immunity any joint agreement “which prohibits any person to whom

such rights are sold or transferred from televising any games within

any area, except within the home territory of a member club of the

league on a day when such club is playing a game at home.”

The

purpose of Section 2, which was inserted on the recommendation of

the Justice Department, was to codify the Federal Court’s 1953 deci-

sion in United States v. NFL governing which games individual teams

could blackout within their own home territories, when those teams

were playing at home.

Since the NFL continued its’ practice of blacking games in the local

market when the teams were playing at home, Section 2 of the Sports

Broadcast Act was subjected to numerous legal challenges,

as well as

the source of further congressional action, over the next twenty years.

As a result of the negative fan reaction, the NFL even though it won

every challenge, started to voluntarily lift the local blackout of sold

out Championship games.

Still not satisfied, Congress enacted legislation requiring the league

to lift the local blackout of any pooled telecast if all the tickets avail-

able for purchase were sold seventy-two hours or more before the

game started.

In enacting the legislation, Congress found that since

the NFL main argument in support of blacking out games within the

local market was to protect their gate revenue, once the games were

sold out, there was no longer any need to black out the games. While

Congress only enacted the legislation for a limited time, during which

it would conduct a study of the legislations economic impact on the

league, the NFL in 1975 voluntarily agreed to continue to televise all

games sold out seventy-two hours before the event.

Another issue that has arisen under Section 2 of the Sports Broad-

cast Act is the scope of the blackout. For example, since the NFL

defines a team’s local market as a seventy-five mile radius around the

stadium, what happens when a television station is outside the seven-

ty-five mile radius, but its’ broadcast signal is able to reach inside the

home territory. That is exactly the issue the United States Eleventh

Circuit Court of Appeals was asked to decide in WTWV, Inc. v.

NFL.

If Section 2 only applied to stations physically located within

the 75-mile radius, the court ruled that technological advances could

completely undermine the purpose of the Sports Broadcasting Act. As

a result, signal penetration, not station location, the Eleventh Circuit

52 Id. at 327.

53 United States v. National Football

League, 196 F. S upp. 445 (1961).

54 Id.

55 Id.

56 S. REP. No. 1087, 87th Cong., 1st Sess. 2

(1961); H.R. REP. No. 1178, 87th Cong.,

1st Sess. 2-3 (1961).

57 15 U.S.C. §§ 1291-95 (2006).

58 15 U.S.C. § 1291 (2006).

59 National Collegiate Athletic Association v.

Board of Regents, 486 U.S. 85 (1984).

60Id. at 90.

61 Id. at 107.

62 15 U.S.C. § 1292 (2006).

63 Blaich v. National Football League, 212 F.

Supp. 319 (S.D.N.Y. 1962) (involving

challenge to NFL’s decision to black out

the 1962 league championship game in

New York City).

64 47 U.S.C. § 331 (now expired).

65 WTWV, Inc. v. National Football League,

678 F. 2d 142 (11th Cir. 1982).

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ARTICLES

held should determine which television stations are televising within

club’s home territory.

As technological advances in cable and satel-

lite television transmission have improved over the past 25 years, the

Eleventh Circuit Court’s decision to apply Section 2 to any signal that

can penetrate a team’s home market has become increasingly impor-

tant.

6. Limitations on Broadcast Rights

While the Sports Broadcast Act has given the professional sports

leagues a limited exemption from the Federal Antitrust laws, because

of cable television a other technology advances, sports teams and

leagues still face a number of limitations in controlling their broad-

casting rights.

6.1. Royalty Payments for Retransmission

One of the biggest limitations placed upon the team’s control of its

broadcasting rights involves the retransmission of their games by cable

systems. For example, in sports like baseball, basketball, or hockey

where broadcasting revenues account for approximately half of each

club’s local revenues, each team has the right to grant local television

the networks the exclusive broadcasting rights of their games in their

local markets. However, even though a large part of the teams broad-

casting revenues come from their local television contract,

the clubs

do not have the right to control the secondary transmission of the

broadcasts by cable systems outside of their local markets. The clubs

lost that right under the Copyright Act of 1976, which provides cable

systems with a compulsory license to retransmit whatever television

programming is authorized by the rules of the FCC.

The cable sys-

tems are allowed to retransmit a team’s games without even negotiat-

ing for the right or paying royalties directly to the team. The only

obligation the cable systems have when retransmit a team’s game is

that they must on a semiannual basis, deposit a royalty fees with the

The right of cable systems to retransmit broadcasts was also recog-

nized by the United States Second Circuit Court of Appeals for the in

Eastern Microwave, Inc. v. Doubleday Sports, Inc.

Eastern Microwave

(EMI), was a common carrier that transmitted signals from broadcast

networks to cable television systems. The cable system, in turn,

retransmits the signal to its subscribers’ televisions.

Doubleday Sports, Inc., the owner of the New York Mets, had a

contract with WOR-TV in New York to broadcast approximately 100

Mets games per season. WOR-TV also had a long-standing relation-

ship with EMI, which allow EMI to retransmit WOR-TV’s signal.

The Mets, however, believed that EMI was free loading off its copy-

right and wanted EMI to pay it a royalty fee for the retransmission of

their games on cable. In particular, the Mets claimed that EMI’s

retransmission of Mets games constituted copyright infringement.

As a result, EMI went to court seeking a declaratory judgment that

it was a passive carrier exempt from copyright liability under 17

U.S.C. § 111(a)(3) of the Copyright Act as a common carrier.

In rejecting the position of Doubleday Sports, the Second Circuit

relied on Section 17 U.S.C. § 111(a)(3) of the Federal Copyright Laws,

which states that:

[t]he secondary transmission of a primary transmission embodying

a performance or display of a work is not an infringement of copy-

right if - (3) The secondary transmission is made by any carrier who

has no direct or indirect control over the content or selection of the

primary transmission or over the particular recipients of the sec-

ondary transmission, and whose activities with respect to the sec-

ondary transmission consist solely of providing wires, cables, or

other communications channels for the use of others: Provided,

that the provisions of this clause extend only to the activities of said

carrier with respect to secondary transmissions and do not exempt

from liability the activities of others with respect to their own pri-

mary or secondary transmissions; . . .

In finding that EMI did not violate Doubleday’s exclusive right to dis-

play its copyrighted work by passively retransmitting the entirety of

WOR-TV’s broadcast signal to its customer, the Second Circuit held

that the services clearly fall within the exemption provided for in 17

U.S.C. § 111(a)(3).

In writing the Copyright Act, Congress drew a careful balance

between the rights of copyright owners and those of cable systems like

EMI, providing for payments to the former and a compulsory licens-

ing program to insure that the latter could continue bringing a diver-

sity of broadcasted signals to their subscribers.

If the courts were to

grant Doubleday’s request, the Second Circuit found that EMI and

other cable systems would be forced to negotiate with and pay all

such requirement were not impossible to meet, the Second Circuit

held that such an action would produce a result never intended by

Congress, namely a substantially increased royalty payment to copy-

right owners with no increase in number of viewers.

In addition, the Second Circuit noted that Congress had already

established a specific scheme for recognition of the rights of copyright

owners.

Under the scheme, which is outlined in the Copyright Act,

television broadcast stations like WOR-TV must pay license or royal-

ty fee directly to copyright owners like Doubleday, while cable sys-

tems like EMI pay license fees under their compulsory licenses to the

United States Copyright Office in accord with formulae provided in

the Copyright Act.

The fees paid by EMI and other cable systems

are then distributed to copyright owners like Doubleday by the

The Congressional scheme

thus provided for compensation from CATV systems to copyright

owners measured by the number of cable viewers or potential viewers,

and placed the responsibility for payment of that compensation on

the CATV systems.

6.2. Contractual or League Restrictions

In addition to royalty payments, professional sports teams and leagues

have also challenged the distribution of copyrighted programs to

cable system operators under the theory of contractual exclusivity. For

example, in ABC Sports, Inc. v. Atlanta National League Baseball Club,

Inc.,

the American Broadcasting Company (ABC) and Major League

Baseball challenged the right of the Atlanta Braves and its commonly

owned flagship television station WTBS, located in Atlanta, to televise

the 1982 League Championship Series (LCS).

Under the then-exist-

ing contract between ABC and Major League Baseball, even though

ABC owned the exclusive nationwide rights to televise the 1982

League Championship Series (LCS), each team participating in the

LCS the right to televise their playoff games over their local flagship

stations. In the case of the Atlanta Braves, their flagship television sta-

tion WTBS, a superstation carried by cable systems throughout the

country and watched by more than 25 million households.

Since the contract was negotiated before creation of superstations,

ABC and Major League Baseball filed a lawsuit seeking to prevent

WTBS from broadcasting the LCS. In support of its’ motion, ABC

and Major League Baseball claimed that if WTBS was allowed to tele-

cast the game to millions of cable subscribers nationwide it would vio-

late ABC’s contractual exclusivity. The case was settled before a deci-

sion was rendered by the court.

The biggest case involving superstations and the right of teams and

leagues to control and disseminate their games is Chicago Professional

Sports Ltd. Partnership v. National Basketball Association.

In the

early 1990s, the NBA, acting through its Board of Governors, sought

to limit the number of games NBA teams could broadcast over super-

66 Id. at 146.

67 Jeff Friedman, The Impact of Major

League Baseball’s Local Television

Contracts, 10 SPORTS LAWYERS

JOURNAL 1 - 43 (2003).

68 17 U.S.C. § 111(c)-(d) (Supp. V 1982).

69 17 U.S.C. § 111(d)(1) (2006).

70 Eastern Microwave, Inc. v. Doubleday

Sports, 691 F. 2d 125 (2d Cir. 1982).

71 Id. at 126.

72 Id. at 126.

73 17 U.S.C. § 111(a)(3) (2006).

74 Eastern Microwave, Inc. v. Doubleday

Sports, 691 F. 2d 125, 133 (2d Cir. 1982).

75 Id. at 132.

76 Id.

77 Id. at 133.

78 17 U.S.C. § 111(d)(2)(B).

79 17 U.S.C. § 111(d)(5).

80 ABC Sports, Inc. v. Atlanta National

League Baseball Club, Inc., No. 82 Civ.

6104 (S.D.N.Y. Oct. 4, 1982).

81 Id.

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ARTICLES

stations from 25 to 20. In reducing the number of games carried by

superstations, the NBA was trying to protect the value of its teams’

local television contracts. In particular, the league was worried that

the popularity of Michael Jordan and the Chicago Bulls might cause

people in NBA markets outside of Chicago to watch the Bulls play on

television instead of their own local team. If this happened, local tel-

evision revenues would go down for every team in the league except

Chicago.

The Chicago Professional Sports Limited Partnership, owners of

the Chicago Bulls, and WGN Continental Broadcasting Co. (WGN),

a superstation in Chicago, to whom the Bulls had licensed 25 Bulls

games for the season, sought to enjoin the league from enforcing the

new 20-game rule. The Bulls not only challenged the new 20 game

rule as a restraint of trade, but they claimed they had the right to

broadcast all 41 of their home games over WGN television.

Claiming that the league had the right to fix the number of games

its’ team played on a superstation based on the Sports Broadcasting

Act, the NBA in 1993 signed a contract that transfers all broadcast

rights to the NBC. Since NBC, however, only wanted to broadcast 26

games during the regular season, the network transferred back to every

team the right to broadcast all 82 of its regular-season games (41 over

the air, 41 on cable), unless NBC wanted to broadcast a given contest.

In addition, the NBA-NBC contract allowed the league to broadcast

85 games per year on superstations. The NBA entered into a contract

with the Turner stations (TBS and TNT) for 70 games, leaving only 15

potentially available for WGN to license from the league.

While the case was settled before a final decision was handed down,

the United States Seventh Circuit Court of Appeals did reach the fol-

lowing conclusions. First, that when acting in the broadcast market

the NBA was closer to a single firm than to a group of independent

firms. This is important, because as a single firm, the NBA would be

analyzed only under § 2 of the Sherman Antitrust Act and would only

be found guilty of violating Federal Antitrust laws if it could be shown

that the NBA possessed monopoly power in the relevant market, and

that its exercise of this power had injured consumers.

Second, while considering whether the Sports Broadcasting Act’s

exemption applied to cable broadcasting, the Seventh Circuit, reaf-

firming the district court’s findings, found that the Sports

Broadcasting Act only applied to free commercial television and not

subscription television.

As a result, the Seventh Circuit concluded

that the NBA can not prevent individual teams from selling their tel-

evision rights to games that were not included in the national pack-

age. In addition, the Seventh Circuit, in sending the case back to the

lower court, ruled that the NBA did not have the right to limit the

number of games teams are allowed to telecast on superstations, even

though games broadcast on a superstation might compete with the

national broadcasting package.

6.3. Home Satellite Systems

Another issue that teams and leagues have been forced to address is

the unauthorized interception and rebroadcast of their satellite trans-

missions. This has been an especially serious problem in professional

football because of the NFL’s 72 hour blackout rule. Under the NFL’s

“Blackout Rule,” any game not sold out within 72 hours of its start is

blacked out within a 75 miles radius of the home stadium. As men-

tioned in a previous section, the reasoning behind the rule is the pro-

tection of home gate receipts.

However, since the network broadcasters use satellites to send the

images of the game to those television stations outside the area, view-

ers within a team’s home territory have routinely been able to inter-

cept the game’s satellite transmission. While intercepting the game’s

satellite transmission for private viewing in an individual’s home is

fine as long as there is no “direct charge made to see of hear the trans-

mission”

and the “transmission thus received is [not] further trans-

mitted to the public.”

The problem, however, is not with the private homes, but with the

bars and restaurants within a team’s home territory that intercept the

game’s satellite signal and show it to its customers. Such public broad-

casts violate both Section 605 of the Communications Act of 1934

and Federal Copyright law.

A good example of how the courts have

handled such retransmissions is National Football League v. Rondor.

In 1993, the NFL and one of its’ teams, the Cleveland Browns, sued a

number of bars and restaurants in the Cleveland area for copyright

infringement. The NFL and the Browns argued that the bars and

restaurants violated their copyright by using satellite dishes, special

antenna, or any other equipment or device not of a kind commonly

used in private homes to broadcast blacked out Browns games within

the local Cleveland market.

While acknowledging that they televised the games, the bars and

restaurants claimed that such broadcasts fell within the “home sys-

tem” exemption to the Copyright Act. The home system exemption

provides in relevant part that there is no infringement where recep-

tion is made “on a single receiving apparatus of a kind commonly

used in private homes.”

In reviewing the legislative history behind the home system exemp-

tion, the court found that Congress intended to exempt small com-

mercial establishments whose proprietors merely bring onto their

premises standard radio or television equipment and turn it on for

their customers’ enjoyment. Congress, however, did not intend to

exempt from liability those proprietors who had commercial systems

installed or converted a standard home receiving apparatus into the

equivalent of a commercial system.

In the present case, the court concluded that the antenna systems

used by each of the bars and restaurants was much larger than the

“common” antenna used in private homes.

Therefore, even though

the bars and restaurants had clearly established that the equipment

they used to receive the blacked-out games was of a kind commonly

available for use in private homes, the court still rejected their home

system claim. Section 110(5) of the Copyright Act, the court held

requires that the bars and restaurants show that the equipment is “of

a kind commonly used, not available for use, in private homes.”

7. Future media Issues

As sports leagues continue to look to increase revenues beyond tradi-

tional gate, sponsorship and network and cable television, the follow-

ing are just some of the areas in which they will be seeking to expand

their traditional revenue base.

7.1. Regional Sports Network

Historically, there has always been a close relationship between pro-

fessional and college sports teams, which play the games, and the

media and broadcasting companies that broadcast the events. As

rights fees have skyrocketed, however, television and cable companies

came to the realization that if they purchased the teams, they could

own the entire inventory of games and events. A good example of this

type of vertical integration is Cablevision in New York. Cablevision is

the only large cable operator in the greater New York metropolitan

area with over 3 million subscribers. In addition to owning the cable

distribution system, Cablevision also had a controlling interest in two

regional sports networks: the Madison Square Garden Network and

Fox Sports New York. To ensure a steady supply of programming for

82 Chicago Professional Sports Limited

Partnership and WGN Continental

Broadcasting Company v. NBA, 95 F. 3d

593 (7th Cir. 1996), rev’g 874 F. S upp.

844 (N.D. Ill. 1995); Chicago

Professional Sports Limited Partnership

and WGN Continental Broadcasting

Company v. NBA, 961 F. 2d 667 (7th Cir.

1992), aff’g 754 F. S upp. 1336 (N.D. Ill.

1991); Chicago Professional Sports

Limited Partnership and WGN

Continental Broadcasting Company v.

NBA, 808 F. S upp. 646 (N.D. Ill. 1992).

83 Chicago Professional Sports Limited

Partnership and WGN Continental

Broadcasting Company v. National

Basketball Association, 754 F. S upp. 1336

(1991).

84 Chicago Professional Sports Limited

Partnership and WGN Continental

Broadcasting Company v. National

Basketball Association, 95 F. 3d 593 (7th

Cir. 1996).

85 Id.

86 Id. at 667.

87 17 U.S.C. § 110(5)(a) (2006).

88 17 U.S.C. § 110(5)(b) (2006).

89 47 U.S.C. § 605 (2006).

90 17 U.S.C. §§ 101 - 1332 (2006).

91 National Football League v. Rondor, 840

F. S upp. 1160 (1993).

92 17 U.S.C. §102 (2006).

93 17 U.S.C. §110 (5)(b) (2006).

94 National Football League v. Rondor, 840

F. S upp. 1160 (1993).

95 Id.

96 Id. at 1170

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ARTICLES

its regional sports networks and cable distribution system, Cable-

vision also purchased the New York Knicks of the NBA and the New

York Rangers of the NHL. In addition, it entered into contracts with

the New York Yankees and New York Mets of MLB, the New Jersey

Devils of the NHL and the New Jersey Nets of the NBA. As a result,

Cablevision through the Madison Square Garden Network and Fox

Sports New York had broadcast contracts to carry all the professional

sport in the New York area.

While these regional sports network are still usually owned by the

media companies, there has been a shift by some high profile teams

to create their own regional sports network, either by itself or in

alliance with others. The best and most successful example of these

new media companies is the Yankees Entertainment and Sports (YES)

Network. In an effort to maximize revenue, and control the distribu-

tion and production of their broadcasts, the New York Yankees

launched their own regional sports network in 2001 when their con-

tract with Madison Square Garden Network expired. The YES

Network then purchased the local broadcast rights to, among others,

New York Yankees baseball games, the New Jersey Devils NHL games

and the New Jersey Nets NBA games.

The network however got off to a rough start when negotiations

between Cablevision, the owners of the Yankees old broadcasting

partner Madison Square Garden Network, and the new YES network

broke down over two major issues. The first issue involved the tier of

service on which YES would be offered to Cablevision subscribers.

Cablevision wanted to offer YES as a “premium” channel, instead of

carrying it on an expanded basis package. If offered as a premium

channel, subscribers would have had to pay an addition price for the

YES network, which would have made it more expensive compared to

the Madison Square Garden Network and Fox Sports New York.

Cablevision offered both Madison Square Garden Network and Fox

Sports New York as part of their expanded basis package.

The sec-

ond dispute involved the price to be paid by Cablevision to YES. The

YES network believed that the price Cablevision was offering was not

equal to its market value.

Unable to reach an agreement on these issues YES filed suit, claim-

ing that Cablevision was using its status as a “vertically integrated

multichannel video programming distributor to protect its monopoly

over local sports programming by refusing to grant YES Network car-

riage on its system on nondiscriminatory terms such as those terms

and conditions available to its affiliates.”

100

Tw o sides eventually reached an agreement on the two issues, where-

by Cablevision agreed to pay YES market value and added YES to its

expanded basis package. The new YES network has generated millions

of dollars of addition revenue opportunities for the New York Yankees.

As a result of the success of the YES network, more and more teams are

exploring the option of creating their own regional sports network with

other teams in other sports within the same local markets.

7.2. Pay-Per-View (PPV) & League Channels

Pay-per-view (PPV) events have almost been associated exclusively

with professional boxing. For example, in May 2007, the Oscar De-

La Hoya fight against Floyd Mayweather was projected to be watched

by over a million buyers at $54.95.

101

However, while boxing has been

televising their championship fights on a pay per view basis for a

number of years, other professional sports leagues have been slow to

follow the migration from free television to PPV. Over the last few

years, however, that seems to be changing as more and more profes-

sional and college sports leagues have begun to explore the various

PPV options.

One option being developed is the single sport channel, such as

the NFL Network, and NBA TV. While the ultimate goal of the

leagues is to get these channels on an extended basis cable package,

in which they would receive a per-subscriber fee, right now most of

the single sport channels are on premium sports tier packages.

102

a result, in order for fans to watch the channels, which broadcast

games, news and game highlights 24 hours a day, seven days a week.

They have to pay an addition subscription fee. In addition to profes-

sional sport leagues, college and universities are also exploring the

idea of creating their own sports networks. For example, the Big Ten

Network which will begin broadcasting college athletic events in

2007 is being closely watched by other college and universities sports

conferences who are seeking ways to increase their revenue from

sport broadcasting.

103

Another PPV option, which is being explored, allows individuals or

bars throughout the country access to all out-of-market leagues

games. For example, if you purchased the NFL Sunday Ticket pack-

age, you would be able to watch all the NFL games during the entire

season, even if those games were blacked out in your local market.

Whereas the NHL Center Ice package gives viewers access to up to 40

out-of-market NHL games a week, plus Premiere Canadian match-

ups and select games from the first two rounds of the Stanley Cup

Playoffs.

As a result of the migration of professional sports into PPV, their

revenue through pay-per-view (PPV) contracts have increased dra-

matically from a humble $ 435 million in 1991 to $ 3 billion in

2000.

104

It should be noted that there are some dangers to moving

more and more events to pay per view. First, as boxing has demon-

strated, the more events you more to PPV, the more difficult it is to

attract and cultivate new fans. Since moving all major championship

fights to PPV, boxing has found it difficult for the public and casual

fan to identify with and follow individual fighters.

In addition, professional sports leagues need to be careful that they

do not move some many games and events to PPV, especially major

championships like the Super Bowl and World Series, that Congress

is pressured to intervene by revoking the Sports Broadcasting Act and

the leagues’ limited antitrust exemption. In fact, in 1994 the FCC, at

the request of Congress, conducted an examination of the migration

of sports programming from broadcast television to a subscription

medium (i.e., any type in which the viewer pays a fee).

105

While the

FCC concluded at that time, that there had not been significant

migration of sports programming from broadcast to subscription tel-

evision,

106

leagues and teams need to be careful that they do not take

too many events off free television.

The migration of sports to PPV has not gone unchallenged either.

For example, in Shaw v. Dallas Cowboys Football Club, Ltd.,

107

group of fans filed a class action lawsuit against the NFL claiming that

the NFL’s satellite programming package “NFL Sunday Ticket” vio-

lated Section 1 of the Sherman Antitrust Act by reducing competition

and artificially raising prices by restricting the options available for

non-network broadcasts of NFL games.

108

In ruling that the subscrip-

tion satellite broadcast of NFL games does not fall within the Sports

Broadcasting Act exemption, the United States Third Circuit Court of

Appeals held that the “NFL Sunday Ticket” could be challenged under

federal antitrust laws.

109

As the court noted, the Sports Broadcasting

Act only exempts commercially sponsored free broadcast from

antitrust scrutiny, not subscription satellite packages.

A second class action lawsuit, this time filed against the NBA and

challenging the validity of the league’s “NBA League Pass” is Kingray,

Inc. v. NBA.

110

In Kingray, the court again examined whether the

practice of selling subscription satellite packages violated of the

Sherman Act.

111

In particular, the court was asked to determine

whether the contract between the NBA and DirecTV not only con-

stituted an illegal price-fixing scheme, but also restricted the output

of live broadcasts in violation of Federal antitrust laws.

112

Finding

97 Yankees Entertainment and Sports

Network v. Cablevision, 224 F. S upp. 2d

657 (2002).

98 Id.

99 Id.

100Id. at 664.

101 John Ourand, De La Hoya to be biggest

hit in pay-per-view history, Street &

Smith Sports Business Journal, April 30

- May 6, 2007, at 12.

102 Eric Fisher & John Ourand, DirecTV

talks hinge on MLB net, Street & Smith

Sports Business Journal, January 29 -

February 4, 2007, at 1.

103 Michael Smith & John Ourand, SEC

will look to Big Ten Net for a signal,

Street & Smith Sports Business Journal,

April 30 - May 6, 2007, at 1.

104 Ronald Cass, et al., The Future of Sports

Television, 14 FORDHAM INTELLEC-

TUAL PROPERTY, MEDIA AND

ENTERTAINMENT LAW JOURNAL

645 - 694 (2004).

105 Inquiry into Sports Programming

Migration, 9 FCC Rcd. 3440 (1994).

106Id.

107 Shaw v. Dallas Cowboys Football Club,

Ltd., 172 F. 3d 299 (3d Cir. 1999).

108 Id.

109 Id. at 302.

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ARTICLES

insufficient evidence to support any of the claims, the court ruled

that the “NBA League Pass” did not violate Federal antitrust law.

113

7.3. Internet

Another media outlet that has transformed the way individuals watch

sport is the Internet. The internet has allowed fans can keep up to the

minute tabs on their favorite teams, with instant real time informa-

tion and scores. Professional sports leagues have been able to cash in

on the Internet via subscription-based services. For example, for a one

time subscription fee, the NBA will stream live video onto your com-

puter. The NBA League Pass package, which costs subscribers $179,

offers subscribers access to 40 regular-season NBA games each week,

both online and through cable or satellite. The NBA is not the only

league trying to expand its online offerings. For years, MLB has been

selling Internet packages of live games. In addition, the NFL has also

launched a service with Yahoo to show games live on computers out-

side North America.

In order to preserve their lucrative television deals and ensure that

fans still watch the games on television, the leagues employ special

technologies that can pinpoint an individual’s location by checking a

computer’s Internet address and blocking those games on television in

the provider’s location.

7.4. Satellite Radio

Another media market professional sports clubs and leagues have

exploited to generate new revenue is satellite radio. The benefit of

satellite radio is that it allows listeners the opportunity to follow their

home teams even when they are traveling outside of the teams’ local

home market. Currently in the United States there are two satellite

radio stations: XM and Sirius, which have 13 million subscribers.

In building a listener base, and trying to attract advertisers, both

stations have actively sought out various professional sports leagues.

For example, Sirius has contracts for hundreds of millions of dollars

with the NFL, NBA, NHL and the NCAA, while XM has contracts

with MLB for 11 years, $650 million, and with the NHL for 10 years,

$100 million.

114

If a proposed merger between the two satellite radio providers is

approved, however, the sports leagues would lose most of their bar-

gaining leverage. Since the merger would eliminate all competition for

sport programming, professional leagues it could potentially lose hun-

dreds of millions of dollars in rights fees and advertising revenue. As a

result, if the proposed merger is approved, professional sports leagues

might decide to purchase their own satellite broadcast company.

7.5. Mobile Phones & other Hand Held Wireless Devices

One final area where the evolution of this technology is likely to

change how the leagues and teams broadcast their sports is mobile

phones and other wireless devices. A good example of this is the

NBA’s new contact with ESPN, ABC and TNT. The deal which is

worth $7.4 billion over eight-years increased the NBA television rev-

enue even thought the 2007 N.B.A. Finals and a postseason saw the

number of views reduced for all the networks.

115

The reason the networks were willing to keep the NBA on televi-

sion, and actually increase the rights fee paid to the league was the fact

that the new contract included the leagues digital rights, including

Internet, broadband, mobile and video-on-demand. Under the new

deal, television networks will, among other things be allowed to

simulcast games on their broadband and mobile outlets. In addition,

the new agreements are flexible enough to extend rights to technolo-

gies that are developed through 2016.

A couple examples of how important a revenue stream the NBA

and television networks consider mobile phones and other wireless

devices is that during the 2007 NBA Playoffs, ESPN.com generated

1.1 million unique visitors to view N.B.A. content and 700,000 wire-

less users. During the season, 32 million N.B.A. video streams were

viewed on ESPN.com.

116

While this number is small compared to the

88 million total viewers who watched the playoffs on TNT, the

leagues and networks believe the digital rights for mobile phones and

other wireless devices are going to be a key asset in the future.

117

A second example of how valuable the leagues consider the trans-

mission of game data via mobile phones and other wireless devices,

and how far they will go to protect those rights, is National Basketball

Association and NBA Properties, Inc. v. Motorola.

118

In 1996,

Motorola developed and sold handheld pager which displays updated

information of professional basketball games in progress. The prod-

uct, which was much like a mobile phone, displayed various informa-

tion on NBA games in progress, such as the teams playing; score; the

team in possession of the ball; and time remaining in the quarter. The

information was updated every two to three minutes, and more fre-

quently near the end of the first half and the end of the game. The

devise, however, had a lag of approximately two or three minutes

between events in the game itself and when the information appears

on the pager screen.

In an effort to stop Motorola from transmitting the scores or other

data via the pagers, the National Basketball Association and NBA

Properties, Inc. filed a lawsuit claiming that Motorola had unlawful-

ly misappropriated NBA’s property by transmitting real-time NBA

game scores and statistics taken from television and radio broadcasts

of games in progress. The district court

119

agreed with the NBA and

granted an injunction against Motorola. The Second Circuit Court of

Appeals, however, reversed the decision on the misappropriation

claim and vacated the injunction. In particular, the Second Circuit

held that Motorola’s transmission of “real-time” NBA game scores and

information tabulated from television and radio broadcasts of games

in progress did not constitute a misappropriation of hot news that is

the property of the NBA.

8. Conclusion

In concluding, it is important to note that since 1961, when the

United States Congress passed the Sports Broadcast Act, the commu-

nications industry has undergone and is still undergoing a dramatic

revolution. As advances in cable, satellite, the Internet and pay-per-

view technological, have changed the marketplace, consumers are

now have ability to watch sports from around the globe 24 hours a

day. Team and league owners, however, need to be careful that while

they look for new ways to generate money by moving their sports off

free television to cable, pay-per-view and the internet, they do not cre-

ate a backlash in Congress. As noted above, in 2007, the United States

Congress was already being pressured to look into Major League

Baseball’s attempt to move certain games off cable and on to pay-per-

view. If professional and college sports continue to take their games

and events off free television, Congress might be forced to revoke the

Sport Broadcasting Act. Such an action could have a catastrophic

impact of professional sports leagues. For example, if the leagues were

no longer able to pool the broadcasting rights of all their teams, the

teams from smaller media markets would all of a sudden find it very

difficult to compete financially with those teams from the larger

media markets. Unable to attract and pay the best players, the com-

petitive balance of the league could erode, causing not only the weak-

er teams to fail, but eventually the entire whole league.

110 Kingray, Inc. v. NBA, 188 F. S upp. 2d

1177 (S.D. Cal. 2002).

111 Id. at 1188.

112 Id.

113 Id. at 1200.

114 John Ourand, XM-Sirius merger could

cost leagues, Street & Smith Sports

Business Journal, February 26 - March

4, 2007, at 3.

115 Richard Sandomir, N.B.A. Renews TV

Pacts, Adding Links to Digital Use, New

York Times, June 28, 2007, at D2.

116 Richard Sandomir, N.B.A. Renews TV

Pacts, Adding Links to Digital Use, New

York Times, June 28, 2007, at D2.

117 Richard Sandomir, N.B.A. Renews TV

Pacts, Adding Links to Digital Use, New

York Times, June 28, 2007, at D2.

118 National Basketball Association and

NBA Properties, Inc. v. Motorola, 105

F. 3d 841 (2nd Cir. 1997).

119 NBA v. Sports Team Analysis &

Tracking Systems, 939 F. S upp. 1071

(1996)

2007/3-4

ARTICLES

Introduction

Cricket is the most popular sport in India, far more popular than

other sports like hockey, football and tennis, with some people even

considering cricket at par with their religion. With the Indian popu-

lation standing today over a billion, of whom the majority are ardent

supporters of the Indian cricket team, it makes for a lucrative business

proposition to be involved with the multi-million dollar industry of

cricket in India. Thus begins the whole saga of the private broadcast-

ers race to get a pie of the industry and at the top is the Board of

Cricket Control of India (BCCI), the sole association regulating

cricket and this multi-million dollar industry.

In this article I will attempt to discuss the current problems being

faced in sports broadcasting in India, with the main emphasis being

on the current broadcasting row where the parties involved include

the BCCI, Nimbus sports broadcast, promoted by Nimbus commu-

nications, ESPN Star sports, Prasar Bharati

, being the national

broadcaster, Zee networks and Ten Sports.

The role of the government through the passing of the Sports

Broadcasting Signal Bill (hereafter referred to as the ‘The Bill) in the

Lok Sabha (National Parliament) on the 8

of March, 2007, will also

be enunciated with its impact on the ‘broadcasters’

, the BCCI and

the “common man” (aam aadmi)

. It will also be discussed whether

the government is justified in putting into ambit all cricket games to

be of national importance without any specific criteria classifying

them, in order to remove the ambiguity involved with it, or whether

they should follow a more systematic approach. The provisions of the

European Council’s Television Without Frontier Directive will also be

discussed, while comparing it to the Bill.

Background

The potential of the broadcasting and the advertising of the Indian

cricket industry cannot be accurately estimated. With the Indian

(national team) cricket matches contributing 70% to 80% of the rev-

enue generated

, the importance of the sports broadcasting rights

becomes even greater. The rights to the International Cricket Council

(ICC) organized events like the World Cup, the Champions trophy

etc are regulated by the ICC through the various rules and legisla-

tions.

With the advent of privately owned broadcasting companies, there

has been an influx of more companies into this sphere of sports

broadcasting, which was previously dominated by the national broad-

casters who had a monopoly. However there is increasing demand by

the people for these sporting events, for which the supply is limited

since in a country like India, where cricket is the most popular sport,

there is a great demand for the game, however the national team can

only play a limited number of matches, and therefore the supply for

the same cannot be increased, as the demand

. Thus the broadcasters

seek acquisition of exclusive sports rights as a method of gaining a

viable market share.

In 2004, Zee acquired the rights to broadcast by bidding at $260

million, which was further increased by Zee to better the offer being

made by a competitive company. Zee even agreed to pay a deposit of

$20 million as a part of the deal. In the end the total worth that Zee

was paying to the BCCI was estimated at $308 million. After the

meeting in order to finalize the contract, on the basis of the renegoti-

ated price, BCCI returned the deposit paid by Zee, stating that they

were not bound by the letter of intent, as there was no concluded con-

tract between them and Zee. Thus Zee alleged that their fundamen-

tal rights were violated and initially sued BCCI under Article 32 of the

Constitution for a writ of ‘mandamus’

. However the Supreme Court

observed that BCCI was not a state organ under Article 12 of the

Constitution, thus a writ under Article 32 did not lay against them.

However the Court also observed that if any rights of a person were

violated by such an association, then a person could file a petition

under Article 226 of the Constitution, which conferred wider powers

to the High Courts in India.

The Madras High Court further dis-

missed the appeal of Zee stating that there was no valid contract

between them and BCCI, thus they had no right under either a

statute or a contract to sue BCCI.

Zee after the previous litigation with BCCI, this time signed a con-

tract with BCCI in 2006 for cricket rights to broadcast 25 One Day

Internationals (ODI’s) to be played by India in offshore non-ICC

venues, for a sum of $219 million (Rs. 89,10,849)

. This contract with

BCCI failed on the 31

May 2007, after the passing of ‘The Sports

Broadcasting Signal Bill’ since Zee contended that an essential condi-

tion of the contract was the exclusivity of the broadcasting rights

which were no longer guaranteed with the passing of the Bill which

made it mandatory for them to share their feed with Prasar Bharati.

Thus they called for the re-negotiation of the whole contract, which

they alleged had taken place in the case of Nimbus who had initially

signed a deal for $619,000 (Rs. 2,52,05,799), which after the passing

of the Bill was renegotiated and slashed by 12%

Similarly after the passing of the Bill Nimbus withdrew from the

rights to the Afro-Asia games on the 30th May 2007, after paying an

amount of $12 million for the three editions of the games to be played

in 2005

. Even Zee TV failed to pay an advance in compliance with

its earlier contract and thus rescinded the contract on the 31th May

2007. After this ESPN Star sports moved in to buy the rights for the

Afro-Asia game and Nimbus bought the rights for the games to be

played by India in Ireland in June and July 2007.

In the recent pass an article was carried in the Hindustan Times

stating that the broadcast of the live matches would also be available

on the DTH network, since they relayed the DD channel of Prasar

Bharati, which in turn is carrying live feed of the game. Though

BCCI has written a letter addressing the issue, the matter is still pend-

ing before the High Court. The Bombay High Court’s decision dated

2nd July 2007, has dismissed the appeal of BCCI and Nimbus to issue

a stay of private Direct To Home (DTH) companies transmitting

Doordarshans’ live feed of the Future Cup, without subscribing to the

Neo sports, the Nimbus’s channel. The Court has held in appeal that

the said issue is scheduled to be heard on the 27th August 2007, thus

the judges will not interfere in the process.

Thus in the given circumstances, the whole question of BCCI sell-

ing broadcasting rights becomes a myth, since the right owners lose

any competitive chance to earn any revenue from selling the rights of

the game. In the given circumstances a question that can be raised is:

* Vidushpat Singhania (India) holds a cer-

tificate in sports law from the University

of Pretoria, South Africa and was a

trainee at the ASSER International

Sports Law Centre in Spring 2007.

1 Section 2(1) (m) ‘The Sports

Broadcasting Signal Bill, 2007’.

2 Section 2(1) (a) ‘The Sports Broadcasting

Signal Bill, 2007’.

3 Free Translation.

4 www.cricketnetwork.co.uk./main/s119/

st67405.htm.

5 For the 2007 Cricket world cup, the

ICC came up with the ‘Sunset legisla-

tion’ which governed the various rights

like the marketing, broadcasting, spon-

sorship etc. This legislation was ratified

by all the Caribbean countries hosting

the World Cup for the period of dura-

tion of the event.

6 On inelasticity of demand for major

events see Comm. Dec.2000/400

Eurovision OJ 2000 L151/18 (annulled,

but not on the point of market defini-

tion, in cases T-185/00 et al M6 and oth-

ers v Commission[2002] ECR II-3805);

Comm. Dec. 2000/12 1998 Football

World Cup OJ 2000 L5/55.

7 Mandamus means “We Command”. It is

an order from a superior court to a lower

court or tribunal or public authority to

perform an act, which falls within its

duty.

8 Zee Telefilm Ltd V Union of India &

others 2005(1) SCALE 666.

9 BCCI v Zee Telefilm Ltd, 2005(2) CTC

609.

10 http://www.indiantelevision.com/head-

lines/y2k7/may/may425.php.

11 www.cricketnext.com/news/zee-cancels-

bcci-broadcast-deal/25258-13.html.

12 http://content-uk.cricinfo.com/ci/con-

tent/story/296401.html.

13 Board of Cricket Control and Anr v.

M/S Tata Sky Ltd. & others;

Appl/572/2007/s/1791/2007.

Sports Broadcasting Rights in India

Vidushpat Singhania*

2007/3-4

ARTICLES

should BCCI re-negotiate the broadcasting contracts with the private

broadcasters. Secondly, with the exclusivity clause no longer present,

will BCCI and cricket in general lose money which would further

hamper the prospects of the players’ careers?

Another development that has taken place recently and is very

much in the limelight is the declaration by the CEO of Zee

Networks, Mr. Subhash Chandra to start an independent cricket

league to harness new talent. The proposed name for the league would

be Indian Cricket League (ICL). The plan has however run into

rough weather with BCCI opposing the league, advising players not

to be a part of it. It is interesting to note that a similar problem had

taken place in the 1970’s in Australia where Mr. Kerry Packer wanted

to buy the exclusive rights for test cricket, which were then presented

to a non-commercial channel Australian Broadcasting Corporation

(ABC). Because of his failure to obtain the rights he started a parallel

cricket tournament the World Series Cricket (WSC). A similar plan

is being undertaken in India by Mr. Subhash Chandra through the

Indian Cricket League (ICL), due to his failure to get exclusive broad-

casting rights. The outcome of the League and its legal position is still

in conflict and yet to be determined.

Indian legal scenario

In India the right to free speech and thus the freedom of press is guar-

anteed as a fundamental right under Article 19 (1) (a) of the

Constitution. The right of broadcasting as a part of the fundamental

rights of the citizens has long been settled by the Supreme Court. It

has been held by the Supreme Court in the case of Life Insurance

Corporation v. Manubhai Shah.

The freedom of speech and expression guaranteed to the citizens of

India includes the right to propagate one’s view through print media or

through any other communication channel, e.g., radio and television.

Article 19 (1) (a) states that all citizens shall have the right of speech

and expression. It is also explicitly written in the Constitution that

such freedom is subject to restrictions only on grounds mentioned in

Article 19(2). It states:

‘(2) Nothing in sub-clause (a) of clause (1) shall affect the operation

of any existing law, or prevent the State from making any law, in so

far as such law imposes reasonable restrictions on the exercise of the

right conferred by the said sub-clause in the interests of the sover-

eignty and integrity of India, the security of the State, friendly rela-

tions with foreign States, public order, decency or morality, or in rela-

tion to contempt of court, defamation or incitement to an offence.’

Thus as can be clearly seen from the provision of the Constitution, no

state body can impose restrictions beyond what has been provided in

the Constitution. It has however been held by the Supreme Court

that what is paramount is the right of the listeners and viewers and

not the right of the broadcaster, whether the broadcaster is the state,

a public corporation or a private individual or body.

Such a fundamental right is not infringed by the government

through regulating broadcasting, since the government by regulating

broadcasting is in no way inhibiting the freedom of speech of the peo-

ple. It has been argued that like roadways, broadcasting frequencies

are public domain, thus they have to be regulated in a certain way. It

may even be said that they represent the material resources of the

community within the meaning of Article 39(b):

‘[t]hat the ownership and control of the material resources of the

community are so distributed as best to sub-serve the common good.’

They can also be said to be ‘facilities’ within the ambit of Article 38 of

the Constitution. Thus they must be employed in conformity with

the provisions of the Constitution for the greater interest of the pub-

lic. It is vital for the security of the state that certain frequencies be

reserved for the protection and the integrity of the state like the ones

reserved for the military and police. Thus it can be said that broad-

casting cannot be fully privatized and opened just on the basis of mar-

ket forces, because it would then threaten the security of the state.

Thus it has been held by the courts that though no single body or per-

son is allowed to have a broadcasting monopoly, it is essential for the

state to regulate such broadcasting through a statutory body and

licensing.

Sports broadcasting falls within the meaning of the freedom of

speech and expression. Thus the broadcasters have the right to broad-

cast events of their choice. The only restriction that can be placed

upon them is based on Article 19 (2), but since they are using the

resources of the community which do not belong to them in their

individual capacity, their actions are to be regulated in case of the use

of these resources by statutory bodies through licences.

Initially the broadcasting of radio and television was thought to be

covered by the ambit of clause (1) of Section 3 of the Telegraph Act in

the following words:

“‘Telegraph’ means any appliance, instrument, material or appara-

tus used or capable of use for transmission or reception of signs,

signals, writing, images and sounds or intelligence of any nature by

wire, visual or other electro-magnetic emissions, radio waves or

Hertzian waves, galvanic, electric or magnetic means.”

Further, Section 4 of the Act regulates the privileges and powers of the

government under the Act. The government after the decision of the

Supreme Court

also established a statutory body Prasar Bharati

under the Prasar Bharati (Broadcasting Corporation of India) Act,

1990, enacted on 15 September 1997. Also the sharing of sports feed

was further regulated under the Downlinking Guidelines of 11

November 2005 and the Uplinking Guidelines of 2 December 2005.

Now sports broadcasting in India is governed by the Sports

Compulsory Broadcasting Bill, 2007.

Besides those for organizing and broadcasting a cricket match in

India various other permissions like those from the Ministry of

Human Resource, the Ministry of Home Affairs, the Ministry of

Finance or the Central Board of Excise and Customs have also to be

obtained.

Status of BCCI

BCCI was originally a society registered on 28th November 1940

under the Central Legislation of the Societies Registration Act, 1860

at Madras. After the enactment of the Tamil Nadu Societies

Registration Act 1975, the 1860 Act as far as it applied to Tamil Nadu

was repealed. Under Section 53 of this Act BCCI stood registered.

BCCI is a national recognized sports federation

, thus it has the

authority to represent the interest of cricket in India.

It is clearly stated in the Supreme Court judgment that BCCI is a

non-profit making organization which controls the officially organ-

ized game of cricket in India

and not a club. It was contended on

behalf of BCCI and the Cricket Association of Bengal (CAB) that the

main aim of these associations is to promote the game of cricket, to

foster the spirit of sportsmanship and the ideals of cricket, and for

imparting education through organizing and staging tournaments

between the members of ICC or other organizations. It was also con-

tended that the money generated by these associations is required to

fund the traveling, boarding, lodging and other daily expenses of the

participating cricketers and officials. A huge amount is also spent for

organizing and publicizing the matches, similarly for the well being of

cricket in India and the development of youth subsidies and grants are

given to the members in order to facilitate them to maintain, develop

and upgrade the infrastructure, to coach and train players and

umpires and to pay them when the series and matches are played.

Thus, although it can be questioned that BCCI is a non-profit

14 http://lawmin.nic.in/legislative/

Art1-242%20(1-88).doc.

15 Ministry of Information and

Broadcasting, Government of India v

Cricket Association of Bengal & others;

AIR 1995 SC 1236.

16 Eric Barendt in his book ‘Broadcasting

Law: A Comparative Study [1993 edition].

17 Ministry of Information and

Broadcasting, Government of India v

Cricket Association of Bengal & others;

AIR 1995 SC 1236.

18 http://library.thinkquest.org/11372/

data/addresses.htm.

19 Ministry of Information and

Broadcasting, Government of India v

Cricket Association of Bengal & others;

AIR 1995 SC 1236.

2007/3-4

ARTICLES

organization, is it pertinent for it to sell its contracts commercially as

a part of its functions. Will the selling of such contracts make BCCI

an organization engaged in a profession? The Supreme Court has held

the latter issue to be in the negative and has held, drawing an analo-

gy with the press, that selling of rights is part of the functions of

BCCI. However, since they involve resources owned by the commu-

nity jointly, they need to be regulated. It is pertinent to note that

besides promoting cricket at the international level, BCCI has to fund

and give grants to various associations in India, in order to help them

maintain the grounds, besides the salaries and wages of the ground

staff, coaches and the players. It is thus a proposed argument that to

promote cricket amongst the youth, providing them with facilities in

par with the international standards and better wages to the cricketers

at the domestic level, BCCI needs more money, the main source of

which is the selling of the broadcasting rights. Thus with the various

regulations, especially the introduction of the Sports Broadcasting

Signal Bill, the power of BCCI to earn maximum revenue has been

curtailed, due to mandatory sharing of the feed with Prasar Bharati.

It is however alleged by many, that BCCI has considerable finan-

cial resources which are being mismanaged. The Supreme Court has

held that the accounts of BCCI can be scrutinized. Thus measures

should be taken to impose such scrutiny on a regular basis and the

autonomous BCCI could also distribute the money earned by the sale

of the TV rights amongst its member state and district associations,

thus providing the cash sapped associations with money and serving

the game at the grass roots level.

The Sports Broadcasting Signal Bill, 2007

The provisions of the Sports Broadcasting Signal Bill are discussed

under the following headings:

Events of national importance and the regulations around Europe;

Direct-To-Home Broadcasting (DTH) and the Bombay High

Court decision;

Failure of the Bill to mention the rights on short reporting.

The most important question that comes to my mind is what can be

classified as events of national importance under the Bill. Under

Section 2 (1) (s):

“‘Sporting event of national importance’ means such national or

international sporting events, held in India or abroad, as may be

notified by the Central Government in the Official Gazette to be

of national importance.”

The said provision fails to mention the criteria the Central

Government will take into consideration in declaring a sporting event

to be of national importance. The Bill leaves the declaration of such

events to the arbitrary discretion of the Central Government. Section

6 of the Bill refers to the applicability of the provisions of the down-

linking guidelines and the uplinking guidelines regarding the said

issue. The said guidelines in Paragraph 5.1.1 include all cricket match-

es played by India and the semi- final and finals of all other interna-

tional competitions. Thus a question that can be raised is: are all

matches played by the Indian team of national importance, due to

which the contractual rights of the broadcasters can be curtailed?

Secondly, there is an ambiguity as to what the semi-finals and finals of

international competition of cricket mean. Does it mean all series

being played between the Full Members of ICC as well as the Associate

members? If yes, then the question of such events being of national

importance is in itself doubtful since I fail to understand what ‘nation-

al interest’ which is in itself an ambiguous term according to this Bill,

do the Indian people have say e.g. in a Tri-series played between say

England, South Africa and The Netherlands, apart from the interest

pertaining to that of entertainment. Secondly, if the greater interest of

the viewers has to be taken into account then I fail to understand why

the people living in India would be so interested in watching semi-

finals and finals of second rung teams of the Associate Members of the

ICC, not involving people of the national teams. Thus by leaving such

a broad ambit, I believe that the government is continually transgress-

ing on the contractual rights and the freedom of the private broadcast-

ers. In order to remove such ambiguity from the Bill certain guidelines

have to be laid down which give vent to the objectives that are to be

achieved and which also should be wide enough to include future

events. They should be expressly defined in order to help individuals

and companies know of their rights in certainty before they enter into

a contract in India in relation to such events.

The government itself in a notification number 603/1/2005-BC-

III

dated 5 April 2006 has classified some national and internation-

al events, which in the eyes of the government are of national impor-

tance. This notification lays down events related to Tennis, Hockey,

Football, Chess and Billiards and Snooker which will be classified as

events of national importance. It also covers Summer and Winter

Olympics, Asian Games, Commonwealth Games and Afro-Asian

Games. But it fails to mention any cricketing event and the ambit of

such an important sport of the country is left open.

We also have to discuss the shortcomings of the Bill in relation to

what events can be classified as events of national importance in gen-

eral and the criteria defining them. In order to bring out the ambigu-

ity of the guidelines applicable under the Bill, we shall look further to

similar laws in the world and how they have defined events of nation-

al importance and how such events are being regulated there.

In the European Union broadcasting activities are centric in

Directive 89/552 to which further amendment has been made through

Directive 97/36 (“Television without Frontiers”), which among other

things provides for an insertion of a new Article 3a providing:

“Each Member State may take measures in accordance with the

Community law to ensure that broadcasters under its jurisdiction

do not broadcast on an exclusive basis events which are regarded by

that Member State as being of major importance for society in such

a way as to deprive a substantial proportion of the public in that

Member State of the possibility of following such events via live

coverage or deferred coverage on free television”.

The Explanatory Note to the Council of Europe’s convention on Trans-

frontier Television reads regarding Article 9bis, paragraph 2(e) as follows:

“Events to which national measures apply must genuinely be of

major importance for society in all or part of the relevant Party,

which means that they should be outstanding events which are of

interest to the general public of the geographical area covered by

the Council of Europe or of a Party to the Convention or an

important part of the population of a given Party to the

Convention. Such events are, for example, the Olympic Games,

the football World Cup and the European Football Championship.

In general terms, on the basis of a case by case evaluation made in

the light of the documentation provided by Parties, events may

qualify as an event of major importance for society if at least two

of the following conditions are met:

- the event and its outcome has a special general resonance in the

relevant Party, not simply a significance to those who ordinarily

follow the sport or activity concerned;

- the event has a generally recognized, distinct cultural importance

for the population in the Party concerned and in particular con-

tains elements of its cultural identity;

- it involves the national team in the sport concerned in a major

international tournament;

the event has traditionally been broadcast on free television and has

commanded large television audiences in the Party concerned.”

Thus the Council of Europe has laid out certain guidelines for the

Member States, in order to prepare a list as to what event can be list-

20 http://www.mib.nic.in/informationb/

CODES/frames.htm.

21 European Council’s Directive relating to

‘the pursuit of television broadcasting

activities’. http://europa.eu.int/eur-

lex/en/consleg/pdf/1989/

en_1989L0552_do_001.pdf.

2007/3-4

ARTICLES

ed. It is important to note that sporting events such as the Olympics,

the football World Cup and the European Football Championship

have been included as a part of a definition and the scope is left open

to include other events. Thus the broadcasters in the given scenario

know of the listed events and other events that could fall into the

purview of national importance, for which only free-to-air broadcast-

ing rights can be acquired by them. This is taken into consideration

by them during the acquisition of broadcasting rights.

In its ruling in R v Independent Television Commission, ex parte TV

Danmark I Ltd the English House of Lords concluded that a member

state in which a broadcaster is based is required to prevent the exer-

cise by that broadcaster of exclusive rights in such a way that a sub-

stantial proportion of the population in another member state would

be deprived of the possibility of watching a listed event on television.

Taking the national legislations into consideration, we can analyze

the provisions of Dutch legislation. According to the Dutch laws the

broadcasters under Article 71 t of the Media Act have to share their

feed with NOS (the Dutch joint national broadcaster) guaranteeing

access to information of the general public which it considers is nec-

essary in the interest of democratic society. It is explicitly stated that

the ‘preferential right’ was not intended to protect the interests of

NOS; rather it was given to protect the interests of the Dutch public.

However it is further classified as what events will be included in the

list, which guarantees such exceptional rights to NOS. Under Article

72 of the Media Act:

“2) An event may be placed on the list referred to under paragraph

1 if at least two of the following requirements are fulfilled:

a. the event is of general interest to the Dutch society;

b. the event has special cultural meaning;

c. the event was already broadcast on free television in the past and

could count on high ratings;

d. it is a major international sports event in which the national

team participates.”

Thus taking the above European and Dutch laws into consideration,

and comparing them with the Sports Mandatory Broadcasting Bill, it

can be stated that the Bill is similar to them in relation to sharing of

feed with the national broadcasters, however where the Bill is lacking

is its failure to mention criteria that have been laid down in Europe

and the Dutch law, which serve as guidelines to the government for it

to declare by notification events in the ambit of national importance.

Both the Council of Europe and the Netherlands lay down four cri-

teria in order to classify an event to be of national importance.

Compared to these guidelines the Indian Sport Broadcasting Signal

Bill only lays down a single criterion expressly, that is that it should

be a major international sporting event with the participation of the

national team. Guidelines fail as to how the government will decide

events to be of national importance like that of general interest to the

society, having a special cultural meaning to the people of the coun-

try or a simple criterion that such an event has been aired on

Doordarshan (the public television channel) or the AIR (All India

Radio) previously with high ratings. Thus the Bill leaves a lot to the

arbitrary discretion of the Central Government through the

Information and Broadcasting Ministry.

The second question under consideration is the meaning of DTH

under this Bill and what exactly is Prasar Bharati’s DTH. DTH is

defined in Section 2 (1) (j) of the Bill as follows:

“‘Direct-To-Home (DTH) broadcasting service’ means a service for

multi-channel distribution of programmes direct to a subscriber’s

premises without passing through an intermediary such as a cable

operator by uplinking to a satellite system.”

The question to be solved is what does Prasar Bharati’s terrestrial and

DTH network mean, in compliance with Section 3 (1) of the Bill. The

question to be answered is whether the private companies like Tata Sky

are owners of private DTH network within the ambit of this section,

since Prasar Bharati doesn’t have its individual DTH network. If this

is the case then the holders of the broadcasting rights only stand to lose

by acquiring broadcasting rights. Thus in due time they will stop buy-

ing the rights for the sums being paid today, which will only be harm-

ful for the players, BCCI, Prasar Bharati and the interest of the view-

ers at large. This conflict is yet to be settled and the case is pending for

a hearing in August 2007, before the Bombay High Court.

One issue which the Bill completely fails to address is the issue

relating to short reporting and news reporting. What are the rights of

the news channels to show the highlights of the matches, and if they

have such rights, what is the length of time or the period for which

they can be shown or relayed? So far there has been no reported con-

flict between the broadcasters of sports events and the news channels

related to the reporting of events. Thus no explicit regulation or

guidelines have been laid down. The right to access to information is

necessary in conformity with fundamental rights. However, taking

possible future conflicts into account, there is a need to regulate the

reporting of sports events in India. The press council norms

of jour-

nalistic conduct fail to mention anything related to how the conduct

of the journalist is to be regulated in terms of sports reporting. The

criticism regarding the performance of the cricketers at most can be

governed by the codes against defamation of private individuals and

associations, because the ‘public figures’ as mentioned in the said

norms include the actors and singers besides the people in public

offices but not the sports personalities including cricketers. The game

of cricket is also part of a public performance and the members of the

public are interested in their activities as has been discussed before.

The freedom to broadcast reports of the same is included in the press’s

right of freedom of speech and expression; only subject to restrictions

imposed by the Constitution. If this was the case given the present

scenario, then the press would be able to broadcast the whole match

as a part of the news, since there is no explicit regulation of the same.

Since the Sports Broadcasting Signal Bill is dealing with the broad-

casting aspects related to sports, it should also consider the regulation

of news reporting of the sports events.

In Europe specific restrictions on the rights of such reporting have

been imposed. The recommendations of the Committee of Ministers

of the Council of Europe state that in general the authorized duration

of a short report should depend on the time needed to communicate

the information content of the event. It differentiates between the pri-

mary and the secondary broadcasters and also recommends that the

short report should not be reused and all original program material

should be destroyed after the production of the report. It also recom-

mends that the primary broadcaster should be allowed to charge a fee

for the short report. The Council of Europe has also identified the

importance of legislation for regulating short reporting through its

Article 9 of the European Convention on Transfrontier Television:

“Each Party shall examine and, where necessary, take legal measures

such as introducing the right to short reporting on events of high

interest for the public to avoid the right of the public to informa-

tion being undermined due to the exercise by a broadcaster within

its jurisdiction of exclusive rights for the transmission or retrans-

mission (...) of such an event.”

These regulation is basically implemented to bring the European

broadcasting law in conformity with Article 10 of the European

Convention on Human rights (freedom of expression).

In the Netherlands on November 2004 the Parliamentary

Undersecretary for Education, Culture and Sciences pointed out that

NOS should have the opportunity to broadcast ‘reasonable’ extracts.

In Italy certain guidelines regarding the same have been laid down

in Article 3 of the Regulation for the Exercise of Radio Reports passed

by the LNP (national parliament). It states that ‘radio reports by those

bodies which have been granted access to the premises of the stadium

22 Article 9bis, paragraph 2(e), Explanatory

note: ‘European Convention on

Transfrontier Television’; http://

conventions.coe.int/Treaty/EN/Reports/

Html/132.htm.

23 Norms made under the Press Council

Act, can be read on the website;

http://presscouncil.nic.in/home.htm.

2007/3-4

ARTICLES

must be broadcast within the programmes the purpose of which is

purely informative’. It further lays down rules for the reporting of

football matches, in particular stating that news broadcasters are

allowed a maximum of three minutes informative window for every

fifteen minutes of the game (football match) with a maximum of

three windows for each of the two halves. There are further provisions

in Article 3 of the Regulation for the Exercise of Television Reports

issued by the LNP, which limit the dissemination on the basis of the

timing to relay the same. It states that it can be done only after 22:30

hours in the evening for games commencing no later than 15:00

hours, after 22:30 hours for games commencing no later than 18:00

hours and after 24:00 hours for evening games.

Thus taking the Dutch, the Italian and broadly the European law

into account, it can be said that there is a lacuna in the Sports

Broadcasting Signal Bill, with relation to provisions on short report-

ing, which must be inserted into the Bill through an amendment. For

this amendment the government can look towards the guidelines laid

down in other systems of law, after which it should use its discretion

at least to set a broad guideline.

Conclusion

There is a need for more regulation in India not only in relation to

sports broadcasting but also with regard to transfer of players in case

of football and hockey, regulating the advent of the new Indian

Cricket League and what should be its status. A more comprehensive

regulation is also needed to govern the injuries, doping and employ-

ment aspects in sports and the relationship that exists between the

players, their agents and the associations or the clubs they belong to.

The Sports Broadcasting Signal Bill needs to be amended to incor-

porate short reporting as well as defining the events of national

importance, thus putting an end to the disputes and defining the legal

position of broadcasters clearly before they enter into contracts.

In the end with Formula1 setting its sights on India, the whole legal

regulation relating to sports in general including broadcasting, needs

to be addressed on an urgent basis. The whole issue of it being a sport

of ‘national importance’ will again come up since it has not been

referred to in the Bill. The various contracts involved with the sport,

which have their own pecuniary quality in conformity with the need

of the sport, will also come into limelight, thus highlighting the cur-

rent lacunae.

ANNEX

The Sports Broadcasting Signals (Mandatory Sharing with Prasar

Bharati) Bill, 2007*

A Bill to provide access to the largest number of listeners and viewers,

on a free to air basis, of sporting events of national importance

through mandatory sharing of sports broadcasting signals with Prasar

Bharati and for matters connected therewith or incidental thereto.

Be it enacted by Parliament in the Fifty-eighth Year of the Republic

of India as follows:

Chapter I - Preliminary

1.(1) This Act may be called the Sports Broadcasting Signals

(Mandatory Sharing with Prasar Bharati) Act, 2007.

(2)It extends to the whole of India.

(3)Save as otherwise provided, it shall be deemed to have come

into force on the 11th day of November, 2005.

2.(1) In this Act, unless the context otherwise requires,

(a) “broadcaster” means any person who provides a content

broadcasting service and includes a broadcasting network

service provider when he manages and operates his own

television or radio channel service;

(b)“broadcasting” means assembling and programming any

form of communication content, like signs, signals, writ-

ing, pictures, images and sounds, and either placing it in

the electronic form on electro-magnetic waves on specified

frequencies and transmitting it through space or cables to

make it continuously available on the carrier waves, or

continuously streaming it in digital data form on the com-

puter networks, so as to be accessible to single or multiple

users through receiving devices either directly or indirect-

ly; and all its grammatical variations and cognate expres-

sions;

and placing communication content in electronic form on

the electro-magnetic waves on specified frequencies and

transmitting it continuously through broadcasting net-

work or networks so as to enable all or any of the multiple

users to access it by connecting their receiver devices to

their respective broadcasting networks and includes the

content broadcasting services and the broadcasting net-

work services;

(d)“broadcasting networks service” means a service, which

provides a network of infrastructure of cables or transmit-

ting devices for carrying broadcasting content in electron-

ic form on specified frequencies by means of guided or

unguided electromagnetic waves to multiple users, and

includes the management and operation of any of the fol-

lowing:

(i) Teleport/Hub/Earth Station,

(ii) Direct-to-Home (DTH) Broadcasting Network,

(iii)Multi-system Cable Television Network,

(iv) Local Cable Television Network,

(v) Satellite Radio Broadcasting Network,

(vi) any other network service as may be prescribed by the

Central Government;

(e) “cable television channel service” means the assembly, pro-

gramming and transmission by cables of any broadcasting

television content on a given set of frequencies to multiple

subscribers;

(f) “cable television network” means any system consisting of

closed transmission paths and associated signal generation,

control and distribution equipment, designed to receive

and re-transmit television channels or programmes for

reception by multiple subscribers;

(g)“community radio service” means terrestrial radio broad-

casting intended and restricted only to a specific commu-

nity and within specified territory;

(h)“content” means any sound, text, data, picture (still or

moving), other audiovisual representation, signal or intel-

ligence of any nature or any combination thereof which is

capable of being created, processed, stored, retrieved or

communicated electronically;

(i) “content broadcasting service” means the assembling, pro-

gramming and placing content in electronic form and

transmitting or retransmitting the same on electro-mag-

netic waves on specified frequencies, on a broadcasting

network so as to make it available for access by multiple

users by connecting their receiving devices to the network,

and includes the management and operation of any of the

following:

(i) terrestrial television service,

(ii) terrestrial radio service,

(iii)satellite television service,

(iv) satellite radio service,

(v) cable television channel service,

(vi) community radio service,

(vii)any other content broadcasting services as may be pre-

scribed by the Central Government;

(j) “Direct-to-Home (DTH) broadcasting service” means a

service for multi-channel distribution of programmes

direct to a subscriber’s premises without passing through

*Bill No. 26-C of 2007, as passed by Lok

Sabha on 8.3.2007.

2007/3-4

ARTICLES

an intermediary such as a cable operator by uplinking to a

satellite system;

(k)“Guidelines” means the Guidelines issued under section 5;

(l) “multi-system cable television network” means a system for

multi-channel downlinking and distribution of television

programmes by a land-based transmission system using

wired cable or wireless cable or a combination of both for

simultaneous reception either by multiple subscribers

directly or through one or more local cable operators;

(m)“Prasar Bharati” means the Corporation known as the

Prasar Bharati (Broadcasting Corporation of India) estab-

lished under sub-section (1) of section 3 of the Prasar

Bharati (Broadcasting Corporation of India) Act, 1990;

(n)“prescribed” means prescribed by rules made under this

Act;

(o)“satellite television service” means a television broadcasting

service provided by using a satellite, and received with or

without the help of a local delivery system but does not

include Direct-to-Home delivery service;

(p)“satellite radio service” means a radio broadcasting service

provided by using a satellite and directly receivable

through receiver sets by multiple subscribers in India;

(q)“service provider” means provider of a broadcasting serv-

ice;

(r) “specified” means specified under the Guidelines issued

under section 5;

(s) “sporting events of national importance” means such

national or international sporting events, held in India or

abroad, as may be notified by the Central Government in

the Official Gazette to be of national importance;

(t) “terrestrial television service” means a television broadcast-

ing service provided over the air by using a land-based

transmitter and directly received through receiver sets by

the public;

(u)“terrestrial radio service” means a radio broadcasting serv-

ice provided over the air by using a land-based transmitter

and directly received through receiver sets by the public.

(2) Words and expressions used and not defined in this Act and

defined in the Cable Television Networks (Regulation) Act,

1995, the Telecom Regulatory Authority of India Act, 1997,

the Indian Telegraph Act, 1885, the Indian Wireless

Telegraphy Act, 1933 shall have the meanings respectively

assigned to them in those Acts.

Chapter II - Mandatory Sharing of Sports Broadcasting Signals

with Prasar Bharati

3. (1) No content rights owner or holder and no television or radio

broadcasting service provider shall carry a live television

broadcast on any cable or Direct-to-Home network or radio

commentary broadcast in India of sporting events of national

importance, unless it simultaneously shares the live broadcast-

ing signal, without its advertisements, with the Prasar Bharati

to enable them to re-transmit the same on its terrestrial net-

works and Direct-to-Home networks in such manner and on

such terms and conditions as may be specified.

(2) The terms and conditions under sub-section (1) shall also pro-

vide that the advertisement revenue sharing between the con-

tent rights owner or holder and the Prasar Bharati shall be in

the ratio of not less than 75:25 in case of television coverage

and 50:50 in case of radio coverage.

(3) The Central Government may specify a percentage of the rev-

enue received by the Prasar Bharati under sub-section (2),

which shall be utilised by the Prasar Bharati for broadcasting

other sporting events.

4. The Central Government may specify penalties to be imposed,

including suspension or revocation of licence, permission or regis-

tration, for violation of various terms and conditions as may be

specified under section 3, subject to the condition that amount of

a pecuniary penalty shall not exceed one crore rupees:

Provided that no penalty shall be imposed without giving a reason-

able opportunity to the service provider:

Provided further that no act or omission on the part of any person

after the 11th November, 2005 and before the date of promulgation

of the Sports Broadcasting Signals (Mandatory Sharing with Prasar

Bharati) Ordinance, 2007 shall be subjected to penalties.

Chapter III - Powers of the Central Government to Issue

Guidelines

5. The Central Government shall take all such measures, as it deems

fit or expedient, by way of issuing Guidelines for mandatory shar-

ing of broadcasting signals with Prasar Bharati relating to sporting

events of national importance:

Provided that the Guidelines issued before the promulgation of the

Sports Broadcasting Signals (Mandatory Sharing with Prasar

Bharati) Ordinance, 2007 shall be deemed to have been issued

validly under the provisions of this section.

Chapter IV - Miscellaneous

6.(1) The provisions of the Guidelines issued by the Central

Government for Downlinking of Television Channels on the

11th November, 2005 and for Uplinking from India on the

2nd December, 2005 for mandatory sharing of the sports

broadcasting signals shall be deemed to be valid as if they have

been issued under this Act.

(2)Notwithstanding anything contained in any judgement,

decree or order of any court, tribunal or other authority, any

action taken by the Central Government or the Prasar Bharati

in pursuance of the Guidelines referred to in sub-section (1)

shall be deemed to be and to have always been for all purpos-

es in accordance with the law, as if the Guidelines had been

validly in force at all material times and notwithstanding any-

thing as aforesaid and without prejudice to the generality of

the foregoing provisions, no legal proceeding shall be main-

tained or continued in any court for the enforcement of any

direction given by any court or any decree or order which

would not have been so given had the Guidelines been valid-

ly in force at all material times.

7. The Central Government may, by notification in the Official

Gazette, make rules for carrying out the provisions of this Act.

8. Every rule and Guidelines made and issued, as the case may be,

under this Act shall be laid, as soon as may be after it is made or

issued, before each House of Parliament, while it is in session for a

total period of thirty days which may be comprised in one session

or in two or more successive sessions, and if, before the expiry of

the session immediately following the session or the successive ses-

sions aforesaid, both Houses agree in making any modification in

the rule or Guidelines, or both Houses agree that the rule or

Guidelines should not be made, the rule or Guidelines shall there-

after have effect only in such modified form or be of no effect, as

the case may be; so, however, that any such modification or annul-

ment shall be without prejudice to the validity of anything previ-

ously done under that rule or Guidelines.

9. The relevant provisions under the Guidelines for Downlinking of

Television Channels issued on the 11th November, 2005 and the

Guidelines for Uplinking from India issued on the 2nd December,

2005 for mandatory sharing of sports broadcasting signals with

Prasar Bharati, shall continue to remain in force till fresh

Guidelines are issued under this Act.

10.

(1) The Sports Broadcasting Signals (Mandatory Sharing with

Prasar Bharati) Ordinance, 2007 is hereby repealed.

(2) Notwithstanding the repeal of the Sports Broadcasting Signals

(Mandatory Sharing with Prasar Bharati) Ordinance, 2007,

anything done or any action taken under the said Ordinance

shall be deemed to have been done or taken under the corre-

sponding provisions of this Act.

2007/3-4

ARTICLES

1. Introduction

Although the problem of match fixing and corruption in sport is an

international phenomenon,

it is also a matter which has become all

too familiar in South African sport. It received public prominence in

South Africa when the former captain of the South African national

cricket team, Hansie Cronjé, admitted his involvement with certain

unsavoury bookmakers in India, as well as attempts to manipulate the

outcome of certain cricket matches.

However, contrary to popular

belief, this was not the first instance in which the integrity of a South

African sports event was compromised. Horse racing had long since

suffered under the scourge of fixed races.

And Cronjé’s exploits

would not be the last. It was followed more recently by the arrest of

almost all the premier league football referees and some team officials

and the revelation that match fixing seemed to be rife in South

African football. In 2004, the Organised Crime Unit of the South

African Police Service launched “Operation Dribble”, which led to

the arrest of 20 football referees and two club managers on suspicion

of match fixing in Professional Soccer League matches.

Because of the public outcry which followed Hansie Cronjé’s fall

from grace, there was a feeling amongst South African lawyers and

lawmakers, rightly or wrongly, that existing measures against corrup-

tion were not sufficient to deal with the unique problems encoun-

tered in sport.

And since Parliament was in any event reviewing the

Corruption Act,

it was decided to include the so-called “Hansie-

clause” into the new Prevention and Combatting of Corrupt

Activities Act

(PreCCA).

This act came into operation on 27 April

2004.

2. Defining Corruption

Corruption, by definition, involves the improper prospect or passing

of some monetary or other benefit, not ordinarily due, to direct the

recipient’s conduct in a certain way as directed by the person offering

or passing the benefit. As a result, most provisions in PreCCA explain

that corruption may consist of a situation where -

-a person accepts or agrees or offers to accept any gratification from

any other person, whether for the benefit of himself or herself or

for the benefit of another person, to act in a particular way or to

refrain from acting; or

-a person gives or agrees or offers to give to any other person any

gratification, whether for the benefit of that other person or for the

benefit of another person, to act in a particular way or to refrain

from acting.

For ease of reference, I will refer to these activities collectively as

“inducing” a person to act or refrain from acting.

3. Corruption in Sporting Events

PreCCA now expressly provides for the offence of corrupt activities

relating to sporting events.

Section 1 of PreCCA defines “sporting

event” as any event or contest in any sport, between individuals or

teams, or in which an animal competes, and which is usually attended

by the public and is governed by rules which include the constitution,

rules or code of conduct of any sporting body which stages any sport-

ing event or of any regulatory body under whose constitution, rules or

code of conduct the sporting event is conducted. This definition is

clearly wide enough to include all organised sport, including sports

such as horse racing, show jumping, polocrosse, pigeon racing

and

even dog contests. Greyhound racing and some other sports involving

animals, such as rodeos and blood sports, such as dog fighting, cock

fighting and bull fighting, have been banned in South Africa.

Game

hunting is still a major industry in South Africa, but even if it can be

considered to be a sport, it is not governed by a constitution, rules or

code of conduct of a sporting body, nor is it ordinarily attended by the

public and will, therefore, not fall within the definition.

In terms of s 15 of PreCCA, the offence of corrupt activities relat-

ing to sporting events can be committed in various ways. In the first

instance, it is committed where a person is induced to perform any

act which constitutes a threat to or undermines the integrity of any

sporting event, including, in any way, influencing the run of play or

the outcome of a sporting event.

This provision is clearly aimed at

match-fixing. It acknowledges the fact that match-fixing takes place

not only when the final result is rigged. Punters often bet on the

occurrence of particular events which may seem innocuous in the

greater scheme of a match, such as when the first free kick will be

awarded, or how many yellow cards will be awarded in a particular

match, etcetera. Nevin

explains that

[w]ays of gambling on cricket are many and varied. Bets are placed

on the outcome of the toss, the end from which the fielding cap-

tain will elect to bowl, a set number of wides or no-balls in a des-

ignated over, players being placed in unfamiliar fielding positions,

individual batsmen scoring fewer runs than their opposite numbers

who batted first, batsmen being out at a specific point in their

innings, the total number of runs at which a batting captain will

declare, the timing of a declaration, or the total runs scored in an

innings. A bet can be laid on the outcome of virtually any aspect

of the game. And that’s what makes it so easy for players to fix a

result, especially in the one-day matches.

The offence in s 15 is further committed if a person carries into effect

any scheme which constitutes a threat to or undermines the integrity

of any sporting event, including, in any way, influencing the run of

play or the outcome of a sporting event.

At first glance, this provi-

* BIuris LLB (Unisa) LLD (UP). Professor

in Law and Director, Centre for Sport

Law, University of Johannesburg, South

Africa. Visiting Fellow at Anglia Ruskin

University.

1 Cloete (ed) Introduction to Sports Law in

South Africa (2005) 11 et seq. To cite only

a few examples, see Nafziger

International Sports Law 2 ed (2004) 30

et seq; Kleinman “Can FIFA Keep

Football as the Beautiful Game?” 6 June

2002 Marketing 9, Margolis “The Fall of

Football: Crippled by a Loosing Streak

and Charges of Corruption, Brazilian

Football is in Crisis” 15 January 2001

Newsweek 26, Anon “On the Game” 18

March 1995 The Economist 58 and Anon

“On the Defense: The Trial of Three

Football Players and a Malaysian

Businessman” 31 January 1997 Asiaweek 1

concerning football, Anon “Ringleaders”

22 June 1996 The Economist 83 concern-

ing sumo wrestling, Cochrane “Rigging

the Races: Thai Horse Racing is Big

Business - And Terribly Corrupt. Worse,

No-one is Willing to Bet on Reform” 19

August 2002 Newsweek 24 concerning

horse racing, Newfield “The Shame of

Boxing” 12 November 2001 The Nation

2 Cronje v United Cricket Board of South

Africa 2001 4 SA 1361 T. S ee also the

King Commission Interim Report dated

11 August 2000; Nafziger (2004) 33.

3 See for instance Tu rner v Jockey Club of

South Africa 1974 3 SA 633 A.

4 Ndaba, Mamabolo, Matshe and Adams

“Red Card for Refs” 14 June 2004 The

Star 1.

5 Nevin “Rooting Out the Evil” September

2001 African Business 29.

694of 1992.

712of 2004.

8 Cloete (2005) 11.

9 s 15.

10 Pigeon racing has some of the richest

prize money in South African sport.

11 See for instance United Greyhound

Racing and Breeders Society v Vrystaat

Dobbel en Wedren Raad en andere 2003

(2) SA 269 (O).

12 Cloete (2005) 11.

13 s 15 (i) (aa) PCCAA.

14 September 2001 African Business 29.

15 s 15 (c) PCCAA.

South African Measures to Combat

Match Fixing and Corruption in Sport

by Steve Cornelius*

2007/3-4

ARTICLES

sion also seems to deal with match-fixing in the sense discussed above.

However, on closer analysis, the scope of this provision is actually

extremely wide and could include conduct which one would not ordi-

narily have counted under the general heading of “match-fixing”.

The offence created in terms of s 15 (c) consists of two distinct ele-

ments. Significantly, though, s 15 (c) does not contain the require-

ment of inducement which constitutes a vital element of almost all of

the offences created in terms of PreCCA. As a result, it is irrelevant

whether or not any monetary or other benefit changed hands in the

process.

The first element in s 15 (c) is that there must be a “scheme”. The

Oxford Dictionary defines “scheme” as

1. a systematic plan or arrangement for attaining some particular

object or putting a particular idea into effect... a particular ordered

system or arrangement... 2. a secret or underhand plan; a plot.

Similarly, the Webster’s Unabridged Dictionary of the English Language,

defines “scheme” as

1. a plan, design, or program of action to be followed; project. 2.

an underhand plot; intrigue...

Both these definitions seem to suggest that there are two requirements

that have to be met before one could label certain conduct as a

“scheme” - there must be some premeditated plan and there must a

plot or conspiracy which should essentially involve more than one

person. This latter aspect also fits in with the general scope of

PreCCA, since corruption, by definition, is not a crime which can be

committed by one person acting individually.

The second element in s 15 (c), is that the particular scheme should

threaten or undermine the integrity of a sporting event. According to

Preston and Szymanski,

the integrity of a sporting event is under-

mined through cheating, which, they submit, can take three forms:

sabotage, doping and match fixing. While this analysis poses some

intriguing possibilities, a vital question in this regard is whether it is

necessary to prove that the integrity of a particular sporting event was

threatened or undermined, or whether it would suffice to prove that

a sport or sports in general were under threat. The solution lies in s

6 (b) of the Interpretation Act,

which provides that in any legisla-

tion, words indicating the singular, also includes the plural and vice

versa. It should therefore be sufficient to prove that sporting events

were under threat without reference to any specific individual event.

When contemplating Preston and Szymanski’s

analysis, the

notion of sabotage invariably conjures up the tearful images of figure

skater Nancy Kerrigan when, in an attempt to exclude her from par-

ticipation in the 1992 Winter Olympics, her knee was shattered by an

assailant who claimed to act on the instructions of someone in the

camp of rival skater Tonya Harding.

Conduct of this nature certain-

ly constitutes a plot or scheme which threatens or undermines the

integrity of a sporting event. If similar events should occur in South

Africa or involve South Africans directly or indirectly, it would in all

likelihood justify prosecution under s 15 (c) of PreCCA. On the other

hand, random violence, such as attacks on match officials,

may

threaten or undermine the integrity of a sports event, but usually lacks

the premeditated conspiracy to categorise it as a “scheme”. While

such random acts of violence could constitute other crimes in appro-

priate circumstances,

it will probably not be an offence in terms of

PreCCA. Of course, sabotage can take innumerable forms

and it

will be impossible to create an exhaustive list of possible actions that

can be labelled as sabotage.

Preston and Szymanski’s

analysis poses another interesting ques-

tion: Can doping constitute an offence under s 15 (c)? Again, the use

of banned substances by an individual athlete will lack the element of

conspiracy, even if it is premeditated, so that it will not constitute a

contravention of this provision. However, where medical or coaching

staff administer banned substances to athletes, this could indeed con-

stitute a scheme which threatens or undermines the integrity of a

sporting event. Similarly, operations such as the development, man-

ufacture and distribution of anabolic steroids as in the recent Balco

scandal,

will most likely be classified as schemes that threaten or

undermine the integrity of sporting events if similar events should

occur in South Africa or involve South Africans directly or indirectly.

Thirdly, the offence of corruption in sporting events is also com-

mitted if a person is induced to frustrate the reporting of a corrupt act

contemplated in s 15, to the managing director, chief executive officer

or to any other person holding a similar post in the sporting body or

regulatory authority concerned or at his or her nearest police station.

4. Other Offences

While s 15 of PreCCA provides expressly for the offence of corrupt

activities relating to sporting activities, this is by no means the only

provision in PreCCA which can be invoked to combat the problem of

corruption in sports. PreCCA has also established a number of other

offences that may be relevant in the context of sport. In fact, it is like-

ly that any indictment under s 15, may include alternative charges

under one or more of the other provisions contained in PreCCA.

4.1 Corruption in General

Section 3 (i) (aa) of PreCCA provides that the general offence of cor-

ruption consists of inducing someone to act in a manner that

amounts to the illegal, dishonest, unauthorised, incomplete, or biased

exercise, carrying out or performance of any powers, duties or func-

tions arising out of a constitutional, statutory, contractual or any

other legal obligation. The general offence of corruption also consists

of inducing someone to act in a manner that amounts to the abuse of

a position of authority, a breach of trust or the violation of a legal duty

or a set of rules,

that is designed to achieve an unjustified result

that amounts to any other unauthorised or improper inducement to

do or not to do anything.

Since most relationships in the world of

sports are based on contract,

any instances of match-fixing, whether

it consists of a player under-performing or a match official making

false rulings, can also constitute an offence under s 3 of PreCCA.

Section 3 (i) (bb) of PreCCA further defines the general offence of

corruption to include the illegal, dishonest, unauthorised, incom-

plete, or biased misuse or selling of information or material acquired

in the course of the exercise, carrying out or performance of any pow-

ers, duties or functions arising out of a constitutional, statutory, con-

tractual or any other legal obligation. If one considers that a substan-

tial element in the Hansie Cronjé case merely involved the passing of

information to bookmakers and punters, as well as the fact that other

cricketers world-wide have been implicated in similar dealings with

gamblers,

this provision would be an appropriate measure to prose-

cute those involved.

4.2 Corruption of Agents

The offence in respect of corrupt activities relating to agents is, in

16 “Cheating in Contests” 2003 Oxford

Review of Economic Policy 612.

17 33 of 1957.

18 Supra.

19 Duffy and Thigpen “Why? It Hurts So

Bad! Why Me?” 17 January 1994 Time

44.

20 Such as the incident reported in The

Sowetan on 3 May 2007, where football

coach Thabo Ndlela appeared in the

Witbank Magistrates’ Court charged

with assaulting referee Sipho Mahlangu

during a league game in March.

21 Such as the murder charges levelled

against two rugby players, Ben Zimri and

Wayne Matthee, from the Delicious

Rugby Club in Ceres in the Western Cape

following the death of Rawsonville rugby

player Riaan Loots after a fight during a

match between his team and Delicious in

Ceres in June 2006. See also R v

Hillebrand 1959 (3) SA 22 (T) 23D - F.

22 Such as giving key players yellow or red

cards, to name just one example - see

Preston and Szymanski 2003 Oxford

Review of Economic Policy 612.

23 Supra.

24 Sancetta “Scandal that could ruin

Marion Jones” 19 May 2004 The Star 8.

25 s 3 (ii).

26 s 3 (iii).

27 s 3 (iv).

28 Natal Rugby Union v Gould 1998 4 All

SA 258 A. See also Beloff, Kerr and

Demetriou (n 8) 9, 22 et seq, Weistart

and Lowell The Law of Sports (1979)

196. See also Cornelius “How Final is

the Final Whistle? Review of and

Liability for Decisions taken by Officials

at Sport Events” 2002 Tydskrif vir die

Suid-Afrikaanse Reg 628 and “Liability

of Referees (Match Officials) at Sports

Events” 2004/1-2 International Sports

Law Journal 52.

29 Nafziger (2004) 33; Nevin September

2001 African Business 29.

2007/3-4

ARTICLES

terms of s 6 of PreCCA, committed where someone induces an agent

or an agent induces someone to act in a manner that -

- amounts to the illegal, dishonest, unauthorised, incomplete, or

biassed exercise, carrying out or performance of any powers, duties

or functions arising out of a constitutional, statutory, contractual

or any other legal obligation;

- amounts to the misuse or selling of information or material

acquired in the course of the exercise, carrying out or performance

of any powers, duties or functions arising out of a constitutional,

statutory, contractual or any other legal obligation;

- amounts to the abuse of a position of authority, a breach of trust or

the violation of a legal duty or a set of rules;

- is designed to achieve an unjustified result, or that amounts to any

other unauthorised or improper inducement to do or not to do

anything, is guilty of the offence of corrupt activities relating to

agents.

4.3 Disciplinary Proceedings

Section 8 of PreCCA deals with corruption of judicial officers.

Section 1 defines “judicial officer” to include any arbitrator, mediator

or umpire, who in terms of any law presides at arbitration or media-

tion proceedings for the settlement by arbitration or mediation of a

dispute which has been referred to arbitration or mediation. It also

includes any other person who presides at any trial, hearing, commis-

sion, committee or any other proceedings and who has the authority

to decide causes or issues between parties and render decisions in a

judicial capacity. This definition is clearly broad enough to include

the chairperson and members of any disciplinary tribunal found in

sport today.

Section 8 essentially defines the offence of corruption in respect of

judicial officers in the same terms as s 6 defines the offence in respect

of agents. However, s 8 (2) explains further that “to act” in this sec-

tion includes performing or not adequately performing a judicial

function, making decisions affecting life, freedoms, rights, duties,

obligations and property of persons, delaying, hindering or prevent-

ing the performance of a judicial function, aiding, assisting or favour-

ing any particular person in conducting judicial proceedings or judi-

cial functions, showing any favour or disfavour to any person in the

performance of a judicial function or exerting any improper influence

over the decision making of any person, including another judicial

officer or a member of the prosecuting authority, performing his or

her official functions.

Any person who induces another person to -

- testify in a particular way or fashion or in an untruthful manner;

- withhold testimony or a record, document, police docket or other

object;

-give or withhold information relating to any aspect in a trial, hear-

ing or other proceedings;

- alter, destroy, mutilate, or conceal a record, document, police dock-

et or other object with the intent to impair the availability of such

record, document, police docket or other object;

-evade legal process summoning that person to appear as a witness

or to produce any record, document, police docket or other object

;

- be absent from such trial, hearing or proceedings;

before any court, judicial officer, committee, commission or officer

authorised by law to hear evidence or take testimony is guilty of the

offence of corrupt activities relating to witnesses and evidential mate-

rial during certain proceedings under section 11 of PreCCA. Likewise,

it is an offence under section 18 of PreCCA for any person to intimi-

date or use physical force, or improperly persuade or coerce another

person with the intent to interfere with testimony or evidence as set

out above.

4.4 Employment

In terms of section 10 of PreCCA, any person who is party to an

employment relationship and who is induced or induces another per-

son to perform any act in relation to the exercise, carrying out or per-

formance of that party’s powers, duties or functions within the scope

of that party’s employment relationship, is guilty of the offence of

receiving or offering an unauthorised gratification.

4.5 Contracts

Section 12 of PreCCA provides that any person who is induced or

who induces another person to improperly influence, in any way the

promotion, execution or procurement of any contract with a public

body, private organisation, corporate body or any other organisation

or institution or the fixing of the price, consideration or other mon-

eys stipulated or otherwise provided for in any such contract, is guilty

of the offence of corrupt activities relating to contracts.

4.6 Gambling

In terms of section 16 of PreCCA, corruption in respect of gambling

games or games of chance consist of inducement to engage in any

conduct which constitutes a threat to or undermines the integrity of

any gambling game or a game of chance, including, in any way, influ-

encing the outcome of a gambling game or a game of chance.

5. Duty to Report

In terms of section 34 (1), any person who holds a position of author-

ity and who knows or ought reasonably to have known or suspected

that any other person has committed an offence under PreCCA, must

report such knowledge or suspicion or cause such knowledge or sus-

picion to be reported to any police official. Any person who fails to

comply with this duty, is guilty of an offence.

For the purposes of section 34 (1), a person holds a position of

authority if he or she is the manager, secretary or a director of a com-

pany or a member of a close corporation, a chief executive officer or

an equivalent officer of any organisation, or the person responsible for

the overall management and control of the business of an employer.

This also includes any person who has been appointed in an acting or

temporary capacity.

6. Extraterritorial Jurisdiction

Section 35 of PreCCA provides for extraterritorial jurisdiction. Even

if the act alleged to constitute an offence under PreCCA occurred

outside South Africa, a South African court shall, regardless of

whether or not the act constitutes an offence at the place of its com-

mission, have jurisdiction in respect of that offence if the person to

be charged -

- is a South African citizen;

- is ordinarily resident in South Africa;

-was arrested in the territory of the South Africa, or in its territori-

al waters or on board a ship or aircraft registered or required to be

registered in South Africa at the time the offence was committed;

- is a company, incorporated or registered as such under any law, in

South Africa;

- any body of persons, corporate or unincorporated, in South Africa.

This provision closes a loophole in South African law which existed at

the time of the Hansie Cronje scandal. Because the attempts by Cronjé

to manipulate the outcome of cricket matches occurred in India,

South African court would have had jurisdiction to try the matter. If a

similar incident should occur in future, however, South African courts

will now be competent to adjudicate the matter under South African

law as if the offence has been committed in South Africa.

Section 35 does not stop there, however. A South African court will

also have jurisdiction in respect of an offence committed outside

South Africa if the -

- act affects or is intended to affect a public body, a business or any

other person in the Republic;

- person is found to be in South Africa; and

- person is for one or other reason not extradited by South Africa or

if there is no application to extradite that person.

30 Cronje v United Cricket Board of South

Africa 2001 4 SA 1361 T. S ee also the

King Commission Interim Report dated

11 August 2000; Nafziger (2004) 33.

The Research Center for Sports Law of CUPL is the first research institute in

China on sports law from a professional perspective and it boasts a constellation

of prestigious scholars.

The major research orientation of the Center is as follows: the origin and evolu-

tion of sports law, the sports industry, sports organizations, sports agents, sports

contracts, sports lotteries, sports intellectual property, the rights and correspon-

ding obligations of athlete and referee, as well as their respective legal status,

competition rules, anti-doping, sports consumption, and damage compensation

for sports facilities.

The main members of the Center are:

Honorary Director: Professor Jiang Ping (the “guru” of civil law, professor

emeritus and doctorate tutor of CUPL)

Director: Professor Jiao Hongchang (doctorate tutor, Deputy Director of the

Law Department, head of the instructors of the Constitution in the college of

postgraduates)

Managing Deputy Director: Professor Wang Xiaoping (tutor for graduates,

Director of the Department of Physical Education)

Deputy Director_Professor Ma Hongjun (tutor for graduates)

Secretary General: Associate Professor Zhang Xiaoshi (tutor for graduates).

During recent years, the Center has achieved impressive progress in terms of

academic research, and the members of the Center are also involved in the for-

mulation of a series of sports Acts, such as the Law of the People’s Republic of

China on Physical Culture and Sports, the Regulation of the National Physical

Fitness Program, and the Regulation of Sports Arbitration. Apart from that, they

provide consultation services on sports law in connection with the media and

sports institutes.

In terms of foreign exchanges, the Center carried out active exchange programs

and reached agreement on the cultivation of talents in the sports law field with

other research institutes and organizations, such as the Australian Griffith

University, the Korean Sports Law Society, the Japanese Sports Law Society,

and those from the HongKong and Taiwan regions. Members from the Center

have been invited by the Korean Sports Law Society to deliver speeches on the

Asian Sports Law Seminar held in Seoul. The Center is also involved in spon-

soring the foundation of the Asian Sports Law Society in 2005.

The development of the Center has attracted the attention and concern from var-

ious sections of the society, such as the State Sports General Administration, the

Beijing Organizing Committee for the 29th Olympic Games (BOCOG), the

Seminar on Sports Law of the China Law Society, etc. We have successfully

held the First advanced forum on Sports Law in 2004, which has great influence

and gave our Center the leading position in the domestic research on sports law.

Aimed at the successful Olympic Games in 2008, and at the organization of the

Seminar on Sports Law of the China Law Society, the Center will undertake the

responsibility of organizing the Third Asian Sports Law Seminar to be held on

November 11th, 2007.

2007/3-4

ARTICLES

The result is that, in future, where incidents similar to the Salt lake

City scandal

should occur, the parties who indulge in corrupt activ-

ities could also face charges under PreCCA if they should find them-

selves in South Africa, since the decision to award the Olympic

Games to a particular host city undoubtedly affects persons (or ath-

letes) and businesses (sports organisations) in South Africa, even if no

South African city submitted a competing bid. Similarly, future oper-

ations such as the development, manufacture and distribution of ana-

bolic steroids as in the Balco scandal,

could also form the basis for

prosecution under PreCCA if the perpetrators should find themselves

in South Africa. In fact, due to the global nature of sport and the sig-

nificance of world rankings in most sports, one could argue that

almost any form of corrption in any sport could affect individual

sports men and women or sports organisations in South Africa in one

way or another, so that South African courts could have jurisdiction

to try such matters under PreCCA if the perpetrators should find

themselves in South Africa.

7. Penalties

In terms of section 26 of PreCCA, any person who is convicted of an

offence under PreCCA, is liable -

- in the case of a sentence to be imposed by a High Court, to a fine

or to imprisonment up to a period of imprisonment for life;

- in the case of a sentence to be imposed by a regional court, to a fine

not exceeding R360,000

or to imprisonment for a period not

exceeding 18 years;

- in the case of a sentence to be imposed by a magistrate’s court, to a

fine not exceeding R100,000

or to imprisonment for a period not

exceeding five years.

In addition to any fine a court may impose in terms of section 26, the

court may also impose a fine equal to five times the value of the grat-

ification involved in the offence.

8. Conclusion

The new act may have come just in time to assist prosecuting author-

ities in their campaign against match fixing and corruption in South

African football. However, section 35 (3) (l) of the Constitution of the

Republic of South Africa 1996, provides that every accused person has

a right not to be tried for an offence in respect of an act or omission

that was not an offence at the time when it was committed or omit-

ted. As a result, the provisions of PreCCA only applies to transgres-

sions which took place after its commencement on 27 April 2004.

Any corrupt activities preceding that date can only be prosecuted

under the old Corruption Act

or the common law.

9. Epilogue

In October 2006, Premier Soccer League (PSL) referee Enoch Radebe

became the first match official in South Africa to be convicted of

match-fixing under PreCCA. He was charged on two counts of cor-

ruption under s 3 of PreCCA and in the alternative to each of the two

charges, on corrupting a sporting event under section 15 of PreCCA.

The court found that PSL referee Harry Lekitlane received a call from

Radebe offering to pay him and his assistant, Mantuso Nayo,

R4,000

each to influence a PSL match between Golden Arrows and

Ajax Cape Town. Both declined the “offer” and turned State witness.

Radebe was convicted on the two alternative charges under s 15 of

PreCCA and fined R150,000

or 10 years in prison, half of which was

suspended for five years.

What was not established, though, was

Radebe’s motive in trying to affect the outcome of the match. As

Radebe had very little to gain, there can be little doubt that he was

not acting alone, but at the behest of someone else. The matter was,

however, not investigated further and prosecuting authorities in

South Africa may have lost a golden opportunity to get to the root of

the problem in South African football.

30 Cronje v United Cricket Board of South

Africa 2001 4 SA 1361 T. S ee also the

King Commission Interim Report dated

11 August 2000; Nafziger (2004) 33.

31 Nafziger (2004) 31.

32 Sancetta “Scandal that could ruin

Marion Jones” 19 May 2004 The Star 8.

33 Approximately 40,000.

34 In terms of s 1 (1) (a) of the Adjustment

of Fines Act 101 of 1991, read with GN

R1411 of 30 October 1998 and s 92 (1) (b)

of the Magistrates’ Courts Act 32 of

1944.

35 Approximately 12,000.

36 In terms of s 1 (1) (a) of the Adjustment

of Fines Act 101 of 1991, read with GN

R1411 of 30 October 1998 and s 92 (1) (b)

of the Magistrates’ Courts Act 32 of

1944.

37 94 of 1992.

38 It seems that the prosecutor in the

Radebe case formulated the charge sheet

the wrong way around. One would have

expected the specific offence under s 15

to have been the main charge, with the

more general offence under s 3 as the

alternative charge to act as a safety net if

the main charge should for some reason

fail.

39 Approximately 450.

40 Approximately 18,000.

41 Anon “ First referee fine for match-fix-

ing” 19 October 2006 The Star. See also

Kwenaite “Was ref Enoch Radebe acting

alone?” on

http://www.supersoccer.co.za/default.asp

?id=4924&des=sportstalk accessed on 6

June 2007; Anon “PSL ref guilty of

match-fixing” on

http://www.news24.com/News24/Sport/

Soccer/0,9294,2-9-840_2016695,00.html

accessed on 6 June 2007.

42 Kwenaite supra.

Research Center for Sports Law of China University of Political Science and Law (CUPL)

2007/3-4

1. Introduction

The European Commission adopted the White Paper on Sport, its first

comprehensive strategic initiative in the field of sport, at one of its last

meetings before the summer break, on 11 July this year. It is a major

piece of work, with a total length of approx. 200 pages (including all

annexes). On average, the Commission adopts only two or three

White Papers per year, and the fact that the communication on sport

got this status is therefore an acknowledgement of the comprehensive

nature, longer-term value and political weight of the document.

The White Paper has to be seen in the overall context in which

sport has been addressed at EU level. It is the culmination of a long

process: the Amsterdam Declaration of 1997, the Nice Declaration of

2000, and then the agreement of the Intergovernmental Conference

in 2004 to include sport in the Treaty, coupled with the positive

results of the European Year of Education through Sport 2004, all

reflect the European framework that already existed for sport. This

framework put the accent on the special characteristics of sport, and

in particular its social and educational values.

In this political context and with the encouragement it had always

received from Member States and the sports community, the

Commission confirmed last year that momentum existed for a policy

initiative on sport.

The consultation process for the White Paper lasted approximate-

ly two years. The Commission engaged in extensive consultations at

different levels: with sport stakeholders, with national authorities, and

internally among the various Commission services that deal to a

greater or lesser extent with sport-related issues.

Consultations with sport stakeholders took the form of several con-

sultation conferences as well as numerous meetings with sport feder-

ations, Olympic committees, and other interested parties ranging

from e.g. umbrella organisations of sport NGOs to representatives of

the sporting goods industry. Besides, a successful on-line consultation

in the spring of 2007 gave all interested parties the opportunity to

express views on the initiative. 777 replies were received, a higher

number than is usual for this type of consultation. A detailed

overview of the consultation process can be found in Annex III of the

Staff Working Document “The EU and Sport: Background and

Context” which accompanies the White Paper.

Consultations with Member States mainly took the form of regu-

lar meetings of Sport Directors and Sport Ministers, as well as

exchanges of views in a number of Working Groups.

Internal consultations within the Commission were of particular

importance in an area without explicit EU competence and were a key

factor in determining the shape and content of the White Paper. The

Commission’s Sport Unit, part of the Directorate-General for

Education and Culture, is one of very few policy units in the

Commission whose activities are not based on any particular Treaty

provision. This means that most issues the Unit deals with are ulti-

mately the competence of other services within the Commission: DG

Employment and Social Affairs for the free movement of sportsper-

sons, DG Internal Market for other Internal Market issues, DG

Health and Consumer Protection for health-related issues, DG

Competition for anti-trust and State aid issues, DG Justice, Freedom

and Security for public order and the fight against crime, DG

External Relations and DG Development for sport relations with

third countries, etc.

Only a year ago, each of these services was conducting its own

actions in the sport area, without much effective coordination. This

has changed thanks to the White Paper. An effective coordination

mechanism has been set up among the approx. 15 Directorates-

General that are concerned. This so-called Inter-Service Group

“Sport” will keep functioning in the future and will play a key role in

overseeing the implementation of the White Paper. The preparation

of the White Paper has also encouraged the relevant services to make

an effort at placing their sport-related activities in a wider, compre-

hensive, strategic context. The White Paper has thus contributed to

the creation of a beneficial environment to prepare the next step for-

ward, i.e. the implementation of the provisions on sport which will in

all likelihood be included in the future Reform Treaty.

The White Paper has focus on three domains: the societal role of

sport, the economic importance of sport, and the organisation or

sport. The Commission’s objective was to present a broad initiative,

which would be able to address as many interests as possible. The

choice of a holistic approach and a careful balance between the three

domains was thus a response to the manifold - and often differing or

even contradictory - requests and expectations from sport stakeholders.

The Commission is well aware that some actors, especially those

representing professional sports, expected it to go further in terms of

regulatory measures and seeking exemptions for the sport sector from

the application of EU law.

It is important to point out that the White Paper respects the prin-

ciple of subsidiarity, the autonomy of sport organisations and the cur-

rent EU legal framework. When developing the concept of specifici-

ty of sport, the Commission could not go beyond the limits of exist-

ing EU competences.

The White Paper takes full account of this European context for

sport: the initiative does not weaken the application of EU law to

sport, but it provides further clarity on the application of EU legal

provisions in this sector.

A comprehensive initiative on sport appeared to be appropriate at

this particular point in time for several reasons. In general, the polit-

ical landscape was favourable to the launch of a broad EU initiative

on sport. Several processes took place during the last year in parallel

with the preparation of the White Paper, such as notably the debate

on governance in European football, which resulted in the

Independent European Sport Review, and the European Parliament’s

reports on the future of professional football in Europe and on the

role of sport in education.

The White Paper was driven by high expectations from sport stake-

holders, who wished to see their concerns addressed in EU policy

making, including the need to better promote sport and to achieve

more legal certainty. Social and economic developments in and out-

side the field of sport have brought about new challenges for sport,

some of which need European responses. Moreover, the potential that

sport has to contribute to the EU’s overall stated policy goals, such as

the Lisbon Strategy, have remained largely invisible for far too long.

In the Commission’s view, the White Paper had six overall objec-

tives: (1) to provide strategic orientation on the role of sport in the

EU; (2) to raise awareness of the needs and specificities of the sector;

(3) to improve knowledge about the application of EU law to sport;

(4) to enhance the visibility of sport in EU policies, programmes and

actions, (5) to encourage debate on specific problems, and (6) to iden-

tify the appropriate level of further action at EU level.

* M. Krejza is Head of the Sport Unit at

the Directorate-General for Education

and Culture of the European

Commission. The present article is

based on the Asser-Clingendael

International Sports Lecture, which he

gave in The Hague on 6 September

2007.

PAPERS

The European Commission’s White

Paper on Sport

Michal Krejza*

2007/3-4

PAPERS

The White Paper itself sets out the key ideas and provides the politi-

cal messages. It contains 53 priority actions, to be implemented or

supported by the Commission, which are brought together in an

Action Plan named after Pierre de Coubertin.

A detailed Staff Working Document (“The EU and Sport:

Background and Context”) explains the main underlying considera-

tions and context for these actions. It includes annexes on the appli-

cation of EU competition rules and internal market provisions to

sport.

The White Paper proposes a mix of instruments to address the role

of sport in Europe, such as studies and surveys, platforms and net-

works, enhanced cooperation dialogue structures, recommendations,

and mobilisation of EU programmes. It should be stressed that the

emphasis is on “soft” measures, not on regulatory or legislative action,

for which there is no specific EU competence.

The following three sections describe in more detail the content of

the White Paper, based on its three main thematic parts: the societal

role of sport, the economic dimension of sport, and the organisation

of sport.

2. The societal role of sport

To begin with there is the crucial area of sport and public health.

The White Paper takes account of the fact that certain public health

problems, in particular overweight and obesity, are not only about

nutrition and consumer protection, but also about physical activity.

The White Paper complements another recent White Paper of the

Commission, the “EU Strategy on Nutrition, Overweight and

Obesity related health issues”, in order to help reverse the trend

towards a decrease in physical activity. In this context, sport organisa-

tions are encouraged to take into account their potential for health-

enhancing physical activity (HEPA) and to undertake activities for

this purpose. Too many sport organisations appear to be focussing too

narrowly on the organisation of competitions.

The Commission wishes to develop new physical activity guide-

lines with the Member States before the end of 2008 and make HEPA

a cornerstone of its sport-related activities and programmes/actions.

The promotion of a pluri-annual EU HEPA network should play a

key role in this respect.

The fight against doping has a prominent place in this first part of

the White Paper. Doping has left the narrow confines of top-level pro-

fessional sport. It has become a societal problem and must be tackled

by all relevant actors, including the EU.

The Commission will look at ways to strengthen cooperation at

different levels, for instance between law enforcement agencies. In

addition, the Commission is willing to play a facilitating role, for

example by supporting a network of national anti-doping organisa-

tions of Member States.

With regard to education and training, sport, through its role in

both formal and non-formal education, reinforces Europe’s human

capital. There is a citizenship aspect, in the sense of social values, and

an economic aspect, in the sense of key competences. In this area, the

Commission will better support sport and physical activity through

the Lifelong Learning programme.

Moreover, the Commission will focus on activities to improve qual-

ifications in the field of sport through the European Qualifications

Framework (EQF) and the European Credit System for Vocational

Education and Training (ECVET).

The White Paper also suggests the introduction of a European label

for schools actively involved in supporting and promoting physical

activities in a school environment.

Volunteering is essential for society and for sport, but volunteering

in sport is changing due to societal developments and partly also to

the commercialisation and professionalisation of sport. Volunteers

and the structures in which they operate deserve to be valued.

The Commission will identify, together with Member States, key

challenges for non-profit sport organisations and point to those EU

programmes that are able to promote and support volunteering in

sport.

In addition the White Paper will foster the exchange of informa-

tion and best practice on volunteering in sport involving Member

States, sport organisations and local authorities. The Commission also

commits itself to launching a European study on volunteering in

sport.

In the field of social inclusion, integration and equal opportunities,

the White Paper recognises that sport can make an important contri-

bution to economic and social cohesion and more integrated societies.

It states that all residents should have access to sport, including under-

represented groups.

The White Paper proposes to mobilise an array of EU instruments

and European funds to promote social inclusion through sport and to

combat discrimination in sport.

The fight against racism and violence remains a challenging issue.

Violence at sport events remains a disturbing problem. It has been

shifting from inside stadiums to outside, including urban areas.

The Commission wishes to promote the exchange of operational

information and practical know-how and experience on the preven-

tion of violent and racist incidents between law enforcement services

and with sport organisations.

Moreover, the White Paper announces action to promote a multi-

disciplinary approach to preventing anti-social behaviour, with a spe-

cial focus given to socio-educational actions such as fan-coaching.

The White Paper also calls for the use of EU programmes to con-

tribute to the prevention of and fight against violence and racism in

sport.

Sport also has an external dimension. It can play a role regarding dif-

ferent aspects of the EU’s external relations: as an element of external

assistance programmes and of dialogue with partner countries, and as

part of the EU’s public diplomacy.

The Commission will promote the use of sport as a tool in its

development policy. In particular, it plans to promote sport and phys-

ical education as essential elements of quality education and as a

means to make schools more attractive; to target action at improving

access for girls and women to physical education and sport, with the

objective to help them build confidence, improve social integration,

overcome prejudices and promote healthy lifestyles; and to consider

supporting health promotion and awareness-raising campaigns

through sport.

The White Paper also puts sport in the context of sustainable devel-

opment, because the practice of sport, sport facilities and sport events

all have a significant impact on the environment.

The White Paper outlines the Commission’s intention to use its

structured dialogue with leading international and European sport

organisations and other sport stakeholders to encourage them to par-

ticipate in existing voluntary schemes, such as the Eco Management

Audit Scheme (EMAS), and promote these schemes during major

sport events.

The Commission furthermore wishes to promote green procure-

ment in its political dialogue with Member States. It also intends to

raise awareness, through guidance developed in cooperation with rel-

evant stakeholders, about the need to work together in partnership at

the regional level to organise sport events in a sustainable way.

3. The economic dimension of sport

In the chapter on the economic dimension of sport, the White Paper

gives due consideration to the economic importance of sport. It is

estimated that sport accounts for approx. 3.5% of EU GDP and pro-

vides employment for as much as 5% of the labour force. It is thus a

major economic sector, but is seldom recognised as such.

As a first priority, the White Paper points out that policy actions

and enhanced cooperation on sport need to be underpinned by a

sound knowledge base. The quality and comparability of data needs to

be improved to allow for better strategic planning and policy-making

in the field of sport.

This is why the Commission is developing, together with Member

States, a European statistical method for measuring the economic

impact of sport as a basis for national statistical accounts for sport,

which could ultimately lead to a European Satellite Account for

Sport.

2007/3-4

PAPERS

The Commission will also ensure that specific sport-related European

information surveys take place on a regular basis.

In addition, it intends to launch a study to assess the contribution

of the sport sector to the Lisbon Agenda and to organise the exchange

of best practices among national authorities and sports federations on

the organisation of large sport events.

The White Paper also addresses the issue of funding. The

Commission believes that - in addition to private funding - the pub-

lic purse should support sport at the grassroots level, in particular to

ensure equal opportunities and broad access to sport.

The White Paper invites Member States to reflect upon how to

maintain and develop sustainable financing models for giving long-

term support to sports organisations.

On its part, the Commission will carry out a study on public and

private financing of grassroots sport across Europe. The study will also

look at the impact of on-going changes in this area.

In the field of indirect taxation, the Commission will continue to

make the case for the possibility of VAT exemptions or lower VAT

rates for sport.

4. The organisation of sport

The chapter of the White Paper on the organisation of sport address-

es a number of aspects of the governance of sport and of the specifici-

ty of sport. This chapter contains only those priority topics where

action at EU level is considered to be of potential added value.

Firstly, it should be noted that the word “specificity” as such does

not appear in earlier official EU texts. In the Helsinki report of 1999

reference was made to the need to “take account of the specific char-

acteristics” of sport, while in the Nice Declaration of 2000 reference

was made to how the Community must take account of the functions

which make sport “special”.

The White Paper devotes a section to the issue of specificity, thus

shedding light on the Commission’s position regarding this concept.

The annexes on competition and internal market rules of the accom-

panying Staff Working Document further clarify the Commission’s

views on the application of EU law to the sport sector.

Regarding the repeated requests by stakeholders for more legal ‘cer-

tainty’, it should be stressed that the White Paper text provides more

legal clarity for European sport within the limits of the EU’s current

competencies. For the first time ever the Commission takes stock of

the European Courts’ case law and Commission Decisions in the area

of sport.

However, in the current absence of a specific legal competence for

sport, a case-by-case approach remains the basis for the Commission’s

control of the implementation of EU law in the sport sector, in line

with the current Treaty provisions, and taking full account of the Nice

Declaration.

One area of EU law which has been of particular importance for

sport is the principle of the free movement of citizens and workers with-

in the Union. Discrimination on grounds of nationality is prohibited

in the Treaties.

However, by way of exception to this general prohibition of dis-

crimination, it is recognised that national teams play an essential role

not only in terms of identity but also to secure solidarity with grass-

roots sport, and therefore deserve to be supported.

The White Paper reiterates the call on Member States and sport

organisations to address discrimination based on nationality in all

sports. The Commission will combat discrimination in sport through

political dialogue with Member States, recommendations, structured

dialogue with sport stakeholders, and infringement procedures when

appropriate.

The White Paper reaffirms that limited and proportionate restric-

tions to the principle of free movement of persons can be accepted, in

particular as regards the right to select national athletes for national

team competitions; the need to limit the number of participants in a

competition; and the setting of deadlines for transfers of players in

team sports.

Concerning access to individual competitions for non-nationals, the

Commission will launch a study to analyse all aspects of this complex issue.

With regard to transfers the White Paper points out that FIFA’s trans-

fer system constitutes an example of good practice that ensures a com-

petitive equilibrium between sport clubs while taking into account

the requirements of EU law.

The transfer of players also gives rise to concerns about the legality

of the financial flows involved. The Commission believes that in order

to increase transparency in money flows related to transfers, an infor-

mation and verification system for transfers, run by the relevant

European sport organisation, or by national information and verifica-

tion systems in the Member States, could be an effective solution.

It has been brought to the Commission’s attention that there are

bad practices in the activities of players’ agents which have resulted in

instances of corruption, money laundering and exploitation of under-

age players. These practices are damaging for sport in general and raise

serious governance questions. The health and security of players, par-

ticularly minors, has to be protected and criminal activities fought

against.

Agents are subject to differing national regulations. In addition,

some international federations, e.g. FIFA and FIBA, have introduced

their own regulations.

To get a clearer overview of the activities of players’ agents in the

EU, the Commission will carry out an impact assessment, which will

aim at evaluating whether action at EU level is necessary.

To help protect minors in sport, the Commission will continue to

monitor the implementation of EU legislation, in particular the

Directive on the Protection of Young People at Work. The

Commission has recently launched a study on child labour as a com-

plement to its monitoring of the implementation of the Directive.

The issue of young players falling within the scope of the Directive

will be taken into account in this study.

The Commission considers it important that Member States and

sport organisations cooperate on the protection of the moral and

physical integrity of young people. The dissemination of information

on existing legislation and exchange of best practices should be

improved.

Corruption, money laundering and other forms of financial crime

are unwelcome realities and must be addressed in a comprehensive

policy document on sport.

The Commission intends to support the fight against corruption

through public-private partnerships and assist in the development of

effective preventive and repressive strategies. In addition, it will con-

tinue to monitor the implementation of EU anti-money laundering

legislation in Member States with regard to the sport sector.

The White Paper also acknowledges the usefulness of robust licens-

ing systems for professional clubs at European and national levels as tools

for promoting good governance in sport.

It goes without saying that these systems must be compatible with

EU law and may not go beyond what is necessary for the pursuit of a

legitimate objective relating to the proper organisation and conduct

of sport.

In this respect, the Commission will promote dialogue with sport

organisations on the implementation and strengthening of self-regu-

latory licensing systems. Starting with football, it intends to organise

a conference with UEFA, EPFL, Fifpro, national associations and

national leagues on licensing systems and best practices in this field.

The final topic in this chapter of the White Paper, media, is no

doubt a crucial issue for sport. In modern professional sports, TV

rights have become the primary source of income and, conversely,

sport is a crucial source of content for media operators.

The Commission will continue to support the citizens’ right to

information and broad access to broadcasts of sport events, which are

seen as being of high interest or major importance for society.

The White Paper explains that, while joint selling of media rights

raises competition concerns, the Commission has accepted it in the

sport sector under certain conditions. Collective selling can be impor-

tant for the redistribution of income and can thus be a tool for achiev-

ing greater solidarity within sports.

The keyword here is solidarity. Sport organisations should pay due

attention to the creation and maintenance of robust solidarity mech-

2007/3-4

PAPERS

Major sports events have increasingly been viewed as likely terrorist

targets, and event organizers have implemented heightened security

measures. Spectators at sports events have been subjected to several

types of searches, ranging from bag searches, to wand searches, to the

pat-down searches now required at all National Football League

games, to video surveillance at Super Bowl games. This paper outlines

the legal issues implicated in various types of mass searches of sports

spectators in the United States, and also mentions briefly some pro-

posed changes to American law that would better protect the privacy

of sports spectators given the increasingly intrusive potential brought

by new developments in “high tech” searches.

In the United States, the legality of physical searches of sports spec-

tators has been challenged in several recent lawsuits, which have relied

upon the rationale in a recent federal court decision that was not, in

fact, a sport case. In Bourgeois v. Peters (2004), a federal appeals court

ruled on the constitutionality of a warrantless, mass search of 15,000

non-violent protesters attending a political demonstration.

This was

the 13th annual rally for this group and there had been no history of

weapons or violence in all those years. Nevertheless, the city subject-

ed the attendees to being searched with a magnetometer (wand)

which identifies the presence of metal objects. If metal was detected,

the person would then be subjected to a full-scale physical search of

their person and possessions. The city justified this search by claiming

that the terrorist threat since the attacks of September 11, 2001 made

large gathering events likely targets for future acts of terrorism. The

court ruled that this could not justify a mass search of spectators and

that the search violated the Fourth Amendment.

In the opinion, the Eleventh Circuit Court reviewed the relevant

Fourth Amendment law. The general rule is that warrantless, suspi-

cionless searches are unconstitutional unless they fit within certain

recognized categories that are considered exceptions to this rule.

There are three such categories: special needs beyond normal law

enforcement (e.g., airport searches due to past hijackings); exigent cir-

cumstances (e.g., imminent destruction of evidence; danger to a

police officer); and situations in which a diminished expectation of

privacy exists (e.g., searches incident to arrest; searches of open fields

* An earlier version of this paper was pre-

sented at the 12th Annual Congress of

the International Association of Sports

Law, held in Ljubljana, Slovenia,

November 23-25, 2006.

** Professor Cathryn L. Claussen is

Director of the Sport Management

Program at Washington State University,

USA. She holds a Juris Doctorate from

Georgetown University Law Center,

Washington, D.C.

1 Bourgeois v. Peters, 387 F. 3d 1303 (11th

Cir. 2004)

2 Ibid.

anisms. As far as media rights are concerned, this can take the form of

a system of collective or individual selling.

5. Follow-up

The Commission intends to follow-up on the 53 actions that are

included in the Pierre de Coubertin Action Plan in the framework of

three mechanisms: (1) improved structured dialogue with the sport

movement; (2) enhanced cooperation with EU Member States; and

(3) more social dialogue on sport at European level.

While acknowledging the complexity and diversity of the

European sports landscape, the White Paper points out the need for

more efficient dialogue with sport stakeholders at EU level.

The Commission intends to organise an EU Sport Forum every

year, gathering all the main sport stakeholders, and also to have more

frequent thematic discussions with fewer participants.

Cooperation between the Member States and the Commission needs to

be put on a more solid footing.

The Commission and the Member States already have the Rolling

Agenda for Sport, which was established in 2004 to define priority

topics for discussion among the Member States. This mechanism

could be reinforced. For instance, this could be done through jointly

defined priorities for sport policy cooperation, as well as regular

reporting by the Commission on progress.

The White Paper notes that EU Sport Ministers and Sport

Directors should meet regularly under each six-monthly Presidency.

The White Paper announces that the Commission will report on

the implementation of the Pierre de Coubertin Action Plan through

the mechanism of the Rolling Agenda for sport.

Naturally, the work of existing working groups and networks will

positively contribute to the strengthening of cooperation at this level.

At present, there are three informal EU Working Groups on sport:

one on Sport & Health, one on Sport & Economics, and one on

Non-Profit Sport Organisations. Each of these Working Groups con-

sists of 8-10 Member States, on a voluntary basis, and is chaired and

coordinated by the Commission. The Commission is willing to pro-

vide similar support in the field of anti-doping.

Finally, in light of the growing challenges to sport governance,

social dialogue at European level could help to address common con-

cerns.

The White Paper encourages and welcomes all efforts leading to

the establishment of European Social Dialogue Committees in the

sport sector. The Commission, to this end, will continue to give sup-

port to both employers and employees and it will pursue its open dia-

logue with all sport organisations on this matter.

6. Conclusion

At its meeting in June 2007, the European Council gave a mandate to

the Intergovernmental Conference which is preparing the revision of

the Treaties on which the EU is based. The Commission welcomes the

fact that the mandate sets out that the provisions on sport agreed in

the 2004 Inter-Governmental Conference will be inserted into the

new Treaty. It can be expected that these provisions on sport, giving

the Union “soft”, supporting competences in this area, will be insert-

ed into the text of the current Article 149 of the EC Treaty, which also

deals with education, youth and vocational training.

It is the intention of the Member States to ratify the Reform Treaty

by mid-2009. This means that it seems likely that additional impor-

tant developments will occur at EU level in the area of sport in the

next few years. Ratification of the Reform Treaty would give the EU

the possibility to define a sport policy, to incorporate sport into the

work of the Council of Ministers, and to create an EU Sport

Programme.

The White Paper should thus be seen as an instrument to pave the

way for the implementation of a possible future Treaty provision on

sport. The White Paper will remain the basis for the Commission’s

involvement in the sport sector until after the entry into force of the

Reform Treaty.

❖

Mass Searches of Sports Spectators in

the United States*

by Cathryn L. Claussen**

2007/3-4

PAPERS

or objects in plain view). In the court’s view, the mass search of these

protesters did not fall into any of these recognized exceptions.

First,

preserving public safety is a normal law enforcement need. The gen-

eralized heightened threat of terrorism, without evidence of specific

threats targeted at this particular event, did not, in the court’s view,

transform the normal need to preserve public safety into the “special

needs justifying special measures” category.

Instead, the Department

of Homeland Security’s elevated threat levels had become “normal.

Second, since there was no specific threat indicated for this politi-

cal demonstration, there was no urgent need for immediate action

without a search warrant, so exigent circumstances did not exist.

And

finally, the court stated that attending a large public gathering may

result in a diminished expectation of privacy in one’s image or conver-

sations, but not in one’s person or possessions.

The court went on to

state that fear of terrorism did not justify creating a new Fourth

Amendment exception based on the size of a public gathering.

According to the court, such an exception could lead to viewpoint

discrimination in violation of the First Amendment if local govern-

ments began selectively applying such an exception to certain politi-

cal gatherings or music concerts or parades, but not to church picnics

or fundraising walks, for example.

In the eyes of the Bourgeois court, law enforcement personnel could

conduct a pat-down search of an attendee if there was reasonable indi-

vidualized suspicion that that person possessed a weapon.

And fur-

ther, if there was probable cause to believe that a person was carrying

a weapon, the law officer could conduct a full search incident to arrest

or under the exigent circumstances exception described earlier.

Existing law already allows these enforcement efforts. The real ques-

tion, and the real importance of the Bourgeois decision, is: after

September 11, are these normal law enforcement measures enough?

The Bourgeois court answered with a resounding “yes.” In the

words of the court:

[I]t is quite possible that [we] would be safer if the City were per-

mitted to engage in mass, warrantless, suspicionless searches....

Nevertheless, the Fourth Amendment embodies a value judgment

by the Framers that prevents us from gradually trading ever-

increasing amounts of freedom and privacy for additional security.

It establishes searches based on evidence - rather than potentially

effective, broad, prophylactic dragnets - as the constitutional

norm.... We cannot simply restrict civil liberties until the War on

Terror is over, because [it] is unlikely ever to be truly over.

September 11, 2001, already a day of immeasurable tragedy, cannot

be the day liberty perished in this country.

As stated earlier, this decision has been relied upon in subsequent lit-

igation concerning the constitutionality of mass searches of sport

spectators. Such searches have taken various forms in the United

States, ranging from bag searches at the 1996 Atlanta Olympic Games

and at many college and professional sports events, to wand searches

at the 2002 Salt Lake City Winter Olympic Games, to the pat-down

searches required at National Football League games beginning in

2005, to video surveillance with facial recognition scanning at the

2001, 2002, and 2006 Super Bowl games.

Visual inspections of the contents of spectators’ bags at a profes-

sional sports facility were upheld in 1982 in Jensen v. Pontiac.

The

court found that there was a history of spectator injuries caused by

thrown objects, and that football spectators engage in violence with

some regularity.

These facts supported the argument for the exis-

tence of a public necessity to implement a bag search.

The court also

found that the number of projectile-related injuries had substantially

decreased following implementation of the search policy.

Balancing

these factors against the minimal intrusiveness of the purely visual

inspection of the contents of spectators’ bags, the court decided that

the search procedure was reasonable.

An important feature of the

policy was the requirement that the guards inform the spectators that

they could either dispose of any prohibited items and then be admit-

ted, or they could refuse to be searched and receive a refund.

In the

court’s view, these consent notifications minimized the potential inva-

siveness of the search.

With regard to the more obtrusive searches by magnetometer or by

facial recognition scanning video surveillance, there is as of yet no case

law. Where the Bourgeois decision has been useful is in the recent lit-

igation concerning the constitutionality of physical pat-down search-

es. Since 2005, four lawsuits have been brought to challenge pat-down

policies at sports venues.

In two of these, the courts ruled that for

various reasons the plaintiffs lacked standing to sue (Sheehan and

Chicago Park District), but the other two have resulted in reported

opinions that are instructive.

In State of North Dakota v. Seglen, a student attending a college ice

hockey game was subjected to a pat-down search.

Although the

game was played in a privately owned and operated arena, the court

found that the search was conducted by a police officer so state action

existed.

Signs were posted inside the arena warning patrons that they

were subject to search, but the court found that this could not estab-

lish that spectators had actually impliedly consented to be searched.

The court also found that the pat-down search did not fall within the

exigent circumstances exception nor the special needs exception to the

warrant requirement.

The state argued that since the occurrence of the terrorist events of

9/11 there is a greater need to conduct pat-down searches at spectator

sports events.

The court disagreed, adopting the rationale of the

Bourgeois court that the generalized threat of terrorism does not justi-

fy restricting Fourth Amendment protections at large public gather-

ings.

The court found that there was no evidence of a history of vio-

lence or injury at hockey games in that arena that would necessitate a

mass suspicionless search of the spectators.

For these reasons, the

pat-down search was ruled unconstitutional.

Similar reliance was placed on the Bourgeois case by a federal court

in Johnston v. Tampa Sports Authority.

The Johnston case arose after

the National Football League (NFL) implemented a new rule requir-

ing pat-down searches of spectators at all its professional football

games, beginning with the 2005-06 season.

In announcing the new

search policy, NFL Commissioner Paul Tagliabue stated, “This new

requirement is not a result of any specific threat information. It is in

recognition of the significant additional security that pat-downs offer,

as well as the favorable experience that our clubs and fans have had

using pat-downs as part of a comprehensive stadium security plan.”

When the Tampa Sports Authority implemented the NFL’s new rule

at Tampa Bay Buccaneers football games, season-ticket holder

Gordon Johnston sued, claiming his Fourth Amendment rights were

violated.

In Johnston v. Tampa Sports Authority, the legal issues addressed

were:

3 Ibid. at pp. 1311-1317.

4 Ibid.

5 Ibid.

6 Ibid. at pp. 1311, 1316.

7 Ibid. at pp. 1315-1316.

8 Ibid. at pp. 1310-1311.

9 Ibid.

10 Ibid. at p. 1316.

11 Ibid.

12 Ibid. at pp. 1311-1312.

13 Steinbach, P. (2006). Enemy at the gates.

Athletic Business, 30(5), 36-47.

14 Jensen v. Pontiac, 317 N.W.2d 619 (Mich.

App. 1982).

15 Ibid. at p. 623.

16 Ibid. at pp. 623-624.

17 Ibid. at p. 624.

18 Ibid.

19 Ibid.

20 Ibid.

21 State of North Dakota v. Seglen, 700

N.W.2d 702 (N.D. 2005); Johnston v.

Tampa Sports Authority, 442 F. S upp. 2d

1257 (M.D. Fla. 2006); Sheehan v. San

Francisco 49ers (N.D. Cal. 2006);

Chicago Park District v. Chicago Bears

Football Club, 2006 U.S. Dist. LEXIS

58621 (N.D. Ill. 2006). The Sheehan case

is now being litigated in the California

state court system, with the plaintiff

suing under the privacy provision in the

California Constitution (Sheehan v. San

Francisco 49ers, No. CGC-05-447679,

(Superior Ct., San Francisco County),

complaint filed December 15, 2005).

22 Seglen, at p. 706.

23 Ibid.

24 Ibid. at p. 709.

25 Ibid. at pp. 706-708.

26 Ibid. at p. 708.

27 Ibid.

28 Ibid.

29 Ibid.

30 Johnston v. Tampa Sports Authority, 442

F. S upp. 2d 1257 (M.D. Fla. 2006).

31 Fans will be subject to pat-downs,

Washington Post, 26 August, 2005, p.

E06.

32 Ibid.

2007/3-4

PAPERS

• the requirement of state action in the deprivation of a fundamen-

tal right

• implied consent and the doctrine of unconstitutional conditions

• the reasonableness of the search

The U.S. Constitution protects citizens from abusive government.

Thus, in order to establish a violation of one’s constitutional rights,

one must establish that the state was indeed the bad actor that accom-

plished that violation. The Johnston court found that state action

existed in this case because the Tampa Sports Authority (TSA), which

implemented the search policy, was a public agency created by Florida

law with responsibility for operating the publicly owned stadium in

which the Buccaneers play.

Further, the private security company

that conducted the searches was hired by, paid by, and was acting as

an instrument of the TSA. In the court’s eyes, these facts were suffi-

cient to establish state action.

With regard to implied consent, the court held that, in Fourth

Amendment cases like these, consent must be freely given and truly

voluntary.

Here, Johnston consistently expressed his lack of consent

to be searched when he attended Buccaneers games.

Additionally,

the court ruled that under the doctrine of unconstitutional condi-

tions, the TSA could not legally condition the exercise of a benefit or

privilege, in this case the use of Johnston’s non-refundable season tick-

ets, on his relinquishment of his constitutional right to be free from

unreasonable searches.

Finally, in balancing the intrusiveness of the pat-down searches

against the TSA’s need to conduct the search, the court ruled that this

search was not justified under the special needs exception to the

search warrant requirement.

In doing so, the court relied on the

Bourgeois rationale that, without evidence of real and concrete danger

at the football games, the generalized fear of terrorism was an insuffi-

cient justification for a special needs search.

The Johnston court fur-

ther relied on the Bourgeois ruling that attending a public event did

not diminish the plaintiff’s expectation of privacy in his person and

possessions.

The court reiterated precedent establishing that pat-

down searches are considered gross invasions of personal privacy;

therefore, the intrusiveness of the search outweighed the justification

for the search.

Thus, the search was held to be unreasonable.

Based on the recent decisions in Bourgeois, Seglen, and Johnston, the

trend in the United States seems to be that mass pat-down searches of

sports spectators will be held to violate the Fourth Amendment.

However, the Johnston case is currently on appeal to the 11

Circuit

Court of Appeals, and the Sheehan case (as mentioned above) is cur-

rently being litigated in the California courts - so the potential for dif-

ferent outcomes remains a possibility. The U.S. Department of Justice

(DOJ) has filed a brief in support of the TSA in the Johnston case,

arguing, among other things, that Congress determined that NFL

football games are likely terrorist targets when it instituted “no-fly”

zones over stadiums during games, and therefore a real, particularized

threat does indeed exist.

DOJ is also arguing that the government

must be the entity denying the benefit in order for the doctrine of

unconstitutional conditions to apply, claiming that in Johnston it was

a private football club that sold the plaintiff his season tickets.

And

finally, the DOJ argues that Johnston’s verbalized non-consent to be

searched was insufficient because he impliedly consented to the search

by deciding to enter the stadium despite being searched.

It remains

to be seen whether these arguments will persuade the 11

Circuit

Court, since after all that is the same court that decided the Bourgeois

case in 2004.

The as yet unlitigated issue of the constitutionality of facial recog-

nition scanning video surveillance searches may be the next frontier

for litigation in this area of mass spectator searches. The video surveil-

lance at the Super Bowl football games mentioned earlier was used to

compare images of spectators’ faces with database images of known

terrorists and other criminals, resulting in a virtual “digital pat-

down.”

The central question raised by such “high tech” searches is - does

facial recognition scanning and comparison with stored database

information invade possession of one’s person instead of just one’s

image? If so, we may need to update Fourth Amendment analysis in

light of merging surveillance and information technologies because

current case law suggests a diminished expectation of privacy regard-

ing one’s image when one is out in public view

(e.g., my face as I

enter a sports facility to attend a game). However, the use of the infor-

mation gleaned from my face and compared to information stored in

financial, criminal, and health databases, for example, could be very

invasive of my privacy. Current case law also requires a plaintiff to

prove both an objective and a subjective expectation of privacy,

but

in a merged surveillance/information technology search, a person

might be completely unaware that they have been searched and thus

be unable to assert a subjective expectation of privacy.

Thus, in the future courts may need to fashion new analyses to deal

with these new means of privacy invasion. One commentator has sug-

gested strengthening a constitutional right to privacy in one’s person-

al information.

Another possibility is to establish a rebuttable pre-

sumption that if a person sues for a violation of privacy, then filing

the claim constitutes an assertion of a subjective expectation of priva-

cy.

If the law does not change to meet changes in technology that

may be used to intrude into personal privacy, our long-cherished

rights may be gradually eroded away.

33 Johnston v. Tampa Sports Authority, 442

F. S upp. 2d 1257 (M.D. Fla. 2006), at p.

1263.

34 Ibid.

35 Ibid. at pp. 1271-1272.

36 Ibid.

37 Ibid. at p. 1271.

38 Ibid. at pp. 1265-1269.

39 Ibid.

40 Ibid. at pp. 1269-1271.

41 Ibid. at p. 1270.

42 Ibid. at p. 1271.

43 Amicus Curiae Brief for the United

States Supporting Defendants-Appellants

and Arguing for Reversal, at pp. 7-10.

2006 WESTLAW 3522638 (11th Cir.).

44 Ibid. at pp. 5-6.

45 Ibid. at p. 5.

46 Elmore, L. “Tampa police made it the

Snooper Bowl, but high-tech spying’s a

low-level sin.” Street & Smith’s

SportsBusiness Journal, 12-18 February

2001, p. 34; Kappstatter, B. “Tampa cops

recorded every fan’s face - Snooper

Bowl.” Daily News, 2 February 2001, p.

1; “Uncle Sam and the watching eye.”

The Economist, 22 September 2001.

47 California v. Ciraolo, 476 U.S. 207

(1986); Dow Chemical v. United States,

476 U.S. 227 (1986); Florida v. Riley, 488

U.S. 445 (1989).

48 Katz v. United States, 389 U.S. 347

(1967), at p. 361, Harlan, J., concurring.

49 Kearns, T.B. (1999). Technology and the

right to privacy: The convergence of sur-

veillance and information privacy con-

cerns. William and Mary Bill of Rights

Journal, 7, 975-1011.

50 Ibid.

51 Claussen, C.L. (2006). The constitution-

ality of mass searches of sports specta-

tors. Journal of Legal Aspects of Sports,

16(2), 153-175, at p. 170.

2007/3-4

PAPERS

There are few opportunities for women to participate in sport at the

professional level, with the primary exceptions of tennis and golf. In

the United States, professional team sport opportunities for women in

other sports are struggling. The Women’s National Basketball

Association (WNBA) has experienced some success, but similar

efforts in the sports of softball, boxing, volleyball, American-style

football, and soccer have not been as successful. In the U.S., college

sports teams typically serve as the training ground for professional

sport athletes, so this paper is focused on school sport because this is

where the majority of participation opportunities for women current-

ly exist. This paper examines how effective Title IX, an American law

that was passed in 1972 to achieve gender equity in educational set-

tings, has been in promoting the participation of girls and women in

sport.

1. Sport in America

In America, participation opportunities in organized sport are pre-

dominantly offered for the most elite athletes, and are located in

school settings (junior high and high schools and colleges) and in the

professional sport entertainment business. Outside of those settings,

there is little organized sport (particularly in team sports) for non-elite

adults. There are city and county sponsored recreational sports pro-

grams for children as well as adults, but these also have tended to offer

more activities for males. Additionally, the notion of gender-appropri-

ate sports activities lingers today, although certain activities have

become (in varying degrees) more acceptable for females than they

were in the past.

Historically, the American people have held strong views about

which sports activities were appropriate for women to participate in

and which were not. Sports activities that were traditionally consid-

ered appropriate for females included

•Individual sports that were aesthetically appealing and did not

involve physical contact with an opponent or propelling heavy

objects

•Team sports that did not involve physical contact

Examples of these traditionally acceptable activities for females

include gymnastics, figure skating, diving, swimming, tennis, golf,

and volleyball.

Examples of sports activities that are still “on the fringes” of accept-

ability include ice hockey, tackle football, boxing, martial arts, and

baseball. Fast-pitch softball is more acceptable these days, although

the sexual orientation of softball players is still called into question

frequently. In America, females who participate in sports activities

considered more appropriate for males than females are thought to be

manly or lesbians - and this is still a slur used to intimidate females

who might otherwise be interested in participating in some of these

activities.

The image of the ideal American girl is best personified by the pop-

ular Barbie Doll, which embodies a non-muscled, slender yet large-

breasted, beautiful and feminine woman. Such images are regularly

reinforced by the media with desirable models imitating the Barbie

Doll “look.” However, looking like Barbie and being healthy, fit and

strong is almost impossible to achieve for the typical female. This ide-

alized image has contributed to anorexic and bulimic eating disorders,

as well as to a fear of getting too many muscles if one works out too

much. It has also contributed to the practice of “cosmetic fitness,” in

which American women will diet and work out only to look good

instead of to be truly fit. Once their goal of looking good is accom-

plished, they will often stop participating in physical activity.

2. Title IX

Into this historical and socio-cultural context, and brought on in part

by the women’s rights movement that occurred in America in the

1960s, came the enactment of Title IX of the Education Amendments

of 1972. Title IX was passed to improve educational opportunities for

females in general, and was not focused on sports participation per se.

In fact, early on there was some debate as to whether or not it applied

to athletics, but the fact that athletics regulations were promulgated

in 1974 by the Department of Health, Education, and Welfare (the

precursor to the current Department of Education) demonstrates that

many congressional representatives believed it would apply to all edu-

cational offerings, including sports activities offered in the schools

and universities.

The law itself is a simple one and reads as follows:

No person in the United States shall, on the basis of sex, be excluded from

participation in, be denied the benefits of, or be subjected to discrimina-

tion under any education program or activity receiving federal financial

assistance.

After its passage, the question remained, how should the concept of

prohibiting sex discrimination in education programs be applied to

the context of school and college athletics? To flesh this out, the U.S.

Department of Education’s Office for Civil Rights put forth regula-

tions that provide more specific guidance.

These regulations focus on

three aspects of school athletics:

•Athletics scholarships

•Participation opportunities

•Other athletics benefits (i.e., provision of equipment and supplies;

provision of locker rooms, practice and competitive facilities; pub-

licity; opportunity to receive coaching and academic tutoring;

assignment and compensation of coaches and tutors; scheduling of

games and practice time; travel and per diem allowance; provision

of medical and training facilities and services; provision of housing

and dining facilities and services)

Subsequently, in 1979 the Office for Civil Rights issued a Policy

Interpretation that was intended to further clarify how schools and

universities could comply with the regulations.

This Policy

Interpretation contained a three-part test for compliance on the issue

of equitable participation opportunities. A school would be considered

to be in compliance with Title IX if it could satisfy any one of the three

* An earlier version of this paper was pre-

sented at the 12th Annual Congress of

the International Association of Sports

Law, held in Ljubljana, Slovenia,

November 23-25, 2006.

** Professor Cathryn L. Claussen is

Director of the Sport Management

Program at Washington State University,

USA. She holds a Juris Doctorate from

Georgetown University Law Center,

Washington, D.C.

1 Metheny, E. (1965). Connotations of

Movement in Sport and Dance.

Dubuque, IA: Wm. C. Brown Co.

2 Coakley, J. (2007). Sports in Society:

Issues & Controversies, 9th ed. Boston:

McGraw-Hill, p. 241

3 See Draft Regulations for Interscholatic

and Intercollegiate Athletics, June 20,

1974, 39 Federal Register 120, at 22236;

see also Hearings before the

Subcommittee on Education of the

Committee on Labor and Public

Welfare, United States Senate, 94th

Congress, 1st Session, September 16 &

18, 1975.

4 Title IX of the Education Amendments

of 1972, 20 United States Code § 1681

534Code of Federal Regulations §

106.37(c) and § 106.41

6 U.S. Department of Education. (1979).

Policy Interpretation: Title IX and

Intercollegiate Athletics - The three-part

test for compliance regarding equity in

participation opportunities, 44 Federal

71417-71418.

Female Sport Participation in America: The

Effectiveness of Title IX after 35 Years*

Cathryn L. Claussen**

Football “Hooliganism”, Policing and the War on the

“English Disease”

by Dr. Clifford Stott and Dr. Geoff Pearson

A Powerful Exporation of the Policing and Legal Methods

Used to Combat Football Hooliganism Involving English

Supporters Travelling Abroad.

As the disorder in Rome, Seville, Athens and Lens during the 2006 campaign of Champions League demon-

strate, the problem of hooliganism among English football supporters travelling abroad remains an endemic

and intractable problem. This groundbreaking new book provides a radically different analysis of the ‘English

Disease’ based upon seventeen years of leading edge peer reviewed scientific research. Combining the disci-

plines of law and crowd psychology, the authors provide the most comprehensive analysis of the problem to

date. The authors expose how the media, government and academics have converged upon an assumption that

the English Disease is primarily the outcome of the presence of English hooligans. They show how this

assumption has played a pivotal role in legal and policing solutions that are, at best, ineffective and at worst

counter-productive.

The central thesis of the book is that the causes of football hooliganism involving English fans abroad have

been completely misunderstood. To underpin their argument the authors draw upon extensive scientific data

draw from the Football World Cup Finals in Italy in 1990 to Germany in 2006. But rather than simply provid-

ing an academic critique the authors go on to demonstrate how this different way of looking at the problem is

playing a major role in international projects aimed at reshaping and developing the policing of football. By

drawing upon the data derived from collaborative research on the European Championships in Portugal in

2004 this book sets the most convincing case yet that society has to reshape its understanding and response to

the English Disease.

In addition the book takes a thorough and critical look at the evolution and effectiveness of legislative and

judicial responses to football crowd disorder abroad, in particular focusing on Football Banning Orders. Are

Banning Orders for supporters who have not been convicted of a criminal offence legal under E.U. and

E.C.H.R. law and are they effective in preventing disorder abroad? Having assessed the successes and failures

of crowd control methods throughout Europe, the authors then put forward their solutions to the problem of

football hooliganism abroad, solutions which are highly critical of many of the policies undertaken both in the

UK and abroad. This book is an essential read for anyone with an interest in hooliganism, sports law, event

management, crowd psychology and civil liberties.

Key Selling Points:

•Dr Clifford Stott is a Senior Lecturer in Social Psychology and Dr Geoff Pearson is a lecturer at the

Football Industry Group, both at the University of Liverpool.

• Published by Cass Pennant who himself is a high profile media hooliologist and wide review coverage for

this title expected.

• Spans 4 book categories, Sport, Social Sciences, Psychology and Law.

•The book will be promoted in both general interest and academic markets.

Dr Clifford Stott is a Senior Lecturer in Social Psychology and Dr Geoff Pearson is a lecturer in Law at the Football

Industry Group, both at the University of Liverpool. Both are leading academic experts who have written extensively

on crowd control and legal/policing responses to Football Hooliganism which have seen them called upon to advise

important bodies such as Home Office, FA, UEFA and FIFA.

Published by Pennant Books, October 21st, 2007 Hardback £17.99 ISBN: 9781 9060 1505 3.

2007/3-4

PAPERS

parts of this test. The three-part test is structured as follows, with an

illustration of proper compliance included below each of the parts:

1.Substantial proportionality of female athletes to female undergrad-

uate students

[If women are 50% of students, they should be close to 50% of ath-

letes.]

2.History & continuing practice of improving opportunities for

females

[If a school added 1 sport for females every 3-5 years within past 15

years, it has made a good faith effort and will be considered in com-

pliance.]Full & effective accommodation of interests & abilities of

females

3.[If there is an existing varsity team, it is best not to eliminate it; if

there is an existing club team, a school should consider elevating it

to varsity status upon justified request.]

This three-part test has generated much controversy, and has been

challenged as unfair by male football and wrestling coaches associa-

tions and male college athletics directors. They have argued that the

first prong of the test is an unfair quota system that constitutes

improper affirmative action for females, and has led to existing men’s

teams being eliminated. But of course, in order to know whether

equity has been achieved, there must be some way to measure it. This

first part of the test is intended to provide athletics administrators

with an objective, measurable way to know if they are complying with

the law. It is not a quota system, because if a school cannot meet this

safe harbor, the test provides other options for demonstrating compli-

ance with the law. Also, blaming Title IX for the elimination of non-

revenue-generating men’s sports such as wrestling, gymnastics, and

swimming is simply wrong. Title IX does not require athletic depart-

ments to eliminate men’s teams to bring the participation ratio into

substantial proportionality. Athletic departments can find other ways

to do so, for example by cutting unnecessary costs and raising new

funds. That they have chosen to eliminate minor men’s sports teams

is simply evidence that universities are prioritizing football over the

other men’s sports.

If not in compliance as measured by the first prong, a school can

always attempt to satisfy the law by demonstrating compliance as

measured by the second or third parts of the test. Most of the lawsuits

so far have been won by the plaintiffs, and have rested on prong one

because most universities could not satisfy the second or third prongs.

However, some schools are beginning to show evidence of sufficient

improvements in female participation opportunities over time that

they can now satisfy prong two.

A big controversy still exists over how to satisfy prong three. Title

IX opponents often argue that women are not as interested in partic-

ipating in athletics as men are, and therefore do not deserve equal par-

ticipation opportunities. This ignores the reality that a history of dis-

crimination in providing opportunities will depress interest until

opportunities have been put in place for a sufficient time for interest

to develop. For example, if I had grown up in Africa in the Sahara

desert, it is unlikely that I would have a current interest in participat-

ing in ice hockey. As another example, young girls have never had the

opportunity to participate in tackle football, and so would obviously

not have had the chance to develop an interest in playing that sport.

Compare these situations with the situation of the relatively recent

widespread introduction of youth soccer in America. From the begin-

ning, opportunities were provided for both sexes and now we see both

sexes quite interested in participating in soccer. The principle here is

that “If you build it, they will come.” Opportunity dictates interest -

but it does take time for interest to develop.

The following timeline displays the most significant events in the

30-plus years since Title IX was passed.

As is shown in the timeline, football and other revenue-producing

sports were not intended to be excluded from the gender balancing

required by Title IX. When Senator John Tower attempted to amend

the law to exclude football, Congress refused to approve the proposed

change.

Also, in 1992 a new remedy for intentional sex discrimina-

tion was added by the Supreme Court - monetary damages for suc-

cessful plaintiffs.

The original remedy - loss of all federal funding by

the school found to be in violation - has never been ordered by a court

and was thus an ineffective threat. Monetary damages, on the other

hand, provide an incentive for lawyers (who get a percentage of the

damages award) to take Title IX cases and fight hard to win them.

In 1996, the Cohen v. Brown University case was the landmark case

that essentially adopted into law the three-part test that the Office for

Civil Rights had proposed.

The court in that case also rejected the

university’s attempt to use an interest survey (which it used to show

that current male students were more interested in sports participa-

tion than current female students) to justify fewer opportunities for

females. According to the court, such a use would perpetuate discrim-

ination by allowing the results of past discrimination to dictate avail-

ability of participation opportunities.

Nevertheless, in 2005, the

7 See Cook v. Colgate University, 992 F. 2d

17, (2nd Cir. 1993).

8 See Hearings before the Subcommittee

on Education of the Committee on

Labor and Public Welfare, United States

Senate, 94th Congress, 1st Session,

September 16 & 18, 1975.

9 Franklin v. Gwinnett County Public

Schools, 112 S.Ct. 1028 (1992)

10 Cohen v. Brown University, 101 F. 3d 155

(1st Cir. 1996), cert. denied, 117 S.Ct.

1469 (1997)

11 Ibid.

2007/3-4

PAPERS

Office for Civil Rights (currently staffed by politically conservative

appointees) issued a policy clarification letter indicating that the gov-

ernment will allow the use of interest surveys as evidence of compli-

ance under prong three of the three-part test.

Moreover, the clarifi-

cation letter indicates that non-responses to the survey may count as

indications of lack of interest in participating in sport.

Title IX advo-

cates are understandably angry about the invalidity of the govern-

ment’s approach to non-responses, and are currently appealing to the

Office for Civil Rights and to congressional representatives to over-

turn this policy.

3. Positive Effects of Title IX

Despite setbacks like the 2005 policy, Title IX has contributed to some

positive changes in opportunities for girls and women. Prior to the

passage of Title IX, women earned very few of the advanced degrees

awarded by universities. For example, in 1971, women earned 1% of

the dental degrees, 7% of the law degrees, 9% of the medical degrees,

and 14% of the doctoral degrees awarded.

This is an indication that

many professions were not considered viable options for women.

With regard to sport participation opportunities for females prior

to Title IX, only 295,000 girls played high school sports compared to

3.7 million boys. That means that only 7.4% of high school athletes

were female in 1971, and their sports programs received only 1% of the

athletics budget. Females in college sports did not fare much better

back then. In 1971, 32,000 women participated in college athletics

compared to 180,000 men.

Thus, only 15% of college athletes were

female, and their programs received only 2% of the athletics operat-

ing budget.

The situation is now much different. In terms of advanced degrees

awarded to women, in 2003 women earned 39% of dental degrees,

49% of law degrees, 45% of medical degrees, and 47% of doctoral

degrees,

and virtually any career (with the exceptions of certain mil-

itary positions and professional sports) is open to women.

With regard to high school and college athletics, in 2004 42% of

high school athletes and 43% of college athletes were female; more-

over, the female share of the college athletics budget had increased

to 37% of the operating budget, 45% of the athletic scholarship dol-

lars, and 33% of the recruiting budget.

Particularly impressive is

the dramatic increase in numbers of female high school athletes -

from 295,000 in 1971 to 2.95 million in 2004. Because the opportu-

nities for both males and females are so limited at the college level,

this large change at the high school level has been very important in

providing competitive sport opportunities for large numbers of

females.

Increased sport participation also seems to contribute to a better

life for women after their school days are over. One research study

conducted by the National Center for Education Statistics followed

up on a set of 1992 high school graduates to examine their status in

the year 2000, eight years after graduation. 72% of the males and 49%

of the females reported having participated in athletics back when

they were in high school. Regardless of sex, compared to non-partici-

pants those who had participated in high school athletics were more

likely to have completed an undergraduate college degree, be earning

a higher annual income, and be participating currently in fitness or

group sports or recreation activities.

Furthermore, of women in this age cohort, the women that com-

pleted high school in the years after Title IX was enacted participated

in sport in significantly greater numbers. A 1992 study that compared

white collar working women from the pre-Title IX age generation to

those who had attended high school after Title IX was in place found

that while 48% of the pre-Title IX age group had participated in

youth sport, 64% of those working women from the post-Title IX age

group had done so. Similarly, 36% of the pre-Title IX generation had

participated in high school sport, whereas 55% of the post-Title IX

group had done so.

Additionally, in a 2001 survey of high-level female business execu-

tives, a majority of those women credited their past sport participa-

tion with helping to develop their business skills.

86% said sport

participation helped improve their self-discipline, 81% their team-

work, 69% their leadership skills, and 59% their competitiveness. Of

these women, 82% reported participating on organized sports teams

after elementary school age, and 81% reported that they were current-

ly participants in sport and/or physical activity. 66% said they exer-

cised at least three times per week - compared to one-third of women

in the general American population. 75% said they preferred an ath-

letic body over a thin “model” body.

These data, while not capable

of describing a causal relationship, do suggest that for women there is

some positive correlation between sport participation and later suc-

cess as a career professional.

4. Remaining Gender Inequity

In spite of great improvements due at least partly to Title IX, several

areas of gender inequity in sport participation remain. While females

represent 42% of high school athletes, they are 47% of the high school

student body.

And while females represent 43% of college athletes,

they are 57% of the university undergraduate student body.

Additionally, while female college athletes receive a much larger share

of the athletics operating budget than in the past (37% compared to

2% in 1971), they still receive less than an equitable share given their

proportional representation in the student body.

One way of under-

standing the inequity of this situation is to use a role reversal mental

exercise. If male and female participants were to trade places, would

the males be happy with what they would then have?

Other continuing concerns include: continuing inequities in num-

bers of coaches for female teams and inequities in salaries for coaches

of women’s teams doing comparable jobs as coaches of men’s teams; a

lack of government support for investigative and enforcement efforts;

persistent conflict over the three-part test and the appropriate means

for assessing equity; a perception that females are less interested in

sport than males; and the almost sacred status of American football.

Some people are still calling for football to receive special treatment

and not be included as a male sport when trying to balance participa-

tion opportunities for males and females. Why this should be so

remains unclear unless football players constitute a third sex!

In addition to the inequities that have been consistently observed

through the past 30 years, some new problems with the implementa-

tion of Title IX have been identified recently. One is that except for

cross-country running and indoor track, the sports most frequently

added for females in the post-Title IX era tend to be activities in which

students from ethnic minority and lower socio-economic groups are

not highly represented. These sports include soccer, softball, golf,

lacrosse, rowing, water polo, equestrian, rifle, and ice hockey.

Another is that some of the sports being added for women, such

as bowling, equestrian, and rifle, are not activities that promote bet-

ter physical fitness very well. If fitness is meant to be an important

factor in school sports, then this issue should receive consideration

12 U.S. Department of Education. (2005).

Additional clarification of intercollegiate

athletics policy guidance: Three-part test

- part three.

13 Ibid.

14 Digest of Education Statistics 2004,

retrieved September 14, 2006 from

www.nces.gov

15 Coakley, J. (2007). Sports in Society:

Issues and Controversies, 9th ed. Boston:

McGraw-Hill.

16 Title IX and Women’s Athletic

Opportunity: A Nation’s Promise Yet to

be Fulfilled. National Women’s Law

Center website (www.nwlc.org)

17 Digest of Education Statistics 2004,

retrieved Sept. 14, 2006, from

www.nces.gov

18 Mind the Gap: Women Still

Underrepresented in High School

Athletics, retrieved April 17, 2006, from

www.womenssportsfoundation.org;

Gender Equity in High School and

College Athletics: Most Recent

Participation and Budget Statistics;

retrieved August 21, 2006, from

www.womenssportsfoundation.org

19 National Center for Education Statistics

(NCES - U.S. Dept of Education)

Statistics In Brief - September 2005 -

What is the Status of High School

Athletes 8 Years After Their Senior Year?),

retrieved from www.nces.gov

20 Miller Lite Report on Sports & Fitness in

the Lives of Working Women (March 8,

1993). Published in cooperation with the

Women’s Sports Foundation and Working

Woman Magazine.

21 Research conducted by Mass Mutual and

Oppenheimer Funds. Retrieved Sept. 14,

2006, from

www.massmutual.com/mmfg/pdf/board-

room.pdf.

22 Ibid.

23 www.womenssportsfoundation.org,

retrieved August 2006.

24 Ibid.

25 Ibid.

2007/3-4

PAPERS

in determinations about which sports to add for females in the

future.

Recent data illustrate the need to be concerned about the fitness of

American females. Only 51% of high school females have participated

on at least one sports team.

Only 55% get twenty minutes three

times per week of vigorous physical activity (compared to 70% of

males).

Only 53% attend physical education classes at least once per

week.

Only 20.3% eat the recommended five servings of fruits/veg-

etables daily.

37% of high school females watch more than three

hours of television daily.

8.3% are overweight and another 15.3% are

at risk of being overweight, adding up to nearly a quarter of high

school females in an unhealthy state of physical fitness.

Research has shown that there are positive correlations between

female participation in school athletics and positive educational and

social outcomes. For example, female participants are less likely than

female non-athletes to smoke or use drugs, have lower rates of sexual

activity and pregnancy, and have higher grades and a higher gradua-

tion rate.

Female sports participants also learn how to work as a

team, perform better under pressure, set goals, and take criticism con-

structively.

Additionally, they develop better self-confidence, perse-

verance, and the ability to perform in a competitive environment.

Finally, female participants have lower rates of heart disease, osteo-

porosis, breast cancer, depression, and negative body image.

One reason that inequities are slow to be overcome despite the

good reasons for doing so is that the law does not exist in a vacuum,

but exists in a state of mutual interaction with the larger society. Part

of the problem for female sport has been the reluctance of the media

to print stories about it and televise it - for fear it won’t sell as well as

men’s sports. As of 2004, women’s sport received only 6% of airtime

on televised sports news.

And in 2005, 50% of print media editors

surveyed said they believed that Title IX has hurt men’s sports, and

25% thought women are naturally less athletic than men.

Additionally, the media often give unwarranted attention to the sex

appeal of certain female athletes (for example, tennis player Maria

Sharapova), which diminishes and trivializes their athleticism. The

resulting limited coverage of female sports perpetuates a lack of female

athlete role models and contributes to a failure to legitimize sport for

girls and women as being as important as sports for males.

Another reason for continuing gender inequities in sport is that a

change in the law cannot change attitudes over night. However, 35

years have now passed since Title IX was enacted, and a new genera-

tion of parents who have grown up with Title IX in place is starting

to bring a new attitude with higher expectations for participation

opportunities for females. Attitude change and improvement in the

general skill level of females who have finally been accorded more par-

ticipation opportunities occurs slowly over time. As the overall quali-

ty of skill development and play improves, spectatorship and media

coverage should improve, which in turn ought to lead to increased

resource allocations for female sports. We are just recently beginning

to see this occur with women’s basketball.

Although Title IX has been a strong force for increasing sport par-

ticipation opportunities for girls and women, inequities remain on

many levels. The importance of ensuring that females have a fair

opportunity to participate in sport cannot be overstated. Eliminating

gender inequity in sport participation can make a significant contri-

bution to the fitness and general well-being of girls and women. In

America, Title IX advocacy groups are committed to remain focused

on achieving that goal.

26 Suggs, W. (November 30, 2005). Title IX

has done little for minority female ath-

letes - because of socioeconomic and cul-

tural factors, and indifference. Chronicle

of Higher Education, p. 35. See also the

Women’s Sports Foundation Report:

Title IX and Race in Intercollegiate

Sport (2003), retrieved from www.wom-

enssportsfoundation.org. See also the

GAO-01-297 report: Intercollegiate ath-

letics: Four-year colleges’ experiences

adding and discontinuing teams (March

2001), retrieved from www.gao.gov.

27 The Women’s Sports Foundation Report:

The Status of Health and Physical

Activity in Chicago Hispanic Girls,

November 30, 2005.

28 Ibid.

29 Ibid.

30 Ibid.

31 Ibid.

32 Ibid.

33 Title IX and Women’s Athletic

Opportunity: A Nation’s Promise Yet to

Be Fulfilled; retrieved Sept. 15, 2006,

from www.nwlc.org

34 Ibid.

35 Ibid.

36 Ibid.7 State of Women’s Sports,

retrieved August 31, 2006, from

www.womenssportsfoundation.org

38 Ibid.

The Sports Law Center of Shandong University (www.sportslaw.cn) was established

in July 2006, and it is the first teaching and research institute to focus specifically

on the research of international sports law in China. Its objective is to promote the

development of China sports law; and to invite renowned domestic and foreign

sports law experts to visit and give lectures; and to promote the international

exchanges and cooperation in the area of sports law.

Its mission includes:

1. from the perspective of comparative law, to carry out theoretical and practical

research on sports law about the EU and its member countries, the United States,

Australia, Canada and South Korea, and other countries and regions;

2. to carry out special studies on international sports legal issues, including the basic

theory of international sports law, the International Olympic Committee’s legal sta-

tus, international sports issues of public law and private law (for example, how to

avoid double taxation, intellectual property rights, etc.), international sports doping

issues and the mechanism for sports-related disputes settlement, etc;

3. to carry out special studies of the legal issues relating to the Beijing 2008 Olympic

Games, including the host city contract, Green Olympics, Olympic terrorism, human

rights dimensions of the Olympics, Olympics dispute arbitration system, etc;

4. to plan and organize Sports Law Symposia, academic forums and to establish a

sports law website (www.sportslaw.cn);

5. to edit a sports law textbook as early as possible on the basis of foreign sports

law books and articles;

6. and to recruit and cultivate graduates mainly major in sports law, etc.

Board members of the Centre:

Director: Dr. Huang Shixi ( Juris Doctor of Law, Sports Postdoctoral)

Dr. Wang Xiaobing (Juris Doctor of Law);

Dr. Zhang Shijun (Juris Doctor of Law);

Dr. Chi Deqiang, Lecturer ( Juris Doctor of Law);

Dr. Xu Qingkun, Lecturer ( Juris Doctor of Law );

Dr. Li Weihua, Lecturer ( Juris Doctor );

Tian Yu, Lecturer ( LLM )

Liu Qiyao, Lecturer ( LLM )

At the end of May 2007, Sports Law Center of Shandong University successfully

held a national sports law conference, and more than 60 sports law experts attend-

ed this meeting, including university professors, lawyers, J.D and LLM candidates,

and governmental officials in charge of sports legislation.

As to publications, the Center’s members have published three books, that is:

Olympic-Related Disputes and Arbitration, published by Law Press Inc., 2005;

Olympic Games Disputes and Arbitration, published by Law Press Inc., 2006; and

Research on International Sports Disputes Resolution, by University of Wuhan Press,

2007. Furthermore, the Centre members have also published at least more than 40

sports law articles in Chinese and foreign journals.

Sports Law Center of Shandong University, China

2007/3-4

The upright citizen is bombarded with information about profitable

forms of criminality from all sides. They are the subject of discussion

in the pub, at parties and in the media. Fraud just is an integral part

of human life. Our upright citizen finds solace in the hope that such

criminals will get their just deserts. This is cold comfort, however,

because many get away with their crimes, as he knows from the news.

But if he keeps to the straight and narrow, he will not become victim

of allegations and prosecution.

This may be a simplistic portrayal of social relationships, but in its

simplicity it seems to reflect the actual situation.

However, there is one category of citizens to which this situation

does not apply: professional athletes. In the above paragraph, replace

‘upright citizen’ by ‘honest professional athlete’ and the comparison

concerning allegations falls short, particularly with regard to the most

deadly sin known to sport, alleged doping. Every (professional) ath-

lete is treated like a potential fraudster, a suspect - by the IOC, the

doping authorities and the sports federations involved. Tackling dop-

ing use has degenerated into a witch hunt on all top athletes. The

individual and his personal and working environment are put in the

pillory at the slightest suspicion.

As we said above: fraud is part of life. Take the number of IOC

members who have had to resign from the organisation in recent years

for transgressions of this kind. In terms of percentages, many more

IOC members than top athletes have been caught at fraud. But the

IOC does not subject its honourable members to the same suspicion

as it does those ordinary top athletes.

Worldwide, all organisations which represent sport in some form

or other seem to have forgotten that sport had begun with sports men

and women, which then spawned the need for associations, umbrella

organisations and event organisers. Furthermore, the competition

between these bodies to be or become the biggest, most powerful and

richest has created an unhealthy rivalry which has relegated the inter-

ests of the athletes in question to the background. The fact that, for

example, without athletes the IOC, ASO and UCI would be redun-

dant, is no longer realised in these circles. Top athletes concerned

should also draw this rather simple conclusion. They are the most

important party to shape the top sport sector. In this respect, they

should follow their recreationally-minded brothers and sisters who

have turned their backs en masse on organised sport. “The wheels can

stop turning if your powerful arm wants them to!” If there is one pro-

fessional group that can prove that solidarity criterion in practice, top

athletes can.

Chain gangs

When we mention the International Cycling Union (UCI) and the

organisers of the Tour de France (ASO) the last reader will realise

what was the direct motive for our message. Although the abuses

described here are not limited to cycling, let us focus now on the Tour

de France, the arena for the chain gangs of the road and the shop win-

dow for parties who want to spread their power over cycling as wide-

ly as possible. Most worryingly, they present themselves as moral cru-

saders claiming that if they come to power or remain in power, an

atmosphere of purity will be created. The last Tour de France offered

a taste of the meaning and consequences of this ambition.

Doping tests before and during the Tour have made clear that

cyclists can claim no rights whatsoever. The inspectors are known as

‘doping hunters’. Every cyclist is suspect. Anyone who proves his

innocence today must be available tomorrow for the next test.

Anyone caught by the doping hunters was and is treated like dirt by

them, the sporting organisations and their employers (sponsors). The

devastating result was the disqualification of the yellow jersey rider for

allegedly telling lies, without taking into consideration the seventeen

recent tests which had all showed that the victim had not used dop-

ing. Obviously, regulations have become more important than their

aim.

Thus far the ‘new Tour’, which the present authorities are planning.

A new future based on a scandalous past. Because the treatment of

athletes by doping hunters bears a strong resemblance to the inquisi-

tion which victimised so many people eight hundred years ago.

Replace the term ‘doping’ by ‘heresy’, inspectors by inquisitors and

church authorities by IOC, doping authorities, sports associations

and organisations like ASO, and you have your comparison.

Medieval practices

Of course the situation back in the Middle Ages was even worse; every

citizen was a suspect. Failing to attend an interrogation, giving a hes-

itant answer, making one suspect move and you were found to be a

heretic. And heretics were severely punished. Burning heretics at the

stake was a popular public spectacle for those who did not yet stand

accused, because even then there was no solidarity among cyclists,

sorry, citizens.

Let us look more closely at the parallels between the medieval

‘legal’ practices and the ‘pure’ intentions of modern-day sports gov-

erning bodies with regard to the doping problem. The top athlete is a

citizen without rights in the field of doping. The way in which he is

treated violates fundamental human rights. There is no precise

jurisprudence because of the illegal entwinement of the functions of

law maker, law enforcer and judge. The obligation of top athletes to

make themselves available to inspectors all over the world is dispro-

portionate to the nature and extent of the doping problem. For top

athletes, there is no privacy; by definition they are suspects. The pre-

sumptio innocentia does not exist: people are guilty in advance and in

doubt one must prove one’s innocence. And on this weighty note: “in

dubio pro reo” is never permitted in the procedures and that also

applies to “ne bis in idem” (‘strict liability’: no defence possible). Any

mitigating circumstances or other nuances are excluded from the judi-

cial proceedings. The discrepancy between punishment and offence

also belongs to this summary. A long-term Berufsverbot (restraint of

trade) is the imminent penalty which for many athletes means the end

of their chosen career. And then there is the parallel with the people’s

court: the media serve its customers by eagerly hanging athletes based

on allegations; in the Middle Ages, people flocked to executions car-

ried out on the same flimsy basis.

The media’s approach to the doping problem moves between rous-

ing public opinion and an inquisition. Press conferences become tri-

bunals in which the athlete has to defend himself. There is often no

insight into the material, leaving everything to overblown tabloid

journalism.

For the sake of clarity: we are not appealing for the liberalisation of

doping. We consider doping as one of the areas which requires regu-

lation and sanctioning, but then contemporary, modern regulation.

With the right of the accused to be able to defend him/herself like any

other citizen. And with a proportional punishment, as opposed to

dangerous manoeuvres during sports, for example, which are much

less severely punished.

Perspective

Sporting organisations defend themselves against criticism with the

argument that sport sets its own rules. But that time has gone, because

current legislation offers perspectives against medieval practices. For

example, the Belgian lawyer Jean-Louis Dupont - famous on account

of the Bosman case which led to the breaking open of the transfer sys-

tem in professional football - says that the so-called sports exception

is ‘dead and buried’. He came to this conclusion after last July’s judge-

ment of the European Court of Justice in Luxembourg in the Meca-

Medina case. A judgement which Frank Kuitenbrouwer, legal corre-

spondent of the NRC-Handelsblad, reviewed in detail on 7 August of

this year under the title ‘The new cycling’. The case was about the 4-

year suspension (later reduced to 2 years) for doping of two profes-

sional long-distance swimmers. The swimmers contended that this

Manifesto: “Stop the Doping Inquisition!”

OPINION

2007/3-4

OPINION

1. With its decision of 5 January 2007, the Swiss Federal Court has

given the FIFA´s all-embracing power to impose sanctions its defini-

tive blessing. The decision is short, only three pages long. The sen-

tence, which is unspectacular in itself, reads: “It is acknowledged by

Swiss Association Law that the violation of members’ duties may

incur sanctions such as punishments for clubs or associations”. To this

end the Federal Court appeals to an article by Riemer. Professor Hans

Michael Riemer is Full Professor at the Jurisprudential Institute of the

University of Zurich, editor of the association law Article 60 - 79

Swiss Civil Code in the Berner Commentary

on Swiss civil law, a

judge at the Federal Court (2nd Civil Section) in addition to his offi-

cial duties and Member of the Court of Cassation of the District of

Zurich. Riemer’s article bears the title: “Sports Law - World Power

Switzerland”

- without a question mark.

2. The sanction monopoly of federations, whose members voluntari-

ly or less voluntarily submit to them, also comprises, according to the

decision of the Federal Court, of the mandatory implementation of

the sanctions: “That the enforcement-like effect of an intended sanc-

tion possibility can be produced within an association structure,

because the member concerned is required to observe its obligations,

cannot be faulted if there are sufficient statutory grounds and does

not mean that the association law sanctions violate the state’s monop-

oly on levying execution”.

That is the accolade. Through its highest court, the Swiss state

gives the football World Power, FIFA, residing on its sovereign terri-

tory, the right, otherwise reserved for the state, to exercise a monop-

oly on judicial enforcement towards its football subjects, and it does

so on a worldwide basis.

3. By this accolade, both national and international hurdles for pros-

ecution and enforcement of contractual agreements in civil law con-

tracts will be mastered - not conquered, but rather knocked down. A

normal creditor goes to the national court, makes his claim and con-

sequently orders the bailiff to levy attachment on effects in the house

of his debtor, or the Court of Execution to levy attachment and carry

out collection of debtor’s claims or other rights. The creditor secures

the right in arbitrational procedures to an arbitrational decision, for

the implementation of which it requires an enforceability statement

from the national Court concerned, both for national cases as well as

in international areas.

All this also applies in Switzerland. The Swiss state also claims the

official right to the allocated monopoly on levies of execution

. The

Federal Court does not dispute this, but rather leaves open the still

undecided issue of whether a monopoly on levies of execution by the

state is part of public order.

4. According to the principles of German law, the matter has always

been clear-cut. There is no private enforcement

. Enforcement is state

responsibility

. Only the state is entitled to enforce. It alone assumes

*Advocate, Hamburg, Germany.

1 The Federal Court refers in particular to

N. 205 et seq. to Article 70 Swiss Civil

Code.

2 Sports Law - World Power Switzerland.

International Sport Federations and

Swiss Law, in: Causa Sport, Die Sport-

Zeitschrift für nationales und interna-

tionales Recht sowie für Wirtschaft

(CaS) 2004, S. 106 f.

3 Agreeing with Netzle, SpuRt 2007, S.

64, but (still) without own examination

of the problem: “The Federal Court has

rightly established that this sanction

authority of a sport federation has noth-

ing to do with the state’s monopoly on

levying execution”.

punishment was in conflict with the EU Law regarding the freedom

to provide services.

The Court rejected the argument that the doping prohibition sole-

ly relates to the sporting world, which falls outside the rules for eco-

nomic activity. The court does have the competence to judge whether

the repressive measures are really necessary in relation to sports com-

petitions. The Court highlighted two problem areas: the definition of

prohibited substances and the extremely severe punishments.

It was a judgement that reinforced the argument of Dr Janwillem

Soek, associated with the T.M.C. Asser International Sports Law

Centre. In his thesis The Strict Liability Principle and the Human

Rights of Athletes in Doping Cases, Soek opposes the excessive risk lia-

bility of athletes in doping cases. In fact, it is impossible for them to

defend themselves. In addition, he realises that an appeal to an ath-

lete’s sense of responsibility will not always be sufficient. Rules are

required. But in the current situation, the relationship between accus-

er and defendant is completely unequal, to the disadvantage of the lat-

ter. That is contrary to the European Convention on Human Rights,

which plays a role in the Court in Luxemburg.

To conclude this legally tinted section of our manifesto, we will

quote from Kuitenbrouwer’s column: ‘a modern inquisition forms a

shaky basis for the new cycling.’

Monitoring task

The show of strength from the new inquisitors during the Tour

should create the momentum for a strong union of athletes, their

employers and their sponsors to defend themselves and achieve the

liquidation of the inquisition. This union should point out to nation-

al and European governments that they completely fail to monitor

violations of basic human rights. When will they decide the time is

right for a modern sports policy? The aim of those signing this man-

ifesto is to create that perspective.

By the way: in the year 2000, the Pope asked people’s forgiveness

for the mistakes made by the Catholic Church in the distant past. But

the Olympic inquisition led by Pope Pound of WADA and all the car-

dinals in the international sports associations does not consider itself

obliged to justify itself to modern society. We do not want to let that

continue for 800 years.

Paul Ruijsenaars, former basketball international, owner of a coaching

and advisory agency in Utrecht, board member of ProProf, professional

footballers’ union, secretary Marathon department, KNSB; Hidde van der

Ploeg former volleyball international and former coach of the national

men’s volleyball team, as (sports) correspondent of the NRC-Handelsblad he

was closely involved in the theme of doping in sport; Henk Kraaijenhof,

top sports coach; Egbert Lambers, solicitor, cycling fan; Loek Jorritsma,

former chief officer Sports department, Ministry VWS; Dr. Janwillem

Soek, researcher, associated with the ASSER International Sports Law

Centre in The Hague and author of the dissertation “The Strict Liability

Principle and the Human Rights of Athletes in Doping Cases” (enthusias-

tic archer); Jan Rijpstra, Mayor and former member of the Dutch House

of Representatives, sports director; Harm Swierenga, senior managing

consultant Berenschot, board member of ProProf, professional footballers’

union; Peter Winnen, former professional cyclist, publicist; Frank van

den Wall Bake, sports marketing expert.

❖

Sports Law - Worldwide Enforcement Power Switzerland?

Comments on the Decision of the Swiss Federal Court of 5 January 2007 (SpuRt 2007, S. 63)

by Georg Engelbrecht*

2007/3-4

OPINION

the implementation of involuntary fulfilment by enforcement

. As a

correlation to this the private creditor has a corresponding claim for

enforcement against the state for the enforcement of the execution

measures applied for and legally permitted

. As a matter of principle,

the parties are prohibited from making agreements on requirements

and limits of state enforcement actions

5. What defence could have prevented the Spanish debtor (Rayo

Vallecano de Madrid S.A., hereafter: “R.V.”) from the contractual

obligation of having to pay the Brazilian club (Asociación Deportiva

Sao Caetano, hereafter: “S.C.”) transfer damages? S.C. had used the

regulations provided by FIFA concerning status and transfer of play-

ers

and had obtained a legally enforceable instrument for the money

claim by a decision from the committee for the status of players (FIFA

Players’ Status Committee) of 15 February 2005.

An appeal to CAS against this first FIFA decision would have been

possible. R.V. failed to do so in time however, so that the decision of

the FIFA Committee was declared definitive. Since the FIFA Players’

Status Committee is indisputably not an independent court of arbi-

tration, but merely an internal federation board, the creditors did not

have any real “title” with which they could have carried out judicial

enforcement. It would have been different if R.V. had filed the first

appeal with CAS and the panel there had partially or fully confirmed

the FIFA decision by arbitral award. Then the way to cancellation for

R.V, to recognition for S.C. and a statement of enforcement of this

CAS arbitral award by the national court in Spain (or wherever)

according to the New York agreement

would have been open. With

such a, be it national, executory title, S.C. could have carried out

national enforcement against R.V. in Spain. The other way around

R.V. would have had the chance that the Spanish Court might reverse

the arbitral award, for example due to breach of public order.

6. Instead S.C. employed an internal FIFA means of exerting pressure,

namely calling on the FIFA Disciplinary Committee.

According to

Article 57 section 3 FIFA Statute in relation to Article 68 of the FIFA

Disciplinary Regulations

, a party who has been ordered by a FIFA

body to pay another party (e.g. player, trainer or club) a sum of

money, and withholds payment fully or partially, will be sanctioned.

The sanctions, according to Article 55 of the FIFA Statutes, range

from monetary fines

, via deduction of points to relegation to a lower

division. In this case the Disciplinary Committee ordered the Spanish

club to pay a fine of CHF 25,000. In the event of non-payment of the

main claim as well as interest within 30 days of notification, it was

threatened with a 6 point deduction for the 1

team in the home

Champions League and thereafter even relegation to the 2

league.

The Spanish Football Association was required to implement these

measures nationally.

7. R.V. appealed against this sanction decision by the FIFA

Disciplinary Committee to CAS and lost. The CAS Panel rejected

this appeal by decision of 21 August 2006

. In this decision the Panel

contented itself

with a reference to Article 68 FIFA Disciplinary

Regulations, which imposes a disciplinary duty on football clubs to

comply with the decisions of FIFA bodies.

After confirmation of this

arbitrary award by the Swiss Federal Court, the Spanish club

had no

choice left but to pay up.

8. The Spanish football club finds itself in good company with its

defeat before the Swiss Federal Court. So far no athlete, club or asso-

ciation was permitted the pleasure of having a CAS Decision reversed

there, not for the repeatedly discussed issue of the arbitrational inde-

pendence of the CAS

, nor for its jurisdiction in individual cases

nor due to other possible breaches of public order

. Therefore the

most recent sports law decision of the Federal Court of 22 March

2007

should be considered as almost sensational, being the first time

that a CAS award was annulled due to breach of the right to be heard.

The stronghold of Sports Law World Power Switzerland, however,

will not be shaken to bits.

9. Whether the decision to allow the football world power, FIFA,

based in Switzerland, a monopoly on judicial enforcement will stand

up in foreign court cases, is worth examining.

4 The claimant in the case here refers to -

not rejected by the Federal Court-

Walder-Richli, Zivilprozessrecht, 4th edi-

tion Zürich 1996, § 41 N 1;

Vogel/Spühler, Grundriss des

Zivilprozessrechts, 8th edition Bern

2006, S. 40 N 34 et seq..; especially on

the execution of arbitrational decisions

Rüede/Hadenfeldt, Schweizerisches

Schiedsgerichtsrecht, 2nd edition Zürich

1993, S. 51 and 55. 314, 316 and 320;

Burkhalter/Grell, Schiedsgerichtsbarkeit

der Schweizer Immobilienwirtschaft,

Zürich 2005, S. 50; Bucher, Die neue

internationale Schiedsgerichtsbarkeit in

der Schweiz, Basel 1989, N 97-98 and 411

et seq.; Vischer in: Zürcher IPRG-

Kommentar, 2nd edition Zürich 2004, N

17 - 20 to Art. 177 IPRG; ders. in:

Panchaud/Caprez, 2nd edition Zürich

1980, Die Rechtsöffnung, §§ 49/1 and

150/9, Zeitschrift für Walliser

Rechtsprechung 1987 S. 184: Decision of

the District Court of 22 March 1987;

Solothurnische Gerichtspraxis 1996 No

14: Decision of the Supreme Court of 8

January 1996.

5 The claimant, however, refers to Vischer

in: Zürcher IPRG-Kommentar, N 17 - 20

to Art. 177 IPRG and Bucher, see foot-

note 3.

6 Wieczorek, 2nd edition 1997, § 704 Code

of Civil Procedure, marginal number A I a.

7 Stein-Jonas/Münzberg, 21st edition 2002,

§ 704 Code of Civil Procedure, marginal

number 16.

8 Wieczorek, aaO.

9 Stein-Jonas/Münzberg, aaO; BGHZ 3, 82

= NJW 1951, S. 886.

10 Stein-Jonas/Münzberg, 21st edition 1995,

for § 704, marginal number 100; RGZ

128, S. 85; Gaul JuS 1971, S. S. 347 f.: this

is derived from the interest of the state

that the enforcement “is steered in the

legal direction”.

11 Then as amended on 4 December 2003.

Since 1 July 2005, the new version,

approved by the FIFA Executive

Committee on 18 December 2004,

applies; according to article 26 section 1

the old transfer regulations still applied

for cases submitted to the FIFA before

the new regulations took effect.

12 On 10 June 1958, signed inter alia also by

Brazil, Switzerland and Spain.

13 Whether the FIFA means of exerting

pressure mentioned by Netzle (SpuRt

2007, S. 64) (Decision of the FIFA

Executive Committee , Circular no. 674

of 23 March 1999) of deducting the

amount not paid by the convicted club

from the FIFA account of the National

Football Association would stand up to

legal examination is questionable. In

another current CAS case, however, this

matter will not be resolved either.

14 As valid from 1 September 2005 and

amended on 29 June 2005.

15 Although the FIFA Statutes (Art. 55 sec-

tion 1 lit. c) say nothing about the

amount of the monetary fines, the FIFA

Disciplinary Regulations set them at an

amount of CHF 5,000 (Art. 68 section 1.

lit. a) up to CHF 1 million (Art. 16 sec-

tion 2).

16 CAS 2006/A/1008 Rayo Vallecano de

Madrid SAD v/ FIFA

17 Marginal number 43

18 Literally: „...that Art. 68 FDC allows a

sanction to be imposed on a club that has

failed to pay entirely its debts to another

subject. The provision is intended to

confirm that it is a disciplinary duty of

clubs to fully comply with the decisions

of the bodies of FIFA”.

19At the time of writing this article,

Rayo Vallencano was competition leader

in the Segunda División B, according to.

www.lfp.es/competiciones/2004-

05/otrascompeticiones/2divisionb/main

1.asp. Before this the club had played for

four years in the 1st division until the end

of the 2004 season.

20 As far as the author knows, both clubs

have now come to an understanding, so

that there is no further cause for FIFA to

impose sanctions.

21 Commencing with the Federal Court

Decision of 15 March 1993 in: Receuil des

sentences du TAS I p. 545/561; later con-

firmed by Federal Court Decision of 27

May 2003 - 4P. 267-270/2002 in: TAS-

Recueil III, p. 651/674.

22 Federal Court Decision of 7 February

2001 - 4P. 230/2000 (cf.

relevancy.bger.ch/php/aza/http/index.php

?lang=de&type=high)

23 Cf. the list under relevancy.bger.ch key-

word „tribunal arbitral du sport” pub-

lished Federal Court Decisions.

24 4P. 172/2006.

2007/3-4

OPINION

Introductory

The long-awaited European Union (EU) ‘White Paper on Sport’ was

published by the European Commission on 11 July, 2007

(COM(2007) 391 Final). Not least by the major International Sports

Federations, including FIFA and UEFA, who will, no doubt, be dis-

appointed by its contents, mainly because it does not provide for an

exemption of sport from EU Law in general and Competition Law in

particular (see later), for which they have been lobbying hard. In fact,

sport is subject to the ‘acquis communautaire’ - the body of law that

has grown up and developed by the Community Institutions, not

least the rulings of the European Court of Justice, the guardian of the

EC Treaty.

In the ‘White Paper’, the Commission has adopted the Council of

Europe definition of “sport”, contained in its European Sports Charter

of 15 May, 1992, which provides as follows:

“Sport comprises all forms of physical activity which, through casual or

organised participation, aim at expressing or improving physical fitness

and mental well-being, forming social relationships or obtaining results

in competition at all levels.”

Furthermore, the ‘White Paper’ acknowledges in its Introduction

(para. 1) the importance of sport as “a growing social and economic phe-

nomenon which makes an important contribution to the European

Union’s strategic objectives of solidarity and prosperity.” Indeed, it also

quotes the famous dictum of Baron Pierre de Coubertin, the founder

of the modern Olympic Games:

“Sport is part of every man and woman’s heritage and its absence can

never be compensated for.”

The purpose of the ‘White Paper’ is expressed in the following terms

(para. 1):

“This initiative marks the first time that the Commission is addressing

sport-related issues in a comprehensive manner. Its overall objective is

to give strategic orientation on the role of sport in Europe, to encour-

age debate on specific problems, to enhance the visibility of sport in EU

policy-making and to raise public awareness of the needs and specifici-

ties of sector. The initiative aims to illustrate important issues such as

the application of EU law to sport. It also seeks to set out further sports-

related action at EU level.”

According to Mr Michal Krejza, the Head of the Sport Unit of the

European Commission in Brussels, who for the past year has been

putting together the ‘White Paper’, speaking at the Seventh Annual

Asser-Clingendael International Sports Lecture given in The Hague,

The Netherlands, on 6 September, 2007, and organised by Dr Robert

Siekmann, the Director of the TMC Asser Instituut International

Sports Law Centre, in The Hague((, this Action Plan, named after

Pierre de Coubertin, is a 5-year programme, and that the Reform

Tr eaty, which is expected to be ratified by the Summer of 2009, to

coincide with the next European Parliament Elections, is likely to

contain a provision on sport, giving the EU a legal basis for the first

time in the sports sector.

In this article, we will concentrate on a new section in the ‘White

Paper’ dealing with the important concept of the so-called ‘specificity

of sport’, which has crept into EU jargon, and has recently been and

continues to be the subject of consideration by the Commission and

the European Court of Justice in several cases, as well as debate in

sporting circles.

The ‘Specificity of Sport’

Over the years, the EU has produced some colourful jargon to

describe various concepts and operating principles, such as the prin-

ciple of ‘subsidiarity’, whereby matters, so far as possible are dealt with

not at the Commission level, but at the National States’ level. For

example, Competition matters are being dealt with more and more by

National Competition Authorities, such as the UK Office of Fair

Trading, rather than by the Competition Directorate of the European

Commission.

The term ‘specificity of sport’ has entered into common parlance,

in practice, to refer to the special characteristics of sport recognised in

the Nice Declaration on Sport of December 2000. Paragraph 1 of this

Declaration includes the following important passage recognising the

special nature of sport:

“Even though not having any direct powers in this area, the

Community must, in its action under the various Treaty provisions,

take account of the social, educational and cultural functions inherent

in sport and making it special, in order that the code of ethics and the

solidarity essential to the preservation of its social role may be respect-

ed and nurtured.”

Paragraph 4.1 of the ‘White Paper’ contains, for the first time, accord-

ing to Dr Krejza, when pressed on the subject during the above-men-

tioned Lecture, some guidelines - but not exhaustive ones - on the

meaning of the ‘specificity of sport’, based on the case law of the

European Court of Justice and the decisions of the European

Commission in previous cases. In the drafting of these guidelines, the

hand of the Competition Directorate can be clearly seen.

Before setting out these guidelines, it should be noted that the sub-

paragraph clearly states in its first sentence that “Sport activity is sub-

ject to the application of EU Law.” Particularly, in so far as it consti-

tutes an economic activity (echoing the decision of the European

Court of Justice in the landmark case of Walrave and Koch v. Union

Cycliste Internationale (Case 36/74 [1974] ECR 1405)). In practice, it is

difficult to make the distinction between economic and sporting mat-

ters. Take the football transfer rules, for example: they are designed to

achieve sporting objectives, but clearly also have economic conse-

quences. The sub-paragraph in the ‘White Paper’ goes on to state that

“Sport is also subject to other important aspects of EU law, such as the

prohibition of discrimination on grounds of nationality, provisions on

regarding citizenship of the Union and equality between men and

women in employment.”

According to the ‘White Paper’, the specificity of European sport can

be approached through “two prisms”:

- The specificity of sporting activities and of sporting rules, such as

separate competitions for men and women, limitations on the

number of participants in competitions, or the need to ensure

uncertainty concerning outcomes and to preserve a competitive

balance between clubs taking part in the same competitions;

- The specificity of the sport structure, including notably the autono-

my and diversity of sport organisations, a pyramid structure of

competitions from grassroots to elite level and organised solidarity

mechanisms between the different levels and operators, the organ-

isation of sport on a national basis, and the principle of a single fed-

eration per sport.

The ‘White Paper’ points out that the specificity of sport has been

recognised and taken into account in various decisions of the

European Court of Justice and the European Commission over the

*Ian Blackshaw is an international Sports

Lawyer and Honorary Fellow of the

ASSER International Sports Law Centre,

the Hague, The Netherlands, and may

be contacted on [email protected].

** The Editors proudly confirm that it was

the first time after its publication that

the White Paper on Sport was presented

at a seminar to a wider audience.

The ‘Specificity of Sport’ and the EU White Paper on Sport: Some Comments

Ian Blackshaw*

2007/3-4

OPINION

Formula One is never far from the sporting headlines. Not least,

because it is a lucrative and popular sport in which sporting and

financial fortunes can be won and lost. And, from time to time,

Formula One generates as much interest off the track as on it.

The sporting headlines have recently been dominated by what has

come to be known as the McClaren Spy case, in which the McClaren

team received a record and unprecedented fine of $100 million and a

loss of all their points gained in the current Formula One season’s

Constructors’ Championship for, in effect, cheating. These penalties

were imposed on McClaren by the sport’s governing body, the FIA

(Fédération Internationale de l’Automobile), for having in their pos-

session and allegedly using confidential technical information

obtained by one of the members of their team from their rivals

Ferrari. McClaren are reportedly appealing against this ruling, main-

ly, it would appear, on the grounds that they did not use this infor-

mation to enhance their performance and thereby gain an unfair

competitive advantage over other Formula One teams. Surprisingly,

perhaps, the McClaren team’s drivers, Fernando Alonso and Lewis

Hamilton, were not penalised in any way and allowed to keep their

points in this year’s Formula One Championship. Many commenta-

tors have put this decision of the FIA down to politics and finances.

These two drivers, especially Hamilton, who is successfully making

his debut in Formula One this season, are attracting public interest

and drawing additional television audiences, the life blood of any

sport. Added to which the Agreement - the so-called ‘Concorde

Agreement’ - under which the sport is run, expires and is due for

renewal next year, against the background of the possibility of a num-

ber of the major teams breaking away and organising and running

their own competition in future.

Formula One has also been in the news recently in relation to a

trademark application to the UK Trademarks Registry, which failed.

The Management of Formula One tried to register as a trademark the

abbreviation ‘F1’. This was rejected by the Registry on the ground that

the letter and the numeral together do not satisfy the definition of a

trademark under English Law, because the mark consists exclusively

of an abbreviation describing a form of motor sport. In other words,

the mark lacks distinctiveness and is purely descriptive.

The Law on these matters is contained in the UK Trade Marks Act

of 1994. Section 1(1) of the Act defines a trade mark in the following

broad terms:

“.....any sign capable of being represented graphically which is capable

of distinguishing goods or services of one undertaking from those of

*Ian Blackshaw is an International

Lawyer, Member of the WIPO

Arbitration and Mediation Center and

an Honorary Fellow of the International

Sports Law Centre of the TMC Asser

Instituut, in The Hague, and may be

contacted by e-mail at

‘[email protected]’.

years. Take Bosman (Case C-415/93 [1995] ECR I-4921), for example,

the European Court of Justice stated (para. 106) that:

“In view of the considerable social importance of sporting activities

and in particular football in the Community, the aims of maintaining

a balance between clubs by preserving a certain degree of equality and

uncertainty as to results and of encouraging the recruitment and train-

ing of young players must be accepted as legitimate.”

And the ‘White Paper’ adds that, in line with the established case law,

the specificity of sport will continue to be so recognised, but it can-

not be construed so as to justify a general exemption of sport from the

application of EU Law.

The ‘White Paper’ then goes on to give some examples of organi-

sational sporting rules -the so-called ‘rules of the game’ - that are not

likely to offend EU Competition Law, provided that their anti-com-

petitive effects, if any, are inherent and proportionate to the legitimate

objectives pursued:

- rules fixing the length of matches or the number of players on the

field of play;

- rules concerning the selection criteria for sporting competitions;

- rules on ‘at home’ and ‘away from home’ matches;

- rules preventing multiple ownership in club competitions;

- rules concerning the composition of national teams;

- rules against doping; and

- rules concerning transfer periods.

The ‘White Paper’ adds that, in determining whether a certain sport-

ing rule is compatible with EU Competition Law, an assessment can

only made on a case-by-case basis, as confirmed recently by the

European Court of Justice in the Meca-Medina case (Case C-519/04P,

Meca-Medina and Majcen v. Commission, ECR 2006, I-6991). In that

case, the Court recognised that the specificity of sport must be taken

into account in the sense that the restrictive effects of competition

inherent in the organisation and proper conduct of competitive sport

are not in breach of the EU Anti-Trust Rules, where these effects are

proportionate to the legitimate genuine sporting interest pursued. In

other words, the proportionality test requires that each case is assessed

on its own merits according to its own particular features or charac-

teristics. Thus, it is not possible to formulate general guidelines on the

application of EU Competition Law to the sports sector. In other

words, EU Competition Law takes a ‘rule of reason’ approach, rather

than following a ‘per se’ doctrine (cf US Anti-Trust Law).

Conclusion

It is clear from the terms and the tenor of the EU ‘White Paper’ on

Sport that a general exemption of the sports sector from EU Law is

not on the cards for the foreseeable future - if ever. Indeed, many

would argue that the sports industry, which is significant as it

accounts for 2% of the combined GNP of the 27 EU Member States,

notwithstanding the ‘specificity’ of sport, should, like other industries

operating in the Single European Market, be subject to EU Law and

not exempt from it. Otherwise, there will be special pleading from

other industry sectors, which may be equally deserving - at least in

their own eyes - of special treatment.

Also, the distinction made by the European Court of Justice between

the business/economic and the social sides of sport will remain

(described by Prof Stephen Weatherill of Oxford University as “unfor-

tunate”) and be reflected in the treatment of sport under EU Law.

The likely introduction in two years’ time of a so-called ‘sport arti-

cle’ in the EU Reform Treaty is to be welcomed and will give the EU

a clear legal basis for intervening in the sporting arena. However, the

line to be drawn between sporting rules of a non-economic and those

of an economic nature will continue to be a source of friction between

the International Sports Federations and the EU, and will not neces-

sarily provide legal certainty, despite the fact that the ‘White Paper’

recognises the specificity of sport and includes some guidelines on

what it means in theory and in practice.

The future is always interesting, even though rather unpredictable!

❖

Formula One in New Legal Battles Off the Track

Ian Blackshaw*

2007/3-4

OPINION

other undertakings. A trademark may, in particular, consist of words

(including personal names), designs, letters, numerals or the shape of

goods or their packaging.”

On this definition alone, the letter and numeral comprising the mark

‘F1’ should satisfy this legal requirement. And that was the basis of the

Formula One argument for registration of this mark. However, as will

be seen from the above statutory provision, there is also a need for dis-

tinctiveness. On this basis, it is arguable that the mark ‘F1’ refers to or

distinguishes the goods and services of Formula One. But the mark

consists of a common letter and numeral - hardly distinctive perhaps.

But, whether or not the mark is distinctive, for such legal purposes,

this is not the only criterion for registration under UK Trademark

Law (and indeed under other legal systems too). A mark may be

refused registration at the UK Trade Marks Registry in certain cir-

cumstances laid down in section 3 of the Act. Section 3(1)(c) covers

the case of descriptiveness. According to the UK Registry, the mark,

which includes a letter and numeral in common use, is descriptive of

a genre or discipline of motor sport, namely, the sport carried on

under the name of Formula One. And is not, therefore, capable of

registration.

The decision by the UK Trade Marks Registry to refuse the regis-

tration of the mark ‘F1’ is consistent with decisions by other quasi

judicial bodies. For example, the Arbitration and Mediation Center of

the World Intellectual Property Organization (WIPO), a specialised

agency of the UN based in Geneva, Switzerland, in a domain name

dispute disallowed a complaint made by a group of companies

involved in the organisation of the Formula One Grand Prix Motor

Racing Championship against the use of the domain name ‘f1.com’.

The complainants claimed that the domain name consisted of their

famous trademark ‘F1’, an abbreviation of the mark ‘Formula 1’. The

WIPO Panel, charged with the resolution of the case, held that,

because the trademark ‘F1’ consisted merely of a single letter and

numeral, it was not sufficiently distinctive and, therefore, did not sat-

isfy the requirement under paragraph 4(a)(i) of the ICAAN (Internet

Corporation for Assigned Names and Numbers) UDRP (Uniform

Domain Name Dispute Resolution Policy) that the domain name in

dispute is identical or confusingly similar to a trademark or service

mark of the complainants.

In order to claim a monopoly right - and that, in effect, is what a

registered trademark confers on its owner provided the mark is used

in the course of business and registration renewed - over the use of the

abbreviation ‘F1’, proof of considerable commercial use of this mark

would need to be adduced. In the instant case, although the com-

plainants were able to establish some reputation in this mark, they

were not able to show that its use was so widespread as to be able to

claim that any commercial use of it implied a connection with their

activities.

In other words, the abbreviation ‘F1’ has not yet acquired a so-

called ‘secondary meaning’ for trademark registration and protection

purposes. But it is probably only a matter of time before it does.

❖

We are pleased to announce that as from 1 May 2007

DE KEERSMAEKER VROMANS

started operating under a new name:

bRIGHT

L E G A L S O L U T I O N S

Our contact details are as follows:

Wetstraat / Rue de la Loi 67

1040 Brussels

Tel: + 32 2 235 03 00

Fax: + 32 2 235 03 03

E-mail: [email protected]

www.brightls.eu

2007/3-4

I. The 12th IASL Conference on Legal Aspects of Professional Sport

was held from 23 to 25 November 2006 in Ljubljana. The conference

was attended by most members of the Board of Directors and many

members of the IASL. Over the two days of the conference proceed-

ings (Friday 24 and Saturday 25 November) 22 speakers addressed the

conference, providing an in-depth presentation of developments in

the academic discipline of sports law and the wider area of law which

touches upon sporting and competitive activities from both an inter-

national viewpoint and the national perspective of the legal order the

speakers represented.

II. The conference proceedings opened with an address entitled ‘Lex

Sportiva and its application to the national framework of Sports Law’

by Asst. Professor of Sports Law and Secretary General of IASL,

Dimitrios Panagiotopoulos. Key points of his presentation were an

explanation of the nature of Lex Sportiva as the law of international

sporting and competitive activity which develops within the context

of the private autonomy of sporting bodies, coupled with an explo-

ration of the interface between, and parallel implementation of, that

law and traditional legal orders: namely those of international law,

European law and individual national legal orders.

Following that on the first day of the conference Janwillem Soek

talked about the results of a comparative survey of the sports legisla-

tion and the meaning given to the term ‘sport’ in various national

legal orders while Cathryn Claussen examined issues of equality in US

school sports. Luc Silance explored the issue of rights and obligations

of athletes from various legal orders and then Prof. James Nafziger,

IASL President, set forth the differences between the US model on

the one hand and the European model of professional sport on the

other, while Prof. Gerard Auneau, President of the IASL Scientific

Committee, explored the influence of the special features of sport -

and in particular professional sport- on shaping national and

Community law. Prof. Andràs Nemes presented a recent case brought

before the Hungarian National Olympic Committee related to a

claim for autonomy of the sports associations while the first day pro-

ceeded with papers covering issues such as taxation of the sale by an

athlete of the right to commercially exploit his image (Jernej

Podlipnik), the security of sports events and individual rights of spec-

tators (Cathryn Clausen), compliance with contractual obligations to

participate in events where there are security shortcomings (Urvasi

Naidoo) and the EU policy on preventing violence in sport seen from

the perspective of the British experience (Jack Anderson).

Prof. Klaus Vieweg, Vice President of IASL, opened the second day

of proceedings by analysing the issue of protecting and utilising the

right to commercially exploit athletes’ names and images under

German and US law. Jean-Christian Drolet talked about the new

FIFA transfer rules in the post-Bosman era and about the develop-

ments in NHL and modern professional hockey. Prof. Brian Brooks

explored the commercialisation of sport in the Republic of South

Africa. The scandal in Italian football was analysed and presented in

comparison to similar disciplinary provisions in other countries by

Lucio Colantuoni, while Simon Gardiner talked about issues of cor-

ruption in British football, Tone Jagodic explored sponsorship agree-

ments in modern sport, Vesna Bergant Rako_evi_ talked about the

commercial exploitation of sporting venue names and _pelca Me_nar

examined the trademarks of international sports events.

To wards the end of the second day of proceedings and the themat-

ic unit entitled ‘Jurisdiction systems in professional sport’ two recent

cases from the French and Greek sporting legal orders were examined:

one case which was brought before CAS concerning a dispute

between a footballer and his team presented by Giangiacomo

Bausone, and an extremely interesting case about the temporary

expulsion of the Hellenic Football Federation from FIFA due to fail-

ure to comply with the provisions of the latter’s statutes on the inde-

pendence of national federations presented by Dimitrios

Panagiotopoulos and Ioannis Mourniannakis). The impact of

European competition law on sporting activity was then examined in

the light of the recent ECJ judgement in the Meca-Medina case by

Alexandros Rammos (and presented by Panos Panagiotopoulos) and

in the light of EU Council Regulation (EC) No 1/2003 on application

of the provisions of the treaty to protect competition (Ioannis

Mourniannakis). The conference proceedings drew to a close with a

series of presentations on specific topics such as the anti-doping legis-

lation and an evaluation of state policy (Simona Kustec Lipicer) and

the option for social dialogue between employers and employees in

professional football based on the procedures followed for enacting

Community labour law (Robert Siekmann).

III. The issues explored by the delegates during the two days of the

conference proceedings are of particular importance both from a the-

oretical perspective since they relate to fundamental concepts of the

academic discipline of sports law, and from a practical viewpoint for

implementers of the specific branch of law. The issues expounded

upon in his paper by University of Athens Asst. Professor and

Secretary General of IASL, Dimitrios Panagiotopoulos, deserve par-

ticular attention. One illustrative extract from his paper reads as fol-

lows: ‘The particular features of the sports legal order (Lex Sportiva)

are of definitive importance for providing a wide-ranging definition

of the particular legal nature of this field. It is a legal order which

incorporates state-adopted law and the law adopted by the national

and international bodies representing organised sport. These bodies

operate to the standards of unions and in the context of the autono-

my granted to such bodies and operate within states in a pyramid-like

fashion and at international level in the form of a special relationship

linking them to the relevant international sports federation or the

IOC. The law produced in this manner is thus a law which is, in

essence non-national law, which claims for itself direct and preferen-

tial application within national sports legal orders and the par excel-

lence law in sports life.’

IV. The overall picture emerging from the conference proceedings is

that sports law as an academic discipline has a strong dynamic. As a

relatively new academic discipline, based on developments in the field

of professional sport, it would appear that sports law is constantly

expanding its scope and penetrating further into the extensive field of

what we call financial law. However, despite that, key theoretical con-

cerns in the field are open for discussion and in particular the rela-

tionship between the autonomous system of Lex Sportiva rules and

traditional legal orders, and resolution of problems which arise where

several rules of law may apply, possibly from several legal systems, to

the same true facts of a case.

Resolution of such problems will prove to be of vital importance

for the further development of sports law as a branch of knowledge.

The term ‘sport’ in various national legal orders takes on a differ-

ent meaning and there the issue of the rights and obligations of ath-

letes from various legal orders becomes an academic problem.

The impact of the special features of sport -and professional sport

in particular- is definitive in shaping national and Community law

where the impact of European competition law on sports activity after

the recent ECJ judgement in the Meca-Medina case has become

extremely clear. Sporting activity raises particular issues especially in

relation to matters such as the taxation of the sale by athletes of the

right to commercially exploit their image, the safety of sporting events

and the individual rights of spectators, compliance with contractual

obligations to participate in events and preventing violence in sport,

sponsorship agreements, the commercial exploitation of the names of

Conclusions of the 12th IASL Conference

Ljubljana, Slovenia, 23-25 November 2006

CONFERENCES

2007/3-4

More than sixty scholars and practitioners of sports law attended the

first Moscow International Conference entitled “Sports Law - A

Review of Developments” held at the Moscow State Academy of Law

on 29 June 2007. The organisers of this conference were the Moscow

State Academy of Law, the Russian Olympic Committee, the Russian

Football Association, the Russian Federation for Employment Law

and Social Security, the Russian Sports Law Association, and the

Youth Sports Commission. It was chaired by Professor Dr. K.N.

Gusov and Associate Professor Dr. D.I. Rogachov (both members of

the Moscow State Academy of Law).

The conference opened with two main presentations. Professor Klaus

Vieweg, Vice President of the International Association of Sports Law,

talked about “Sponsoring and the Olympics”, while A.V. Shapovalov,

Chair of the Federal Agency for Physical Culture and Sports, discussed

aspects of the new draft bill on physical culture and sports.

Professor Vieweg first drew attention to the fact that Russia -

although undoubtedly a major player among sports countries - tend-

ed to be underrepresented at international conferences and in existing

literature on sports law. This conference was therefore a welcome step

and gave out an important signal. In his presentation, Professor

Vieweg discussed the increasing commercialisation and problems of

the Olympic Games and detailed the complex relations between the

IOC, the national Olympic committees, the national organising com-

mittees, the sponsors and the media. While the financial input of

sponsors opened up new and interesting opportunities, he felt that it

also involved a real risk of loss of independence. His concluding wish

that Russia might once again host the Olympic Games came true only

a few days later when the city of Sochi was chosen to host the 2014

Winter Olympic Games.

The second main speaker, A.V. Shapovalov, gave a detailed account

of the new draft bill “On Physical Culture and Sports.” In adopting

this law, Russia will be joining a band of countries endeavouring to

resolve central sports law issues by means of legislation.

In the ensuing presentation on “Regulatory and Organisational

Problems of Sports Events”, D.I. Rogachov discussed a range of issues,

from developing rules for sports events to problems of admission,

security measures, arbitration, transport, ticketing and funding.

Dr. A.A. Voitik (Faculty of Law, State University of Belarus,

Minsk) discussed the problems faced by professional athletes wishing

to complete their university education at the same time. His discus-

sion of Russian employment law provisions for athletes and their

coaches sparked off a lively discussion. While the draft bill was criti-

cised, most participants were in favour of introducing the relevant

sections.

The final speakers were Dr. I.V. Sitkovskij (in-house lawyer with

the television channel “Sports”), who talked about “The Problems of

Organising TV Broadcasts of Sports Events”, V. Berjozov (Russian

National Olympic Committee), who spoke on “Regulating the Fight

Against Doping” and M.A. Prokopec (Russian Football Association),

who focused on “Law and Sports Sanctions.” The conference closed

with a presentation by A.A. Gugev (Moscow State Academy of Law)

on “The status of Sports Agents.” Among other things, he focused on

the problems of signing employment contracts by proxy and on mat-

ters of agents’ liability.

The presentations are due to be published in book form shortly.

We look forward to another equally impressive conference next year.

Renata Enikeeva*

sporting venues, and international sporting event trademarks. The

major differences that exist between legal orders can be seen in the US

model on the one hand and the European model for professional

sport on the other, and in the relevant disciplinary provisions for

competitive and sporting disputes within legal orders or disputes in

professional football which follow the procedures for adopting rules

on the labour law model.

Disputes often arise from the application of the rules of the Lex

Sportiva within states as was the case with the temporary expulsion of

the Hellenic Football Federation from FIFA due to failure to comply

with the provisions of the latter’s Statutes on the independence of

national federations. Many of these disputes are brought before the

CAS while others are brought before national bodies and where there

are major problems of conflict between the rules of the Lex Sportiva

and national rules in the EU before the European court.

V. The specific conclusions from the issues discussed at the conference

can be summarised as follows:

a. The Lex Sportiva is a legal order which incorporates law adopted

by states and law adopted by national and international sporting

bodies and is an issue of fundamental importance for the academ-

ic discipline of sports law.

b. The law contained in the Lex Sportiva rules (in other words the

rules of sports organisations internationally) is at heart non-nation-

al, which claims direct, preferential application in national sporting

legal orders as the primary law of sporting life.

c. The institutional autonomy of international sports federations and

the problem of reviewing the legitimacy of the provisions of the

Lex Sportiva in terms of the legal regime and the body exercising

review are the key problems in the academic discipline of sports

law.

d. Recording, studying, investigating and utilising the international

legislation and case law on sporting and competitive activity is vital

and the establishment of an International Institute of Sports Law

under the aegis of IASL and the UN would make a special contri-

bution in this regard.

e. It is vital that states adopt an international sports charter to estab-

lish a truly international Lex Sportiva, a framework supporting the

institutional autonomy and operation of international sporting

bodies which provide international judicial review.

f. The resolution of disputes which arise is still not governed by the

principles of a fair trial, and the solution to this problem would

appear to be the prospect of establishing an International Sports

Court with special rules of procedure and various chambers.

Dimitrios Panagiotopoulos and Ioannis Mournianakis*

* LL.M. Heidelberg.

* LL.M., University of Erlangen, Germany.

❖

International Conference: “Sports Law - A Review of Developments”

Moscow, Russia, 29 June 2007

2007/3-4

This Book comprises the Collected Papers of Stephen Weatherill,

Jacques Delors Professor of European Community Law at Oxford

University, United Kingdom, covering the period 1989 - 2006.

Weatherill has established himself as a leading expert and author in

the field of European Union Law and Sport. He has gained admirers

not only for his academic rigorousness but also for his practical and

pragmatic approach to this evolving branch of EU Law.

In this Book, the author traces the evolution of EU Sports Law,

dealing with such landmark decisions as Walrave and Koch in 1974,

which drew a distinction between sport as an economic activity and

sport as a sporting activity, and Bosman in 1995, which revolutionised

the international football transfer rules and to which he devotes an

entire Chapter analysing and annotating this important decision of

the European Court of Justice. Writing the Foreword to the Book,

Bosman’s lawyer, Maître Jean-Louis Dupont, not only recognises

Weatherill’s scholarship, but also reminds readers that in the Civil

Law tradition, “the opinions of textbook writers and academics, such as

Stephen Weatherill, are one of the sources of the law - and an important

one at that!” The Book is clearly an important resource.

Weatherill also deals with equally important topics, such as dis-

crimination in sport, the sale of sports broadcasting rights, the cultur-

al side of sport, and doping. Regarding the latter, he brings us right

up to date with an analysis of the Meca-Medina and Majcen case, pos-

ing the question whether, as a result of the ruling by the full European

Court of Justice on 18 July, 2006, the so-called ‘sporting exception’ is

now dead. His conclusion is illustrative of his ability to combine the

academic with the practical side of tantalising legal issues: “.... there

remains scope for sport to protect its right to assert internal expertise in

taking decisions that have both sporting and economic implications. The

ECJ has collapsed the idea that there are purely sporting practices unaf-

fected by EC law despite their economic effect, but it has not refused to

accept that sport is special. Its message to governing bodies - explain how!”

As your reviewer, writing the Concluding Remarks to this remark-

able Book, noted, perhaps the true value of this Book can best be

summed up as being “...testimony to the great scholarship and learning

of Prof. Stephen Weatherill, based on his in depth knowledge, under-

standing and appreciation of EU Competition Law (as evidenced by his

excellent and erudite Book ‘Cases and Materials on EU Law’, which is

now in its seventh edition!).”

The Book is completed with a Table of Contents, List of

Abbreviations and Acronyms, Tables of National and International

Legislation and Cases and a Subject Index.

All in all, this Book is a welcome and distinguished addition to the

ASSER International Sports Law Series - under the editorship of Dr

Robert Siekmann and Dr Janwillem Soek - and one that your review-

er can wholeheartedly recommend to all those involved in interna-

tional sport in any way, who need to have a thorough understanding

of the relationship between sport and EU Law in general and EU

Competition Law in particular, both of which continue to have a sig-

nificant and developing impact on the practice and administration of

international sport in a global context well beyond the twenty-seven

Member Sates that currently comprise the European Union.

Ian Blackshaw

European Sports Law - Collected

Papers

By Stephen Weatherill 2007, T.M.C. Asser Press, The Hague, The

Netherlands, 2007, pp. 379 + XIII, ISBN 978-90-6704-243-7,

Price: GBP 60.00 / USD 110.00

BOOK REVIEW

Sports Law Conference on the Increasing Globalization of Sports,

Milwaukee, United States, 28 September 2007

On Friday, September 28, 2007 the National Sports Law Institute of Marquette University Law School hosted a conference

The Increasing Globalization of Sports: Olympic, International and Comparative Law & Business Issues

at the Hilton

Milwaukee City Center in downtown Milwaukee, Wisconsin, USA.

Four conference panels composed of leading sports lawyers, sports law professors, and industry

professionals, addressed cutting edge legal and business issues related to the global expansion

of sports and its implications, global sports marketing and legal protection of intellectual proper-

ty, resolution of international sports disputes, and a comparative analysis of sports league struc-

ture, governance and player restraints. The conference also featured the presentation of the

Master of the Game Award to Michael Conley, Gold Medalist, 1992 Olympic Games and

Executive Director, World Sport Chicago, during the conference lunch. Conference sponsors

included Foley & Lardner LLP, Greenberg & Hoeschen, LLC, and the Sports & Entertainment Law

Section of the State Bar of Wisconsin.

Contact for information on the Conference: Professor Paul Anderson, the Associate Director of the National Sports

Law Institute, by email at [email protected]

2007/3-4

It was not until a rather unremarkable Belgium footballer teamed up

with an hitherto unremarkable young lawyer also from Belgium, that

a remarkable change in the way football and ultimately all sport is run

was made - all due to his girlfriend living a few doors down from the

footballer’s parents.

Take a walk in the thriving Brussels legal district, and head down

one of the smart, fashionable but quiet streets, and you will come to

the law office of the smart, fashionable but quiet Jean-Louis Dupont.

Tall and slim in his early thirties, sporting trendy designer glasses, he

has more the appearance of a town-planner than one of the most

influential law brains on the Continent.

It is this man that the European Commission credits with the fore-

sight and courage to change the way sport now operates.

Inside, his high-ceiling office is sparse, with a few modest cuttings

and pictures illustrating the impact Dupont has made on the world of

football. Opposite his large desk are shelves with football magazines

from around the world, testament to the game’s rise in popularity and

profile over the past few years.

Although it is the name Bosman that is now as famous in world

football as Pele’s, Beckenbauer’s and Maradona’s, it is undoubtedly

Dupont who was the architect of the victory. Dupont, though, can-

didly admits that as a young lawyer, fresh out of university, his

involvement in the case is no more than a lucky coincidence.

“I had mastered in European Law while my future wife was living

a few doors down from Bosman’s parents’ house. And when Bosman

had the problem, he decided rather than go to his parents’ lawyer - he

understood that it was something about European Law, a French

club, and a Belgium club, and UEFA regulations - he knocked at my

door, and we went to the law firm and looked at the problem.’

Despite the fact that Jean-Marc Bosman was no longer under con-

tract with his former Belgian club, it took four years to finally settle

‘the problem’ with the Belgium football authorities, after the

European Court of Justice agreed that It was illegal to prohibit him

from moving to Dunkirk of France from his then club RC Liege of

Belgium.

The logic of the case obviously appealed to the young lawyer,

understandably keen to make an impact.

After an initial look at the facts he was confident the case was black

and white, and there was no chance of the court finding any middle

ground, as long as they tackled it from what he calls ‘the European

dimension’. Dupont admits that they were fully aware even at that

early stage that their journey would end in some sort of football rev-

olution.

‘We tried for a couple of hours to make phone calls to settle the

matter in a friendly way. But we are talking about Belgium at the

beginning of the 1990s when sport was one world and law another,

and the answer we got was “Who is that lawyer who thinks he can

ring up our club?” These regulations are world regulations, what are

you talking about?’

After a long and costly legal battle, on 15 December 1995, the trans-

fer system in football was shattered by the European Courts of Justice,

as Jean-Marc Bosman stepped out of the courtroom victorious.

Technically the football authorities were in breach of Articles 48, 85

and 86 of the 1957 Tr eaty of Rome. Simply: no worker is bound to an

employer when a contract has ended, so why should he as a footballer

be bound to a club when his contract has ended?

Many in England feared the implications. Some felt that the small-

er clubs would be left to die as the bigger clubs spied their better play-

ers. Also there was to be a lifting of the quotas of overseas players so

there would be a flood of cheaper foreign players into the game, not

all of them an improvement on the homegrown talent already avail-

able.

So far the latter is certainly true, but what has also emerged is that

the power in the game has now shifted from the boardroom to the

dressing-room. Players such as Liverpool’s Steve McManaman, have

used the new laws to engineer lucrative moves abroad, taking full

advantage of the tact that the buying club has no fee to pay and the

players’ existing employers have no hold on them.

One of the first players to benefit from ‘The Bosman Ruling’ was

Scotland’s Paul Lambert. Once a reliable, but hardly spectacular mid-

fielder with Motherwell, he was out of contract and went on a trial

with Borrussia Dortmund in Germany, where he impressed the man-

ager.

‘Motherwell offered me a contract at the end of my three years

which I didn’t think was suitable for my family so, as I had nothing

in Britain at all, I had to take the chance, and the next best thing was

abroad. I had a week at PSV with Dick Advocaat and although that

went very well, he said he wanted a wide-right player to take people

on and that wasn’t my game, so that was fair enough. I had another

opportunity at Dortmund and after Dortmund if that hadn’t worked

out then I was coming back to Motherwell. Things went well al

Dortmund and I was a very lucky person to get what I did.’

The move abroad certainly worked for Lambert. In his one season

in the Bundesliga he was a European Cup winner after Dortmund

beat Juventus in the final, and was well liked by the fans, who

demanded a lap of honour from him after his last game.

Now one of the most respected midfielders in Britain, Lambert says

he is grateful to Bosman for prizing open the gates for players like

him.

‘I went abroad and nobody had to pay a transfer fee and any money

I was going to make was going to be my own, so from that point of

view it was important for me and my family. I had a young son at that

time, and had to look after them as well, so from that point of view

the Bosman ruling was the best option for me.’

The gratitude of the numerous footballers across the world who

benefited from his legal handiwork, as well as the sacrifices Bosman

made to have a transfer technicality in football named after him, is all

very well according to Dupont.

‘It’s nice to hear that there are people who are grateful because a lot

of people multiplied their salaries by three or five times. If there is

somebody to thank here it is Bosman, yet I can tell you that not one

single footballer in Europe has made a financial gesture in his favour.

If you gave me the right numbers of the lottery I would give you

something in return, so that’s surprising.’

In spring 1999 Bosman eventually received £350,000 from the

Belgian Football Association. His football career is now over, and he

plays a lot of tennis. Jean-Louis Dupont’s reward is that he is now one

of the most sought after sports lawyers in Europe.

Dupont’s reputation stretched to the impressive European Council

buildings a short walk from his chambers, where former Wimbledon

tennis player Angela Billingham was an MEP at the time. As secretary

of the EC’s all-party sports group she was heavily involved in the

Commission’s sports policy, before losing her seat in the 1999 Euro

elections. She fully recognizes the impact of the Bosman case.

‘One commentator has described It as a release from slavery. 1

wouldn’t put It quite like that but these people had been tied in a

grossly unfair way and, as their advocate, he put their case superbly.

The rest is history.’

The tact that the EC now has a group dedicated to sport, and with

such influence, is again in part a result of Dupont’s work. It’s remark-

able in itself that sport is now seen as a political issue, and will form

a significant part of any future European Treaty.

*Taken from: Ian Bent, Richard McIlroy,

Kevin Mousley and Peter Walsh, Football

Confidential, London 2000, pp. 9-22.

A Law Unto Himself

The Lawyer Who Changed the Face of Football*

HISTORY

2007/3-4

HISTORY

Only time will tell what the structure of the treaty - and the role of

sports in it - will be, but there is no doubt that the Bosman case has

shown that the governing bodies of sport no longer rule with an

almost ‘Papal Infallibility’ who never have their authority challenged.

In this country the recent case involving the Office of Fair Trading,

and its failed challenge to the Premier League’s television deal is a

prime example. The question being: is sport a cultural and recreation-

al activity that benefits millions of people, or a huge business gener-

ating millions of pounds and therefore subject to the same laws and

business practices as any corporation?

The Bosman ruling places sport firmly in the latter category. But if

sport, and football as its most lucrative concern, Is to follow the let-

ter of the law, as practised by Jean-Louis Dupont and the many other

lawyers now beavering away in this area, much of what we know and

take for granted will simply not have a place.

Years after they left Plough Lane, Wimbledon Football Club, hav-

ing lodged unsatisfactorily at several grounds in London while trying

to find permanent base, is still searching for a home to call its own.

When the idea was mooted that the club may move from South

London and relocate to Clondalkin on the outskirts Dublin while still

keeping their Premiership place, it not surprisingly caused an outcry

amongst the loyal Dons fans.

For Sam Hamman, the club’s flamboyant Chairman, frustrated in

his attempts to find a new home, the move made sense. His club

needs a home and Dublin was offering one, plus a huge fan base built

on the success of the Jack Charlton years. Most importantly, Dublin

is the only capital city in Europe without a top-class team; the one

thing that was missing was a big. club that the Irish people could call

their own.

The opposition from the Wimbledon fans who held up ‘Dublin =

Death’ banners at home games, was matched by that of the Irish

Football Authorities and UEFA, fearful of damage to the existing

leagues. The task of navigating Wimbledon’s passage across the Irish

Sea fell to Jean-Louis Dupont.

The question for Dupont was as simple as when he took on the

Bosman case. Do the Irish Football authorities have the power to stop

a company trading within the country’s borders? Again, just like his

early meetings with Bosman, the implications fascinated him.

Sam Hamman has an incredible enthusiasm and when you see

someone like that you feel like getting involved. But what is very

interesting about the Wimbledon case is that it’s a very simple one.

On the one hand you have Wimbledon saying: I can move to Dublin,

I can have my stadium there, my Premiership colleagues have agreed

to play me there so I can do that. There is the Treaty of Rome and I

am a company - I can move. On the other hand, you have the Irish

federation saying: No, you’re not just another company, this is about

sport and we are in the territory of strictly sports issues, and there is a

rule that says, here is Ireland and we have monopoly on that territo-

ry and we don’t want you here.’

If Sam Hamman does get his way and Dublin is placed on the

Premiership map then Dupont says he sees even more far-reaching

implications for the game.

‘My conviction is that if Wimbledon is found right it could open a

new perspective for football which is not a European Super League

that everyone mentions, but the fact that we would have redefinition

of the European map in order to have a strong domestic football. Take

a look at Dublin. The problem of Dublin is that because they don’t

have a real European Club they’re out of the map. I’m sure that if you

go to Ireland you will find fan clubs of Manchester United and

Liverpool not Anderlecht. Why? Because culturally we are talking

about the same football market. That’s why it makes sense for a

Dublin club to play with English clubs. We’re talking here about tak-

ing a broad-view look at the map and realizing that when it comes to

football the British Islands are a natural market and that It makes

sense to have a British Islands league. Call it whatever.’

A somewhat frightening prospect for football, although not for

Dupont, is that It he did want Real Madrid to take on Arsenal sched-

uled by television executives then he would doubtless find a way to do

it.

‘For me there is just one thing that is really scary in the future of foot-

ball and that is hiding your head in the sand only to wake up in five

years time with a permanent Super League where Arsenal, Liverpool

and Manchester United play Out of their domestic market.

Personally, I think that is what really concerns football fans. If noth-

ing is done we will end up with that kind of American way of life

when it comes to European Football. So when there is an opportuni-

ty for a brainstorming on these issues, I think we should welcome it

at this stage.’

The more realistic vision Dupont has for football is not as an exten-

sion of the current European Champions League, with its blue-chip

sponsors and carefully scheduled and immovable ad breaks, but as a

Benelux League involving the better clubs in the Low Countries, a

Central European League or Scandinavian Championships. In July

1999 the Scottish FA were quick to dismiss the idea that Celtic and

Rangers in Scotland may see their future outside their domestic

league and look to joining an English competition, but the ‘Old Firm’

will watch this especially closely. Although a puzzling notion to many,

to the man whose vision of football is based on the make-up of

European law, it is very simple.

From a plush office based in a rather unattractive part of Brussels’

legislative area, Karel Van Miert once presided over the European

Commission’s Competition policy. He left in 1999 to take up an aca-

demic post in the Netherlands. His term in office saw him take on

many of the world’s biggest companies which, according to European

Law, were acting unfairly. It also coincided with the rise in the profile

of sport and the EC’s interest in it.

Before Dupont’s missionary zeal he had little or no involvement in

sport, but that then changed so much that he had dozens of cases

awaiting his attention at any one time. It was his job to make sure that

big business acted fairly and in his view professional sport was now

big business. Mr Van Miert’s position as Competitions Commissioner

has been called the most powerful in Europe as well as possibly the

busiest.

‘In the first instance the European Union became a reality with spe-

cific rules and a specific law system and rules which needed to be

enforced concerning free circulation of people, including sportsman

and sportswomen, freedom of establishment, freedom of service and so

on. So that’s one side of the changed circumstances; on the other hand,

the tact that professional sports became so commercial, so business

like, meant that there was no way to escape the competition rules.’

Van Miert says he recognized early on the work of the new breed

of lawyers, especially Dupont, who spotted dozens of glaring anom-

alies in the way that sport operates.

‘Before the Bosman judgment there were only a few lawyers who

were interested in trying to change things and bring cases before the

institutions including the Commission, and Mr Dupont was one of

the most active and most dedicated ones in this area. But then it was

revolutionary work - outside the accepted structures, outside the

sports world and mixed up with politicians and political life.

Nowadays it’s different because a lot of lawyers now think they can

file any complaint to the Commission and get away with it’.

Angela Billingham, a member of the EC’s cross-party sports group

at the time of the Bosman case, shares Mr Van Miert’s appreciation of

Jean-Louis Dupont and his work

‘I think he was a very special sort of lawyer - a lawyer with great

clarity of thought - and a very persuasive, powerful man. But he also

had one good thing going for him: he had an absolutely solid and

proper case to propose. When you have fairness, justice and right on

your side, it’s pretty easy to be impressive.’

It is clear that Mr Dupont, as the man who lit the fuse for many

cases involving Brussels and sport, is held in high regard. And, accord-

ing to Karel Van Miert, such a radical concept could only have been

brought to light by a radical mind.

‘In the first instance as a young lawyer who knew a lot about

European and competition law, he had the courage to go for it where

perhaps better paid, well-established lawyers would not have been

interested. Given all the pressures involved, it needed a young, bril-

liant person with a lot of courage.’

2007/3-4

HISTORY

The pressure that Van Miert, during his tenure, along with Dupont

and other lawyers, put on sport has prompted some of the biggest

names and organisations to fight back. Led by the International

Olympic Committee, and including Formula One’s Bernie

Ecclestone, Athletics Primo Nebiolo and UEFA’s Lennart Johansen, a

group met in Lausanne ‘to confer on areas of common interest with a

view to seeking the best solutions to the problems raised’. It was so

wary of how far Dupont’s passion might lead, that it demanded that

sport be excluded from European commercial regulations.

Such is the confidence the EG has, it has already investigated one

of the Lausanne group, and one of the most powerful at that, Bernie

Ecclestone. The man who controls motor racing was challenged about

the broadcasting contract he holds which reportedly allows TV com-

panies which do not show any other motor races a 33 per cent dis-

count on the fee they pay for the rights to show Formula One, which

they consider ‘uncompetitive’.

According to the EG, Dupont himself took on Ecclestone on

behalf of the fans of the Spa Francorchamps motor racing circuit in

Belgium, after they complained that their race might be moved to

China due to the rules on tobacco advertising.

For the administrators of sport who have long held power and

influence without any interference, there is no doubt that this is a

shock to the system. But, according to Karel Van Miert, it is the

responsibility of the individual federations to change rather than the

laws being altered to fit the needs of individuals such as Bernie

Ecclestone.

‘Professional sport has become big business. Football clubs are

floated on the stock market, broadcasting rights are sold for amounts

of money which could only be dreamt of fifteen years ago, and there

is no way we can escape that. One of the reasons is that since every-

thing is now so commercial, we get complaints not from people out-

side the sports world, but from people inside the sports world. In this

business the interests are now such, that if a club or league or other

involved company feels that it is being unfairly treated, it will go to a

lawyer and file a complaint with the EG. It’s not because we get up in

the morning and decide to go after cases in the sports sector, it’s just

that they land on our table.’

One case of interest to the European Commission involves Royal

Excelsior Mouscron, a small club on the French-Belgian border. In a

case closely watched by Wimbledon, the Belgian first division club

attempted to play a home UEFA Cup tie at a nearby stadium because

its home ground was too small.

Although on the surface this doesn’t seem to be problematic, the

bigger stadium nearby was across the border in Lille in France, which

despite the difference in nationalities includes the town of Mouscron

as one of its suburbs. UEFA laws do not allow clubs to play home

games in other countries. The man called on to take up the case of the

minnows against UEFA, with the hope he could cause a giant killing,

was Jean-Louis Dupont.

After playing Cypriot club Limasol in the first round, Mouscron

was drawn against the French team Metz, and the club decided it

needed more seats to match the interest of fans. To this end, it played

the game at the ‘Stadium Nord’ in Lille, 12 miles over the border.

The people of Lille used the reasoning behind the Bosman case to

argue that football is an economic activity and therefore UEFA should

abide by EC law, which the town said it was breaking on two counts.

Firstly, that it was abusing its dominant position in the market, and

secondly illegally interfering in the right of one enterprise to offer a

service to a fellow member of the Community.

The portly and friendly Jean-Pierre Detremerrie can justifiably call

himself Monsieur Mouscron. He is the town’s Mayor, MP and

Chairman of the Football club. According to Mr Detremerrie, when

they were looking to fight UEFA’s decision, Dupont was the obvious

choice to represent them, and in his opinion, the benefits were mutu-

ally attractive. He explained his club’s position on a snow-covered

night in a hotel in Mouscron’s twin town - Rochdale.

‘Of course, we knew him because of Bosman. He came and asked

the people of Lille to fight against UEFA because for him as a lawyer

it was a good thing. It was a case of, if he could win a second time

against UEFA, it would be good publicity for him and good for his

business.’

It is hard to imagine that the modest, quiet Jean-Louis Dupont

would ever blatantly court publicity, but there could have been some

appeal in taking what is essentially a small, local dispute and using it

to take on the might of European Football’s governing body, with the

possibility that the case could turn football on its head, just as the

Jean-Marc Bosman case had done.

‘What was very appealing was that it’s not about the club claiming

it lost money or the chance of qualification. It’s about two public bod-

ies, the city of Lille and the city of Mouscron, that considered they

had to fight a legal battle in order to make it clear that they are just

one economic and social region, and that they couldn’t accept a rul-

ing from a sport governing body that would re-introduce a border

that they had been working so hard for years to make disappear. So

it’s interesting that after one player - Bosman - public bodies were

ready to challenge the rulings of governing bodies, when those deci-

sions were not right.’

The repercussions of the case involving Mouscron will be watched

by many in sport who are fearful of Jean-Louis Dupont’s activities.

Paradoxically though, he sees that the implications could be good for

football.

‘The Mouscron-Lille case is very interesting one for UEFA because

I am sure that for the first time the EC will have the opportunity to

recognize that some of the UEFA rules, even if they have economic

consequences against the Treaty of Rome, can be deemed legal.’

He feels it is vital that UEFA, in arguing this case, do so with the

commissions laws very much in mind.

‘If you want to play football, want to take part in European com-

petitions, you need a stadium, and the basic rule is that you have to

play in your stadium. And that rule as such violates European law in

that you could say “No, I will play where I want”. But because it is

about football - because you need an identification between the club,

the players and a region - I am sure the commission will deem the

UEFA rule that says you have to play in your stadium, legal. Now

there is an exception to that rule and it’s a logical exception. This is

that, if for a good reason you can’t play in your own stadium, you can

play in another stadium. UEFA, however, says you have to play in

another stadium within your country, and that’s where the violation

of European law comes in.

Dupont denies that he is driven by a personal vendetta against

UEFA, but admits that he enjoys the worldwide recognition that he

gets for winning the Bosman case - and one of the mementoes on his

office wall is a picture of himself with Pele. In fact, far from wanting

to crush the governing bodies of sport, he says that UEFA and the

other governing bodies are necessary.

‘The football world is not going to be nicer if it is only ruled by

club owners and top TV moguls, and that’s why I am very happy that

UEFA is there. But I am sure that UEFA has to evolve, to have not a

revolution but a dramatic adjustment to new times, and I really hope

that it will manage that soon and in the best possible way.’

It is difficult to imagine a facet of off-the-pitch sport that lawyers

or politicians, spurred on by the Bosman case, will not wish to involve

themselves in. The ticketing policy of the World Cup Finals in 1998

led Karel Van Miert to accuse the French organizers of being ‘anti-

competitive’. In his opinion, tickets were not made available to all

member states, and forced a climbdown. British MEPs took up the

case of British ski-instructors who felt they were being unfairly treat-

ed in French resorts; BSkyB’s attempt to buy Manchester United was

thwarted by the Monopoly and Mergers Commission after much

political lobbying, because that, too, was seen as uncompetitive.

The whole issue of TV rights in Football and Formula 1, for exam-

ple, is one area where broadcasters can expect interference. According

to Commissioner Van Miert, multi-year deals, such as the last two

involving the FA Premier League and BSkyB, would now be illegal

due to the advances In technology. In the future, shorter one-year

contracts will be the norm.

Karel Van Miert can now look over the Commission from a dis-

tance, but admits that over half of the complaints that found their

2007/3-4

HISTORY

way to his office were football related with many of those hoping for

a ruling to match Bosman. Since that historic 1995 judgment the

knock-on effect has been such that the ruling has been extended.

Players from outside the EC are now subject to the same laws and, if

the EC has its way, the transfer system could be scrapped all together

to allow footballers to move jobs and clubs, when, and if they like,

just as thousands of other European workers do every day. Again the

issue started in Belgium where the country’s FA tried to stop players

simply walking away from clubs by imposing a new type of transfer

agreement. This was quickly deemed illegal by the EC.

The intervention and interference of the Brussels bureaucrats in

sport looks set to continue. Before leaving office, Van Miert asked the

world-governing body, FIFA, to explain its powers and criticized it for

being undemocratic.

It is though, not just the governing bodies of world sport who have

come under Jean Louis Dupont’s legal microscope. Spain’s main

provences could compete on the world sporting stage under their own

flags. The Catalonian regional parliament called Dupont in after pass-

ing a bill allowing the region’s teams and individuals to represent

them rather than Spain. It could pave the way for the Basque and

other regions to follow, meaning dozens of Spain’s top sports stars

would swap allegiances.

It seems that only now are sports bodies catching on to the power

and influence coming from Brussels. In Karel Van Miert’s opinion

they will only have themselves to blame if they take their eyes off the

ball.

‘They were very reluctant to draw the conclusions from the exis-

tence of the European Union - for instance, about the free circulation

of players, yet, on the other hand, continued to pretend that sport was

so specific that It should be, for instance, kept out of the implemen-

tation of competition rules. They were to some extent above the com-

mon law. Even today it seems to be very difficult for the sports bod-

ies and others concerned to accept that logic.’

It is by rapidly accepting that simple logic that Jean-Louis Dupont

has successfully carved himself a niche as one of European law’s

brightest stars and one of the most sought after legal brains in sport.

The harder the governing bodies of sport find it to accept the laws,

the easier it is for him to challenge the long held status quo that has

kept the governing bodies in power for decades. This notoriety, he

says, means that he now has the chance to cherry-pick the best cases

around the Continent.

Cases like, for instance, the farcical saga involving Arsenal striker

Nicholas Anelka. In the summer of 1999, after an unhappy spell at

Highbury, he turned to Dupont to release him from his contract.

Putting the theory in to practice, Dupont pronounced, to general

amazement in the football world, that with a £900,000 ‘compensa-

tion’ payment, Anelka could wipe his tears and be on his way. Again

his theory is based on the rules that govern thousands of EG workers,

who every day hand in their notices to employers. This is as blinding-

ly simple to him as it is seemingly confusing to sport.

‘I am happy that it gives me the opportunity to take nice cases

where I can really show some imagination,’ he says, ‘not just repro-

duce something - that’s the great thing. Logically I have people com-

ing from the major European sport which is football, but 95 per cent

of cases are now coming from sports like Basketball and Volleyball.

Then, all of a sudden, Formula One fans want their claims heard, or

trampolinists, or people that come from a more discreet area.

Obviously it’s always easier to solve problems when you are talking

about a small sportsman in a small sport, because European law is

about economy and the basis of European law is talk about econom-

ic criteria.’

The track record that Jean-Louis Dupont brings from the Bosman

case suggests that many of his ideas will come to fruition: teams will

soon play in a Benelux or Scandinavian League; clubs will relocate

American style to take advantage of an untapped market; and if an

area can provide a service to a football club then this will be allowed.

In the next few years Dupont says he foresees half a dozen landmark

cases, which will at last help to bring about what he calls ‘a sense of bal-

ance’ to European Sport. All achieved in a simple way with a simple

mix of sport with European law and economic logic.

❖

2007/3-4

1. INTRODUCTION

“Sport is part of every man and woman’s heritage and its absence can

never be compensated for.”

Pierre de Coubertin

Sport

is a growing social and economic phenomenon which makes

an important contribution to the European Union’s strategic objec-

tives of solidarity and prosperity. The Olympic ideal of developing

sport to promote peace and understanding among nations and cul-

tures as well as the education of young people was born in Europe and

has been fostered by the International Olympic Committee and the

European Olympic Committees.

Sport attracts European citizens, with a majority of people taking

part in sporting activities on a regular basis. It generates important

values such as team spirit, solidarity, tolerance and fair play, contribut-

ing to personal development and fulfilment. It promotes the active

contribution of EU citizens to society and thereby helps to foster

active citizenship. The Commission acknowledges the essential role of

sport in European society, in particular when it needs to bring itself

closer to citizens and to tackle issues that matter directly to them.

However, sport is also confronted with new threats and challenges

which have emerged in European society, such as commercial pres-

sure, exploitation of young players, doping, racism, violence, corrup-

tion and money laundering.

This initiative marks the first time that the Commission is address-

ing sport-related issues in a comprehensive manner. Its overall objec-

tive is to give strategic orientation on the role of sport in Europe, to

encourage debate on specific problems, to enhance the visibility of

sport in EU policy-making and to raise public awareness of the needs

and specificities of the sector. The initiative aims to illustrate impor-

tant issues such as the application of EU law to sport. It also seeks to

set out further sports-related action at EU level.

This White Paper is not starting from scratch. Sport is subject to

the application of the acquis communautaire and European policies in

a number of areas already have a considerable and growing impact on

sport.

The important role of sport in European society and its specific

nature were recognised in December 2000 in the European Council’s

Declaration on the specific characteristics of sport and its social func-

tion in Europe, of which account should be taken in implementing

common policies (the “Nice Declaration”). It points out that sporting

organisations and Member States have a primary responsibility in the

conduct of sporting affairs, with a central role for sports federations.

It clarifies that sporting organisations have to exercise their task to

organise and promote their particular sports “with due regard to

national and Community legislation”. At the same time, it recognises

that, “even though not having any direct powers in this area, the

Community must, in its action under the various Treaty provisions,

take account of the social, educational and cultural functions inher-

ent in sport and making it special, in order that the code of ethics and

the solidarity essential to the preservation of its social role may be

respected and nurtured.” The European institutions have recognised

the specificity of the role sport plays in European society, based on

volunteer-driven structures, in terms of health, education, social inte-

gration, and culture.

The European Parliament has followed the various challenges fac-

ing European sport with keen interest and has regularly dealt with

sporting issues in recent years.

In preparing this White Paper, the Commission has held numerous

consultations with sport stakeholders on issues of common interest as

well as an on-line consultation. They have demonstrated that consid-

erable expectations exist concerning the role of sport in Europe and

EU action in this area.

This White Paper focuses on the societal role of sport, its econom-

ic dimension and its organisation in Europe, and on the follow-up

that will be given to this initiative. Concrete proposals for further EU

action are brought together in an Action Plan named after Pierre de

Coubertin which contains activities to be implemented or supported

by the Commission. A Staff Working Document contains the back-

ground and context of the proposals, including annexes on Sport and

EU Competition Rules, Sport and Internal Market Freedoms, and on

consultations with stakeholders.

2. THE SOCIETAL ROLE OF SPORT

Sport is an area of human activity that greatly interests citizens of the

European Union and has enormous potential for bringing them

together, reaching out to all, regardless of age or social origin.

According to a November 2004 Eurobarometer survey

, approximate-

ly 60% of European citizens participate in sporting activities on a reg-

ular basis within or outside some 700,000 clubs, which are themselves

members of a plethora of associations and federations.

The vast majority of sporting activity takes place in amateur struc-

tures. Professional sport is of growing importance and contributes

equally to the societal role of sport. In addition to improving the

health of European citizens, sport has an educational dimension and

plays a social, cultural and recreational role. The societal role of sport

also has the potential to strengthen the Union’s external relations.

2.1 Enhancing public health through physical activity

Lack of physical activity reinforces the occurrence of overweight, obe-

sity and a number of chronic conditions such as cardio-vascular dis-

eases and diabetes, which reduce the quality of life, put individuals’

lives at risk and are a burden on health budgets and the economy.

The Commission’s White Paper “A Strategy for Europe on

Nutrition, Overweight and Obesity related health issues”

underlines

the importance of taking pro-active steps to reverse the decline in

physical activity, and actions suggested in the area of physical activity

in the two White Papers will complement each other.

As a tool for health-enhancing physical activity, the sport move-

ment has a greater influence than any other social movement. Sport is

attractive to people and has a positive image.

However, the recognised potential of the sport movement to foster

health-enhancing physical activity often remains under-utilised and

needs to be developed.

The World Health Organisation (WHO) recommends a minimum

of 30 minutes of moderate physical activity (including but not limit-

ed to sport) per day for adults and 60 minutes for children. Public

authorities and private organisations in Member States should all con-

tribute to reaching this objective. Recent studies tend to show that

sufficient progress is not being made.

*COM(2007) 391 final

11Pierre de Coubertin (1863-1937), French

pedagogue and historian, founder of the

modern Olympic Games.

2 For the sake of clarity and simplicity, this

White Paper will use the definition of

“sport” established by the Council of

Europe: “all forms of physical activity

which, through casual or organised par-

ticipation, aim at expressing or improv-

ing physical fitness and mental well-

being, forming social relationships or

obtaining results in competition at all

levels.”

3 Special Eurobarometer (2004): The

Citizens of the European Union and

Sport.

4 COM(2007)279 final of 30.5.2007.

DOCUMENTS

COMMISSION OF THE EUROPEAN COMMUNITI

WHITE PAPER ON SPORT

Brussels, 11.7.2007

(presented by the Commission)

100

2007/3-4

DOCUMENTS

(1)The Commission proposes to develop new physical activity guide-

lines with the Member States before the end of 2008.

The Commission recommends strengthening the cooperation

between the health, education and sport sectors to be promoted at

ministerial level in the Member States in order to define and imple-

ment coherent strategies to reduce overweight, obesity and other

health risks. In this context, the Commission encourages Member

States to examine how to promote the concept of active living

through the national education and training systems, including the

training of teachers.

Sport organisations are encouraged to take into account their

potential for health-enhancing physical activity and to undertake

activities for this purpose. The Commission will facilitate the

exchange of information and good practice, in particular in relation

to young people, with a focus on the grassroots level.

(2)The Commission will support an EU Health-Enhancing Physical

Activity (HEPA) network and, if appropriate, smaller and more

focussed networks dealing with specific aspects of the topic.

(3)

The Commission will make health-enhancing physical activity a

cornerstone of its sportrelated activities and will seek to take this

priority better into account in relevant financial instruments,

including:

• The 7th Framework Programme for Research and Technological

Development (lifestyle aspects of health);

• The Public Health Programme 2007-2013;

• The Youth and Citizenship programmes (cooperation between

sport organisations, schools, civil society, parents and other part-

ners at local level);

• The Lifelong Learning Programme (teacher training and

cooperation between schools).

2.2 Joining forces in the fight against doping

Doping poses a threat to sport worldwide, including European sports.

It undermines the principle of open and fair competition. It is a

demotivating factor for sport in general and puts the professional

under unreasonable pressure. It seriously affects the image of sport

and poses a serious threat to individual health. At European level, the

fight against doping must take into account both a law-enforcement

and a health and prevention dimension.

(4)

Partnerships could be developed between Member State law

enforcement agencies (border guards, national and local police,

customs etc.), laboratories accredited by the World Anti-Doping

Agency (WADA) and INTERPOL to exchange information about

new doping substances and practices in a timely manner and in a

secure environment. The EU could support such efforts through

training courses and networking between training centres for law

enforcement officers.

The Commission recommends that trade in illicit doping sub-

stances be treated in the same manner as trade in illicit drugs

throughout the EU.

The Commission calls on all actors with a responsibility for public

health to take the healthhazard aspects of doping into account. It

calls on sport organisations to develop rules of good practice to

ensure that young sportsmen and sportswomen are better informed

and educated of doping substances, prescription medicines which

may contain them, and their health implications.

The EU would benefit from a more coordinated approach in the

fight against doping, in particular by defining common positions

in relation to the Council of Europe, WADA and UNESCO, and

through the exchange of information and good practice between

Governments, national anti-doping organisations and laboratories.

Proper implementation of the UNESCO Convention against

Doping in Sport by the Member States is particularly important in

this context.

(5)

The Commission will play a facilitating role, for example by sup-

porting a network of national anti-doping organisations of

Member States.

2.3 Enhancing the role of sport in education and training

Through its role in formal and non-formal education, sport reinforces

Europe’s human capital. The values conveyed through sport help

develop knowledge, motivation, skills and readiness for personal

effort. Time spent in sport activities at school and at university pro-

duces health and education benefits which need to be enhanced.

Based on experience gained during the 2004 European Year of

Education through Sport, the Commission encourages support for

sport and physical activity through various policy initiatives in the

field of education and training, including the development of social

and civic competences in accordance with the 2006 Recommendation

on key competences for lifelong learning.

(6)

Sport and physical activity can be supported through the Lifelong

Learning programme. Promoting participation in educational

opportunities through sport is thus a priority topic for school part-

nerships supported by the Comenius programme, for structured

actions in the field of vocational education and training through

the Leonardo da Vinci programme, for thematic networks and

mobility in the field of higher education supported by the Erasmus

programme, as well as multilateral projects in the field of adult

training supported by the Grundtvig programme.

(7)

The sport sector can also apply for support through the individual

calls for proposals on the implementation of the European

Qualifications Framework (EQF) and the European 5

Recommendation of the European Parliament and of the Council,

of 18 December 2006, on key competences for lifelong learning

(Official Journal L 394 of 30.12.2006).

Credit System for Vocational Education and Training (ECVET).

The sport sector has been involved in the development of the EQF

and has been selected for financial support in 2007/2008. In view

of the high professional mobility of sportspeople, and without prej-

udice to Directive 2005/36/EC on the mutual recognition of pro-

fessional qualifications, it may also be identified as a pilot sector for

the implementation of ECVET to increase the transparency of

national competence and qualification systems.

(8)

The Commission will introduce the award of a European label to

schools actively involved in supporting and promoting physical

activities in a school environment.

In order to ensure the reintegration of professional sportspersons

into the labour market at the end of their sporting careers, the

Commission emphasises the importance of taking into account at

an early stage the need to provide “dual career” training for young

sportsmen and sportswomen and to provide high quality local

training centres to safeguard their moral, educational and profes-

sional interests.

The Commission has launched a study on the training of young

sportsmen and sportswomen in Europe, the results of which could

feed into the abovementioned policies and programmes.

Investment in and promotion of training of young talented sports-

men and sportswomen in proper conditions is crucial for a sustain-

able development of sport at all levels. The Commission stresses

that training systems for talented young sportsmen and sports-

women should be open to all and must not lead to discrimination

between EU citizens based on nationality.

(9)

Rules requiring that teams include a certain quota of locally trained

players could be accepted as being compatible with the Treaty pro-

visions on free movement of persons if they do not lead to any

direct discrimination based on nationality and if possible indirect

discrimination effects resulting from them can be justified as being

proportionate to a legitimate objective pursued, such as to enhance

and protect the training and development of talented young play-

ers. The ongoing study on the training of young sportsmen and

sportswomen in Europe will provide valuable input for this analy-

sis.

5 Recommendation of the European

Parliament and of the Council, of 18

December 2006, on key competences for

lifelong learning (Official Journal L 394

of 30.12.2006).

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2.4 Promoting volunteering and active citizenship through sport

Participation in a team, principles such as fair-play, compliance with

the rules of the game, respect for others, solidarity and discipline as

well as the organisation of amateur sport based on non-profit clubs

and volunteering reinforce active citizenship. Volunteering in sport

organisations provides many occasions for non-formal education

which need to be recognised and enhanced. Sport also provides attrac-

tive possibilities for young people’s engagement and involvement in

society and may have a beneficial effect in helping people steer away

from delinquency.

There are, however, new trends in the way people, particularly the

young, practice sport. There is a growing tendency to practise sport

individually, rather than collectively and in an organised structure,

which is resulting in a declining volunteer base for amateur sport

clubs.

(10) Together with the Member States, the Commission will identify

key challenges for non-profit sport organisations and the main

characteristics of services provided by these organisations.

(11) The Commission will support grassroots sport through the

Europe for Citizens programme.

(12) The Commission will furthermore propose to encourage young

people’s volunteering in sport through the Youth in Action pro-

gramme in fields such as youth exchanges and voluntary service

for sporting events.

(13) The Commission will further develop exchange of information

and best practice on volunteering in sport involving Member

States, sport organisations and local authorities. (14) In order to

understand better the specific demands and needs of the volun-

tary sport sector in national and European policy making, the

Commission will launch a European study on volunteering in

sport.

2.5 Using the potential of sport for social inclusion, integration

and equal opportunities

Sport makes an important contribution to economic and social cohe-

sion and more integrated societies. All residents should have access to

sport. The specific needs and situation of underrepresented groups

therefore need to be addressed, and the special role that sport can play

for young people, people with disabilities and people from less privi-

leged backgrounds must be taken into account. Sport can also facili-

tate the integration into society of migrants and persons of foreign

origin as well as support inter-cultural dialogue.

Sport promotes a shared sense of belonging and participation and

may therefore also be an important tool for the integration of immi-

grants. It is in this context that making available spaces for sport and

supporting sport-related activities is important for allowing immi-

grants and the host society to interact together in a positive way.

The Commission believes that better use can be made of the poten-

tial of sport as an instrument for social inclusion in the policies,

actions and programmes of the European Union and of Member

States. This includes the contribution of sport to job creation and to

economic growth and revitalisation, particularly in disadvantaged

areas. Non-profit sport activities contributing to social cohesion and

social inclusion of vulnerable groups can be considered as social serv-

ices of general interest.

The Open Method of Coordination on social protection and social

inclusion will continue to include sport as a tool and indicator.

Studies, seminars, conferences, policy proposals and action plans will

include access to sport and/or belonging to social sport structures as a

key element for analysis of social exclusion.

(15) The Commission will suggest to Member States that the

PROGRESS programme and the Lifelong Learning, Youth in

Action and Europe for Citizens programmes support actions

promoting social inclusion through sport and combating dis-

crimination in sport. In the context of cohesion policy, Member

States should consider the role of sports in the field of social

inclusion, integration and equal opportunities as part of their

programming of the European Social Fund and the European

Regional Development Fund, and they are encouraged to pro-

mote action under the European Integration Fund.

The Commission furthermore encourages Member States and

sport organisations to adapt sport infrastructure to take into

account the needs of people with disabilities. Member States and

local authorities should ensure that sport venues and accommo-

dations are accessible for people with disabilities. Specific crite-

ria should be adopted for ensuring equal access to sport for all

pupils, and specifically for children with disabilities. Training of

monitors, volunteers and host staff of clubs and organisations for

the purpose of welcoming people with disabilities will be pro-

moted. In its consultations with sport stakeholders, the

Commission takes special care to maintain a dialogue with rep-

resentatives of sportspeople with disabilities.

(16) The Commission, in its Action Plan on the European Union

Disability Strategy, will take into account the importance of

sport for disabled people and will support Member State actions

in this field.

(17) In the framework of its Roadmap for Equality between Women

and Men 2006-2010, the Commission will encourage the main-

streaming of gender issues into all its sports-related activities,

with a specific focus on access to sport for immigrant women and

women from ethnic minorities, women’s access to decision-mak-

ing positions in sport and media coverage of women in sport.

2.6 Strengthening the prevention of and fight against racism and

violence

Violence at sport events, especially at football grounds, remains a dis-

turbing problem and can take different forms. It has been shifting

from inside stadiums to outside, including urban areas. The

Commission is committed to contributing to the prevention of inci-

dents by promoting and facilitating dialogue with Member States,

international organisations (e.g. Council of Europe), sport organisa-

tions, law enforcement services and other stakeholders (e.g. support-

ers’ organisations and local authorities). Law enforcement authorities

cannot deal with the underlying causes of sport violence in isolation.

The Commission also encourages the exchange of best practice and

of operational information on risk-supporters among police services

and/or sport authorities. Particular importance will be given to police

training on crowd management and hooliganism. Sport involves all

citizens regardless of gender, race, age, disability, religion and belief,

sexual orientation and social or economic background. The

Commission has repeatedly condemned all manifestations of racism

and xenophobia, which are incompatible with the values of the EU.

(18) As regards racist and xenophobic attitudes, the Commission will

continue to promote dialogue and exchange of best practices in

existing cooperation frameworks such as the Football against

Racism in Europe network (FARE).

The Commission recommends sport federations to have proce-

dures for dealing with racist abuse during matches, based on

existing initiatives. It also recommends strengthening provisions

regarding discrimination in licensing systems for clubs (see sec-

tion 4.7).

The Commission will:

(19) Promote, in accordance with the domestic and EU rules appli-

cable, the exchange of operational information and practical

know-how and experience on the prevention of violent and

racist incidents between law enforcement services and with sport

organisations;

(20) Analyse possibilities for new legal instruments and other EU-

wide standards to prevent public disorder at sport events;

(21) Promote a multidisciplinary approach to preventing anti-social

behaviour, with a special focus given to socio-educational actions

such as fan-coaching (long-term work with supporters to devel-

op a positive and non-violent attitude);

(22) Strengthen regular and structured cooperation among law enforce-

ment services, sport organisations and other stakeholders;

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(23) Encourage the use of the following programmes to contribute to

the prevention of and fight against violence and racism in sport:

Youth in Action, Europe for Citizens, DAPHNE III,

Fundamental Rights and Citizenship and Prevention and Fight

against Crime;

(24) Organise a high level conference to discuss measures to prevent

and fight violence and racism at sport events with stakeholders.

2.7 Sharing our values with other parts of the world

Sport can play a role regarding different aspects of the EU’s external

relations: as an element of external assistance programmes, as an ele-

ment of dialogue with partner countries and as part of the EU’s pub-

lic diplomacy.

Through concrete actions, sport has a considerable potential as a

tool to promote education, health, inter-cultural dialogue, develop-

ment and peace.

(25) The Commission will promote the use of sport as a tool in its

development policy. In particular, it will:

• Promote sport and physical education as essential elements of

quality education and as a means to make schools more

attractive and improve attendance;

• Target action at improving access for girls and women to

physical education and sport, with the objective to help them

build confidence, improve social integration, overcome preju-

dices and promote healthy lifestyles as well as women’s access

to education;

• Support health promotion and awareness-raising campaigns

through sport.

When addressing sport in its development policies, the EU will

make its best effort to create synergies with existing programmes

of the United Nations, Member States, local authorities and pri-

vate bodies. It will implement actions that are complementary or

innovative with respect to existing programmes and actions. The

memorandum of understanding signed between the

Commission and FIFA in 2006 to make football a force for

development in African, Caribbean and Pacific countries is an

example in this respect.

(26) The EU will include, wherever appropriate, sport-related issues

such as international players’ transfers, exploitation of underage

players, doping, money-laundering through sport, and security

during major international sport events in its policy dialogue

and cooperation with partner countries.

Rapid visa and immigration procedures for, in particular, elite

sportspersons from non-EU countries are an important element

to enhance the EU’s international attractiveness. In addition to

the on-going process of concluding visa facilitation agreements

with third countries and the consolidation of the visa regime

applicable to members of the Olympic family during Olympic

Games, the EU needs to develop further (temporary) admission

mechanisms for sportspersons from third countries.

The Commission will pay particular attention to the sport sector:

(27) When implementing the recently presented Communication on

circular migration and mobility partnerships with third coun-

tries;

(28) When elaborating harmonised schemes for the admission of var-

ious categories of third country nationals for economic purpos-

es on the basis of the 2005 Policy Plan on Legal Migration.

2.8 Supporting sustainable development

The practice of sport, sport facilities and sport events all have a signif-

icant impact on the environment. It is important to promote environ-

mentally sound management, fit to address inter alia green procure-

ment, greenhouse gas emissions, energy efficiency, waste disposal and

the treatment of soil and water. European sport organisations and

sport event organisers should adopt environmental objectives in order

to make their activities environmentally sustainable. By improving

their credibility on environmental matters, responsible

organisations could expect specific benefits while bidding to host

sport events as well as economic benefits related to a more rationalised

use of natural resources.

The Commission will:

(29) Use its structured dialogue with leading international and

European sport organisations and other sport stakeholders to

encourage them and their members to participate in the Eco

Management Audit Scheme (EMAS) and Community Eco-

Label Award schemes, and promote these voluntary schemes

during major sport events;

(30) Promote green procurement in its political dialogue with

Member States and other concerned parties;

(31) Raise awareness, through guidance developed in cooperation

with relevant stakeholders (policy makers, SMEs, local commu-

nities), about the need to work together in partnership at the

regional level to organise sport events in a sustainable way;

(32) Take sport into account as part of the “Information and

Communication” component of the new LIFE+ programme.

3. THE ECONOMIC DIMENSION OF SPORT

Sport is a dynamic and fast-growing sector with an underestimated

macro-economic impact, and can contribute to the Lisbon objectives

of growth and job creation. It can serve as a tool for local and region-

al development, urban regeneration or rural development. Sport has

synergies with tourism and can stimulate the upgrading of infrastruc-

ture and the emergence of new partnerships for financing sport and

leisure facilities.

Although sound and comparable data on the economic weight of

sport are generally lacking, its importance is confirmed by studies and

analyses of national accounts, the economics of large-scale sporting

events, and physical inactivity costs, including for the ageing popula-

tion.

A study presented during the Austrian Presidency in 2006 suggest-

ed that sport in a broader sense generated value-added of 407 billion

euros in 2004, accounting for 3.7% of EU GDP, and employment for

15 million people or 5.4% of the labour force.

This contribution of

sport should be made more visible and promoted in EU policies.

A growing part of the economic value of sports is linked to intel-

lectual property rights. These rights relate to copyright, commercial

communications, trademarks, and image and media rights. In an

increasingly globalised and dynamic sector, the effective enforcement

of intellectual property rights around the world is becoming an essen-

tial part of the health of the sport economy. It is also important that

recipients are guaranteed the possibility to have distance access to

sport events at cross-border level within the EU.

On the other hand, notwithstanding the overall economic impor-

tance of sport, the vast majority of sporting activities takes place in

non-profit structures, many of which depend on public support to

provide access to sporting activities to all citizens.

3.1 Moving towards evidence-based sport policies

The launch of policy actions and enhanced cooperation on sport at

EU level needs to be underpinned by a sound knowledge base. The

quality and comparability of data need to be

improved to allow for better strategic planning and policy-making

in the area of sport. Governmental and non-governmental stakehold-

ers have repeatedly called upon the Commission to develop a

European statistical definition of sport and to coordinate efforts to

produce sport and sport-related statistics on that basis.

(33) The Commission, in close cooperation with the Member States,

will seek to develop a European statistical method for measuring

the economic impact of sport as a basis for national statistical

accounts for sport, which could lead in time to a European satel-

lite account for sport.

6 D. Dimitrov / C. Helmenstein / A.

Kleissner / B. Moser / J. Schindler: Die

makroökonomischen Effekte des Sports in

Europa, Studie im Auftrag des

Bundeskanzleramts, Sektion Sport,

Wien, 2006.

2007/3-4

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(34) In addition, specific sport-related information surveys should

continue to take place once every few years (e.g. Eurobarometer

polls), in particular to provide non-economic information which

cannot be provided on the basis of national statistical accounts

for sport (e.g. participation rates, data on volunteering, etc.).

(35) The Commission will launch a study to assess the sport sector’s

direct contribution (in terms of GDP, growth and employment)

and indirect contribution (through education, regional develop-

ment and higher attractiveness of the EU) to the Lisbon Agenda.

(36) The Commission will organise the exchange of best practices

among Member States and sports federations concerning the

organisation of large sport events, with a view to promoting sus-

tainable economic growth, competitiveness and employment.

3.2 Putting public support for sport on a more secure footing

Sport organisations have many sources of income, including club fees

and ticket sales, advertising and sponsorship, media rights, re-distri-

bution of income within the sport federations, merchandising, public

support etc. However, some sport organisations have considerably

better access to resources from business operators than others, even if

in some cases a well-functioning system of redistribution is in place.

In grassroots sport, equal opportunities and open access to sporting

activities can only be guaranteed through strong public involvement.

The Commission understands the importance of public support for

grassroots sport and sport for all, and is in favour of such support pro-

vided it is granted in accordance with Community law.

In many Member States sport is partly financed through a tax or

levy on state-run or state-licensed gambling or lottery services. The

Commission invites Member States to reflect upon how best to main-

tain and develop a sustainable financing model for giving long-term

support to sports organisations.

(37) As a contribution to the reflection on the financing of sport, the

Commission will carry out an independent study on the financ-

ing of grassroots sport and sport for all in the Member States

from both public and private sources, and on the impact of on-

going changes in this area.

In the field of indirect taxation, the EU’s VAT legislation is laid

down in Council Directive 2006/112/EC, which aims at ensur-

ing that the application of Member State legislation on VAT

does not distort competition or hinder the free movement of

goods and services. The Directive provides for both the possibil-

ity for Member States to exempt certain sport-related services

and, where exemption does not apply, the possibility to apply

reduced rates in some cases.

(38) Given the important societal role of sport and its strong local

anchoring, the Commission will defend maintaining the existing

possibilities of reduced VAT rates for sport.

4. THE ORGANISATION OF SPORT

The political debate on sport in Europe often attributes considerable

importance to the so-called “European Sport Model”. The

Commission considers that certain values and traditions of European

sport should be promoted. In view of the diversity and complexities of

European sport structures it considers, however, that it is unrealistic to

try to define a unified model of organisation of sport in Europe.

Moreover, economic and social developments that are common to the

majority of the Member States (increasing commercialisation, chal-

lenges to public spending, increasing numbers of participants and stag-

nation in the number of voluntary workers) have resulted in new chal-

lenges for the organisation of sport in Europe. The emergence of new

stakeholders (participants outside the organised disciplines, profession-

al sports clubs, etc.) is posing new questions as regards governance,

democracy and representation of interests within the sport movement.

The Commission can play a role in encouraging the sharing of best

practice in sport governance. It can also help to develop a common set

of principles for good governance in sport, such as transparency,

democracy, accountability and representation of stakeholders (associ-

ations, federations, players, clubs, leagues, supporters, etc.). While

doing so the Commission will draw on previous work

. Attention

should also be paid to the representation of women in management

and leadership positions.

The Commission acknowledges the autonomy of sporting organi-

sations and representative structures (such as leagues). Furthermore, it

recognises that governance is mainly the responsibility of sports gov-

erning bodies and, to some extent, the Member States and social part-

ners. Nonetheless, dialogue with sports organisations has brought a

number of areas to the Commission’s attention, which are addressed

below. The Commission considers that most challenges can be

addressed through self-regulation respectful of good governance prin-

ciples, provided that EU law is respected, and is ready to play a facil-

itating role or take action if necessary.

4.1 The specificity of sport

Sport activity is subject to the application of EU law. This is described

in detail in the Staff Working Document and its annexes.

Competition law and Internal Market provisions apply to

sport in so far as it constitutes an economic activity. Sport is also

subject to other important aspects of EU law, such as the prohibition

of discrimination on grounds of nationality, provisions regarding cit-

izenship of the Union and equality between men and women in

employment.

At the same time, sport has certain specific characteristics, which

are often referred to as the “specificity of sport”. The specificity of

European sport can be approached through two prisms:

• The specificity of sporting activities and of sporting rules, such as

separate competitions for men and women, limitations on the

number of participants in competitions, or the need to ensure

uncertainty concerning outcomes and to preserve a competitive

balance between clubs taking part in the same competitions;

• The specificity of the sport structure, including notably the auton-

omy and diversity of sport organisations, a pyramid structure of

competitions from grassroots to elite level and organised solidarity

mechanisms between the different levels and operators, the organ-

isation of sport on a national basis, and the principle of a single fed-

eration per sport; The case law of the European courts and deci-

sions of the European Commission show that the specificity of

sport has been recognised and taken into account. They also pro-

vide guidance on how EU law applies to sport. In line with estab-

lished case law, the specificity of sport will continue to be recog-

nised, but it cannot be construed so as to justify a general exemp-

tion from the application of EU law.

As is explained in detail in the Staff Working Document and its

annexes, there areorganisational sporting rules that - based on their

legitimate objectives - are likely not to breach the anti-trust provisions

of the EC Treaty, provided that their anti-competitive effects, if any,

are inherent and proportionate to the objectives pursued. Examples of

such rules would be “rules of the game” (e.g. rules fixing the length of

matches or the number of players on the field), rules concerning selec-

tion criteria for sport competitions, “at home and away from home”

rules, rules preventing multiple ownership in club competitions, rules

concerning the composition of national teams, anti-doping rules and

rules concerning transfer periods. However, in respect of the regulato-

ry aspects of sport, the assessment whether a certain sporting rule is

compatible with EU competition law can only be made on a case-by-

case basis, as recently confirmed by the European Court of Justice in

its Meca-Medina ruling.

The Court provided a clarification regard-

ing the impact of EU law on sporting rules. It dismissed the notion

of “purely sporting rules” as irrelevant for the question of the applica-

bility of EU competition rules to the sport sector.

6 D. Dimitrov / C. Helmenstein / A.

Kleissner / B. Moser / J. Schindler: Die

makroökonomischen Effekte des Sports in

Europa, Studie im Auftrag des

Bundeskanzleramts, Sektion Sport,

Wien, 2006.

7 E.g. the “Rules of the Game” conference

organised in 2001 by FIA and the EOC

and the Independent European Sport

Review carried out in 2006.

8 Case C-519/04P, Meca Medina v.

Commission, ECR 2006, I-6991. For

more details, see the Staff Working

Document.

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The Court recognised that the specificity of sport has to be taken into

consideration in the sense that restrictive effects on competition that

are inherent in the organisation and proper conduct of competitive

sport are not in breach of EU competition rules, provided that these

effects are proportionate to the legitimate genuine sporting interest

pursued. The necessity of a proportionality test implies the need to

take into account the individual features of each case. It does not

allow for the formulation of general guidelines on the application of

competition law to the sport sector.

4.2 Free movement and nationality

The organisation of sport and of competitions on a national basis is

part of the historical and cultural background of the European

approach to sport, and corresponds to the wishes of European citi-

zens. In particular, national teams play an essential role not only in

terms of identity but also to secure solidarity with grassroots sport,

and therefore deserve to be supported.

Discrimination on grounds of nationality is prohibited in the

Tr eaties, which establish the right for any citizen of the Union to

move and reside freely in the territory of the Member States. The

Tr eaties also aim to abolish any discrimination based on nationality

between workers of the Member States as regards employment, remu-

neration and other conditions of work and employment. The same

prohibitions apply to discrimination based on nationality in the pro-

vision of services. Moreover, membership of sports clubs and partici-

pation in competitions are relevant factors to promote the integration

of residents into the society of the host country.

Equal treatment also concerns citizens of States which have signed

agreements with the EU that contain non-discrimination clauses, and

who are legally employed in the territory of the Member States.

(39) The Commission calls on Member States and sport organisa-

tions to address discrimination based on nationality in all sports.

It will combat discrimination in sport through political dialogue

with the Member States, recommendations, structured dialogue

with sport stakeholders, and infringement procedures when

appropriate.

The Commission reaffirms its acceptance of limited and propor-

tionate restrictions (in line with EU Treaty provisions on free

movement and European Court of Justice rulings) to the princi-

ple of free movement in particular as regards:

• The right to select national athletes for national team compe-

titions;

• The need to limit the number of participants in a competi-

tion;

• The setting of deadlines for transfers of players in team sports.

(40) As regards access to individual competitions for non-nationals,

the Commission intends to launch a study to analyse all aspects

of this complex issue.

4.3 Transfers

In the absence of transfer rules, the integrity of sport competitions

could be challenged by clubs recruiting players during a given season

to prevail upon their competitors. At the same time, any rule on the

transfer of players must respect EU law (competition provisions and

rules on the free movement of workers).

In 2001, in the context of the pursuit of a case concerning alleged

infringements of EC competition law and after discussions with the

Commission, football authorities undertook to revise FIFA

Regulations on international football transfers, based on compensa-

tion for training costs incurred by sports clubs, the creation of trans-

fer periods, the protection of school education of underage players,

and guaranteed access to national courts.

The Commission considers such a system to constitute an example

of good practice that ensures a competitive equilibrium between sport

clubs while taking into account the requirements of EU law.

The transfer of players also gives rise to concerns about the legality

of the financial flows involved. To increase transparency in money

flows related to transfers, an information and verification system for

transfers could be an effective solution. The Commission considers

that such a system should only have a control function; financial

transactions should be conducted directly between the parties

involved. Depending on the sport, the system could be run by the rel-

evant European sport organisation, or by national information and

verification systems in the Member States.

4.4 Players’ agents

The development of a truly European market for players and the rise

in the level of players’ salaries in some sports has resulted in an

increase in the activities of players’ agents. In an increasingly complex

legal environment, many players (but also sport clubs) ask for the

services of agents to negotiate and sign contracts.

There are reports of bad practices in the activities of some agents

which have resulted in instances of corruption, money laundering and

exploitation of underage players. These practices are damaging for

sport in general and raise serious governance questions. The health

and security of players, particularly minors, has to be protected and

criminal activities fought against.

Moreover, agents are subject to differing regulations in different

Member States. Some Member States have introduced specific legis-

lation on players’ agents while in others the applicable law is the gen-

eral law regarding employment agencies, but with references to play-

ers’ agents. Moreover, some international federations (FIFA, FIBA)

have introduced their own regulations.

For these reasons, repeated calls have been made on the EU to reg-

ulate the activity of players’ agents through an EU legislative initia-

tive.

(41) The Commission will carry out an impact assessment to provide

a clear overview of the activities of players’ agents in the EU and

an evaluation of whether action at EU level is necessary, which

will also analyse the different possible options.

4.5 Protection of minors

The exploitation of young players is continuing. The most serious

problem concerns children who are not selected for competitions and

abandoned in a foreign country, often falling in this way in an irreg-

ular position which fosters their further exploitation. Although in

most cases this phenomenon does not fall into the legal definition of

trafficking in human beings, it is unacceptable given the fundamental

values recognised by the EU and its Member States. It is also contrary

to the values of sport. Protective measures for unaccompanied minors

in Member State immigration laws need to be applied rigorously.

Sexual abuse and harassment of minors in sport must also be fought

against.

(42) The Commission will continue to monitor the implementation

of EU legislation, in particular the Directive on the Protection

of Young People at Work. The Commission has recently

launched a study on child labour as a complement to its moni-

toring of the implementation of the Directive. The issue of

young players falling within the scope of the Directive will be

taken into account in the study.

(43) The Commission will propose to Member States and sport

organisations to cooperate on the protection of the moral and

physical integrity of young people through the dissemination of

information on existing legislation, establishment of minimum

standards and exchange of best practices.

4.6 Corruption, money laundering and other forms of financial

crime

Corruption, money laundering and other forms of financial crime are

affecting sport at local, national and international levels. Given the

sector’s high degree of internationalisation, corruption in the sport

sector often has cross-border aspects. Corruption problems with a

European dimension need to be tackled at European level. EU anti-

money laundering mechanisms should apply effectively also in the

sport sector.

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(44) The Commission will support public-private partnerships repre-

sentative of sports interests and anti-corruption authorities,

which would identify vulnerabilities to corruption in the sport

sector and assist in the development of effective preventive and

repressive strategies to counter such corruption.

(45) The Commission will continue to monitor the implementation

of EU anti-money laundering legislation in the Member States

with regard to the sport sector.

4.7 Licensing systems for clubs

The Commission acknowledges the usefulness of robust licensing sys-

tems for professional clubs at European and national levels as a tool

for promoting good governance in sport. Licensing systems generally

aim to ensure that all clubs respect the same basic rules on financial

management and transparency, but could also include provisions

regarding discrimination, violence, protection of minors and training.

Such systems must be compatible with competition and Internal

Market provisions and may not go beyond what is necessary for the

pursuit of a legitimate objective relating to the proper organisation

and conduct of sport.

Efforts need to concentrate on the implementation and gradual

reinforcement of licensing systems. In the case of football, where a

licensing system will soon be compulsory for clubs entering European

competitions, action needs to concentrate on promoting and encour-

aging the use of licensing systems at national level.

(46) The Commission will promote dialogue with sport organisa-

tions in order to address the implementation and strengthening

of self-regulatory licensing systems.

(47) Starting with football, the Commission intends to organise a con-

ference with UEFA, EPFL, Fifpro, national associations and

national leagues on licensing systems and best practices in this field.

4.8 Media

Issues concerning the relationship between the sport sector and sport

media (television in particular) have become crucial as television

rights are the primary source of income for professional sport in

Europe. Conversely, sport media rights are a decisive source of con-

tent for many media operators.

Sport has been a driving force behind the emergence of new media

and interactive television services. The Commission will continue to

support the right to information and wide access for citizens to broad-

casts of sport events, which are seen as being of high interest or major

importance for society.

The application of the competition provisions of the EC Treaty to

the selling of media rights of sport events takes into account a num-

ber of specific characteristics in this area. Sport media rights are some-

times sold collectively by a sport association on behalf of individual

clubs (as opposed to clubs marketing the rights individually). While

joint selling of media rights raises competition concerns, the

Commission has accepted it under certain conditions. Collective sell-

ing can be important for the redistribution of income and can thus be

a tool for achieving greater solidarity within sports.

The Commission recognises the importance of an equitable redis-

tribution of income between clubs, including the smallest ones, and

between professional and amateur sport.

(48) The Commission recommends to sport organisations to pay due

attention to the creation and maintenance of solidarity mecha-

nisms. In the area of sports media rights, such mechanisms can

take the form of a system of collective selling of media rights or,

alternatively, of a system of individual selling by clubs, in both

cases linked to a robust solidarity mechanism.

5. FOLLOW-UP

The Commission will follow up on the initiatives presented in this

White Paper through the implementation of a structured dialogue

with sport stakeholders, cooperation with the Member States, and the

promotion of social dialogue in the sport sector.

5.1 Structured dialogue

European sport is characterised by a multitude of complex and diverse

structures which enjoy different types of legal status and levels of

autonomy in Member States. Unlike other sectors and due to the very

nature of organised sport, European sport structures are, as a rule, less

well developed than sport structures at national and international lev-

els. Moreover, European sport is generally organised according to con-

tinental structures, and not at EU level.

Stakeholders agree that the Commission has an important role to

play in contributing to the European debate on sport by providing a

platform for dialogue with sport stakeholders. Wide consultation

with “interested parties” is one of the Commission’s duties according

to the Treaties.

In view of the complex and diverse sports culture in Europe, the

Commission intends to involve notably the following actors in its

structured dialogue:

• European Sport Federations;

• European umbrella organisations for sport, notably the European

Olympic Committees (EOC), the European Paralympic

Committee (EPC) and European non-governmental sport organi-

sations;

• National umbrella organisations for sport and national Olympic

and Paralympic Committees;

• Other actors in the field of sport represented at European level,

including social partners;

• Other European and international organisations, in particular the

Council of Europe’s structures for sport and UN bodies such as

UNESCO and the WHO.

(49) The Commission intends to organise the structured dialogue in

the following manner:

• EU Sport Forum: an annual gathering of all sport stakeholders;

• Thematic discussions with limited numbers of participants.

(50) The Commission will also seek to promote greater European vis-

ibility at sporting events. The Commission supports the further

development of the European Capitals of Sport initiative.

5.2 Cooperation with Member States

Cooperation among Member States on sport at EU level takes place

in informal ministerial meetings, as well as at the administrative level

by Sport Directors. A Rolling Agenda for sport was adopted by EU

Sport Ministers in 2004 to define priority themes for discussions on

sport among the Member States.

(51) In order to address the issues listed in this White Paper, the

Commission proposes to strengthen existing cooperation among

the Member States and the Commission.

Based on a proposal from the Commission, Member States may

wish to reinforce the mechanism of the Rolling Agenda, for

example:

• To jointly define priorities for sport policy cooperation;

• To report regularly to EU Sport Ministers on progress.

Closer cooperation will require the regular organisation of Sport

Ministers and Sport Directors meetings under each Presidency,

which should be taken into account by future 18-month

Presidency teams.

(52) The Commission will report on the implementation of the

“Pierre de Coubertin” Action Plan through the mechanism of

the Rolling Agenda.

5.3 Social dialogue

In the light of a growing number of challenges to sport governance,

social dialogue at European level can contribute to addressing com-

mon concerns of employers and athletes, including agreements on

employment relations and working conditions in the sector in accor-

dance with EC Treaty provisions.

The Commission has been supporting projects for the consolida-

tion of social dialogue in the sport sector in general as well as in the

football sector. These projects have created a basis for social dialogue

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1. Introduction

The European Union Constitution would have been the first EC

Tr eaty with an article dedicated to sport. Whilst the Treaty will not

enter into effect (at least for some time) it does not follow that there

is nothing the political leaders of Europe can do to tackle the increas-

ing problems that sport continues to face. To the contrary, recent

events demonstrate an even more urgent need for clear political lead-

ership to stabilise and enhance the European Model of Sport.

We cannot ignore the rapid and seemingly irreversible trend

towards over-commercialisation of sport and the fact that this has

occurred against the background of the European Union developing

into a wider political, economic and, in particular, legal structure that

now extends to 25 Member States.

It is no secret that sport, and especially team sports such as football,

face significant challenges in this new environment. These challenges

are not going to go away. There is increasing concern, both on the

part of the sport authorities and on the part of the public, as to how

these challenges should be faced.

Against this background, the Sports Ministers of France, Germany,

Italy, Spain and the UK recognised the need for political action. The

UK Presidency of the European Union took the initiative to set up an

Independent Review on sport, divided into two main parts, one deal-

ing with the specific nature of sport in EU law generally, and the other

using European football as a case study, to investigate and suggest cer-

tain practical solutions.

A great deal of detailed research and analysis was undertaken by

technical experts. Specialist groups were appointed to examine legal,

economic and political matters and a wide-ranging consultation was

held with all interested parties. The overall objective of the Review, as

expressed in its terms of reference, was to implement the Nice

Declaration on sport.

That Declaration, adopted by the European Council in 2000, set

out a number of specific characteristics of sport that are considered to

be of value and importance to European society as a whole.

Nevertheless, the Declaration is not legally binding and only offers a

broad indication of how certain issues should be addressed. In other

words, it does not offer the level of detail or provide the degree of legal

security that sport needs to have, particularly in these increasingly tur-

bulent times.

The objective of our Review was to consider certain concrete issues

facing sport, using football as a case study, and to adopt a series of

Recommendations setting out how the EU institutions, the EU

Member States and the European football authorities could all play

their own part in resolving these issues - and thus implement the Nice

Declaration at both European and national level. Interpreting and

applying existing jurisprudence together with the policy principles set

out in the Nice Declaration, our aim was to provide a comprehensive

and robust legal framework for European sport in general and foot-

ball in particular.

In the Review we have tried to articulate the real meaning of sport-

ing “specificity”, to describe and understand the nature of the

European sports “pyramid” and also to consider how improvements

could be made to this structure to ensure that it is best equipped to

serve the needs of European sport in the years to come. For these pur-

poses, the essence of the pyramid structure is the unbreakable link

between the grassroots and top professional level of sport, which is a

concrete illustration of solidarity in practice. Of equal importance is

the wider social function performed by clubs and regional associations

in their local communities.

The terms of reference required us to consider all relevant issues of

corporate governance in football, which could be of equal significance

to other (team) sports. These include matters such as the ownership,

control and management of clubs; regulatory issues such as club

licensing, the player transfer system, the regulation of players’ agents

and salary cost controls; corporate governance issues for the football

authorities themselves (at both national and European level); criminal

activities around football, including money laundering and traffick-

ing of young players; the incidence of racism and xenophobia; gam-

bling activities and, in particular, the implications for match-fixing,

corruption and illegal betting; and safety and security in stadia.

The detailed work undertaken has - unfortunately - demonstrated that

sport in general and football in particular are not in good health. In this

sense, our work has confirmed many of the concerns held by the public,

the political authorities and the sports governing bodies themselves.

at European level and the consolidation of European-level organisa-

tions. A Sectoral Social Dialogue Committee can be established by

the Commission on the basis of a joint request by social partners. The

Commission considers that a European social dialogue in the sport

sector or in its sub-sectors (e.g. football) is an instrument which

would allow social partners to contribute to the shaping of employ-

ment relations and working conditions in an active and participative

way. In this area, such a social dialogue could also lead to the estab-

lishment of commonly agreed codes of conduct or charters, which

could address issues related to training, working conditions or the

protection of young people.

(53) The Commission encourages and welcomes all efforts leading to

the establishment of European Social Dialogue Committees in

the sport sector. It will continue to give support to both employ-

ers and employees and it will pursue its open dialogue with all

sport organisations on this issue.

The support that the Member States should make available for

capacity building and joint actions of social partners through the

European Social Fund in the convergence regions should also be

used for capacity building of the social partners in the sport sec-

tor.

6. CONCLUSION

The White Paper contains a number of actions to be implemented or

supported by the Commission. Together, these actions form the

“Pierre de Coubertin” Action Plan which will guide the Commission

in its sport-related activities during the coming years.

The White Paper has taken full advantage of the possibilities

offered by the current Treaties.

A mandate has been given by the European Council of June 2007

for the Intergovernmental Conference, which foresees a Treaty provi-

sion on sport. If necessary, the Commission may return to this issue

and indicate further steps in the context of a new Treaty provision.

The Commission will organise a conference to present the White

Paper to sport stakeholders in the autumn of 2007. Its findings will

be presented to EU Sport Ministers by the end of 2007. The White

Paper will also be presented to the European Parliament, the

Committee of the Regions and the Economic and Social Committee.

❖

Independent European Sport Review

Executive Summary, October 2006

Report by: José Luis Arnaut

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The good news, however, is that it is possible to do something about

this! Consequently, in the Review not only have we analysed the prob-

lem areas but we have also investigated the means to address them

and, in particular, the legal instruments that are available to do so.

The choice of instrument may depend on the precise issue to be

addressed and in the table annexed we set out a detailed list of instru-

ments that can be employed to recognise the specificity of sport.

Concretely, we have proposed a number of recommendations

addressed to (1) the EU institutions, in particular, the European

Commission and the Member States; (2) the European football

authorities; and (3) to the EU institutions and European football

authorities jointly.

We are of the opinion that the European Model of Sport should be

preserved and protected. A key feature of the model is the overall

pyramid structure, underpinned by the principles of financial solidar-

ity (funding of grass-roots) and the concept of promotion and relega-

tion (openness). As the economic dimension of sport comes more to

the fore (driven, in particular, by the development of new media mar-

kets) it is important that these key principles - which are of wider

importance to European society - continue to be respected.

The fact that the top end of the sports’ pyramid, developed into a

“business”, especially in football, has increased the tendency towards

legal disputes with the result that sport now exists in an environment

of legal uncertainty. In particular, it cannot be denied that EU law has

had a major impact on the structure and organisation of sport.

Following the Bosman case in 1995, there have been more and more

disputes involving issues of Bi law. Among other things, this resulted

in a first reference to sport in the Treaty of Amsterdam (in 1997) fol-

lowed by the Helsinki Report on Sport of 1999 and the Nice

Declaration in 2000. In the meantime, both the European Courts and

the European Commission have considered many sports related cases,

often under the competition and free movement rules of the EC

Tr eaty. Whilst there are some important principles to be drawn from

the resulting case law, a more stable environment is needed for the

healthy development of sport in Europe. This fact has only been

underlined by the very recent ruling of the European Court of Justice

in the Meca-Medina case (18 July 2006) which shows the degree of

legal uncertainty that still exists as regards the relationship between

EU law and sporting regulation and which emphasises the need for an

urgent and clearer delineation between the two.

2. Working Process and Methodology

Having said this, the Review is not merely a dry legal analysis. A wide

reaching consultation process was organised so that the views of all

stakeholders could be taken fully into account, not only in analysing

problems but also in considering possible solutions. It is fair to say,

therefore, that the authors of the Review have had the benefit of

receiving input from a wide variety of expert sources and informed

commentators. This consultative process was invaluable for the pur-

poses of framing constructive solutions (see Annex 4).

3. European Law and the Specific Nature of Sport

Without question, a key aspect of sport is the legitimate autonomy of

sports governing bodies and this feature is recognised in the Nice

Declaration itself. This does not mean that sport is above the law:

rather it means that, in certain areas, the discretion of the sporting

regulator should be respected. Moreover, where the general law does

apply, the particular features of sport should also be recognised. In

other words, just because sport has an economic dimension this does

not mean that it should be treated in the same way as any other “busi-

ness”, from a legal point of view. This is where we enter the discussion

of sporting “specificity.”

In this connection, it is important to emphasise that the European

Heads of Government have already recognised the specificity of sport

in the Nice Declaration. Consequently, the debate is no longer about

whether sport has a specific nature: it is about the practical measures

that need to be implemented to take account of this specific nature as

a matter of European law.

Existing jurisprudence shows that the specific nature of sport has

been taken into account by the European Courts and the European

Commission, albeit on a case-by-case and rather haphazard basis.

Whilst it is possible to draw some policy conclusions from these cases,

it would be preferable to have a more predictable legal environment,

giving sport the stability that it needs. Broadly speaking, our analysis

suggests that the specificity of sport can be grouped under three major

headings, relating to rules and practices which concern: (1) the regu-

larity and functioning of competitions; (2) the integrity of sport; and

(3) competitive balance.

Heading number (1) - regularity and functioning of competitions -

would include matters such as field-of-play rules and the structure of

championships and sporting calendars. These are matters that should

fall within the sole discretion of the governing body. Similarly, rules

concerning the composition of national teams or relating to the

national territorial organisation of sport should not be called into

question by European Union law. Cases such as Deliège and Mouscron

provide support for this.

As noted, the pyramid structure is an important feature of

European sport and establishes the inter-relationship between organ-

isations and competitions both on national and international level.

This is an indivisible structure, in some ways representing a co-oper-

ative. The rules that bind together the pyramid and which require

clubs to commit to participation in the overall structure are also com-

patible with EU law principles.

Other rules required to maintain the regularity and proper func-

tioning of competition (such as transfer deadlines) are also in line

with EU law. Such rules give sport an essential stability. The same

could be said of measures needed to regulate the transfer of players,

which are indispensable to protect the interests of players, clubs and

the sport itself. Further reflection is also needed as regards a dear def-

inition of “nationality” for the special situation of sport.

Measures may also be needed to encourage the attendance of spec-

tators at matches and participation in amateur sport. Whilst such

measures may entail a form of “restriction” (i.e. on television cover-

age) they can still be seen as in the best interests of sport.

It is also legitimate for sports governing bodies to take steps to

ensure that the best teams are available to contest the most prestigious

competitions, in the case of football, the World Cup and European

Football Championships. This is where the “player release” rule

becomes an issue. The measure is, above all, aimed at protecting the

efficient functioning of such championships, safeguarding the posi-

tion of smaller and less wealthy nations and also the interests of the

public who want to see the best available players representing their

respective countries. There is no conflict between rules of this nature

and European Union law.

Finally, all sports must take the necessary steps to combat cheating

in all forms, including matters relating to anti-doping control. These

are pure sports matters that should be left in the hands of the expert

sporting regulator and where a wide margin of discretion should be

recognised.

Turning to heading number (2) - integrity - it is important that

policy makers allow and encourage sports governing bodies to take

the necessary steps in this vital area as well. The UEFA club licensing

system is a good example of sport acting proactively to improve over-

all standards of governance, transparency and financial integrity.

Sport also needs to be protected from improper influence, or even

the perception of improper influence. This is where it is necessary to

have adequate controls regarding ownership and control of clubs.

These matters cannot be left to chance but need to be monitored and

properly regulated.

The activities of players’ agents have also, from time to time, raised

questions as regards ethical standards and matters of integrity in sport.

Consequently, a proper system for regulation in this area is also inher-

ent to the organisation of sport and something that should fall with-

in the natural competence of the relevant governing body.

The third heading under sporting specificity is competitive bal-

ance. Sport is nothing without exciting and varied competition and so

it is always legitimate for the governing bodies to be thinking about

steps that can be taken to protect and enhance competition. 1f mat-

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ters are left entirely to normal “market forces” then there is a risk that

the outcome of a sporting competition will be determined solely by

money. We do not think this is the way forward.

Consequently, the UEFA proposal on home-grown players, which

encourages player training and, at least to some extent, limits the

“trading” of players is a measure to be welcomed. A rule imposing a

maximum squad size limit has proved to be of similar value.

Turning to more commercial matters, the central marketing of

commercial (particularly media) rights is also a useful mechanism to

achieve a measure of financial re-distribution and thereby reinforce

the competitive structure of European sport. The central marketing

system of the UEFA Champions League can be seen as a model in this

respect, a fact that was also recognised by the Advocate-General back

in the Bosman case. It is therefore to be welcomed that the European

Commission has also approved this central marketing system and has

now followed a similar approach in national cases in both the German

Bundesliga and the English Premier League.

Falling under the heading of competitive balance we would also

place the issue of salary cost control. It should be noted that the aim

here is not to place an upper limit on what players can earn but sim-

ply to prevent those with the deepest pockets buying all the best play-

ers and therefore dominating competition, contrary to the interests of

the sport and the public. Whilst this is a complex subject that requires

further study, one possible approach would be to limit overall salary

spending levels to a percentage of club turnover and this would also

require dear rules to govern how turnover (“earned income”) is calcu-

lated. Finally, we consider that a form of “payroll tax”, requiring clubs

to pay a “redistribution levy” if they exceed the relevant limit on

salaries, warrants particular attention.

In all these areas where we consider the specificity of sport, it is nec-

essary, when applying the law, to take into account the legitimate

autonomy or degree of discretion to be enjoyed by the sports govern-

ing body and also the particular features of sport that contribute to

make it different from other forms of business.

4. The European Sports Model: The Example of Football

The constitutional model of sport in Europe is based on the pyramid

structure. At the top of the pyramid are the European federations,

themselves formed by national associations. These national associa-

tions are, in turn, typically formed by regional associations and/or

leagues, followed by the clubs and players. Financial redistribution

and promotion/relegation are important elements in this structure as

is the principle of a single federation with responsibility for the whole

sport.

However, it is also important that the governing body itself com-

plies with certain key principles recognised by political institutions

more generally, including democratic accountability, transparency

and the separation of powers. The current structures of UEFA, for

example, which provide for a devolution of functions from the

Congress to the Executive Committee, Chief Executive, President and

Organs for the Administration of Justice, conforms to this wider prin-

ciple. The right of appeal to the Court of Arbitration for Sport (CAS)

is an additional safeguard.

Nevertheless, these structures are not set in stone: they must evolve,

as in other democratic institutions. Similarly, again with regard to

football, we see greater involvement of a variety of stakeholders in the

UEFA institutions and decision-making processes. There are a num-

ber of manifestations of this, including the European Professional

Football Leagues (EPFL), the Professional Football Committee, the

European Club Forum, the Club Competitions Committee, and the

tripartite football dialogue, involving UEFA, the European leagues,

and the international players union (FIFPro). Last but not least, sup-

porters are also key stakeholders, and it is desirable that their views be

represented in a true pan-European context as well.

The principle of promotion and relegation, which is a practical

illustration of the open nature of the European Model of Sport and

which distinguishes it, for example, from the US model is a feature

that must be preserved. Similarly, financial re-distribution to the

grassroots is vital for the healthy development of football in Europe

and should be protected and even enhanced. The European Football

Championships and the UEFA Champions League show what can be

achieved in this respect. Equally important, however, is transparency

and accountability as to how re-distributed money is spent.

Turning to the area of dispute resolution, the system of sports-relat-

ed arbitration may be seen as another aspect of the European model

and a feature that should be encouraged. There is obvious merit in

achieving consistency of decision- making in sports matters, in a

speedy way before arbitration panels composed of experts.

Furthermore, there is no EU legal objection to this mechanism,

though it must also be ensured that all arbitral bodies are genuinely

independent and recognised as such by the civil courts.

Finally, and for the avoidance of doubt, there is no legal objection

to the combination of regulatory activity and commercial functions in

a sports governing body. This fact was already implicitly recognised by

the European Commission when it approved the central marketing of

the commercial rights of the UEFA Champions League. Nevertheless,

as mentioned above, it is also important that the governing body con-

tinues to evolve and be properly accountable to all interested stake-

holders, so there can be no questions as regards possible abuse of reg-

ulatory powers for commercial ends.

It needs to be emphasised, however, that the governing body - in

the case of European football, UEFA - is not a stakeholder itself but

rather an institution charged with the job of reconciling the various

(and sometimes competing) interests of all stakeholders, in a manner

that meets the overall interests of the sport on European level. This is

an onerous task, so all European sports governing bodies must ensure

that they are properly equipped to discharge this function, to remain

transparent and accountable in their decision making procedures and

to move with the times, as their respective sports continue to evolve.

5. Corporate Governance Issues: The Example of European Football

Corporate governance relates to various issues: governance of clubs,

internal governance of football authorities themselves (both national

and international) and the efficient functioning of the overall football

regulatory system.

A critical issue is the question of ownership, management and con-

trol of clubs. There is probably no particular ownership model that is

preferable: each has advantages and disadvantages. Moreover, it is not

feasible to seek to impose a particular ownership structure that would

work uniformly across Europe. As such, the focus should be on

encouraging principles of sound financial management and trans-

parency in clubs, irrespective of their particular legal form. Similarly,

it would be desirable to exclude inappropriate or unsuitable persons

from involvement in clubs, though it has to be accepted that this also

presents certain challenges.

As regards the issue of club ownership, it may be worth exploring

the possibility of new structures that offer an increased opportunity

for active supporter involvement. The Supporters Direct movement

in the UK is an interesting model in this respect.

Turning to the issue of financial management of clubs, it has to be

recognised that there have been deficiencies in the past. The UEFA

club licensing system is an important step forward to introduce

greater financial and business disciplines in the running of football

clubs. It may also be possible to envisage a code of corporate gover-

nance to sit alongside the licensing system or at least a system of

benchmarking, to encourage financial best practice.

The question of salary cost control is also related to financial manage-

ment, as t is widely accepted that the player wage spiral has contributed

to the financial plight of many clubs in recent years. Whilst there are sig-

nificant administrative challenges to be faced with any attempt at pan-

European regulation in this area, it is becoming possible to envisage how

such a system might work in conjunction with reporting requirements

already put into place with the club licensing system. It would be impor-

tant to thoroughly research any cost-control model so it is best attuned

to the needs of European football and, of equal importance, be capable

of effective monitoring and enforcement. Whilst this is admittedly a

complex subject, the status quo does not appear to be an attractive

option, and the matter merits further detailed analysis.

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Just as important as governance issues for clubs are governance issues

for the sports authorities themselves. Both national and international

associations are role models and will not be in a position to criticise

clubs for failures if they have not addressed the same issues “in house”.

The message is simple: there is an on-going need to maintain and

increase levels of democracy, transparency, and professionalism across

the board, In other words, to lead by example.

As another aspect of governance, it is clearly desirable that the rules

and regulations of sport be implemented and enforced by the most

appropriate body, whether national or international. The internation-

al transfer system for football players is a case in point, where the

scope and content of the system has been heavily influenced by

European law because of the specific European legal environment. As

a first observation, it is important to point out that it is not necessar-

ily appropriate or desirable to “export” the European system to other

continental confederations, who have different traditions and legal

circumstances.

However, given the situation in Europe we believe the most logical

devolution of tasks would be for national football associations to deal

with purely domestic transfers, for UEFA to deal with international

transfers in the European area, and for FIFA to establish certain base

level principles that could be equally applicable throughout the world.

We have noted that other requirements (such as the club licensing sys-

tem) also make it easier for a body such as UEFA to monitor and

enforce the system of international transfer regulation in the

European space. Similar considerations apply in relation to player

agent regulation (a matter that has been considered by the European

Commission and by the European Courts) and to most labour-relat-

ed matters that have to be considered against the particular back-

ground of European law.

Regrettably, there seems to be increased evidence of criminal activ-

ities around football, as a result of the current lack of regulation and

also perhaps as a consequence of its growing commercial importance.

For example, there is a risk of money-laundering and here the football

governing bodies should work together with political authorities (and

the police) to combat the problem. There are also concerns about the

“trafficking” of young players and this is another area where a com-

bined response is needed from football and governments working

together.

The issue of racism and xenophobia is a wider problem in society

but is also seen in football. The European Parliament, UEFA, associ-

ations, leagues, clubs and player unions have taken important steps to

stamp this out but the process must be continued.

Gambling is also a subject that is frequently of concern to football

and to sport in general. It cannot be ignored that gambling activities

are growing and are increasingly international, with the development

of the internet. At the same time, betting has always been an impor-

tant source of funding for sport. In this respect, there is some concern

that the move away from state-owned lotteries in Europe could have

the potential to damage income streams to sport. As regards the risks

associated with betting, in particular match-fixing or other forms of

corruption, a multi-tiered response is needed. For example, strong

controls of common ownership/control of clubs would help, as would

measures to protect intellectual property rights in fixture lists, to per-

mit more effective monitoring and the detection of unusual betting

patterns.

Lastly, the issue of safety and security in stadia is always present.

This is a prime example of where effective cooperation between the

football authorities and the political authorities can provide solutions.

Improved pan-European coordination is essential to combat the prob-

lems posed by hooliganism. A more effective legal regime to deal with

the problem of black market ticket sales would also contribute to

tackling this issue.

In conclusion, and in accordance with the general methodology we

have adopted for the purposes of the Review we believe that the cor-

porate governance issues we have analysed in this chapter specifically

in relation to football are of wider relevance for sport in general.

Consequently, it may be instructive for other sports, in particular

team sports, to consider and assess how some of the above mentioned

corporate governance principles might apply in the context of their

own sport, against the background of their own specific needs and cir-

cumstances.

6. Instruments

Our analysis shows that the current legal environment does not pro-

vide sport with the stability it needs for its future healthy develop-

ment. Sport is generally subject to EU law, even though there is no

identified legal basis in the Treaty for it. Consequently, we have con-

sidered a number of legal instruments that could serve to improve this

situation and therefore given practical and concrete expression to the

policy principles set out in the Nice Declaration.

As many sports-related cases have involved matters of competition

law, we have considered certain generic competition law instruments

that could help to offer solutions. However, we have also considered

other legal instruments in appropriate cases.

A so-called Block Exemption Regulation is an instrument that typ-

ically offers legal protection for certain categories of agreement under

competition law. We believe that such a Regulation could be envis-

aged, for example, in relation to the central marketing of television

rights. Important policy principles for central marketing have already

been established by the European Commission in a number of indi-

vidual cases and these could be extracted and usefully consolidated in

such a Block Exemption.

Another approach would be to consider “Guidelines”, that could

identify rules and practices that fall outside the sphere of competition

law altogether, and other rules those that can be approved as a matter

of competition law, subject to certain conditions. In this sphere, inspi-

ration may be drawn from existing jurisprudence in the area of com-

petition law, particularly as regards regulation of professional activities

(Wouters case) and also concerning the characteristics of cooperatives,

collecting societies, and the treatment of labour relations matters (col-

lective bargaining agreements) under competition law.

We believe that “Guidelines” could be the appropriate instrument

to address a variety of issues in sport, including central marketing of

commercial (in particular media) rights, rules regarding the training

of young players, rules regarding the release of players for the nation-

al team, salary caps, and club licensing systems.

We also observe that, given the particular features of sports govern-

ing bodies, they may be recognised as fulfilling a task of general eco-

nomic interest, within the meaning of Article 86 of the EC Treaty.

Similarly, given the financing structure in sport, it may be envisaged

that certain derogations from the standard Treaty rules on state aid

may be applied.

Away from the particular area of competition law, we note that

rules and practices in sport often need to be assessed under the free

movement provisions of the EC Treaty as well. Consequently,

“Guidelines” (as opposed to Block Exemptions) might be the more

appropriate instrument to provide legal security under all relevant

Community legal norms.

Other EU legal instruments are also available and might be used to

tackle particular issues in sport. For example, it is possible to envisage

EU Directives for the protection of minors in sport, for the establish-

ment of a pan-European bargaining contract, to regulate the activities

of player agents, and also to deal with issues in relation to betting.

Lastly, certain “soft law” instruments are also available which could be

of assistance in particular cases. Even though not included in the

Terms of Reference, it is also relevant to mention the wider European

context. In this respect, initiatives such as the Enlarged Partial

Agreement on Sport (EPAS) of the Council of Europe (another posi-

tive and constructive example of the Council of Europe initiatives on

sport) have to be applauded, as they should help to achieve similar

objectives to those targeted by the Review.

We propose that a European Sports Agency be created which could

act as a liaison entity with sports bodies in Europe. The purpose of

such an agency is simply to act as a repository for information but not

in any way or form to threaten the legitimate autonomy of recognised

sports governing bodies.

In relation to enforcement and implementation of this Review

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itself, we propose that an agreement or memorandum of understand-

ing be signed by the relevant parties (EU institutions, Member States,

European football authorities in the case of football) in which they

commit themselves to a detailed plan of action with designated time

frames. For the future, we believe that it would for example be appro-

priate for the EU to enter into a formal agreement with UEFA, clari-

fying the nature of the bilateral relationship between the two bodies

and providing a stable backdrop for on-going cooperation in all mat-

ters relevant to football and EU law and policy.

7. Recommendations

(a) To the EU institutions and EU Member States

The Review recognises the urgent need for the EU institutions to

adopt a more pro-active and comprehensive approach to provide

greater legal certainty for sport and to provide clearer guidance as to

those practices that are acceptable and/or which fall within the legiti-

mate scope of autonomy of the sports governing bodies.

It is necessary to clarify the type of “sports rules” that are automat-

ically compatible with Community law (either because they fall out-

side the scope of EU law entirely or because they are inherent to the

proper functioning of sporting competition) and to identify other

“sports related rules” where Community law applies, albeit subject to

the need to take the specificity of sport into account.

The Review concludes that “sports rules” cover rules relating to the

regularity, proper functioning and integrity of competition, such as:

the “rules of the game”, the structure of championships and calendars;

the composition of national teams; the national organisation of sport

in Europe, e.g. “home and away rule”; the organisation of competi-

tion within the European sports pyramid structure; rules relating to

transfer deadlines; rules concerning the release of players for national

teams; rules concerning the transfer of players; rules to encourage the

attendance of spectators at sporting events and participation in ama-

teur sport; rules on the good governance of clubs, such as the club

licensing system; rules relating to the ownership/control/influence of

clubs; rules concerning players agents; and rules concerning doping.

At the same time, “sports related rules” cover matters such as rules

relating to competitive balance, including: the “home-grown” players

rule, the central marketing of commercial rights, and salary cost con-

trol.

Legal security should be provided using the most appropriate legal

instruments, including directives, block exemption regulations,

guidelines or other national or European legislative instruments. We

recommend that the EU institutions employ the relevant instru-

ment(s) to provide legal certainty and coverage in relation to the fol-

lowing matters:

- An effective club licensing system, based on the minimum stan-

dards introduced in 2004 by all European football associations;

-Central marketing of commercial rights in accordance with the

principles established by the European Commission;

-A European system of player transfer regulations in accordance

with the principles agreed with European Commission on 5 March

2001;

-A European players’ agents directive including clauses providing

for:

strict examination criteria, greater transparency, minimum standards

for agents contracts, effective monitoring and disciplinary sanc-

tions by European sports governing bodies, the introduction of an

“agents licensing system”, prohibition on “dual representation” and

other conflicts of interests, and a system based on payment of

agents by players;

- An effective system for encouraging local education of players,

based on the obligation for all clubs to have a certain number of

home-grown players in their squads and a squad size limit;

- An effective system for maintaining competitive balance through

cost control (in particular, as regards the possible introduction of a

salary cost control mechanism administered by European and

national sports governing bodies, subject to detailed analysis of fea-

sibility);

- Legal protection for the player release rule, obliging clubs to release

players for the national team without entitlement to compensation;

-Endorsement of the pyramid structure of European football and

official recognition of national sports governing bodies by Member

States and of European sports governing bodies by the European

Union institutions;

-Appropriate national or Community legislation to secure the pro-

tection of intellectual property rights for sports and football fixture

lists;

-Appropriate corrective mechanisms to secure the financing of sport

in general and football in particular in the event of a liberalized bet-

ting market, e.g. through the payment of a “tax”;

-Appropriate national or Community legislation to combat the

threat and incidence of “ambush marketing” and legal protection

of intellectual property rights to major sporting events;

-Review of existing EU proposals regarding “news access” to guard

against any unfair prejudice to the interests of sports events organisers;

-Enactment of appropriate legal framework to combat the practice

of ticket touting in Europe;

-Harmonization of the legal approach to issues of hooliganism and

to institutionalise cooperation between police authorities in this

respect;

-Enactment of appropriate (national) legislation recognising the role

and function of sports governing bodies, in particular, regarding

their capacity to represent the interests of their sport and their own-

ership of commercial rights in the competitions that they organise.

In addition to these specific matters, we also recommend that the EU

institutions take this Review into account for the purposes of elabo-

rating a “White Paper” on European Sport and, in addition, that a

“European Sports Agency” be established as a monitoring and infor-

mation centre with comprehensive data.

(b) To the European football authorities

For the purposes of the Review, the term “European football author-

ities” refers to both UEFA (at the European level) and national foot-

ball associations (at the national level). In this connection, we fully

support the devolution of tasks to the most appropriate level in the

football regulatory structure, in accordance with the concept of sub-

sidiarity, a principle that the authors of the Review wholeheartedly

endorse, in particular insofar as it applies to sport.

The result of our analysis shows that there are numerous issues that

need to be tackled by the football authorities directly. Among other

things, we have identified improvements that could be made in the

internal system of football governance, the need to address issues of

competitive imbalance and also the need to take further steps to

encourage player training.

All governing bodies in sport, including those in football, need to

continually re-examine their structures and institutions to ensure that

they are sufficiently democratic and representative and also reflect the

realities of their particular sports. In addition, the football authorities

in particular must re-consider the most efficient organisational struc-

ture for the administration of football regulatory matters in Europe.

The current division of tasks (for example, in relation to the player

transfer system) is not ideal.

Our analysis leads to the conclusion that the club licensing system

can be considered as a good start on the road to better governance and

financial management of football in Europe. Nevertheless, improve-

ments can and should be made.

Furthermore, there is a need for on-going and more structured co-

operation between the European political institutions and the

European governing body for football, in particular, to combat illegal

activities associated with sport.

In sum, we conclude that a holistic approach is the only effective

means to tackle the problems of European football and to provide a

solid foundation for its future healthy development.

Against this background, we recommend that UEFA should

review, improve and enforce the club licensing system across Europe,

in particular by:

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-Ensuring that national associations implement the system effective-

ly;

-Publishing reports on compliance;

- Establishing an independent body to monitor overall compliance,

including more extensive use of spot-checking;

- Establishing a European Code of Corporate Governance for clubs;

-Elaborating benchmarking procedures to help establish best prac-

tice for clubs;

-Introducing additional measures to achieve competitive balance in

European football, including some form of salary cost control;

-Implementing a European “clearing house system” for transactions

related to the transfer of players;

-Improving the system of regulations designed to ensure the inde-

pendence of clubs (multi-club ownership/control).

As regards internal governance, we recommend that IJEFA examine its

own structures to ensure they are appropriate and representative given

contemporary developments in football. In particular, we recommend

that UEFA grant official recognition as advisory bodies to the

European Club Forum, the European Professional Football Leagues

(EPFL), the players union (FIFPro or its European members), the tri-

partite European Football Dialogue (involving FIFPr0, the EPFL and

UEFA). These structural adaptations (where necessary by appropriate

statutory amendment) will help to ensure a well-ordered and continu-

ous consultation of all stakeholders.

We also recommend that UEFA consider further structural im-

provements to reflect new developments, including for example, the

creation of a “strategy board” comprising representatives of the Exe-

cutive Committee of UEFA, the leagues and the clubs. This should

help to establish an efficient consultation process on matters related

to professional club football, which is the area that gives rise to most

of the contentious issues in practice.

Generally, we recommend that UEFA consider establishing addi-

tional advisory bodies, to improve the quality of decision-making. In

particular, it would be desirable to involve supporters’ organisations as

stakeholders when they are organised at European level and, in this

connection, we recommend that UEFA examine the feasibility of

establishing a European “Supporters Direct” body.

The Review recommends that, in the interests of administrative

efficiency, it is desirable to re-align current organisational functions in

football, so that UEFA assumes responsibility for European related

matters and can therefore effectively discharge its full statutory duties.

In accordance with this, we recommend that UEFA should adminis-

ter a Europe-wide player transfer system responding to the conditions

prevailing in Europe (both sporting and legal). Similarly, UEFA

should review, improve and administer an effective system to regulate

the activities of players’ agents in Europe.

Given the existing (and increasing) financial imbalance in football,

we recommend that UEFA review and update the financial solidarity

system of the UEFA Champions League to protect the good health of

the European football family and, in particular, to provide for the fur-

ther education and development of young players. In this respect, it

is desirable to reserve a higher proportion of the Champions League

revenue for distribution to the grassroots.

Whilst the Review concludes that legal protection should be given

to the player release rule, it also recommends that UEFA introduce a

collective insurance coverage for players during the final round of the

European Football Championships.

To address issues relating to gambling and the risk of match-fixing,

the Review recommends that UEFA establish European-wide agree-

ments with betting companies providing for “early warning” systems

to detect irregular gaming activities. In addition, UEFA and national

associations should examine and implement a “fit and proper person

test” for all those involved in football, including owners of clubs,

managers and referees. These rules must, in particular, address any

area where there might be a risk of conflict of interests.

We recommend that UFFA and national football associations in

Europe introduce and respect “minimum standards for good gover-

nance of national associations”. The objective must be to achieve max-

imum transparency and accountability, and this should include publi-

cation of statutes and relevant decisions, respect for the principle of

separation of powers, free elections and so on. As a related matter, both

UEFA and the national associations should continually review the pro-

fessionalism and efficiency of their own administrative structures.

Given the regrettable incidence of certain forms of racism and

xenophobia in football, we recommend that (JEFA and the national

associations review their current disciplinary systems and enact strict

rules, with appropriate sanctions, in order to deter this problem.

In light of the on-going need to address governance issues and the

increasing risk of financial impropriety associated with football, we

recommend that UEFA and national associations establish dedicated

internal governance units, including specialised and independent

anti-fraud bodies within their structures.

Finally, we recommend that both UEFA and national associations

ensure that they have appropriate arbitration clauses in their Statutes

as an alternative to ordinary state court jurisdictions.

Consistent with the approach we have taken throughout the

Review we consider that many of the recommendations addressed to

the European football authorities could also be usefully taken on

board by other sports governing bodies across Europe.

jointly

One of the most significant conclusions of the Review is that, in cer-

tain areas, it is only joint co-operation between the European football

authorities and the EU institutions that will provide efficient solu-

tions to the problems facing European football.

Accordingly, there are a number of matters that need to be tackled

in a co-ordinated manner by the relevant authorities working togeth-

er. We believe, for example, that it is desirable to establish a formal

consultation process as a means to confirm which “sports rules” and

practices fall outside the scope of Community law altogether.

We recommend that the parties work in cooperation with the

immigration and national labour inspection services, in particular, to

examine the issuance of short-term visas and related international

transfer certificates to deter “trafficking” of young players.

We recommend cooperation to the maximum extent possible

(including with the police) to detect and deter criminal activities

around football and in particular to prevent match-fixing, fraud,

money-laundering or any other form of corrupt or criminal activity.

We recommend that the parties cooperate in all matters relating to

safety and security at stadia for the maximum protection of the pub-

lic and further develop the partnership between EU Institutions,

Member States and football authorities in the process.

As a general principle, we recommend that the EU Institutions

grant official recognition to UEFA as the governing body for

European football and as the counterpart of the EU when dealing

with football-related issues in Europe. As indicated above, in return

UEFA must ensure respect for the principles of transparency and

democracy and must assume its full responsibility for all relevant foot-

ball-related issues in Europe.

To achieve these objectives, we recommend the conclusion of a

Formal Agreement between the EU and UEFA setting out the frame-

work for bilateral relations between the parties and agreeing on a

model of cooperation to safeguard the interests of sport within the

context of Community law.

Again, we consider that many of the recommendations addressed

to the EU institutions and European football authorities jointly could

be equally applicable to other sports in Europe.

8. Conclusion

The findings of this Report demonstrate that there is a crucial need

to have a formal structure for the relationship between the EU insti-

tutions and the European governing body for football.

In the last few months alone, several European countries (such as

Belgium, Finland, Germany, Italy, Portugal etc.) have been shaken by

match-fixing and corruption scandals, often linked to betting and to

players’ agents.

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The European Parliament,

- having regard to the Helsinki Report of 10 December 1999

and to

the Nice Declaration of 8 December 2000

on the specific charac-

teristics of sport and its social function in Europe,

- having regard to Articles 17 and III-282 of the Treaty establishing a

Constitution for Europe (the Constitutional Treaty),

- having regard to the UK Presidency initiative on European foot-

ball, which resulted in the “Independent European Sport Review

2006”,

- having regard to the case-law of the Court of Justice of the

European Communities (the Court of Justice), the Court of First

Instance and the Commission’s decisions in sports-related matters,

- having regard to Rule 45 of its Rules of Procedure,

- having regard to the report of the Committee on Culture and

Education and the opinions of the Committee on Economic and

Monetary Affairs, the Committee on Employment and Social

Affairs, the Committee on the Internal Market and Consumer

Protection and the Committee on Legal Affairs (A6-0036/2007),

A.whereas the Commission has underlined in the Helsinki Report the

need for a partnership between football’s governing bodies and

public authorities for the good governance of the game, which fully

respects the self-regulatory nature of professional sport,

B. whereas European sport, and football in particular, is an inalienable

part of European identity, European culture and citizenship, and

the European Football Model, characterised by open sports compe-

titions within a pyramid structure in which several hundred thou-

sand amateur clubs and millions of volunteers and players form the

base for the top professional clubs, is the result of longstanding

democratic tradition and grass-roots support in the community as

a whole;

C.whereas football plays an important social and educational role,

and is an effective instrument for social inclusion and multicultur-

al dialogue, and needs to play an active part in counteracting dis-

crimination, intolerance, racism and violence, as many of such

incidents are still taking place in and around stadiums, and where-

as professional football clubs and leagues also play a vital social and

cultural role in their local and national communities;

D.whereas professional football has both an economic and a non-eco-

nomic dimension,

E. whereas the economic aspects of professional football are subject to

Community law, and the case-law recognises the specificity of sport

and the social and educational role played by football in Europe,

F. whereas it is thus the responsibility of the national and European

political and sports authorities to ensure that, when Community

law is applied to professional football, it does not compromise its

social and cultural purposes, by developing an appropriate legal

framework, which fully respects the fundamental principles of

specificity of professional football, autonomy of its bodies and sub-

sidiarity,

G.whereas it was decided, in view of the growing importance of sport

in the European Union’s various policies (freedom of movement,

recognition of qualifications, competition, health and audiovisual

policies), to include sport in the Constitutional Treaty as an area of

EU competence (under Articles 17 and III-282); and whereas the

Constitutional Treaty has not been ratified by all of the Member

States, and the Nice Declaration on sport in the EU alone is not

sufficient to deal with the current problems, which go beyond

national dimensions and accordingly call for European solutions,

whereas the greater professionalisation and commercialisation of

sport in general and football in particular has made EC law much

more relevant in this area, a fact reflected in the growing number

of cases pending before the Court of Justice and the Commission,

- this has greatly exacerbated the problem of legal uncertainty and

the sectors concerned increasingly see an approach based solely

1 COM(1999)0644.

2 Presidency Conclusions, Nice European

Council Meeting 7-9 December 2000,

Annex IV.

In addition, the financial situation of many European clubs is per-

ilous, with bankruptcy cases and deficits of hundreds of millions of

Euros.

Furthermore, there has been a consistent series of legal challenges

to fundamental sports rules and practices that only serves to under-

mine confidence in the system and creates a climate of instability.

Against this background, a comprehensive and proactive approach

is needed by both the EU institutions and the football authorities in

order to deliver greater legal certainty in football and also to protect

the European Model of Sport.

UEFA is the football authority with responsibility for the European

area and therefore it falls to UEFA, in dialogue with the European

Commission, to work on the legal framework needed to deliver secu-

rity to football whilst respecting Community law. It is therefore indis-

pensable that the EU enter into a formal agreement with UEFA

which defines the nature of the legal relationship between the parties

and clarifies that IJEFA is the relevant interlocutor for the EU insti-

tutions on all matters relating to European football. This agreement

should foresee a duty of mutual consultation between UEFA and the

EU regarding all relevant football related matters in Europe and pro-

vide an established procedure for cooperation between the parties.

It is clear to us that the problems experienced in football are com-

mon to many sports across Europe and the jurisprudence we have dis-

cussed is by no means limited to football. The European Court of

Justice has for example reached decisions in cases dealing with cycling,

basketball, handball, swimming, judo as well as football. Further-

more, all sports face governance issues which are largely similar to

those confronted by football. Consequently, the conclusions and rec-

ommendations reached in this Review should be of considerable rel-

evance to sport generally and not only football. Therefore, we believe

there should also be no obstacle to other European sports governing

bodies having similar relationships with the European Union, provid-

ed they also respect the principles of democracy and transparency.

We conclude by recalling that the European Model of Sport has

delivered success and earned respect around the world as a system

based on social inclusion, financial solidarity and true sporting values.

Nevertheless, we face significant challenges in Europe and only the

direct involvement of political leaders, working together with the

sports authorities in general and the football authorities in particular,

can protect this model and secure a healthy future for sport in Europe.

1f we fail to take our responsibilities there is a real risk that the true

values of sport will be eroded, and the public will become increasing-

ly disaffected as a result.

The UK Presidency has taken the initiative and recognised that the

political will on both sides exists to find solutions to the challenges we

face. We must step up to the task and recognise that responsibility to

tackle these issues rests not solely with sports authorities: political

bodies have both the duty and the legal means to play their part in

finding the necessary solutions.

It’s time to act.

❖

European Parliament Resolution of 29 March 2007 on the Future of

Professional Football in Europe

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on treating cases individually as inadequate, a view also docu-

mented in the study commissioned by a number of sports min-

isters in the EU Member States and recently published under the

title ‘Independent European Sport Review 2006’,

- it is not clear, for example, whether the Union of European

Football Associations (UEFA) rule stipulating that teams must

contain a minimum number of home-grown players, a provision

which is extremely important for youth development, would, if

it were reviewed by the Court of Justice, prove to be consistent

with Article 12 of the EC Treaty,

I. whereas as a result of this legal uncertainty, it is not clear either how

much autonomy self-regulating bodies, such as UEFA, national

associations and national leagues, enjoy and to what extent they are

bound, when exercising their right to self-regulation and perform-

ing their regulatory function, by certain principles of Community

law such as free movement, non-discrimination and competition

rules,

J. whereas this legal uncertainty is not only problematic in economic

terms, but in particular in terms of the social, cultural and educa-

tional functions of football, and at the same time reduces the inter-

est of fans and efforts to improve support, and undermines the

principle of fair play,

K.whereas a decision has been taken to include sport in the

Constitutional Treaty as a matter of EU competence (Articles 17

and III-282) in order to give the EU powers to develop its

European dimension,

L. whereas professional football does not function like a typical sector

of the economy and whereas professional football clubs cannot

operate under the same market conditions as other economic sec-

tors, because of the interdependence between sports opponents and

the competitive balance needed to preserve the uncertainty of

results, and whereas its various actors, including supporters, play-

ers, clubs, leagues and associations, do not operate as normal con-

sumers or enterprises,

whereas the future of professional football in Europe is threatened

by the growing concentration of economic wealth and sports

power,

whereas the growing importance of revenues from the sale of

broadcasting rights may undermine the competitive balance

between clubs from different countries, as such revenues are large-

ly determined by the size of national broadcasting markets,

whereas for many decades professional football has increasingly

been characterised by an international dimension and has equally

been affected by different international regulatory and legislative

regimes,

P. whereas diverging national legislation and licensing criteria in

Europe cause an uneven playing field, economically and legally,

and this situation seriously hampers fair sports competition

between teams in European leagues, and hence also between

national teams,

whereas the participation of women in sport in general is still far

below the level of men, whereas women are still under-represented

in the sports decision-making bodies and whereas there are still

cases of gender-discrimination in the remuneration of sports pro-

fessionals,

R.whereas, despite the fact that the Bosman ruling in 1995 had a pos-

itive effect on players’ contracts and players’ mobility - though a lot

of employment-related and social problems remain to be solved -

it also had several negative consequences for the sport, including an

increased ability on the part of the richest clubs to sign up the best

players, a stronger link between financial power and sporting suc-

cess, an inflationary spiral in players’ salaries, reduced opportuni-

ties for locally-trained players to express their talent at the highest

level and reduced solidarity between professional and amateur

sport,

S. whereas many criminal activities (match fixing, corruption, etc.)

are the result of the spiral of spending, salary inflation and the sub-

sequent financial crises faced by many clubs,

T. whereas the Commission has confirmed in formal decisions the

compatibility of the collective selling of media rights with EC com-

petition law,

General context

1.Stresses its attachment to the European Football Model, with its

symbiotic relationship between amateur and professional football;

2.Points out the importance of the inter-linked national pyramid

structures of European football, which nurture grassroots talent

and competition because national leagues and competitions are

also the route to European competitions, and a proper balance

needs to be struck between the national foundation of the game

and the European level to enable football leagues and associations

to co-operate efficiently;

3.Recognises the need for a joint effort by football governing bodies

and political authorities at several levels to counter certain negative

developments, such as excessive commercialisation and unfair com-

petition, in order to ensure a positive future for professional foot-

ball with exciting competitions, a high degree of identification of

supporters with their clubs and wide public access to competitions

by means of, among others, special ticket prices for young people

and families, especially for major international matches;

4.Welcomes the work of the above-mentioned Independent

European Sport Review 2006 and of the study commissioned by

the European Parliament on “Professional Sport in the Internal

Market”, and calls on the Member States, European and national

football governing bodies and the Commission in its forthcoming

White Paper on Sport to continue the efforts initiated by the UK

Presidency to assess the need for policy measures with due respect

for the principle of subsidiarity by considering the principles and

main recommendations of that Review;

5.Expresses its desire to avoid the future of professional football in

Europe being solely determined on a case-by-case basis and to

enhance legal certainty;

6. Agrees with the basic principle that the economic aspects of pro-

fessional sport do fall within the scope of the EC Treaty, taking into

account the specificity of sport as set out in the Nice Declaration;

and considers that in this respect the consequential restrictive

effects of a sporting rule are compatible with EU law, provided that

the rule pursues a legitimate objective related to the nature and

purpose of sport and that its restrictive effects are inherent in the

pursuit of that objective and proportionate to it;

7. Calls on the Commission to develop guidance on how to apply this

principle, and to start a consultation process with the European

and national football authorities with the aim of setting up a for-

mal framework agreement between the EU and the European and

national football governing bodies;

8. Asks the Commission, in partnership with Parliament, the

Member States and the European and national football governing

bodies and other stakeholders, to include the principles and rec-

ommendations contained in this resolution in its forthcoming

White Paper, and to establish an action plan for European sport in

general and football in particular which sets out the issues for the

Commission to deal with and the instruments to be used in order

to enhance legal certainty and a level playing-field;

9. Asks the Commission to continue a structured dialogue with the

football governing bodies, including national associations and

leagues, and other stakeholders in order to overcome the problem

of legal uncertainty;

10.

Welcomes the success of and great interest in women’s football in

Europe and draws attention to its growing social significance;

Governance

11.Calls on all football governing bodies to better define and coordi-

nate their competences, responsibilities, functions and decision-

making procedures in order to increase their democracy, trans-

parency and legitimacy, for the benefit of the entire football sector;

invites the Commission to provide guidance on which legitimate

and adequate self-regulation is supported, with due regard to

national legislation and financial support for federations and asso-

2007/3-4

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ciations which aims at developing and cultivating young foot-

ballers and the national team;

12. Calls on UEFA to involve representation organisations represent-

ing players, clubs and leagues in the decision-making process;

13.Believes that improved governance leading to more concerted self-

regulation at national and European level will reduce the tenden-

cy to have recourse to the Commission and the Court of Justice;

14.Recognises the expertise and legitimacy of sporting tribunals inso-

far as they address citizens’ right to a fair hearing, as laid down in

Article 47(2) of the Charter of Fundamental Rights of the

European Union;

15.Takes the view that applying to the civil courts, even when not jus-

tified in sports terms, cannot be penalised by disciplinary regula-

tions; and condemns the arbitrary decisions by the Federation of

International Football Association (FIFA) in this respect;

16. Asks UEFA and FIFA to accept in their statutes the right of

recourse to ordinary courts, but recognises however that the prin-

ciple of self-regulation implies and justifies the structures of the

European sports model and the fundamental principles governing

the organisation of sporting competitions, including anti-doping

regulations and disciplinary sanctions;

17.Insists that the principle of proportionality is essential to all foot-

ball governing bodies when exercising their self-regulatory power;

and asks the Commission to ensure that this principle is applied

in legal cases concerning sport;

18. Calls on FIFA to increase its internal democracy and the trans-

parency of its structures;

19.Believes that the Charleroi case currently before the Court of

Justice could seriously undermine the ability of small and medi-

um-sized national football associations to take part in internation-

al competitions and threaten the vital investment in grassroots

football made by national associations; in this respect, believes that

clubs should release their players for national team duty without

entitlement to compensation; encourages UEFA and FIFA,

together with the European clubs and leagues, to reach an agree-

ment on the conditions applicable to players who are injured while

representing their countries and on a system of collective insur-

ance being put into place;

20.Supports the UEFA club licensing system, which aims at ensuring

a level playing-field between clubs and contributing to their finan-

cial stability, and calls on UEFA to further develop this licensing

system in compliance with Community law in order to guarantee

financial transparency and proper management;

21.Recommends a vigorous campaign by the national and European

political and sports authorities to establish greater transparency

and good governance in European professional football;

22.Supports efforts to protect the integrity of the game by ruling out

conflicts of interests of major stakeholders in clubs or governing

bodies;

23. Calls on the Commission to reflect, in consultation with football

governing bodies, leagues and clubs, on the introduction of a

European legal status for sports companies to take account of the

economic activities of major football clubs whilst preserving their

specific sports-related characteristics; such a status would make it

possible to establish rules for monitoring the economic and finan-

cial activities of such companies; and for the involvement of sup-

porters and community participation;

24. Asks Member States and football governing bodies to actively pro-

mote the social and democratic role of football fans who support

the principles of fair play, by supporting the creation and develop-

ment of Supporters’ Trusts (in recognition of their responsibility)

which could then be involved in the ownership and management

of clubs, or through the appointment of a football ombudsman

and specifically through extending the model of Supporters Direct

at European level;

25. Asks UEFA to examine how supporters’ organisations could be

involved as important stakeholders when they are organised at

European level and to examine the feasibility of a European

Supporters Direct body;

26.Considers that professional footballers, their trade-union represen-

tatives and the clubs and leagues should be more closely involved

in the governance of football through a better social dialogue;

Fight against criminal activities

27.Supports the efforts of the European and national football govern-

ing bodies to introduce greater transparency in the ownership

structures of clubs and asks the Council to develop and adopt

measures for the fight against the criminal activities that haunt

professional football, including money laundering, illegal betting,

doping and match fixing, and enforced prostitution on the side-

lines of major football events;

28.Emphasises the need to ensure full compliance with transparency

and money-laundering legislation by entities involved in the foot-

ball sector;

29. Calls on Member States to introduce mechanisms fostering coop-

eration between clubs, the police and supporters’ organisations,

with a view to combating violence and hooliganism and other

forms of delinquent behaviour before, during and after football

matches and to exchange best practices;

30. Asks the Council to strengthen the coordination of preventive

measures and sanctions concerning hooligans, also in relation to

national games; calls in this respect on the Council to implement

its Decision 2002/348/JHA concerning security in connection

with football matches with an international dimension and if nec-

essary to approve additional measures following recent violent

incidents in and outside football stadiums;

31. Calls on Member States, Europe’s footballing authorities and asso-

ciations and leagues to conduct a major European-wide campaign

to raise awareness among supporters, with a view to curbing vio-

lence inside and outside football grounds;

Social, cultural and educational role of football

32.Highlights the importance of education through sport and the

potential of football to help get socially vulnerable youngsters back

on track and asks Member States, national associations, leagues

and clubs to exchange best practices in this regard;

33. Calls on the Commission and Member States also to support

social inclusion projects by football clubs;

34.Expresses its clear support for the UEFA measures to encourage

the education of young players by requiring a minimum number

of home-grown players in a professional club’s squad and by plac-

ing a limit on the size of the squads; believes that such incentive

measures are proportionate and calls on professional clubs to

strictly implement this rule;

35.Is convinced that additional arrangements are necessary to ensure

that the home-grown players initiative does not lead to child traf-

ficking, with some clubs giving contracts to very young children

(below 16 years of age);

36.Points out that young players must be given the opportunity for a

general education and vocational training, in parallel with their

club and training activities and that the clubs should ensure that

young players from third countries return safely home if their

career does not take off in Europe;

37.Insists that immigration law must always be respected in relation

to the recruitment of young foreign talent and calls on the

Commission to tackle the problem of child trafficking in the con-

text of Council Framework Decision 2002/629/JHA of 19 July

2002 on combating trafficking in human beings

and / or in the

context of the implementation of Council Directive 94/33/EC of

22 June 1994 on the protection of young people at work

; points

out that young players must be given the opportunity for a gener-

al education and vocational training in parallel with their club and

training activity, so that they do not depend entirely on the clubs;

calls for action to prevent the social exclusion of young people

who are ultimately not selected;

3 OJ L 203, 1.8.2002, p. 1.

4 OJ L 216, 20.8.1994, p. 12.

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38. Calls on the football governing bodies and the clubs to engage in

the fight against human trafficking by

- subscribing to a European charter for solidarity in football, that

commits subscribers to respect good practices concerning the

discovery, recruitment and reception of young foreign football

players;

- the creation of a Solidarity Fund that would finance prevention

programmes in countries most affected by human trafficking;

-reviewing Article 19 of the FIFA Regulations for the Status and

Transfer of Players in relation to the protection of minors;

39.Underlines the important social and educational role of training

centres and the vital role which they play in both the well-being of

clubs and the future development of football talent, supports

financial incentives for clubs with a training centre, provided such

incentives are compatible with the Treaty rules on State aid, and

asks the Commission to recognise this crucial role when develop-

ing guidelines on State aid;

40.Stresses the need for an environment to be created in which young

players can develop and be brought up in a spirit of honesty and

fair play;

41.Urges the Member States to introduce a gender perspective in all

aspects of sports policies, with the aim of further reducing the con-

tinuing difference between men and women both in representa-

tion on sports bodies and in remuneration, as well as in actual par-

ticipation in sport, thus equalising the personal and social benefits

flowing from sport;

Employment and social issues

42.Regrets the differences in social and fiscal legislation between

Member States, which cause imbalances between clubs, and the

lack of willingness of Member States to solve this at European level;

43.Emphasises the importance of the mutual recognition of profes-

sional qualifications gained in another Member State in allowing

the free movement of workers;

44.Believes that the current economic reality surrounding players’

agents requires that football governing bodies at all levels, in con-

sultation with the Commission, improve the rules governing play-

ers’ agents; in this respect calls on the Commission to support

UEFA’s efforts to regulate players’ agents, if necessary by present-

ing a proposal for a directive concerning players’ agents which

would include: strict standards and examination criteria before

anyone could operate as a football players’ agent; transparency in

agents’ transactions; minimum harmonised standards for agents’

contracts; an efficient monitoring and disciplinary system by the

European governing bodies; the introduction of an “agents’ licens-

ing system” and agents’ register; and ending “dual representation”

and payment of agents by the player;

45. Calls on UEFA and the Commission to intensify their efforts to

strengthen the social dialogue at European level on issues such as

the duration of contracts, the definition of the transfer window,

possibilities for terminating a contract early and compensation for

trainer clubs, as it can prevent and overcome tensions between

players and employers;

46.Welcomes the move by FIFPro, UEFA and the European

Professional Football Leagues (EPFL) to further players’ rights by

ensuring that players always are given written contracts with cer-

tain minimum requirements;

47.Acknowledges the need to implement employment legislation

more effectively in all Member States to ensure that professional

players are granted the rights they are entitled to and fulfil the

obligations they comply with as employees;

48. Asks the Commission actively to support initiatives and cam-

paigns to fight child labour in football-related industries and

examine all political and legal possibilities to ensure that the rights

of all workers, including children, are respected;

Fight against violence, racism, other forms of discrimination

49.Asks the Commission, the Member States and all those involved

in professional football to accept , since the legal entitlement to a

workplace free of racism and other forms of discrimination also

applies to footballers, their responsibility for continuing and

intensifying the fight against racism and xenophobia by condemn-

ing all forms of discrimination inside and outside the stadium;

asks for stricter sanctions against any kind of discriminatory acts

in football; asks UEFA and the national associations and leagues

to apply disciplinary rules in a coherent, firm and coordinated

manner, without neglecting the financial situation of clubs;

50. Also calls in this connection on the Commission, UEFA and other

interested parties to take action on Parliament’s Declaration of 14

March 2006 on tackling racism in football

; compliments UEFA

and FIFA on the tougher sanctions being incorporated in their

statutes and for the measures being taken, and looks forward to

further action by all the parties concerned in the football sector;

51. Calls on the Commission, UEFA and other interested parties not

to allow other forms of discrimination, such as discrimination on

grounds of sex, origin, sexual orientation or otherwise, to go

unpunished inside and outside the football stadium;

52. Condemns all forms of violent behaviour in football stadiums,

encourages Member States to apply the strictest measures at their

disposal in order to reduce and eliminate all forms of violence on

the sports field and expresses its support for the UEFA measures

seeking to eradicate it;

Competition law and the internal market

53.Strongly believes that the introduction of a modulated cost-con-

trol system could be a way of enhancing financial stability and the

competitive balance between teams, for instance when integrated

into an updated club licensing system;

54. Considers that football must ensure the interdependence of com-

petitors and the need to guarantee the uncertainty of results of

competitions, which could serve as a justification for sports organ-

isations to implement a specific framework on the market for the

production and the sale of sport events; however, considers that

such specific features do not warrant an automatic exemption

from the Community competition rules for any economic activi-

ties generated by professional football, owing to the increasing

economic weight of such activities;

55. Asks the Commission to draw up clear guidelines on the applica-

tion of the State aid rules, indicating what kind of public support

is acceptable and legitimate in order to fulfil the social, cultural

and educational role played by football, such as financial or other

support granted by public authorities for the provision or updat-

ing of football stadiums or facilities;

56. Asks the Commission and the Member States to work closely with

the international, European and national football governing bod-

ies to reflect on the consequences of a possible liberalisation of the

betting market and on mechanisms to secure the financing of

sport in general and football in particular, and to look into meas-

ures which would protect the integrity of national and European

football competitions;

57.Recognises the importance of trade marks in the sports industry

except where they are used to impede the free movement of goods;

58.Notes that there is often a mismatch between the supply of, and

demand for, tickets for major football events, which is beneficial

to sponsors but detrimental to consumers; stresses that the inter-

ests of consumers should be fully taken into account when it

comes to the distribution of tickets and that non-discriminatory

and fair ticket sales should be guaranteed at all levels; acknowl-

edges however that the distribution of tickets may, where appro-

priate, be restricted to members of supporters clubs, travel clubs or

similar schemes, membership of which is available on a non-dis-

criminatory basis;

Selling of television rights and competition law

59.Maintains that collective selling in all competitions is fundamen-

tal to protecting the financial solidarity model of European foot-

5 OJ C 291 E, 30.11.2006, p. 143.

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(Adopted by the Committee of Ministers on 11 May 2007 at its 117th

Session)

The representatives on the Committee of Ministers of Andorra,

Azerbaijan, Bosnia and Herzegovina, Cyprus, Denmark, France,

Hungary, Iceland, Latvia, Luxembourg, Netherlands, Norway, San

Marino, Slovenia, “the former Yugoslav Republic of Macedonia”, and

United Kingdom,

Recognising that the aim of the Council of Europe is the achieve-

ment of greater unity between its members for the purpose of safe-

guarding and realising the ideas and principles which are their com-

mon heritage and of facilitating their economic and social progress, in

particular by pursuing common objectives designed to protect and

promote European culture;

Having regard to Statutory Resolution (93) 28 of the Committee of

Ministers on Partial and Enlarged Agreements;

Having regard to Resolution (96) 36 of the Committee of Ministers

establishing the criteria for partial and enlarged agreements of the

Council of Europe;

Having regard to the resolutions adopted by the Conferences of

European Ministers Responsible for Sport since 1975, and in particu-

lar to Resolution No. I on the Future Pan-European Sports Co-oper-

ation adopted at the 17th informal meeting of European Sports

Ministers (Moscow, 20-21 October 2006);

Having regard to the substantial work done since 1977 by the

Committee for the Development of Sport (CDDS) in developing

policies designed to promote sport in the member states of the

Council of Europe;

Having regard to the European Cultural Convention of 19

December 1954 (ETS No. 018);

Having regard to the European Convention on Spectator Violence

and Misbehavior at Sports Events and in particular at Football

Matches (ETS No. 120), to the Anti-Doping Convention (ETS No.

135) and its Additional Protocol (ETS No. 188);

Having regard to the recommendations of the Committee of

Ministers to member states on the Revised European Sports Charter

(Recommendation R (92) 13 rev) and the Revised Code of Sports

Ethics (Recommendation R (92) 14 rev);

Considering the conclusions of the Third Summit of Heads of

State and Government of the Council of Europe (Warsaw, 16-17 May

2005), which recommended “the continuation of Council of Europe

activities which serve as references in the field of sport”;

Considering that the natural values of sport such as respect, mutu-

al understanding and fair play, are excellent tools for the promotion

of the values and the goals of the Council of Europe;

Aware of the unique place that sport has in modern society under-

pinning democracy, participation, involvement, motivation, inclu-

siveness and social cohesion;

Stressing the importance and significance of sport in modern soci-

ety, notably from political, social, cultural and economic perspectives;

Aware of the role of sport in promoting social integration, particu-

larly among young people, and in safeguarding the health of the pop-

ulation;

Having regard to the decision of 9 May 2007 whereby the

Committee of Ministers authorised the member states who so wish to

pursue this objective within the Council of Europe by means of an

Enlarged Partial Agreement;

HEREBY,

RESOLVE to establish the Enlarged Partial Agreement on Sport

(EPAS), governed by the Statute appended thereto;

AGREE that the EPAS is established for an initial period of three

years;

ball; welcomes a public debate on and further investigation by the

Commission into whether this model should be adopted across

Europe for both pan-European and domestic competitions, as

suggested by the Independent Sport Review 2006; in this respect,

calls on the Commission to provide a detailed evaluation of the

economic and sports impact of its relevant media rights decisions

and the extent to which they have or have not worked;

60.Stresses that the sale of media rights vested in the European

national football leagues should always comply with EC competi-

tion law, taking into account the specificity of sport, and be nego-

tiated and completed in a transparent manner; but with that pro-

viso believes that football broadcasts should be accessible to the

widest possible range of people including through free-to-air chan-

nels;

61.Stresses that the merit of Article 3a of the current “Television with-

out Frontiers Directive” 97/36/EC

can hardly be overestimated;

62.Points out that it is vital for professional football that the revenues

from television rights be distributed in a fair way that ensures sol-

idarity between the professional and amateur games, and between

competing clubs in all competitions; notes that the current distri-

bution of television revenues in the UEFA Champions League to

a significant degree reflects the size of the clubs’ national television

markets; notes that this favours big countries, thereby diminishing

the power of clubs from smaller countries;

63. Therefore invites UEFA together with the Commission to contin-

ue to examine mechanisms to create a more competitive balance

in this field by increased redistribution;

64.Points out that the televised broadcasting of sports competitions is

increasingly taking place on encrypted and pay TV channels, and

that such competitions are thus becoming inaccessible to a num-

ber of consumers;

Doping

65.Recommends that the prevention of and fight against doping

should constitute an important concern for the Member States;

calls for a policy aimed at preventing and combating doping and

stresses the need to fight irregularities through checks, research,

testing, long-term monitoring by independent doctors and

through education and, at the same time, prevention and training;

calls on professional clubs to adopt a pledge to combat doping and

to monitor compliance through internal checks;

66.Instructs its President to forward this resolution to the Council,

the Commission, the governments and the parliaments of the

Member States, UEFA, FIFA, EPFL, European Club Forum and

FIFPro.

6 OJ L 202, 30.7.1997, p. 60.

❖

Resolution CM/Res(2007)8

Establishing the Enlarged Partial

Agreement on Sport (EPAS)

AGREE to review the functioning of the EPAS, with a view to con-

tinuing its operation, by the end of the initial period of three years;

EXPRESS the wish that all Council of Europe member states and

other States Party to the European Cultural Convention become

members of the Enlarged Partial Agreement on Sport (EPAS) in the

near future.

******

Statute of the Enlarged Partial Agreement on Sport (EPAS)

Article 1 - Tasks

. The EPAS shall perform the following tasks:

Policy-making and standard setting

-Develop sports policy strategies and set appropriate standards,

reflecting the importance of sport in modern society, in co-

operation and dialogue with all parties concerned;

- stimulate and provide the co-ordination of sports policies and

standards within and among the States Party, notably with a

view to making the safe practice of ethical sport as widely

available as possible;

-propose policies necessary to deal with topical issues in inter-

national sport;

-promote the development of sports, as a means to foster

healthy lifestyles.

Monitoring

-Monitor the application of the European Sports Charter

(Recommendation No. R (92) 13 rev) and of the Code of

Sports Ethics (Recommendation No. R (92) 14 rev) in the

States members of the Agreement.

Capacity building

-Pursue actions for capacity building in the field of “Sports for

All”.

Programme of Activities

-Implement intergovernmental sports co-operation activities as

decided by the Governing Board.

Ministerial meetings

-Prepare meetings at Ministerial level, open to both the mem-

bers of the EPAS and all the other states Parties to the

European Cultural Convention, at regular intervals and

ensure the appropriate follow-up thereto.

.

To that end, it shall in particular:

- co-operate, as necessary, in these matters with the Standing

Committee of the European Convention on Spectator

Violence and Misbehaviour at Sports Events and in particular

at Football Matches (T-RV), the Monitoring Group of the

Anti-Doping Convention (T-DO), and with the Ad Hoc

Committee European Co-ordination Forum for the World

Anti-Doping Agency (CAHAMA), and in particular, consid-

er including work linked to the development of either con-

vention in its programme of activities;

- co-ordinate its work with that of the other sectors of the

Council of Europe and contribute to multi-sectoral initiatives

and other joint programmes defined by the Secretary General;

- develop, as appropriate, co-operation with the European

Community;

- develop co-operation with international, regional and nation-

al non-governmental sports organisations and anti-doping

structures.

Article 2 - Accession and Membership

2.1 Any state which is a member of the Council of Europe or a

Contracting Party to the European Cultural Convention may

join the Enlarged Partial Agreement by notification addressed to

the Secretary General of the Council of Europe.

2.2 The Committee of Ministers, in its composition restricted to the

representatives of the member states of the Enlarged Partial

Agreement, may, by the majority stipulated in Article 20.d of the

Statute of the Council of Europe, invite any other non-member

state of the Council of Europe to join the Enlarged Partial

Agreement, following consultation of the non-member states

already participating. A non-member state which receives such

an invitation shall notify the Secretary General of its intention

to become a member of the EPAS.

2.3 Member states of the Council of Europe and other Parties to the

European Cultural Convention not joining the Enlarged Partial

Agreement on Sport may request the status of observer with

EPAS. Decisions in such matters will be made by the Governing

Board of EPAS.

2.4 The Parliamentary Assembly of the Council of Europe and the

Congress of Local and Regional Authorities of the Council of

Europe, may participate in the work of EPAS without the right

to vote.

2.5 The European Community shall be entitled to participate in the

work of the EPAS without the right to vote. It may become a

member of the EPAS according to modalities agreed with the

Committee of Ministers.

2.6 The Committee of Ministers, in its composition restricted to the

representatives of the States members of the Enlarged Partial

Agreement, may, by the majority stipulated in Article 20.d of the

Statute of the Council of Europe, authorise the EPAS to invite

international organisations, NGOs or other bodies to participate

in its work as observers without the right to vote.

Article 3 - Governing Board

3.1 The Governing Board of the EPAS shall be composed of one

representative appointed by the government of each member of

the Enlarged Partial Agreement. The European Non-

Governmental Sports Organisation (ENGSO) shall be repre-

sented on the Governing Board, without the right to vote.

3.2 The Governing Board shall elect from among its members a

bureau comprised of a chair, one vice-chair, four other members,

and one representative of the European Non-Governmental

Sports Organisation (ENGSO) without the right to vote, for a

term of office of two years, renewable only once.

3.3 The Governing Board shall:

- be responsible for the general implementation of the tasks

conferred to the EPAS;

- adopt the draft annual programme of activities of the EPAS

and submit, in conformity with the Financial Regulations of

the Council of Europe, proposals to the Secretary General of

the Council of Europe relating to the elaboration of the draft

annual budget, prior to its transmission to the Statutory

Committee set up under Article 5 below;

- decide on pilot projects consistent with the Council of

Europe’s political priorities, and draw up the relevant budgets;

- monitor the implementation of the programme of activities

and the management of the EPAS’ funds;

- adopt and transmit an annual activity report to the

Committee of Ministers.

3.4 The Governing Board shall meet once a year at the Council of

Europe. It may invite representatives of the relevant Council of

Europe bodies to attend its meetings, without voting rights,

according to the items on its agenda.

3.5 The Governing Board may assign operational tasks to its Bureau.

The Bureau shall be convened by the Chair of the Governing

Board at least once a year.

3.6 The Governing Board shall adopt its decisions by a two-thirds

majority of the votes cast, with each member having one vote.

Procedural matters shall be settled by a majority of the votes cast.

In all other matters, the Governing Board shall adopt its own

rules of procedure and any other arrangements for the imple-

mentation of its activities.

3.7 A Consultative Committee on the programme of activities of

EPAS, comprising members of international organisations,

NGOs or bodies participating in the work of the Enlarged

Partial Agreement in accordance with the provisions of Article

2.6 shall be created. The Consultative Committee, as a partner-

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The General Conference of the United Nations Educational, Scientific

and Cultural Organization, hereinafter referred to as “UNESCO”,

meeting in Paris, from 3 to 21 October 2005, at its 33rd session,

Considering that the aim of UNESCO is to contribute to peace and

security by promoting collaboration among nations through educa-

tion, science and culture,

Referring to existing international instruments relating to human

rights,

Aware of resolution 58/5 adopted by the General Assembly of the

United Nations on 3 November 2003, concerning sport as a means to

promote education, health, development and peace, notably its para-

graph 7,

Conscious that sport should play an important role in the protection

of health, in moral, cultural and physical education and in promoting

international understanding and peace,

Noting the need to encourage and coordinate international coopera-

tion towards the elimination of doping in sport,

Concerned by the use of doping by athletes in sport and the conse-

quences thereof for their health, the principle of fair play, the elimi-

nation of cheating and the future of sport,

ship body, shall give an opinion on the programme of activities

and provide advice for the decisions of the Governing Board.

The Governing Board shall appoint the Consultative

Committee and define its mandate.

Article 4 - Budget

4.1 The EPAS’ resources shall comprise:

- annual contributions from each member joining the EPAS;

- any other payment, donation or bequest, subject to the provi-

sions of paragraph 4.3 below.

4.2 Expenditure related to the implementation of the programme of

activities and common secretariat expenditure shall be covered

by a partial agreement budget funded by the member states and

non-member states participating in the Enlarged partial agree-

ment.

4.3 The EPAS may also receive voluntary and other contributions

connected with the work of the agreement, subject to the autho-

risation of the Governing Board prior to their acceptance. In

exceptional circumstances, the Secretary General may consult

the Statutory Committee prior to the acceptance of a voluntary

contribution. These contributions shall be paid into a special

account, opened under the terms of Article 4.2 of the Financial

Regulations of the Council of Europe, monitored by the

Governing Board in consultations with the Consultative

Committee and shall be earmarked for the objectives and tasks

specified, provided that they are consistent with the aims of the

statute.

4.4 The EPAS’ financial resources shall benefit from the dispositions

of the General Agreement on Privileges and Immunities of the

Council of Europe.

4.5 Travel and subsistence expenses of persons attending meetings of

the Governing Board, of the Consultative Committee and,

where appropriate, of the Statutory Committee shall be borne by

the state or the organisation concerned.

4.6 The Financial Regulations of the Council of Europe shall apply,

mutatis mutandis, to the adoption and management of the

EPAS budget.

Article 5 - Statutory Committee

5.1 The Statutory Committee shall be composed of the representa-

tives on the Committee of Ministers of the member states of the

Council of Europe which are participating in the EPAS and of

representatives specifically designated to that effect by the non-

member states participating in the EPAS.

5.2 The Statutory Committee shall determine every year the total of

members’ compulsory contributions to the EPAS and the scale

of contributions according to which that total shall be appor-

tioned between the participating states; as a general rule, that

scale shall conform to the criteria for the determination of the

scale of contributions to the general budget of the Council of

Europe.

5.3 The Statutory Committee shall adopt every year the budget of

the EPAS on expenditure relating to the implementation of the

programme of activities and common secretariat expenditure.

5.4 The Statutory Committee shall approve every year the annual

accounts of the EPAS, which shall be drawn up by the Secretary

General of the Council of Europe in accordance with the

Financial Regulations of the Council of Europe and submitted

to the Statutory Committee accompanied by the report of the

External Auditor, as provided for in the Financial Regulations.

In order to discharge the Secretary General from responsibility

for the management of the financial year in question, the

Statutory Committee shall transmit to the Committee of

Ministers the annual accounts, together with its approval or any

comments, and the report drawn up by the External Auditor, as

provided for in the Financial Regulations.

Article 6 - Secretariat

6.1 The Secretariat of the Enlarged Partial Agreement, headed by an

Executive Secretary, shall be provided by the Secretary General

of the Council of Europe.

6.2 The Executive Secretary may call on institutions and independ-

ent experts in the areas concerned by the programme.

6.3 The EPAS will be located at the headquarters of the Council of

Europe.

Article 7 - Amendments

The Committee of Ministers, in its composition restricted to the rep-

resentatives of the States members of the Enlarged Partial Agreement

and after consultation with the other members defined in Article 2,

may adopt amendments to this Statute by the majority provided for

under Article 20.d of the Statute of the Council of Europe.

Article 8 - Withdrawal

8.1 Any member may withdraw from the EPAS by means of a dec-

laration sent to the Secretary General of the Council of Europe.

8.2 The Secretary General shall acknowledge receipt of the declara-

tion and so inform the members of the EPAS.

8.3 By analogy with Article 7 of the Statute of the Council of

Europe, withdrawal shall take effect:

- at the end of the financial year in which it is notified, if such

notification is given during the first nine months of that

financial year;

- at the end of the following financial year, if notification of

withdrawal is given in the last three months of the financial

year.

8.4 In accordance with Article 18 of the Council of Europe’s

Financial Regulations, the Governing Board shall examine the

financial consequences of the withdrawal of a member and

shall make the appropriate arrangements.

8.5 The Secretary General shall immediately inform the member

concerned of the consequences for it of its withdrawal.

❖

UNESCO International Convention against Doping in Sport

Paris, 19 October 2005

Mindful that doping puts at risk the ethical principles and education-

al values embodied in the International Charter of Physical Education

and Sport of UNESCO and in the Olympic Charter,

Recalling that the Anti-Doping Convention and its Additional

Protocol adopted within the framework of the Council of Europe are

the public international law tools which are at the origin of national

anti-doping policies and of intergovernmental cooperation,

Recalling the recommendations on doping adopted by the second,

third and fourth International Conferences of Ministers and Senior

Officials Responsible for Physical Education and Sport organized by

UNESCO at Moscow (1988), Punta del Este (1999) and Athens

(2004) and 32 C/Resolution 9 adopted by the General Conference of

UNESCO at its 32nd session (2003),

Bearing in mind the World Anti-Doping Code adopted by the World

Anti-Doping Agency at the World Conference on Doping in Sport,

Copenhagen, 5 March 2003, and the Copenhagen Declaration on

Anti-Doping in Sport,

Mindful also of the influence that elite athletes have on youth,

Aware of the ongoing need to conduct and promote research with the

objectives of improving detection of doping and better understanding

of the factors affecting use in order for prevention strategies to be

most effective,

Aware also of the importance of ongoing education of athletes, ath-

lete support personnel and the community at large in preventing dop-

ing,

Mindful of the need to build the capacity of States Parties to imple-

ment anti-doping programmes,

Aware that public authorities and the organizations responsible for

sport have complementary responsibilities to prevent and combat

doping in sport, notably to ensure the proper conduct, on the basis of

the principle of fair play, of sports events and to protect the health of

those that take part in them,

Recognizing that these authorities and organizations must work

together for these purposes, ensuring the highest degree of independ-

ence and transparency at all appropriate levels,

Determined to take further and stronger cooperative action aimed at

the elimination of doping in sport,

Recognizing that the elimination of doping in sport is dependent in

part upon progressive harmonization of anti-doping standards and

practices in sport and cooperation at the national and global levels,

Adopts this Convention on this nineteenth day of October 2005.

I. Scope

Article 1 - Purpose of the Convention

The purpose of this Convention, within the framework of the strate-

gy and programme of activities of UNESCO in the area of physical

education and sport, is to promote the prevention of and the fight

against doping in sport, with a view to its elimination.

Article 2 - Definitions

These definitions are to be understood within the context of the

World Anti-Doping Code. However, in case of conflict the provisions

of the Convention will prevail.

For the purposes of this Convention:

1. “Accredited doping control laboratories” means laboratories

accredited by the World Anti Doping Agency.

2. “Anti-doping organization” means an entity that is responsible for

adopting rules for initiating, implementing or enforcing any part

of the doping control process. This includes, for example, the

International Olympic Committee, the International Paralympic

Committee, other major event organizations that conduct testing

at their events, the World Anti-Doping Agency, international fed-

erations and national anti-doping organizations.

3. “Anti-doping rule violation” in sport means one or more of the

following:

(a)

the presence of a prohibited substance or its metabolites or

markers in an athlete’s bodily specimen;

(b)

use or attempted use of a prohibited substance or a prohibit-

ed method;

(c)

refusing, or failing without compelling justification, to sub-

mit to sample collection after notification as authorized in

applicable anti-doping rules or otherwise evading sample col-

lection;

(d)

violation of applicable requirements regarding athlete avail-

ability for out-of-competition testing, including failure to

provide required whereabouts information and missed tests

which are declared based on reasonable rules;

(e)

tampering, or attempting to tamper, with any part of doping

control;

(f)

possession of prohibited substances or methods;

(g)

trafficking in any prohibited substance or prohibited method;

(h)

administration or attempted administration of a prohibited

substance or prohibited method to any athlete, or assisting,

encouraging, aiding, abetting, covering up or any other type

of complicity involving an anti-doping rule violation or any

attempted violation.

4. “Athlete” means, for the purposes of doping control, any person

who participates in sport at the international or national level as

defined by each national anti-doping organization and accepted

by States Parties and any additional person who participates in a

sport or event at a lower level accepted by States Parties. For the

purposes of education and training programmes, “athlete”

means any person who participates in sport under the authority

of a sports organization.

5. “Athlete support personnel” means any coach, trainer, manager,

agent, team staff, official, medical or paramedical personnel

working with or treating athletes participating in or preparing

for sports competition.

6. “Code” means the World Anti-Doping Code adopted by the

World Anti-Doping Agency on 5 March 2003 at Copenhagen

which is attached as Appendix 1 to this Convention.

7. “Competition” means a single race, match, game or singular ath-

letic contest.

8. “Doping control” means the process including test distribution

planning, sample collection and handling, laboratory analysis,

results management, hearings and appeals.

9. “Doping in sport” means the occurrence of an anti-doping rule

violation.

10. “Duly authorized doping control teams” means doping control

teams operating under the authority of international or national

anti-doping organizations.

11. “In-competition” testing means, for purposes of differentiating

between in-competition and out-of-competition testing, unless

provided otherwise in the rules of an international federation or

other relevant anti-doping organization, a test where an athlete

is selected for testing in connection with a specific competition.

12. “International Standard for Laboratories” means the standard

which is attached as Appendix 2 to this Convention.

13. “International Standard for Testing” means the standard which

is attached as Appendix 3 to this Convention.

14. “No advance notice” means a doping control which takes place

with no advance warning to the athlete and where the athlete is

continuously chaperoned from the moment of notification

through sample provision.

15. “Olympic Movement” means all those who agree to be guided

by the Olympic Charter and who recognize the authority of the

International Olympic Committee, namely the international

federations of sports on the programme of the Olympic Games,

the National Olympic Committees, the Organizing Committees

of the Olympic Games, athletes, judges and referees, associations

and clubs, as well as all the organizations and institutions recog-

nized by the International Olympic Committee.

16. “Out-of-competition” doping control means any doping control

which is not conducted in competition.

17. “Prohibited List” means the list which appears in Annex I to this

Convention identifying the prohibited substances and prohibit-

ed methods.

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18. “Prohibited method” means any method so described on the

Prohibited List, which appears in Annex I to this Convention.

19. “Prohibited substance” means any substance so described on the

Prohibited List, which appears in Annex I to this Convention.

20.“Sports organization” means any organization that serves as the

ruling body for an event for one or several sports.

21.“Standards for Granting Therapeutic Use Exemptions” means

those standards that appear in Annex II to this Convention.

22.“Testing” means the parts of the doping control process involv-

ing test distribution planning, sample collection, sample han-

dling and sample transport to the laboratory.

23.“Therapeutic use exemption” means an exemption granted in

accordance with Standards for Granting Therapeutic Use

Exemptions.

24.“Use” means the application, ingestion, injection or consump-

tion by any means whatsoever of any prohibited substance or

prohibited method.

25.“World Anti-Doping Agency” (WADA) means the foundation

so named established under Swiss law on 10 November 1999.

Article 3 - Means to achieve the purpose of the Convention

In order to achieve the purpose of the Convention, States Parties

undertake to:

(a) adopt appropriate measures at the national and international

levels which are consistent with the principles of the Code;

(b) encourage all forms of international cooperation aimed at pro-

tecting athletes and ethics in sport and at sharing the results of

research;

ing organizations in the fight against doping in sport, in partic-

ular with the World Anti-Doping Agency.

Article 4 - Relationship of the Convention to the Code

1.In order to coordinate the implementation, at the national and

international levels, of the fight against doping in sport, States

Parties commit themselves to the principles of the Code as the

basis for the measures provided for in Article 5 of this

Convention. Nothing in this Convention prevents States Parties

from adopting additional measures complementary to the Code.

2. The Code and the most current version of Appendices 2 and 3

are reproduced for information purposes and are not an integral

part of this Convention. The Appendices as such do not create

any binding obligations under international law for States

Parties.

3. The Annexes are an integral part of this Convention.

Article 5 - Measures to achieve the objectives of the Convention

In abiding by the obligations contained in this Convention, each

State Party undertakes to adopt appropriate measures. Such measures

may include legislation, regulation, policies or administrative prac-

tices.

Article 6 - Relationship to other international instruments

This Convention shall not alter the rights and obligations of States

Parties which arise from other agreements previously concluded and

consistent with the object and purpose of this Convention. This does

not affect the enjoyment by other States Parties of their rights or the

performance of their obligations under this Convention.

II. Anti-doping activities at the national level

Article 7 - Domestic coordination

States Parties shall ensure the application of the present Convention,

notably through domestic coordination. To meet their obligations

under this Convention, States Parties may rely on anti-doping organ-

izations as well as sports authorities and organizations.

Article 8 - Restricting the availability and use in sport of prohibit-

ed substances and methods

1.States Parties shall, where appropriate, adopt measures to restrict

the availability of prohibited substances and methods in order to

restrict their use in sport by athletes, unless the use is based upon

a therapeutic use exemption. These include measures against

trafficking to athletes and, to this end, measures to control pro-

duction, movement, importation, distribution and sale.

2.States Parties shall adopt, or encourage, where appropriate, the

relevant entities within their jurisdictions to adopt measures to

prevent and to restrict the use and possession of prohibited sub-

stances and methods by athletes in sport, unless the use is based

upon a therapeutic use exemption.

3.No measures taken pursuant to this Convention will impede the

availability for legitimate purposes of substances and methods

otherwise prohibited or controlled in sport.

Article 9 - Measures against athlete support personnel

States Parties shall themselves take measures or encourage sports

organizations and anti-doping organizations to adopt measures,

including sanctions or penalties, aimed at athlete support personnel

who commit an anti-doping rule violation or other offence connect-

ed with doping in sport.

Article 10 - Nutritional supplements

States Parties, where appropriate, shall encourage producers and dis-

tributors of nutritional supplements to establish best practices in the

marketing and distribution of nutritional supplements, including

information regarding their analytic composition and quality assur-

ance.

Article 11 - Financial measures

States Parties shall, where appropriate:

(a) provide funding within their respective budgets to support a

national testing programme across all sports or assist sports

organizations and anti-doping organizations in financing doping

controls either by direct subsidies or grants, or by recognizing

the costs of such controls when determining the overall subsidies

or grants to be awarded to those organizations;

(b) take steps to withhold sport-related financial support to individ-

ual athletes or athlete support personnel who have been sus-

pended following an anti-doping rule violation, during the peri-

od of their suspension;

from any sports organization or anti-doping organization not in

compliance with the Code or applicable anti-doping rules

adopted pursuant to the Code.

Article 12 - Measures to facilitate doping control

States Parties shall, where appropriate:

(a) encourage and facilitate the implementation by sports organiza-

tions and anti-doping organizations within their jurisdiction of

doping controls in a manner consistent with the Code, includ-

ing no-advance notice, out-of-competition and in-competition

testing;

(b) encourage and facilitate the negotiation by sports organizations

and anti-doping organizations of agreements permitting their

members to be tested by duly authorized doping control teams

from other countries;

organizations within their jurisdiction in gaining access to an

accredited doping control laboratory for the purposes of doping

control analysis.

III. International cooperation

Article 13 - Cooperation between anti-doping organizations and

sports organizations

States Parties shall encourage cooperation between anti-doping organ-

izations, public authorities and sports organizations within their juris-

diction and those within the jurisdiction of other States Parties in

order to achieve, at the international level, the purpose of this

Convention.

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Article 14 - Supporting the mission of the World Anti-Doping

Agency

States Parties undertake to support the important mission of the

World Anti-Doping Agency in the international fight against doping.

Article 15 - Equal funding of the World Anti-Doping Agency

States Parties support the principle of equal funding of the World

Anti-Doping Agency’s approved annual core budget by public author-

ities and the Olympic Movement.

Article 16 - International cooperation in doping control

Recognizing that the fight against doping in sport can only be effec-

tive when athletes can be tested with no advance notice and samples

can be transported in a timely manner to laboratories for analysis,

States Parties shall, where appropriate and in accordance with domes-

tic law and procedures:

(a) facilitate the task of the World Anti-Doping Agency and anti-

doping organizations operating in compliance with the Code,

subject to relevant host countries’ regulations, of conducting in-

or out-of-competition doping controls on their athletes, whether

on their territory or elsewhere;

(b) facilitate the timely movement of duly authorized doping con-

trol teams across borders when conducting doping control activ-

ities;

ders of samples in such a way as to maintain their security and

integrity;

(d) assist in the international coordination of doping controls by

various anti-doping organizations, and cooperate to this end

with the World Anti-Doping Agency;

(e) promote cooperation between doping control laboratories with-

in their jurisdiction and those within the jurisdiction of other

States Parties. In particular, States Parties with accredited doping

control laboratories should encourage laboratories within their

jurisdiction to assist other States Parties in enabling them to

acquire the experience, skills and techniques necessary to estab-

lish their own laboratories should they wish to do so;

(f) encourage and support reciprocal testing arrangements between

designated anti-doping organizations, in conformity with the

Code;

(g) mutually recognize the doping control procedures and test

results management, including the sport sanctions thereof, of

any anti-doping organization that are consistent with the Code.

Article 17 - Voluntary Fund

1.A “Fund for the Elimination of Doping in Sport”, hereinafter

referred to as “the Voluntary Fund”, is hereby established. The

Voluntary Fund shall consist of funds-in-trust established in

accordance with the Financial Regulations of UNESCO. All

contributions by States Parties and other actors shall be volun-

tary.

2. The resources of the Voluntary Fund shall consist of:

(a)

contributions made by States Parties;

(b)

contributions, gifts or bequests which may be made by:

(i)other States;

(ii)

organizations and programmes of the United Nations sys-

tem, particularly the United Nations Development Pro-

gramme, as well as other international organizations;

(iii)

public or private bodies or individuals;

(c)

any interest due on the resources of the Voluntary Fund;

(d)

funds raised through collections, and receipts from events

organized for the benefit of the Voluntary Fund;

(e)

any other resources authorized by the Voluntary Fund’s regu-

lations, to be drawn up by the Conference of Parties.

3. Contributions into the Voluntary Fund by States Parties shall not

be considered to be a replacement for States Parties’ commitment

to pay their share of the World Anti-Doping Agency’s annual

budget.

Article 18 - Use and governance of the Voluntary Fund

Resources in the Voluntary Fund shall be allocated by the Conference

of Parties for the financing of activities approved by it, notably to

assist States Parties in developing and implementing anti-doping pro-

grammes, in accordance with the provisions of this Convention, tak-

ing into consideration the goals of the World Anti-Doping Agency,

and may serve to cover functioning costs of this Convention. No

political, economic or other conditions may be attached to contribu-

tions made to the Voluntary Fund.

IV. Education and training

Article 19 - General education and training principles

1.States Parties shall undertake, within their means, to support,

devise or implement education and training programmes on

anti-doping. For the sporting community in general, these pro-

grammes should aim to provide updated and accurate informa-

tion on:

(a)

the harm of doping to the ethical values of sport;

(b)

the health consequences of doping.

2.For athletes and athlete support personnel, in particular in their

initial training, education and training programmes should, in

addition to the above, aim to provide updated and accurate

information on:

(a)

doping control procedures;

(b)

athletes’ rights and responsibilities in regard to anti-doping,

including information about the Code and the anti-doping

policies of the relevant sports and anti-doping organizations.

Such information shall include the consequences of commit-

ting an anti-doping rule violation;

(c)the list of prohibited substances and methods and therapeutic

use exemptions;

(d) nutritional supplements.

Article 20 - Professional codes of conduct

States Parties shall encourage relevant competent professional associ-

ations and institutions to develop and implement appropriate codes

of conduct, good practice and ethics related to anti-doping in sport

that are consistent with the Code.

Article 21 - Involvement of athletes and athlete support personnel

States Parties shall promote and, within their means, support active par-

ticipation by athletes and athlete support personnel in all facets of the

anti-doping work of sports and other relevant organizations and

encourage sports organizations within their jurisdiction to do likewise.

Article 22 - Sports organizations and ongoing education and train-

ing on anti-doping

States Parties shall encourage sports organizations and anti-doping

organizations to implement ongoing education and training pro-

grammes for all athletes and athlete support personnel on the subjects

identified in Article 19.

Article 23 - Cooperation in education and training

States Parties shall cooperate mutually and with the relevant organiza-

tions to share, where appropriate, information, expertise and experi-

ence on effective anti-doping programmes.

V. Research

Article 24 - Promotion of research in anti-doping

States Parties undertake, within their means, to encourage and pro-

mote anti-doping research in cooperation with sports and other rele-

vant organizations on:

(a) prevention, detection methods, behavioural and social aspects,

and the health consequences of doping;

(b) ways and means of devising scientifically-based physiological

and psychological training programmes respectful of the integri-

ty of the person;

scientific developments.

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Article 25 - Nature of anti-doping research

When promoting anti-doping research, as set out in Article 24, States

Parties shall ensure that such research will:

(a) comply with internationally recognized ethical practices;

(b) avoid the administration to athletes of prohibited substances and

methods;

vent the results of anti-doping research being misused and

applied for doping.

Article 26 - Sharing the results of anti-doping research

Subject to compliance with applicable national and international law,

States Parties shall, where appropriate, share the results of available

anti-doping research with other States Parties and the World Anti-

Doping Agency.

Article 27 - Sport science research

States Parties shall encourage:

(a) members of the scientific and medical communities to carry out

sport science research in accordance with the principles of the

Code;

(b) sports organizations and athlete support personnel within their

jurisdiction to implement sport science research that is consis-

tent with the principles of the Code.

VI. Monitoring of the Convention

Article 28 - Conference of Parties

1.A Conference of Parties is hereby established. The Conference of

Parties shall be the sovereign body of this Convention.

2. The Conference of Parties shall meet in ordinary session in prin-

ciple every two years. It may meet in extraordinary session if it

so decides or at the request of at least one third of the States

Parties.

3. Each State Party shall have one vote at the Conference of Parties.

4. The Conference of Parties shall adopt its own Rules of

Procedure.

Article 29 - Advisory organization and observers to the Conference

of Parties

The World Anti-Doping Agency shall be invited as an advisory organ-

ization to the Conference of Parties. The International Olympic

Committee, the International Paralympic Committee, the Council of

Europe and the Intergovernmental Committee for Physical

Education and Sport (CIGEPS) shall be invited as observers. The

Conference of Parties may decide to invite other relevant organiza-

tions as observers.

Article 30 - Functions of the Conference of Parties

1.Besides those set forth in other provisions of this Convention,

the functions of the Conference of Parties shall be to:

(a)

promote the purpose of this Convention;

(b)

discuss the relationship with the World Anti-Doping Agency

and study the mechanisms of funding of the Agency’s annual

core budget. States non-Parties may be invited to the discus-

sion;

(c)

adopt a plan for the use of the resources of the Voluntary

Fund, in accordance with Article 18;

(d)

examine the reports submitted by States Parties in accordance

with Article 31;

(e)

examine, on an ongoing basis, the monitoring of compliance

with this Convention in response to the development of anti-

doping systems, in accordance with Article 31. Any monitoring

mechanism or measure that goes beyond Article 31 shall be fund-

ed through the Voluntary Fund established under Article 17;

(f)

examine draft amendments to this Convention for adoption;

(g)

examine for approval, in accordance with Article 34 of the

Convention, modifications to the Prohibited List and to the

Standards for Granting Therapeutic Use Exemptions adopted

by the World Anti-Doping Agency;

(h)

define and implement cooperation between States Parties and

the World Anti-Doping Agency within the framework of this

Convention;

(i)request a report from the World Anti-Doping Agency on the

implementation of the Code to each of its sessions for exam-

ination.

2. The Conference of Parties, in fulfilling its functions, may coop-

erate with other intergovernmental bodies.

Article 31 - National reports to the Conference of Parties

States Parties shall forward every two years to the Conference of

Parties through the Secretariat, in one of the official languages of

UNESCO, all relevant information concerning measures taken by

them for the purpose of complying with the provisions of this

Convention.

Article 32 - Secretariat of the Conference of Parties

1. The secretariat of the Conference of Parties shall be provided by

the Director-General of UNESCO.

2.At the request of the Conference of Parties, the Director-General

of UNESCO shall use to the fullest extent possible the services

of the World Anti-Doping Agency on terms agreed upon by the

Conference of Parties.

3.Functioning costs related to the Convention will be funded from

the regular budget of UNESCO within existing resources at an

appropriate level, the Voluntary Fund established under Article

17 or an appropriate combination thereof as determined every

two years. The financing for the secretariat from the regular

budget shall be done on a strictly minimal basis, it being under-

stood that voluntary funding should also be provided to support

the Convention.

4. The secretariat shall prepare the documentation of the

Conference of Parties, as well as the draft agenda of its meetings,

and shall ensure the implementation of its decisions.

Article 33 - Amendments

1. Each State Party may, by written communication addressed to the

Director-General of UNESCO, propose amendments to this

Convention. The Director-General shall circulate such communi-

cation to all States Parties. If, within six months from the date of

the circulation of the communication, at least one half of the States

Parties give their consent, the Director-General shall present such

proposals to the following session of the Conference of Parties.

2. Amendments shall be adopted by the Conference of Parties with a

two-thirds majority of States Parties present and voting.

3.Once adopted, amendments to this Convention shall be submitted

for ratification, acceptance, approval or accession to States Parties.

4.With respect to the States Parties that have ratified, accepted,

approved or acceded to them, amendments to this Convention

shall enter into force three months after the deposit of the instru-

ments referred to in paragraph 3 of this Article by two thirds of the

States Parties. Thereafter, for each State Party that ratifies, accepts,

approves or accedes to an amendment, the said amendment shall

enter into force three months after the date of deposit by that State

Party of its instrument of ratification, acceptance, approval or

accession.

5.A State that becomes a Party to this Convention after the entry

into force of amendments in conformity with paragraph 4 of this

Article shall, failing an expression of different intention, be con-

sidered:

(a)

a Party to this Convention as so amended;

(b)

a Party to the unamended Convention in relation to any State

Party not bound by the amendments.

Article 34 - Specific amendment procedure for the Annexes to the

Convention

1.If the World Anti-Doping Agency modifies the Prohibited List

or the Standards for Granting Therapeutic Use Exemptions, it

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may, by written communication addressed to the Director-

General of UNESCO, inform her/him of those changes. The

Director-General shall notify such changes as proposed amend-

ments to the relevant Annexes to this Convention to all States

Parties expeditiously. Amendments to the Annexes shall be

approved by the Conference of Parties either at one of its ses-

sions or through a written consultation.

2.States Parties have 45 days from the Director-General’s notifica-

tion within which to express their objection to the proposed

amendment either in writing, in case of written consultation, to

the Director-General or at a session of the Conference of Parties.

Unless two thirds of the States Parties express their objection, the

proposed amendment shall be deemed to be approved by the

Conference of Parties.

3. Amendments approved by the Conference of Parties shall be

notified to States Parties by the Director-General. They shall

enter into force 45 days after that notification, except for any

State Party that has previously notified the Director-General that

it does not accept these amendments.

4.A State Party having notified the Director-General that it does

not accept an amendment approved according to the preceding

paragraphs remains bound by the Annexes as not amended.

VII. Final clauses

Article 35 - Federal or non-unitary constitutional systems

The following provisions shall apply to States Parties that have a fed-

eral or non-unitary constitutional system:

(a) with regard to the provisions of this Convention, the implemen-

tation of which comes under the legal jurisdiction of the federal

or central legislative power, the obligations of the federal or cen-

tral government shall be the same as for those States Parties

which are not federal States;

(b) with regard to the provisions of this Convention, the implemen-

tation of which comes under the jurisdiction of individual con-

stituent States, counties, provinces or cantons which are not

obliged by the constitutional system of the federation to take

legislative measures, the federal government shall inform the

competent authorities of such States, counties, provinces or can-

tons of the said provisions, with its recommendation for their

adoption.

Article 36 - Ratification, acceptance, approval or accession

This Convention shall be subject to ratification, acceptance, approval

or accession by Members States of UNESCO in accordance with their

respective constitutional procedures. The instruments of ratification,

acceptance, approval or accession shall be deposited with the

Director-General of UNESCO.

Article 37 - Entry into force

1. This Convention shall enter into force on the first day of the

month following the expiration of a period of one month after

the date of deposit of the thirtieth instrument of ratification,

acceptance, approval or accession.

2.For any State that subsequently expresses its consent to be bound

by it, the Convention shall enter into force on the first day of the

month following the expiration of a period of one month after

the date of deposit of its instrument of ratification, acceptance,

approval or accession.

Article 38 - Territorial extension of the Convention

1. Any State may, when depositing its instrument of ratification,

acceptance, approval or accession, specify the territory or territo-

ries for whose international relations it is responsible and to

which this Convention shall apply.

2. Any State Party may, at any later date, by a declaration

addressed to UNESCO, extend the application of this

Convention to any other territory specified in the declaration.

In respect of such territory the Convention shall enter into

force on the first day of the month following the expiration of

a period of one month after the date of receipt of such declara-

tion by the depositary.

3. Any declaration made under the two preceding paragraphs may,

in respect of any territory specified in such declaration, be with-

drawn by a notification addressed to UNESCO. Such withdraw-

al shall become effective on the first day of the month following

the expiration of a period of one month after the date of receipt

of such a notification by the depositary.

Article 39 - Denunciation

Any State Party may denounce this Convention. The denunciation shall

be notified by an instrument in writing, deposited with the Director-

General of UNESCO. The denunciation shall take effect on the first day

of the month following the expiration of a period of six months after the

receipt of the instrument of denunciation. It shall in no way affect the

financial obligations of the State Party concerned until the date on which

the withdrawal takes effect.

Article 40 - Depositary

The Director-General of UNESCO shall be the Depositary of this

Convention and amendments thereto. As the Depositary, the Director-

General of UNESCO shall inform the States Parties to this Convention,

as well as the other States Members of the Organization of:

(a) the deposit of any instrument of ratification, acceptance,

approval or accession;

(b) the date of entry into force of this Convention in accordance

with Article 37;

(d) any amendment to the Convention or to the Annexes adopted

in accordance with Articles 33 and 34 and the date on which the

amendment comes into force;

(e) any declaration or notification made under the provisions of

Article 38;

(f) any notification made under the provisions of Article 39 and the

date on which the denunciation takes effect;

(g) any other act, notification or communication relating to this

Convention.

Article 41 - Registration

In conformity with Article 102 of the Charter of the United Nations,

this Convention shall be registered with the Secretariat of the United

Nations at the request of the Director-General of UNESCO.

Article 42 - Authoritative texts

1. This Convention, including its Annexes, has been drawn up in

Arabic, Chinese, English, French, Russian and Spanish, the six

texts being equally authoritative.

2. The Appendices to this Convention are provided in Arabic,

Chinese, English, French, Russian and Spanish.

Article 43 - Reservations

No reservations that are incompatible with the object and purpose of

the present Convention shall be permitted.

Annex I - The Prohibited List - International Standard

Annex II - Standards for Granting Therapeutic Use Exemptions

Appendix 1 - World Anti-Doping Code

Appendix 2 - International Standard for Laboratories

Appendix 3 - International Standard for Testing

Depositary :

UNESCO

Entry into force :

1 February 2007, according to its Article 37.

Authoritative texts :

Arabic, English, Chinese, French, Spanish and Russian

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Preamble

The member States of the Council of Europe, the other States party

to the European Cultural Convention, and other States, signatory

hereto,

Considering that the aim of the Council of Europe is to achieve a

greater unity between its members for the purpose of safeguarding

and realising the ideals and principles which are their common her-

itage and facilitating their economic and social progress;

Conscious that sport should play an important role in the protection

of health, in moral and physical education and in promoting interna-

tional understanding;

Concerned by the growing use of doping agents and methods by

sportsmen and sportswomen throughout sport and the consequences

thereof for the health of participants and the future of sport;

Mindful that this problem puts at risk the ethical principles and edu-

cational values embodied in the Olympic Charter, in the

International Charter for Sport and Physical Education of Unesco

and in Resolution(76)41 of the Committee of Ministers of the

Council of Europe, known as the “European Sport for All Charter”;

Bearing in mind the anti-doping regulations, policies and declarations

adopted by the international sports organisations;

Aware that public authorities and the voluntary sports organisations

have complementary responsibilities to combat doping in sport,

notably to ensure the proper conduct, on the basis of the principle of

fair play, of sports events and to protect the health of those that take

part in them;

Recognising that these authorities and organisations must work

together for these purposes at all appropriate levels;

Recalling the resolutions on doping adopted by the Conference of

European Ministers responsible for Sport, and in particular

Resolution No.1 adopted at the 6th Conference at Reykjavik in 1989;

Recalling that the Committee of Ministers of the Council of Europe

has already adopted Resolution(67)12 on the doping of athletes,

Recommendation No. R(79)8 on doping in sport, Recommendation

No. R(84)19 on the “European Anti-doping Charter for Sport”, and

Recommendation No. R(88)12 on the institution of doping controls

without warning outside competitions;

Recalling Recommendation No.5 on doping adopted by the 2nd

International Conference of Ministers and Senior Officials responsi-

ble for Sport and Physical Education organised by Unesco at Moscow

(1988);

Determined however to take further and stronger co-operative action

aimed at the reduction and eventual elimination of doping in sport

using as a basis the ethical values and practical measures contained in

those instruments,

Have agreed as follows:

Article 1 - Aim of the Convention

The Parties, with a view to the reduction and eventual elimination of

doping in sport, undertake, within the limits of their respective con-

stitutional provisions, to take the steps necessary to apply the provi-

sions of this Convention.

Article 2 - Definition and scope of the Convention

1 For the purposes of this Convention:

a“doping in sport” means the administration to sportsmen or

Registration at the UN :

On 6 March 2007 under certificate n°55048 dated of 15 March 2007

States Parties

List in alphabetical order

List in chronological order

Declarations and Reservations :

Argentina

The instrument of ratification contained the following declaration:

“ La REPUBLICA ARGENTINA rechaza la pretensión de extender

la aplicación de la Convención Internacional contra el Dopaje en el

Deporte, adoptada en Paris el 19 de octubre de 2005 por la

Conferencia General de la UNESCO, a las Islas Malvinas, de la cual

el Director General de la UNESCO fue notificado por el REINO

UNIDO DE GRAN BRETAÑA E IRLANDA DEL NORTE el 25

de abril de 2006, y reafirma sus derechos de soberanía sobre les Islas

Malvinas, Georgias del Sur y Sandwich del Sur, que forman parte

integral de su territorio nacional, y estando ilegítimamente ocupados

por el REINO UNIDO DE GRAN BRETAÑA E IRLANDA DEL

NORTE, son objeto de una disputa de soberanía entre ambos países,

la cual es reconocida por diversas Organizaciones Internacionales.

En este sentido, la Asamblea General de las Naciones Unidas adop-

tó las Resoluciones 2065 (XX), 3160 (XXVIII), 31/49, 37/9, 38/12, 39/6,

40/21, 41/40, 42/19 y 43/25, en las cuales reconoce la existencia de una

disputa de soberania en relación con la cuestión de las Islas Malvinas

e insta a la REPUBLICA ARGENTINA y al REINO UNIDO DE

GRAN BRETAÑA E IRLANDA DEL NORTE a entablar negocia-

ciones con el fin de encontrar a la mayor brevedad posible una solu-

ción pacifica y duradera de la disputa de soberanía. Por su parte el

Comité Especial de Descolonización de las Naciones Unidas se ha

pronunciado reiteradamente en igual sentido, más recientemente a

través de la Resolución adoptada el 15 de junio de 2006. Asimismo la

Asamblea General de la Organización de los Estados Americanos,

adoptó el 6 de junio de 2006 un nuevo pronunciamiento sobre la

cuestión.” [original: Spanish]

Denmark

The instrument of ratification contained the following declaration:

“Jusqu’à décision ultérieure, la Convention ne s’appliquera pas aux

îles Féroé et au Groenland.” [original : french]”

New-Zealand

The instrument of acceptance contained the following declaration:

“AND DECLARES that, consistent with the constitutional status of

Tokelau and taking into account the commitment of the Government

of New Zealand to the development of self-government for Tokelau

through an act of self-determination under the Charter of the United

Nations, this acceptance shall not extend to Tokelau unless and until

a Declaration to this effect is lodged by the Government of New

Zealand with the Depositary on the basis of appropriate consultation

with that territory;” [original: english]

Territorial Application :

Notification by United Kingdom of Great Britain

and Northern Ireland

Date of receipt of notification 25 April 2006

Extension to Bailiwick of Jersey, Guernsey and

Alderney, Isle of Man, Bermuda,

Cayman Islands and Falkland

Islands

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Council of Europe Anti-Doping Convention

European Treaty Series - No. 135

Strasbourg, 16.xi.1989

sportswomen, or the use by them, of pharmacological classes of

doping agents or doping methods;

b“pharmacological classes of doping agents or doping methods”

means, subject to paragraph 2 below, those classes of doping agents

or doping methods banned by the relevant international sports

organisations and appearing in lists that have been approved by the

monitoring group under the terms of Article 11.1.b;

c“sportsmen and sportswomen” means those persons who partic-

ipate regularly in organised sports activities.

2 Until such time as a list of banned pharmacological classes of dop-

ing agents and doping methods is approved by the monitoring

group under the terms of Article 11.1.b, the reference list in the

appendix to this Convention shall apply.

Article 3 - Domestic co-ordination

1 The Parties shall co-ordinate the policies and actions of their gov-

ernment departments and other public agencies concerned with

combating doping in sport.

2 They shall ensure that there is practical application of this

Convention, and in particular that the requirements under Article7

are met, by entrusting, where appropriate, the implementation of

some of the provisions of this Convention to a designated govern-

mental or non-governmental sports authority or to a sports organ-

isation.

Article 4 - Measures to restrict the availability and use of banned

doping agents and methods

1 The Parties shall adopt where appropriate legislation, regulations or

administrative measures to restrict the availability (including provi-

sions to control movement, possession, importation, distribution

and sale) as well as the use in sport of banned doping agents and

doping methods and in particular anabolic steroids.

2 To this end, the Parties or, where appropriate, the relevant non-

governmental organisations shall make it a criterion for the grant

of public subsidies to sports organisations that they effectively

apply anti-doping regulations.

3 Furthermore, the Parties shall:

a assist their sports organisations to finance doping controls and

analyses, either by direct subsidies or grants, or by recognising

the costs of such controls and analyses when determining the

overall subsidies or grants to be awarded to those organisations;

b take appropriate steps to withhold the grant of subsidies from

public funds, for training purposes, to individual sportsmen and

sportswomen who have been suspended following a doping

offence in sport, during the period of their suspension;

c encourage and, where appropriate, facilitate the carrying out by

their sports organisations of the doping controls required by the

competent international sports organisations whether during or

outside competitions; and

d encourage and facilitate the negotiation by sports organisations

of agreements permitting their members to be tested by duly

authorised doping control teams in other countries.

4 Parties reserve the right to adopt anti-doping regulations and to

organise doping controls on their own initiative and on their own

responsibility, provided that they are compatible with the relevant

principles of this Convention.

Article 5 - Laboratories

1 Each Party undertakes:

a either to establish or facilitate the establishment on its territory

of one or more doping control laboratories suitable for consider-

ation for accreditation under the criteria adopted by the relevant

international sports organisations and approved by the monitor-

ing group under the terms of Article 11.1.b; or

b to assist its sports organisations to gain access to such a labora-

tory on the territory of another Party.

2 These laboratories shall be encouraged to:

a take appropriate action to employ and retain, train and retrain

qualified staff;

b undertake appropriate programmes of research and development

into doping agents and methods used, or thought to be used, for

the purposes of doping in sport and into analytical biochemistry

and pharmacology with a view to obtaining a better understand-

ing of the effects of various substances upon the human body

and their consequences for athletic performance;

c publish and circulate promptly new data from their research.

Article 6 - Education

1 The Parties undertake to devise and implement, where appropriate

in co-operation with the sports organisations concerned and the

mass media, educational programmes and information campaigns

emphasising the dangers to health inherent in doping and its harm

to the ethical values of sport. Such programmes and campaigns

shall be directed at both young people in schools and sports clubs

and their parents and at adult sportsmen and sportswomen, sports

officials, coaches and trainers. For those involved in medicine, such

educational programmes will emphasise respect for medical ethics.

2 The Parties undertake to encourage and promote research, in co-

operation with the regional, national and international sports

organisations concerned, into ways and means of devising scientif-

ically-based physiological and psychological training programmes

that respect the integrity of the human person.

Article 7 - Co-operation with sports organisations on measures to

be taken by them

1 The Parties undertake to encourage their sports organisations and

through them the international sports organisations to formulate

and apply all appropriate measures, falling within their compe-

tence, against doping in sport.

2 To this end, they shall encourage their sports organisations to clar-

ify and harmonise their respective rights, obligations and duties, in

particular by harmonising their:

a anti-doping regulations on the basis of the regulations agreed by

the relevant international sports organisations;

b lists of banned pharmacological classes of doping agents and

banned doping methods on the basis of the lists agreed by the

relevant international sports organisations;

cdoping control procedures;

d disciplinary procedures, applying agreed international principles

of natural justice and ensuring respect for the fundamental rights

of suspected sportsmen and sportswomen; these principles will

include:

i the reporting and disciplinary bodies to be distinct from one

another;

ii the right of such persons to a fair hearing and to be assisted or

represented;

iii clear and enforceable provisions for appealing against any

judgment made;

eprocedures for the imposition of effective penalties for officials,

doctors, veterinary doctors, coaches, physiotherapists and other

officials or accessories associated with infringements of the anti-

doping regulations by sportsmen and sportswomen;

fprocedures for the mutual recognition of suspensions and other

penalties imposed by other sports organisations in the same or

other countries.

3 Moreover, the Parties shall encourage their sports organisations:

ato introduce, on an effective scale, doping controls not only at,

but also without advance warning at any appropriate time out-

side, competitions, such controls to be conducted in a way

which is equitable for all sportsmen and sportswomen and

which include testing and retesting of persons selected, where

appropriate, on a random basis;

b to negotiate agreements with sports organisations of other coun-

tries permitting a sportsman or sportswoman training in anoth-

er country to be tested by a duly authorised doping control team

of that country;

c to clarify and harmonise regulations on eligibility to take part in

sports events which will include anti-doping criteria;

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2007/3-4

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d to promote active participation by sportsmen and sportswomen

themselves in the anti-doping work of international sports

organisations;

e to make full and efficient use of the facilities available for dop-

ing analysis at the laboratories provided for by Article 5, both

during and outside sports competitions;

f to study scientific training methods and to devise guidelines to

protect sportsmen and sportswomen of all ages appropriate for

each sport.

Article 8 - International co-operation

1 The Parties shall co-operate closely on the matters covered by this

Convention and shall encourage similar co-operation amongst

their sports organisations.

2 The Parties undertake:

a to encourage their sports organisations to operate in a manner

that promotes application of the provisions of this Convention

within all the appropriate international sports organisations to

which they are affiliated, including the refusal to ratify claims for

world or regional records unless accompanied by an authenticat-

ed negative doping control report;

b to promote co-operation between the staffs of their doping con-

trol laboratories established or operating in pursuance of Article

5; and

c to initiate bilateral and multilateral co-operation between their

appropriate agencies, authorities and organisations in order to

achieve, at the international level as well, the purposes set out in

Article4.1.

3 The Parties with laboratories established or operating in pursuance

of Article5 undertake to assist other Parties to enable them to

acquire the experience, skills and techniques necessary to establish

their own laboratories.

Article 9 - Provision of information

Each Party shall forward to the Secretary General of the Council of

Europe, in one of the official languages of the Council of Europe, all

relevant information concerning legislative and other measures taken

by it for the purpose of complying with the terms of this Convention.

Article 10 - Monitoring group

1 For the purposes of this Convention, a monitoring group is hereby

set up.

2 Any Party may be represented on the monitoring group by one or

more delegates. Each Party shall have one vote.

3 Any State mentioned in Article 14.1 which is not a Party to this

Convention may be represented on the monitoring group by an

observer.

4 The monitoring group may, by unanimous decision, invite any

non-member State of the Council of Europe which is not a Party

to the Convention and any sports or other professional organisa-

tion concerned to be represented by an observer at one or more of

its meetings.

5 The monitoring group shall be convened by the Secretary General.

Its first meeting shall be held as soon as reasonably practicable, and

in any case within one year after the date of the entry into force of

the Convention. It shall subsequently meet whenever necessary, on

the initiative of the Secretary General or a Party.

6 A majority of the Parties shall constitute a quorum for holding a

meeting of the monitoring group.

7 The monitoring group shall meet in private.

8 Subject to the provisions of this Convention, the monitoring group

shall draw up and adopt by consensus its own Rules of Procedure.

Article 11

1 The monitoring group shall monitor the application of this

Convention. It may in particular:

a keep under review the provisions of this Convention and exam-

ine any modifications necessary;

bapprove the list, and any revision thereto, of pharmacological

classes of doping agents and doping methods banned by the rel-

evant international sports organisations, referred to in Articles

2.1 and 2.2, and the criteria for accreditation of laboratories, and

any revision thereto, adopted by the said organisations, referred

to in Article 5.1.a, and fix the date for the relevant decisions to

enter into force;

c hold consultations with relevant sports organisations;

d make recommendations to the Parties concerning measures to be

taken for the purposes of this Convention;

erecommend the appropriate measures to keep relevant interna-

tional organisations and the public informed about the activities

undertaken within the framework of this Convention;

f make recommendations to the Committee of Ministers concern-

ing non-member States of the Council of Europe to be invited

to accede to this Convention;

g make any proposal for improving the effectiveness of this

Convention.

2 In order to discharge its functions, the monitoring group may, on

its own initiative, arrange for meetings of groups of experts.

Article 12

After each meeting, the monitoring group shall forward to the

Committee of Ministers of the Council of Europe a report on its work

and on the functioning of the Convention.

Article 13 - Amendments to the Articles of the Convention

1 Amendments to the articles of this Convention may be proposed

by a Party, the Committee of Ministers of the Council of Europe

or the monitoring group.

2 Any proposal for amendment shall be communicated by the

Secretary General of the Council of Europe to the States men-

tioned in Article 14 and to every State which has acceded to or has

been invited to accede to this Convention in accordance with the

provisions of Article 16.

3 Any amendment proposed by a Party or the Committee of

Ministers shall be communicated to the monitoring group at least

two months before the meeting at which it is to be considered. The

monitoring group shall submit to the Committee of Ministers its

opinion on the proposed amendment, where appropriate after con-

sultation with the relevant sports organisations.

4 The Committee of Ministers shall consider the proposed amend-

ment and any opinion submitted by the monitoring group and

may adopt the amendment.

5 The text of any amendment adopted by the Committee of

Ministers in accordance with paragraph 4 of this article shall be for-

warded to the Parties for acceptance.

6 Any amendment adopted in accordance with paragraph4 of this

article shall come into force on the first day of the month follow-

ing the expiration of a period of one month after all Parties have

informed the Secretary General of their acceptance thereof.

Final clauses

Article 14

1 This Convention shall be open for signature by member States of

the Council of Europe, other States party to the European Cultural

Convention and non-member States which have participated in

the elaboration of this Convention, which may express their con-

sent to be bound by:

a signature without reservation as to ratification, acceptance or

approval, or

b signature subject to ratification, acceptance or approval, fol-

lowed by ratification, acceptance or approval.

2 Instruments of ratification, acceptance or approval shall be deposit-

ed with the Secretary General of the Council of Europe.

Article 

1 The Convention shall enter into force on the first day of the month

following the expiration of a period of one month after the date on

which five States, including at least four member States of the

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Part One - Doping Control

Introduction

Part One of the Code sets forth specific anti-doping rules and princi-

ples that are to be followed by organizations responsible for adopting,

implementing or enforcing anti-doping rules within their authority - -

e.g., the International Olympic Committee, International Paralympic

Committee, International Federations, Major Event Organizations,

and National Anti-Doping Organizations. All of these organizations

are collectively referred to as Anti-Doping Organizations.

Part One of the Code does not replace, or eliminate the need for,

comprehensive anti-doping rules adopted by each of these Anti-

Doping Organizations. While some provisions of Part One of the

Code must be incorporated essentially verbatim by each Anti-Doping

Organization in its own anti-doping rules, other provisions of Part

One establish mandatory guiding principles that allow flexibility in

the formulation of rules by each Anti-Doping Organization or estab-

lish requirements that must be followed by each Anti-Doping

Organization but need not be repeated in its own anti-doping rules.

The following Articles, as applicable to the scope of anti-doping activ-

ity which the Anti-Doping Organization performs, must be incorpo-

rated into the rules of each Anti-Doping Organization without any

substantive changes (allowing for necessary non-substantive editing

changes to the language in order to refer to the organization’s name,

sport, section numbers, etc.): Articles 1 (Definition of Doping), 2

(Anti-Doping Rule Violations), 3 (Proof of Doping), 9 (Automatic

Disqualification of Individual Results), 10 (Sanctions on Individuals),

11 (Consequences to Teams), 13 (Appeals) with the exception of 13.2.2,

17 (Statute of Limitations) and Definitions.

Anti-doping rules, like competition rules, are sport rules governing

the conditions under which sport is played. Athletes accept these rules

as a condition of participation. Anti-doping rules are not intended to

Council of Europe, have expressed their consent to be bound by

the Convention in accordance with the provisions of Article 14.

2 In respect of any signatory State which subsequently expresses its

consent to be bound by it, the Convention shall enter into force on

the first day of the month following the expiration of a period of

one month after the date of signature or of the deposit of the

instrument of ratification, acceptance or approval.

Article 16

1 After the entry into force of this Convention, the Committee of

Ministers of the Council of Europe, after consulting the Parties,

may invite to accede to the Convention any non-member State by

a decision taken by the majority provided for in Article 20.d of the

Statute of the Council of Europe and by the unanimous vote of the

representatives of the Contracting States entitled to sit on the

Committee.

2 In respect of any acceding State, the Convention shall enter into

force on the first day of the month following the expiration of a

period of one month after the date of the deposit of the instrument

of accession with the Secretary General of the Council of Europe.

Article 17

1 Any State may, at the time of signature or when depositing its

instrument of ratification, acceptance, approval or accession, spec-

ify the territory or territories to which this Convention shall apply.

2 Any State may, at any later date, by a declaration addressed to the

Secretary General, extend the application of this Convention to

any other territory specified in the declaration. In respect of such

territory the Convention shall enter into force on the first day of

the month following the expiration of a period of one month after

the date of receipt of such declaration by the Secretary General.

3 Any declaration made under the two preceding paragraphs may, in

respect of any territory mentioned in such declaration, be with-

drawn by a notification addressed to the Secretary General. Such

withdrawal shall become effective on the first day of the month fol-

lowing the expiration of a period of six months after the date of

receipt of the notification by the Secretary General.

Article 18

1 Any Party may, at any time, denounce this Convention by means

of a notification addressed to the Secretary General of the Council

of Europe.

2 Such denunciation shall become effective on the first day of the

month following the expiration of a period of six months after the

date of receipt of the notification by the Secretary General.

Article 19

The Secretary General of the Council of Europe shall notify the

Parties, the other member States of the Council of Europe, the other

States party to the European Cultural Convention, the non-member

States which have participated in the elaboration of this Convention

and any State which has acceded or has been invited to accede to it

of:

a any signature in accordance with Article 14;

b the deposit of any instrument of ratification, acceptance, approval

or accession in accordance with Article14 or 16;

c any date of entry into force of this Convention in accordance with

Articles 15 and 16;

d any information forwarded under the provisions of Article 9;

e any report prepared in pursuance of the provisions of Article 12;

f any proposal for amendment or any amendment adopted in accor-

dance with Article 13 and the date on which the amendment comes

into force;

g any declaration made under the provisions of Article 17;

h any notification made under the provisions of Article 18 and the

date on which the denunciation takes effect;

i any other act, notification or communication relating to this

Convention.

In witness whereof the undersigned, being duly authorised thereto,

have signed this Convention.

Done at Strasbourg, the 16th day of November 1989, in English and

French, both texts being equally authentic, in a single copy which

shall be deposited in the archives of the Council of Europe. The

Secretary General of the Council of Europe shall transmit certified

copies to each member State of the Council of Europe, to the other

States party to the European Cultural Convention, to the non-mem-

ber States which have participated in the elaboration of this

Convention and to any State invited to accede to it.

APPENDIX

ANTI-DOPING CONVENTION (ETS No. 135)

AMENDMENT TO THE APPENDIX 1

approved by the Monitoring Group

under Article 11.1.b of the Convention

at its 24th meeting (Strasbourg, 14-15 November 2006)

THE 2007 PROHIBITED LIST

WORLD ANTI-DOPING CODE

DATE OF ENTRY INTO FORCE : 1 JANUARY 2007

[...]

❖

World Anti-Doping Code 2003

be subject to or limited by the requirements and legal standards appli-

cable to criminal proceedings or employment matters. The policies

and minimum standards set forth in the Code represent the consen-

sus of a broad spectrum of stakeholders with an interest in fair sport

and should be respected by all courts and adjudicating bodies.

Participants shall be bound to comply with the anti-doping rules

adopted in conformance with the Code by the relevant Anti-Doping

Organizations. Each Signatory shall establish rules and procedures to

ensure that all Participants under the authority of the Signatory and

its member organizations are informed of and agree to be bound by

anti-doping rules in force of the relevant Anti-Doping Organizations.

Article 1: Definition of Doping

Doping is defined as the occurrence of one or more of the anti-dop-

ing rule violations set forth in Article 2.1 through Article 2.8 of the

Code.

Article 2: Anti-Doping Rule Violations

The following constitute anti-doping rule violations:

2.1 The presence of a Prohibited Substance or its Metabolites or

Markers in an Athlete’s bodily Specimen.

2.1.1 It is each Athlete’s personal duty to ensure that no Prohibited

Substance enters his or her body. Athletes are responsible for

any Prohibited Substance or its Metabolites or Markers found

to be present in their bodily Specimens. Accordingly, it is not

necessary that intent, fault, negligence or knowing Use on the

Athlete’s part be demonstrated in order to establish an anti-

doping violation under Article 2.1.

2.1.2 Excepting those substances for which a quantitative reporting

threshold is specifically identified in the Prohibited List, the

detected presence of any quantity of a Prohibited Substance

or its Metabolites or Markers in an Athlete’s Sample shall con-

stitute an anti-doping rule violation.

2.1.3 As an exception to the general rule of Article 2.1, the

Prohibited List may establish special criteria for the evaluation

of Prohibited Substances that can also be produced endoge-

nously.

2.2 Use or Attempted Use of a Prohibited Substance or a

Prohibited Method.

2.2.1 The success or failure of the Use of a Prohibited Substance or

Prohibited Method is not material. It is sufficient that the

Prohibited Substance or Prohibited Method was Used or

Attempted to be Used for an anti-doping rule violation to be

committed.

2.3 Refusing, or failing without compelling justification, to sub-

mit to Sample collection after notification as authorized in

applicable anti-doping rules or otherwise evading Sample col-

lection.

2.4 Violation of applicable requirements regarding Athlete avail-

ability for Out-of-Competition Testing including failure to

provide required whereabouts information and missed tests

which are declared based on reasonable rules.

2.5 Tampering, or Attempting to tamper, with any part of

Doping Control.

2.6 Possession of Prohibited Substances and Methods:

2.6.1 Possession by an Athlete at any time or place of a substance

that is prohibited in Out-of-Competition Testing or a

Prohibited Method unless the Athlete establishes that the

Possession is pursuant to a therapeutic use exemption granted

in accordance with Article 4.4 (Therapeutic Use) or other

acceptable justification.

2.6.2 Possession of a substance that is prohibited in Out-of-

Competition Testing or a Prohibited Method by Athlete

Support Personnel in connection with an Athlete,

Competition or training, unless the Athlete Support

Personnel establishes that the Possession is pursuant to a ther-

apeutic use exemption granted to an Athlete in accordance

with Article 4.4 (Therapeutic Use) or other acceptable justifi-

cation.

2.7 Trafficking in any Prohibited Substance or Prohibited

Method.

2.8 Administration or Attempted administration of a Prohibited

Substance or Prohibited Method to any Athlete, or assisting,

encouraging, aiding, abetting, covering up or any other type

of complicity involving an anti-doping rule violation or any

Attempted violation.

Article 3: Proof of Doping

3.1 Burdens and Standards of Proof.

The Anti-Doping Organization shall have the burden of

establishing that an anti-doping rule violation has occurred.

The standard of proof shall be whether the AntiDoping

Organization has established an anti-doping rule violation to

the comfortable satisfaction of the hearing body bearing in

mind the seriousness of the allegation which is made. This

standard of proof in all cases is greater than a mere balance of

probability but less than proof beyond a reasonable doubt.

Where the Code places the burden of proof upon the Athlete

or other Person alleged to have committed an anti-doping

rule violation to rebut a presumption or establish specified

facts or circumstances, the standard of proof shall be by a bal-

ance of probability.

3.2 Methods of Establishing Facts and Presumptions.

Facts related to anti-doping rule violations may be established

by any reliable means, including admissions. The following

rules of proof shall be applicable in doping cases.

3.2.1 WADA-accredited laboratories are presumed to have con-

ducted Sample analysis and custodial procedures in accor-

dance with the International Standard for laboratory analysis.

The Athlete may rebut this presumption by establishing that

a departure from the International Standard occurred.

If the Athlete rebuts the preceding presumption by showing

that a departure from the International Standard occurred, then

the Anti-Doping Organization shall have the burden to estab-

lish that such departure did not cause the Adverse Analytical

Finding.

3.2.2 Departures from the International Standard for Testing which

did not cause an Adverse Analytical Finding or other anti-

doping rule violation shall not invalidate such results. If the

Athlete establishes that departures from the International

Standard occurred during Testing then the Anti-Doping

Organization shall have the burden to establish that such

departures did not cause the Adverse Analytical Finding or the

factual basis for the anti-doping rule violation.

Article 4: The Prohibited List

4.1 Publication and Revision of the Prohibited List.

WADA shall, as often as necessary and no less often than

annually, publish the Prohibited List as an International

Standard. The proposed content of the Prohibited List and all

revisions shall be provided in writing promptly to all

Signatories and governments for comment and consultation.

Each annual version of the Prohibited List and all revisions

shall be distributed promptly by WADA to each Signatory

and government and shall be published on WADA’s website,

and each Signatory shall take appropriate steps to distribute

the Prohibited List to its members and constituents. The rules

of each Anti-Doping Organization shall specify that, unless

provided otherwise in the Prohibited List or a revision, the

Prohibited List and revisions shall go into effect under the

Anti-Doping Organization’s rules three months after publica-

tion of the Prohibited List by WADA without requiring any

further action by the Anti-Doping Organization.

4.2 Prohibited Substances and Prohibited Methods Identified on

the Prohibited List.

The Prohibited List shall identify those Prohibited Substances

and Prohibited Methods which are prohibited as doping at all

times (both In-Competition and Out-of

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4.3 Criteria for Including Substances and Methods on the

Prohibited List.

WADA shall consider the following criteria in deciding

whether to include a substance or method on the Prohibited

List.

4.3.1 A substance or method shall be considered for inclusion on

the Prohibited List if WADA determines that the substance or

method meets any two of the following three criteria:

4.3.1.1 Medical or other scientific evidence, pharmacological effect or

experience that the substance or method has the potential to

enhance or enhances sport performance;

4.3.1.2 Medical or other scientific evidence, pharmacological effect,

or experience that the Use of the substance or method repre-

sents an actual or potential health risk to the Athlete;

4.3.1.3 WADA’s determination that the Use of the substance or

method violates the spirit of sport described in the

Introduction to the Code.

4.3.2 A substance or method shall also be included on the

Prohibited List if WADA determines there is medical or other

scientific evidence, pharmacological effect or experience that

the substance or method has the potential to mask the Use of

other Prohibited Substances and Prohibited Methods.

4.3.3 WADA’s determination of the Prohibited Substances and

Prohibited Methods that will be included on the Prohibited

List shall be final and shall not be subject to challenge by an

Athlete or other Person based on an argument that the sub-

stance or method was not a masking agent or did not have the

potential to enhance performance, represent a health risk, or

violate the spirit of sport.

4.4 Therapeutic Use

WADA shall adopt an International Standard for the process

of granting therapeutic use exemptions.

Each International Federation shall ensure, for International-

Level Athletes or any other Athlete who is entered in an

International Event, that a process is in place whereby

Athletes with documented medical conditions requiring the

Use of a Prohibited Substance or a Prohibited Method may

request a therapeutic use exemption. Each National Anti-

Doping Organization shall ensure, for all Athletes within its

jurisdiction that are not International-Level Athletes, that a

process is in place whereby Athletes with documented medical

conditions requiring the Use of a Prohibited Substance or a

Prohibited Method may request a therapeutic use exemption.

Such requests shall be evaluated in accordance with the

International Standard on therapeutic use. International

Federations and National Anti-Doping Organizations shall

promptly report to WADA the granting of therapeutic use

exemptions to any International-Level Athlete or national-

level Athlete that is included in his or her National Anti-

Doping Organization’s Registered Testing Pool.

WADA, on its own initiative, may review the granting of a

therapeutic use exemption to any International-Level Athlete

or national-level Athlete that is included in his or her

National Anti-Doping Organization’s Registered Testing Pool.

Further, upon the request of any such Athlete that has been

denied a therapeutic use exemption, WADA may review such

denial. If WADA determines that such granting or denial of a

therapeutic use exemption did not comply with the

International Standard for therapeutic use exemptions,

WADA may reverse the decision.

4.5 Monitoring Program

WADA, in consultation with other Signatories and govern-

ments, shall establish a monitoring program regarding sub-

stances which are not on the Prohibited List, but which

WADA wishes to monitor in order to detect patterns of mis-

use in sport. WADA shall publish, in advance of any Testing,

the substances that will be monitored. Laboratories will report

the instances of reported Use or detected presence of these

substances to WADA periodically on an aggregate basis by

sport and whether the Samples were collected In-

Competition or Out-of-Competition. Such reports shall not

contain additional information regarding specific Samples.

WADA shall make available to International Federations and

National Anti-Doping Organizations, on at least an annual

basis, aggregate statistical information by sport regarding the

additional substances. WADA shall implement measures to

ensure that strict anonymity of individual Athletes is main-

tained with respect to such reports. The reported use or

detected presence of the monitored substances shall not con-

stitute a doping violation.

Article 5: Testing

5.1 Test Distribution Planning. Anti-Doping Organizations con-

ducting Testing shall in coordination with other Anti-Doping

Organizations conducting Testing on the same Athlete pool:

5.1.1 Plan and implement an effective number of In-Competition

and Out-of-Competition tests. Each International Federation

shall establish a Registered Testing Pool for International-

Level Athletes in its sport, and each National Anti-Doping

Organization shall establish a national Registered Testing Pool

for Athletes in its country. The national-level pool shall

include International-Level Athletes from that country as well

as other national-level Athletes. Each International Federation

and National Anti-Doping Organization shall plan and con-

duct In-Competition and Out-of-Competition Testing on its

Registered Testing Pool.

5.1.2 Make No Advance Notice Testing a priority.

5.1.3 Conduct Target Testing.

5.2 Standards for Testing

Anti-Doping Organizations conducting Testing shall conduct

such Testing in conformity with the International Standard

for Testing.

Article 6: Analysis of Samples

Doping Control Samples shall be analyzed in accordance with the fol-

lowing principles:

6.1 Use of Approved Laboratories

Doping Control Samples shall be analyzed only in WAD-

Accredited laboratories or as otherwise approved by WADA.

The choice of the WADA-accredited laboratory (or other

method approved by WADA) used for the Sample analysis

shall be determined exclusively by the Anti-Doping

Organization responsible for results management.

6.2 Substances Subject to Detection

Doping Control Samples shall be analyzed to detect

Prohibited Substances and Prohibited Methods identified on

the Prohibited List and other substances as may be directed by

WADA pursuant to Article 4.5 (Monitoring Program).

6.3 Research on Samples

No Sample may be used for any purpose other than the detec-

tion of substances (or classes of substances) or methods on the

Prohibited List, or as otherwise identified by WADA pursuant

to Article 4.5 (Monitoring Program), without the Athlete’s

written consent.

6.4 Standards for Sample Analysis and Reporting

Laboratories shall analyze Doping Control Samples and

report results in conformity with the International Standard

for laboratory analysis.

Article 7: Results Management

Each Anti-Doping Organization conducting results management

shall establish a process for the pre-hearing administration of poten-

tial anti-doping rule violations that respects the following principles:

7.1 Initial Review Regarding Adverse Analytical Findings

Upon receipt of an A Sample Adverse Analytical Finding, the

Anti-Doping Organization responsible for results manage-

ment shall conduct a review to determine whether: (a) an

applicable therapeutic use exemption has been granted, or (b)

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there is any apparent departure from the International

Standards for Testing or laboratory analysis that undermines

the validity of the Adverse Analytical Finding.

7.2 Notification After Initial Review

If the initial review under Article 7.1 does not reveal an appli-

cable therapeutic use exemption or departure that undermines

the validity of the Adverse Analytical Finding, the Anti-

Doping Organization shall promptly notify the Athlete, in

the manner set out in its rules, of: (a) the Adverse Analytical

Finding; (b) the anti-doping rule violated, or, in a case under

Article 7.3, a description of the additional investigation that

will be conducted as to whether there is an anti-doping rule

violation; (c) the Athlete’s right to promptly request the analy-

sis of the B Sample or, failing such request, that the B Sample

analysis may be deemed waived; (d) the right of the Athlete

and/or the Athlete’s representative to attend the B Sample

opening and analysis if such analysis is requested; and (e) the

Athlete’s right to request copies of the A and B Sample labo-

ratory documentation package which includes information as

required by the International Standard for laboratory analysis.

7.3 Further Review of Adverse Analytical Finding Where

Required by Prohibited List

The Anti-Doping Organization or other reviewing body

established by such organization shall also conduct any fol-

low-up investigation as may be required by the Prohibited

List. Upon completion of such follow-up investigation, the

Anti-Doping Organization shall promptly notify the Athlete

regarding the results of the follow-up investigation and

whether or not the Anti-Doping Organization asserts that an

anti-doping rule was violated.

7.4 Review of Other Anti-Doping Rule Violations

The Anti-Doping Organization or other reviewing body

established by such organization shall conduct any follow-up

investigation as may be required under applicable anti-doping

policies and rules adopted pursuant to the Code or which the

Anti-Doping Organization otherwise considers appropriate.

The Anti-Doping Organization shall promptly give the

Athlete or other Person subject to sanction notice, in the

manner set out in its rules, of the anti-doping rule which

appears to have been violated, and the basis of the violation.

7.5 Principles Applicable to Provisional Suspensions

A Signatory may adopt rules, applicable to any Event for

which the Signatory is the ruling body or for any team selec-

tion process for which the Signatory is responsible, permitting

Provisional Suspensions to be imposed after the review and

notification described in Articles 7.1 and 7.2 but prior to a

final hearing as described in Article 8 (Right to a Fair

Hearing). Provided, however, that a Provisional Suspension

may not be imposed unless the Athlete is given either: (a) an

opportunity for a Provisional Hearing either before imposi-

tion of the Provisional Suspension or on a timely basis after

imposition of the Provisional Suspension; or (b) an opportu-

nity for an expedited hearing in accordance with Article 8

(Right to a Fair Hearing) on a timely basis after imposition of

a Provisional Suspension.

If a Provisional Suspension is imposed based on an A Sample

Adverse Analytical Finding and a subsequent B Sample analy-

sis does not confirm the A Sample analysis, then the Athlete

shall not be subject to any further disciplinary action and any

sanction previously imposed shall be rescinded. In circum-

stances where the Athlete or the Athlete’s team has been

removed from a Competition and the subsequent B Sample

analysis does not confirm the A Sample finding, if, without

otherwise affecting the Competition, it is still possible for the

Athlete or team to be reinserted, the Athlete or team may con-

tinue to take part in the Competition.

Article 8: Right to a Fair Hearing

Each Anti-Doping Organization with responsibility for results man-

agement shall provide a hearing process for any Person who is assert-

ed to have committed an anti-doping rule violation. Such hearing

process shall address whether an anti-doping violation was committed

and, if so, the appropriate Consequences. The hearing process shall

respect the following principles:

•a timely hearing;

• fair and impartial hearing body;

• the right to be represented by counsel at the Person’s own expense;

• the right to be fairly and timely informed of the asserted antidop-

ing rule violation;

• the right to respond to the asserted anti-doping rule violation and

resulting Consequences;

• the right of each party to present evidence, including the right to

call and question witnesses (subject to the hearing body’s discretion

to accept testimony by telephone or written submission);

• the Person’s right to an interpreter at the hearing, with the hearing

body to determine the identity, and responsibility for the cost, of

the interpreter; and

•a timely, written, reasoned decision;

Hearings held in connection with Events may be conducted by an

expedited process as permitted by the rules of the relevant Anti-

Doping Organization and the hearing body.

Article 9: Automatic Disqualification of Individual Results

An anti-doping rule violation in connection with an In-Competition

test automatically leads to Disqualification of the individual result

obtained in that Competition with all resulting consequences, includ-

ing forfeiture of any medals, points and prizes.

Article 10: Sanctions on Individuals

10.1 Disqualification of Results in Event During which an Anti-

Doping Rule Violation Occurs

An anti-doping rule violation occurring during or in connec-

tion with an Event may, upon the decision of the ruling body

of the Event, lead to Disqualification of all of the Athlete’s

individual results obtained in that Event with all conse-

quences, including forfeiture of all medals, points and prizes,

except as provided in Article 10.1.1.

10.1.1 If the Athlete establishes that he or she bears No Fault or

Negligence for the violation, the Athlete’s individual results in

the other Competitions shall not be Disqualified unless the

Athlete’s results in Competitions other than the Competition

in which the anti-doping rule violation occurred were likely to

have been affected by the Athlete’s anti-doping rule violation.

10.2 Imposition of Ineligibility for Prohibited Substances and

Prohibited Methods

Except for the specified substances identified in Article 10.3,

the period of Ineligibility imposed for a violation of Articles

2.1 (presence of Prohibited Substance or its Metabolites or

Markers), 2.2 (Use or Attempted Use of Prohibited Substance

or Prohibited Method) and 2.6 (Possession of Prohibited

Substances and Methods) shall be:

•First violation: Two (2) years’ Ineligibility.

•Second violation: Lifetime Ineligibility.

However, the Athlete or other Person shall have the opportu-

nity in each case, before a period of Ineligibility is imposed, to

establish the basis for eliminating or reducing this sanction as

provided in Article 10.5

10.3 Specified Substances

The Prohibited List may identify specified substances which

are particularly susceptible to unintentional antidoping rules

violations because of their general availability in medicinal

products or which are less likely to be successfully abused as

doping agents. Where an Athlete can establish that the Use of

such a specified substance was not intended to enhance sport

performance, the period of Ineligibility found in Article 10.2

shall be replaced with the following:

•First violation: At a minimum, a warning and reprimand

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and no period of Ineligibility from future Events, and at a

maximum, one (1) year’s Ineligibility.

•Second violation: Two (2) years’ Ineligibility.

• Third violation: Lifetime Ineligibility.

However, the Athlete or other Person shall have the opportu-

nity in each case, before a period of Ineligibility is imposed, to

establish the basis for eliminating or reducing (in the case of

a second or third violation) this sanction as provided in

Article 10.5.

10.4 Ineligibility for Other Anti-Doping Rule Violations

The period of Ineligibility for other anti-doping rule viola-

tions shall be:

10.4.1 For violations of Article 2.3 (refusing or failing to submit to

Sample collection) or Article 2.5 (Tampering with Doping

Control), the Ineligibility periods set forth in Article 10.2 shall

apply.

10.4.2 For violations of Articles 2.7 (Trafficking) or 2.8 (administra-

tion of Prohibited Substance or Prohibited Method), the peri-

od of Ineligibility imposed shall be a minimum of four (4)

years up to lifetime Ineligibility. An anti-doping rule violation

involving a Minor shall be considered a particularly serious

violation, and, if committed by Athlete Support Personnel for

violations other than specified substances referenced in Article

10.3, shall result in lifetime Ineligibility for such Athlete

Support Personnel. In addition, violations of such Articles

which also violate non-sporting laws and regulations, may be

reported to the competent administrative, professional or

judicial authorities.

10.4.3 For violations of Article 2.4 (whereabouts violation or missed

test), the period of Ineligibility shall be at a minimum 3

months and at a maximum 2 years in accordance with the

rules established by the Anti-Doping Organization whose test

was missed or whereabouts requirement was violated. The

period of Ineligibility for subsequent violations of Article 2.4

shall be as established in the rules of the Anti-Doping

Organization whose test was missed or whereabouts require-

ment was violated.

10.5 Elimination or Reduction of Period of Ineligibility Based on

Exceptional Circumstances.

10.5.1 No Fault or Negligence

If the Athlete establishes in an individual case involving an

anti-doping rule violation under Article 2.1 (presence of

Prohibited Substance or its Metabolites or Markers) or Use of

a Prohibited Substance or Prohibited Method under Article

2.2 that he or she bears No Fault or Negligence for the viola-

tion, the otherwise applicable period of Ineligibility shall be

eliminated. When a Prohibited Substance or its Markers or

Metabolites is detected in an Athlete’s Specimen in violation

of Article 2.1 (presence of Prohibited Substance), the Athlete

must also establish how the Prohibited Substance entered his

or her system in order to have the period of Ineligibility elim-

inated. In the event this Article is applied and the period of

Ineligibility otherwise applicable is eliminated, the anti-dop-

ing rule violation shall not be considered a violation for the

limited purpose of determining the period of Ineligibility for

multiple violations under Articles 10.2, 10.3 and 10.6.

10.5.2 No Significant Fault or Negligence

This Article 10.5.2 applies only to anti-doping rule violations

involving Article 2.1 (presence of Prohibited Substance or its

Metabolites or Markers), Use of a Prohibited Substance or

Prohibited Method under Article 2.2, failing to submit to

Sample collection under Article 2.3, or administration of a

Prohibited Substance or Prohibited Method under Article 2.8.

If an Athlete establishes in an individual case involving such

violations that he or she bears No Significant Fault or

Negligence, then the period of Ineligibility may be reduced,

but the reduced period of Ineligibility may not be less than

one-half of the minimum period of Ineligibility otherwise

applicable. If the otherwise applicable period of Ineligibility is

a lifetime, the reduced period under this section may be no

less than 8 years. When a Prohibited Substance or its Markers

or Metabolites is detected in an Athlete’s Specimen in viola-

tion of Article 2.1 (presence of Prohibited Substance), the

Athlete must also establish how the Prohibited Substance

entered his or her system in order to have the period of

Ineligibility reduced.

10.5.3 Athlete’s Substantial Assistance in Discovering or Establishing

Anti-Doping Rule Violations by Athlete Support Personnel

and Others.

An Anti-Doping Organization may also reduce the period of

Ineligibility in an individual case where the Athlete has pro-

vided substantial assistance to the Anti-Doping Organization

which results in the Anti-Doping Organization discovering or

establishing an anti-doping rule violation by another Person

involving Possession under Article 2.6.2 (Possession by

Athlete Support Personnel), Article 2.7 (Trafficking), or

Article 2.8 (administration to an Athlete). The reduced period

of Ineligibility may not, however, be less than one-half of the

minimum period of Ineligibility otherwise applicable. If the

otherwise applicable period of Ineligibility is a lifetime, the

reduced period under this section may be no less than 8 years.

10.6 Rules for Certain Potential Multiple Violations

10.6.1 For purposes of imposing sanctions under Articles 10.2, 10.3

and 10.4, a second anti-doping rule violation may be consid-

ered for purposes of imposing sanctions only if the Anti-

Doping Organization can establish that the Athlete or other

Person committed the second anti-doping rule violation after

the Athlete or other Person received notice, or after the Anti-

Doping Organization made a reasonable Attempt to give

notice, of the first antidoping rule violation; if the Anti-

Doping Organization cannot establish this, the violations

shall be considered as one single first violation, and the sanc-

tion imposed shall be based on the violation that carries the

more severe sanction.

10.6.2 Where an Athlete, based on the same Doping Control, is

found to have committed an anti-doping rule violation

involving both a specified substance under Article 10.3 and

another Prohibited Substance or Prohibited Method, the

Athlete shall be considered to have committed a single anti-

doping rule violation, but the sanction imposed shall be based

on the Prohibited Substance or Prohibited Method that car-

ries the most severe sanction.

10.6.3 Where an Athlete is found to have committed two separate

anti-doping rule violations, one involving a specified sub-

stance governed by the sanctions set forth in Article 10.3

(Specified Substances) and the other involving a Prohibited

Substance or Prohibited Method governed by the sanctions

set forth in Article 10.2 or a violation governed by the sanc-

tions in Article 10.4.1, the period of Ineligibility imposed for

the second offense shall be at a minimum two years’

Ineligibility and at a maximum three years’ Ineligibility. Any

Athlete found to have committed a third anti-doping rule vio-

lation involving any combination of specified substances

under Article 10.3 and any other anti-doping rule violation

under 10.2 or 10.4.1 shall receive a sanction of lifetime

Ineligibility.

10.7 Disqualification of Results in Competitions Subsequent to

Sample Collection

In addition to the automatic Disqualification of the results in

the Competition which produced the positive Sample under

Article 9 (Automatic Disqualification of Individual Results),

all other competitive results obtained from the date a positive

Sample was collected (whether In-Competition or Out-of-

Competition), or other doping violation occurred, through

the commencement of any Provisional Suspension or

Ineligibility period, shall, unless fairness requires otherwise,

be Disqualified with all of the resulting consequences includ-

ing forfeiture of any medals, points and prizes.

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10.8 Commencement of Ineligibility Period

The period of Ineligibility shall start on the date of the hear-

ing decision providing for Ineligibility or, if the hearing is

waived, on the date Ineligibility is accepted or otherwise

imposed. Any period of Provisional Suspension (whether

imposed or voluntarily accepted) shall be credited against the

total period of Ineligibility to be served. Where required by

fairness, such as delays in the hearing process or other aspects

of Doping Control not attributable to the Athlete, the body

imposing the sanction may start the period of Ineligibility at

an earlier date commencing as early as the date of Sample col-

lection.

10.9 Status During Ineligibility

No Person who has been declared Ineligible may, during the

period of Ineligibility, participate in any capacity in a

Competition or activity (other than authorized anti-doping

education or rehabilitation programs) authorized or organized

by any Signatory or Signatory’s member organization. In

addition, for any anti-doping rule violation not involving

specified substances described in Article 10.3, some or all

sport-related financial support or other sport-related benefits

received by such Person will be withheld by Signatories,

Signatories’ member organizations and governments. A

Person subject to a period of Ineligibility longer than four

years may, after completing four years of the period of

Ineligibility, participate in local sport events in a sport other

than the sport in which the Person committed the anti-dop-

ing rule violation, but only so long as the local sport event is

not at a level that could otherwise qualify such Person direct-

ly or indirectly to compete in (or accumulate points toward)

a national championship or International Event.

10.10 Reinstatement Testing

As a condition to regaining eligibility at the end of a specified

period of Ineligibility, an Athlete must, during any period of

Provisional Suspension or Ineligibility, make him or herself

available for Out-of-Competition Testing by any Anti-

Doping Organization having testing jurisdiction, and must, if

requested, provide current and accurate whereabouts infor-

mation. If an Athlete subject to a period of Ineligibility retires

from sport and is removed from Out-of-Competition Testing

pools and later seeks reinstatement, the Athlete shall not be

eligible for reinstatement until the Athlete has notified rele-

vant Anti-Doping Organizations and has been subject to

Out-of-Competition Testing for a period of time equal to the

period of Ineligibility remaining as of the date the Athlete had

retired.

Article 11 Consequences to Teams

Where more than one team member in a Team Sport has been noti-

fied of a possible anti-doping rule violation under Article 7 in connec-

tion with an Event, the Team shall be subject to Target Testing for the

Event. If more than one team member in a Team Sport is found to

have committed an anti-doping rule violation during the Event, the

team may be subject to Disqualification or other disciplinary action.

In sports which are not Team Sports but where awards are given to

teams, Disqualification or other disciplinary action against the team

when one or more team members have committed an anti-doping

rule violation shall be as provided in the applicable rules of the

International Federation.

Article 12 Sanctions against Sporting Bodies

Nothing in this Code precludes any Signatory or government accept-

ing the Code from enforcing its own rules for the purpose of impos-

ing sanctions on another sporting body over which the Signatory or

government has authority.

Article 13 Appeals

13.1 Decisions Subject to Appeal

Decisions made under the Code or rules adopted pursuant to

the Code may be appealed as set forth below in Articles 13.2

through 13.4. Such decisions shall remain in effect while

under appeal unless the appellate body orders otherwise.

Before an appeal is commenced, any postdecision review pro-

vided in the Anti-Doping Organization’s rules must be

exhausted, provided that such review respects the principles

set forth in Article 13.2.2 below.

13.2 Appeals from Decisions Regarding Anti-Doping Rule

Violations, Consequences, and Provisional Suspensions

A decision that an anti-doping rule violation was committed,

a decision imposing Consequences for an anti-doping rule

violation, a decision that no anti-doping rule violation was

committed, a decision that an Anti-Doping Organization

lacks jurisdiction to rule on an alleged anti-doping rule viola-

tion or its Consequences, and a decision to impose a

Provisional Suspension as a result of a Provisional Hearing or

in violation of Article 7.5 may be appealed exclusively as pro-

vided in this Article 13.2.

13.2.1 Appeals Involving International-Level Athletes

In cases arising from competition in an International Event or

in cases involving International-Level Athletes, the decision

may be appealed exclusively to the Court of Arbitration for

Sport (“CAS”) in accordance with the provisions applicable

before such court.

13.2.2 Appeals Involving National-Level Athletes

In cases involving national-level Athletes, as defined by each

National Anti-Doping Organization, that do not have a right

to appeal under Article 13.2.1, the decision may be appealed to

an independent and impartial body in accordance with rules

established by the National Anti-Doping Organization. The

rules for such appeal shall respect the following principles:

•A timely hearing;

•Fair, impartial and independent hearing body;

• The right to be represented by counsel at the Person’s own

expense; and

•A timely, written, reasoned decision.

13.2.3 Persons Entitled to Appeal

In cases under Article 13.2.1, the following parties shall have

the right to appeal to CAS: (a) the Athlete or other Person

who is the subject of the decision being appealed; (b) the

other party to the case in which the decision was rendered; (c)

the relevant International Federation and any other Anti-

Doping Organization under whose rules a sanction could

have been imposed; (d) the International Olympic

Committee or International Paralympic Committee, as appli-

cable, where the decision may have an effect in relation to the

Olympic Games or Paralympic Games, including decisions

affecting eligibility for the Olympic Games or Paralympic

Games; and (e) WADA. In cases under Article 13.2.2, the par-

ties having the right to appeal to the national-level reviewing

body shall be as provided in the National Anti-Doping

Organization’s rules but, at a minimum, shall include: (a) the

Athlete or other Person who is the subject of the decision

being appealed; (b) the other party to the case in which the

decision was rendered; (c) the relevant International

Federation; and (d) WADA. For cases under Article 13.2.2,

WADA and the International Federation shall also have the

right to appeal to CAS with respect to the decision of the

national-level reviewing body.

Notwithstanding any other provision herein, the only Person

that may appeal from a Provisional Suspension is the Athlete

or other Person upon whom the Provisional Suspension is

imposed.

13.3 Appeals from Decisions Granting or Denying a Therapeutic

Use Exemption

Decisions by WADA reversing the grant or denial of a thera-

peutic use exemption may be appealed exclusively to CAS by

the Athlete or the Anti-Doping Organization whose decision

was reversed. Decisions by Anti-Doping Organizations other

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than WADA denying therapeutic use exemptions, which are

not reversed by WADA, may be appealed by International-

Level Athletes to CAS and by other Athletes to the national

level reviewing body described in Article 13.2.2. If the nation-

al level reviewing body reverses the decision to deny a thera-

peutic use exemption, that decision may be appealed to CAS

by WADA.

13.4 Appeals from Decisions Imposing Consequences under Part

Three of the Code

With respect to consequences imposed under Part Three

(Roles and Responsibilities) of the Code, the entity upon

which consequences are imposed under Part Three of the

Code shall have the right to appeal exclusively to CAS in

accordance with the provisions applicable before such court.

13.5 Appeals from Decisions Suspending or Revoking Laboratory

Accreditation

Decisions by WADA to suspend or revoke a laboratory’s

WADA accreditation may be appealed only by that laborato-

ry with the appeal being exclusively to CAS.

Article 14 Confidentiality and Reporting

The Signatories agree to the principles of coordination of anti-doping

results, public transparency and accountability and respect for the pri-

vacy interests of individuals alleged to have violated anti-doping rules

as provided below:

14.1 Information Concerning Adverse Analytical Findings and

Other Potential Anti-Doping Rule Violations

An Athlete whose Sample has resulted in an Adverse Analytical

Finding, or an Athlete or other Person who may have violated

an anti-doping rule, shall be notified by the Anti-Doping

Organization with results management responsibility as pro-

vided in Article 7 (Results Management). The Athlete’s

National Anti-Doping Organization and International

Federation and WADA shall also be notified not later than the

completion of the process described in Articles 7.1 and 7.2.

Notification shall include: the Athlete’s name, country, sport

and discipline within the sport, whether the test was In-

Competition or Out-of-Competition, the date of Sample col-

lection and the analytical result reported by the laboratory.

The same Persons and Anti-Doping Organizations shall be

regularly updated on the status and findings of any review or

proceedings conducted pursuant to Articles 7 (Results

Management), 8 (Right to a Fair Hearing) or 13 (Appeals),

and, in any case in which the period of Ineligibility is elimi-

nated under Article 10.5.1 (No Fault or Negligence), or

reduced under Article 10.5.2 (No Significant Fault or

Negligence), shall be provided with a written reasoned deci-

sion explaining the basis for the elimination or reduction. The

recipient organizations shall not disclose this information

beyond those persons within the organization with a need to

know until the Anti-Doping Organization with results man-

agement responsibility has made public disclosure or has

failed to make public disclosure as required in Article 14.2

below.

14.2 Public Disclosure

The identity of Athletes whose Samples have resulted in

Adverse Analytical Findings, or Athletes or other Persons who

were alleged by an Anti-Doping Organization to have violat-

ed other anti-doping rules, may be publicly disclosed by the

Anti-doping Organization with results management responsi-

bility no earlier than completion of the administrative review

described in Articles 7.1 and 7.2. No later than twenty days

after it has been determined in a hearing in accordance with

Article 8 that an anti-doping rule violation has occurred, or

such hearing has been waived, or the assertion of an anti-dop-

ing rule violation has not been timely challenged, the Anti-

Doping Organization responsible for results management

must publicly report the disposition of the anti-doping mat-

ter.

14.3 Athlete Whereabouts Information

Athletes who have been identified by their International

Federation or National Anti-Doping Organization for inclu-

sion in an Out-of-Competition Testing pool shall provide

accurate, current location information. The International

Federations and National Anti-Doping Organizations shall

coordinate the identification of Athletes and the collecting of

current location information and shall submit it to WADA.

WADA shall make this information accessible to other Anti-

Doping Organizations having authority to test the Athlete as

provided in Article 15. This information shall be maintained

in strict confidence at all times; shall be used exclusively for

purposes of planning, coordinating or conducting Testing;

and shall be destroyed after it is no longer relevant for these

purposes.

14.4 Statistical Reporting

Anti-Doping Organizations shall, at least annually, publish

publicly a general statistical report of their Doping Control

activities with a copy provided to WADA.

14.5 Doping Control Information Clearing House

WADA shall act as a central clearing house for Doping

Control Testing data and results for International-Level

Athletes and national-level Athletes that have been included

in their National Anti-Doping Organization’s Registered

Testing Pool. To facilitate coordinated test distribution plan-

ning and to avoid unnecessary duplication in Testing by the

various Anti-Doping Organizations, each Anti-Doping

Organization shall report all In-Competition and Out-of-

Competition tests on such Athletes to the WADA clearing-

house as soon as possible after such tests have been conduct-

ed. WADA shall make this information accessible to the

Athlete, the Athlete’s National Federation, National Olympic

Committee or National Paralympic Committee, National

Anti-Doping Organization, International Federation, and the

International Olympic Committee or International

Paralympic Committee. Private information regarding an

Athlete shall be maintained by WADA in strict confidence.

WADA shall, at least annually, publish statistical reports sum-

marizing such information.

Article 15: Clarification of Doping Control Responsibilities

15.1 Event Testing

The collection of Samples for Doping Control does and

should take place at both International Events and National

Events. However, only a single organization should be respon-

sible for initiating and directing Testing during an Event. At

International Events, the collection of Doping Control

Samples shall be initiated and directed by the international

organization which is the ruling body for the Event (e.g., the

IOC for the Olympic Games, the International Federation for

a World Championship, and PASO for the Pan American

Games). If the international organization decides not to con-

duct any Testing at such an Event, the National Anti-Doping

Organization for the country where the Event occurs may, in

coordination with and with the approval of the international

organization or WADA, initiate and conduct such Testing. At

National Events, the collection of Doping Control Samples

shall be initiated and directed by the designated National

Anti-Doping Organization of that country.

15.2 Out-of-Competition Testing

Out-of-Competition Testing is and should be initiated and

directed by both international and national organizations.

Out-of-Competition Testing may be initiated and directed

by: (a) WADA; (b) the IOC or IPC in connection with the

Olympic Games or Paralympic Games; (c) the Athlete’s

International Federation; (d) the Athlete’s National Anti-

Doping Organization; or (e) the National Anti-Doping

Organization of any country where the Athlete is present.

Out-of-Competition Testing should be coordinated through

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WADA in order to maximize the effectiveness of the com-

bined Testing effort and to avoid unnecessary repetitive

Testing of individual Athletes.

15.3 Results Management, Hearings and Sanctions

Except as provided in Article 15.3.1 below, results management

and hearings shall be the responsibility of and shall be gov-

erned by the procedural rules of the Anti-Doping

Organization that initiated and directed Sample collection

(or, if no Sample collection is involved, the organization

which discovered the violation). Regardless of which organi-

zation conducts results management or hearings, the princi-

ples set forth in Articles 7 and 8 shall be respected and the

rules identified in the Introduction to Part One to be incor-

porated without substantive change must be followed.

15.3.1 Results management and the conduct of hearings for an anti-

doping rule violation arising from a test by, or discovered by,

a National Anti-Doping Organization involving an Athlete

that is not a citizen or resident of that country shall be admin-

istered as directed by the rules of the applicable International

Federation. Results management and the conduct of hearings

from a test by the International Olympic Committee, the

International Paralympic Committee, or a Major Event

Organization, shall be referred to the applicable International

Federation as far as sanctions beyond Disqualification from

the Event or the results of the Event.

15.4 Mutual Recognition

Subject to the right to appeal provided in Article 13, the

Testing, therapeutic use exemptions and hearing results or

other final adjudications of any Signatory which are consis-

tent with the Code and are within that Signatory’s authority,

shall be recognized and respected by all other Signatories.

Signatories may recognize the same actions of other bodies

which have not accepted the Code if the rules of those bodies

are otherwise consistent with the Code.

Article 16: Doping Control for Animals Competing in Sport

16.1 In any sport that includes animals in competition, the

International Federation for that sport shall establish and

implement anti-doping rules for the animals included in that

sport. The anti-doping rules shall include a list of Prohibited

Substances, appropriate Testing procedures and a list of

approved laboratories for Sample analysis.

16.2 With respect to determining anti-doping rule violations,

results management, fair hearings, Consequences, and appeals

for animals involved in sport, the International Federation for

that sport shall establish and implement rules that are gener-

ally consistent with Articles 1, 2, 3, 9, 10, 11, 13 and 17 of the

Code.

Article 17: Statute of Limitations

No action may be commenced against an Athlete or other Person for

a violation of an anti-doping rule contained in the Code unless such

action is commenced within eight years from the date the violation

occurred.

Part Two - Education and Research

Article 18: Education

18.1 Basic Principle and Primary Goal

The basic principle for information and education programs

shall be to preserve the spirit of sport as described in the

Introduction to the Code, from being undermined by doping.

The primary goal shall be to dissuade Athletes from using

Prohibited Substances and Prohibited Methods.

18.2 Program and Activities

Each Anti-Doping Organization should plan, implement and

monitor information and education programs. The programs

should provide Participants with updated and accurate infor-

mation on at least the following issues:

•Substances and methods on the Prohibited List

•Health consequences of doping

•Doping Control procedures

•Athletes’ rights and responsibilities

The programs should promote the spirit of sport in order to

establish an anti-doping environment which influences

behaviour among Participants.

Athlete Support Personnel should educate and counsel

Athletes regarding anti-doping policies and rules adopted pur-

suant to the Code.

18.3 Coordination and Cooperation

All Signatories and Participants shall cooperate with each

other and governments to coordinate their efforts in anti-dop-

ing information and education.

Article 19: Research

19.1 Purpose of Anti-Doping Research

Anti-doping research contributes to the development and

implementation of efficient programs within Doping Control

and to anti-doping information and education.

19.2 Types of Research

Anti-doping research may include, for example, sociological,

behavioural, juridical and ethical studies in addition to med-

ical, analytical and physiological investigation.

19.3 Coordination

Coordination of anti-doping research through WADA is

encouraged. Subject to intellectual property rights, copies of

anti-doping research results should be provided to WADA.

19.4 Research Practices

Anti-doping research shall comply with internationally recog-

nized ethical practices.

19.5 Research Using Prohibited Substances and Prohibited

Methods

Research efforts should avoid the administration of

Prohibited Substances or Prohibited Methods to Athletes.

19.6 Misuse of Results

Adequate precautions should be taken so that the results of

anti-doping research are not misused and applied for doping.

Part Three - Roles & Responsibilities

Article 20: Additional Roles and Responsibilities of Signatories

20.1 Roles and Responsibilities of the International Olympic

Committee

20.1.1 To adopt and implement anti-doping policies and rules for

the Olympic Games which conform with the Code.

20.1.2 To r equire as a condition of recognition by the International

Olympic Committee, that International Federations within

the Olympic Movement are in compliance with the Code.

20.1.3 To withhold some or all Olympic funding of sport organiza-

tions that are not in compliance with the Code.

20.1.4 To take appropriate action to discourage non compliance

with the Code as provided in Article 23.5.

20.1.5 To authorize and facilitate the Independent Observer

Program.

20.2 Roles and Responsibilities of the International Paralympic

Committee

20.2.1 To adopt and implement anti-doping policies and rules for

the Paralympic Games which conform with the Code.

20.2.2 To r equire as a condition of recognition by the International

Paralympic Committee, that National Paralympic

Committees within the Olympic Movement are in compli-

ance with the Code.

20.2.3 To withhold some or all Paralympic funding of sport organi-

zations that are not in compliance with the Code.

20.2.4 To take appropriate action to discourage non-compliance

with the Code as provided in Article 23.5.

20.2.5 To authorize and facilitate the Independent Observer

Program.

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20.3 Roles and Responsibilities of International Federations

20.3.1 To adopt and implement anti-doping policies and rules which

conform with the Code.

20.3.2 To r equire as a condition of membership that the policies,

rules and programs of National Federations are in compliance

with the Code.

20.3.3 To require all Athletes and Athlete Support Personnel within

their jurisdiction to recognize and be bound by anti-doping

rules in conformance with the Code.

20.3.4 To require Athletes who are not regularly members of the

International Federation or one of its member National

Federations to be available for Sample collection and provide

accurate and up-to-date whereabouts information if required

by the conditions for eligibility established by the International

Federation or, as applicable, the Major Event Organization.

20.3.5 To monitor the anti-doping programs of National

Federations.

20.3.6 To take appropriate action to discourage noncompliance with

the Code as provided in Article 23.5.

20.3.7 To authorize and facilitate the Independent Observer pro-

gram at International Events.

20.3.8 To withhold some or all funding to its member National

Federations that are not in compliance with the Code.

20.4 Roles and Responsibilities of National Olympic Committees

and National Paralympic Committees

20.4.1 To ensure that their anti-doping policies and rules conform

with the Code.

20.4.2 To require as a condition of membership or recognition that

National Federations’ anti-doping policies and rules are in

compliance with the applicable provisions of the Code.

20.4.3 To require Athletes who are not regular members of a

National Federation to be available for Sample collection and

provide accurate and up-to-date whereabouts information on

a regular basis if required during the year before the Olympic

Games as a condition of participation in the Olympic Games.

20.4.4 To cooperate with their National Anti-Doping Organization.

20.4.5 To withhold some or all funding, during any period of his or

her Ineligibility, to any Athlete or Athlete Support Personnel

who has violated anti-doping rules.

20.4.6 To withhold some or all funding to its member or recognized

National Federations that are not in compliance with the

Code.

20.5 Roles and Responsibilities of National Anti-Doping

Organizations

20.5.1 To adopt and implement anti-doping rules and polices which

conform with the Code.

20.5.2 To cooperate with other relevant national organizations and

other Anti-Doping Organizations.

20.5.3 To encourage reciprocal testing between National Anti-

Doping Organizations.

20.5.4 To promote anti-doping research.

20.6 Roles and Responsibilities of Major Event Organizations

20.6.1 To adopt and implement anti-doping policies and rules for

their Events which conform with the Code.

20.6.2 To take appropriate action to discourage noncompliance with

the Code as provided in Article 23.5.

20.6.3 To authorize and facilitate the Independent Observer

Program.

20.7 Roles and Responsibilities of WADA

20.7.1 To adopt and implement policies and procedures which con-

form with the Code.

20.7.2 To monitor the processing of Adverse Analytical Findings.

20.7.3 To approve International Standards applicable to the imple-

mentation of the Code.

20.7.4 To accredit laboratories to conduct Sample analysis or to

approve others to conduct Sample analysis.

20.7.5 To develop and approve Models of Best Practice.

20.7.6 To promote, conduct, commission, fund and coordinate anti-

doping research.

20.7.7 To conduct an effective Independent Observer Program.

20.7.8 To conduct Doping Controls as authorized by other Anti-

Doping Organizations.

Article 21: Roles and Responsibilities Of Participants

21.1 Roles and Responsibilities of Athletes

21.1.1 To be knowledgeable of and comply with all applicable anti-

doping policies and rules adopted pursuant to the Code.

21.1.2 To be available for Sample collection.

21.1.3 To take responsibility, in the context of anti-doping, for what

they ingest and use.

21.1.4 To inform medical personnel of their obligation not to Use

Prohibited Substances and Prohibited Methods and to take

responsibility to make sure that any medical treatment

received does not violate anti-doping policies and rules adopt-

ed pursuant to the Code.

21.2 Roles and Responsibilities of Athlete Support Personnel

21.2.1 To be knowledgeable of and comply with all anti-doping poli-

cies and rules adopted pursuant to the Code and which are

applicable to them or the Athletes whom they support.

21.2.2 To cooperate with the Athlete Testing program.

21.2.3 To use their influence on Athlete values and behaviour to fos-

ter anti-doping attitudes.

Article 22: Involvement of Governments

Each government’s commitment to the Code will be evidenced by its

signing a Declaration on or before the first day of the Athens Olympic

Games to be followed by a process leading to a convention or other

obligation to be implemented as appropriate to the constitutional and

administrative contexts of each government on or before the first day

of the Turin Winter Olympic Games.

It is the expectation of the Signatories that the Declaration and the

convention or other obligation will reflect the following major points:

22.1 Affirmative measures will be undertaken by each government

in support of anti-doping in at least the following areas:

•Support for national anti-doping programs;

• The availability of Prohibited Substances and Prohibited

Methods;

•Facilitate access for WADA to conduct Out-of-

Competition Doping Controls;

• The problem of nutritional supplements which contain

undisclosed Prohibited Substances; and

•Withholding some or all financial support from sport

organizations and Participants that are not in compliance

with the Code or applicable anti-doping rules adopted pur-

suant to the Code.

22.2 All other governmental involvement with anti-doping will be

brought into harmony with the Code.

22.3 Ongoing compliance with the commitments reflected in the

convention or other obligation will be monitored as deter-

mined in consultation between WADA and the applicable

government(s).

Part Four - Acceptance, Compliance, Modification & Interpretation

Article 23: Acceptance, Compliance And Modification

23.1 Acceptance of the Code

23.2.2 In implementing the Code, the Signatories are encouraged to

use the Models of Best Practice recommended by WADA.

23.1.1 The following entities shall be Signatories accepting the

Code: WADA, The International Olympic Committee,

International Federations, The International Paralympic

Committee, National Olympic Committees, National

Paralympic Committees, Major Event Organizations, and

National Anti-Doping Organizations. These entities shall

accept the Code by signing a declaration of acceptance upon

approval by each of their respective governing bodies.

23.1.2 Other sport organizations that may not be under the control of

a Signatory may, upon WADA’s invitation, also accept the Code.

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Definitions

Adverse Analytical Finding:

A report from a laboratory or other approved Testing entity that iden-

tifies in a Specimen the presence of a Prohibited Substance or its

Metabolites or Markers (including elevated quantities of endogenous

substances) or evidence of the Use of a Prohibited Method.

Anti-Doping Organization:

A Signatory that is responsible for adopting rules for initiating, imple-

menting or enforcing any part of the Doping Control process. This

includes, for example, the International Olympic Committee, the

International Paralympic Committee, other Major Event

Organizations that conduct Testing at their Events, WADA,

International Federations, and National Anti-Doping Organizations.

Athlete:

For purposes of Doping Control, any Person who participates in sport

at the international level (as defined by each International Federation)

or national level (as defined by each National Anti-Doping

Organization) and any additional Person who participates in sport at

a lower level if designated by the Person’s National Anti-Doping

Organization. For purposes of anti-doping information and educa-

tion, any Person who participates in sport under the authority of any

Signatory, government, or other sports organization accepting the

Code.

Athlete Support Personnel:

Any coach, trainer, manager, agent, team staff, official, medical or

para-medical personnel working with or treating Athletes participat-

ing in or preparing for sports competition.

Attempt:

Purposely engaging in conduct that constitutes a substantial step in a

course of conduct planned to culminate in the commission of an anti-

doping rule violation. Provided, however, there shall be no anti-dop-

ing rule violation based solely on an Attempt to commit a violation if

the Person renunciates the attempt prior to it being discovered by a

third party not involved in the Attempt.

Code:

The World Anti-Doping Code.

Competition:

A single race, match, game or singular athletic contest. For example,

the finals of the Olympic 100-meter dash. For stage races and other

athletic contests where prizes are awarded on a daily or other interim

basis the distinction between a Competition and an Event will be as

provided in the rules of the applicable International Federation.

Consequences of Anti-Doping Rules Violations:

An Athlete’s or other Person’s violation of an anti-doping rule may

result in one or more of the following:

(a)

Disqualification means the Athlete’s results in a particular

23.1.3 A list of all acceptances will be made public by WADA. 23.2

Implementation of the Code

23.2.1 The Signatories shall implement applicable Code provisions

through policies, statutes, rules or regulations according to

their authority and within their relevant spheres of responsi-

bility.

23.2.2 In implementing the Code, the Signatories are encouraged to

use the Models of Best Practice recommended by WADA.

23.3 Acceptance and Implementation Deadlines

23.3.1 Signatories shall accept and implement the Code on or before

the first day of the Athens Olympic Games.

23.3.2 The Code may be accepted after the abovereferenced dead-

lines; however, Signatories shall not be considered in compli-

ance with the Code until they have accepted the Code (and

that acceptance has not been withdrawn).

23.4 Monitoring Compliance with the Code

23.4.1 Compliance with the Code shall be monitored by WADA or

as otherwise agreed by WADA.

23.4.2 To facilitate monitoring, each Signatory shall report to

WADA on its compliance with the Code every second year

and shall explain reasons for noncompliance.

23.4.3 WADA shall consider explanations for noncompliance and,

in extraordinary situations, may recommend to the

International Olympic Committee, International Paralympic

Committee, International Federations, and Major Event

Organizations that they provisionally excuse the non-compli-

ance.

23.4.4 WADA shall, after dialogue with the subject organization,

make reports on compliance to the International Olympic

Committee, the International Paralympic Committee,

International Federations, and Major Event Organizations.

These reports shall also be made available to the public.

23.5 Consequences of Noncompliance with the Code

23.5.1 Noncompliance with the Code by either the government or

National Olympic Committee of a country may result in con-

sequences with respect to Olympic Games, Paralympic

Games, World Championships or the Events of Major Event

Organizations as determined by the ruling body for each

Event. The imposition of such consequences may be appealed

by the National Olympic Committee or government to CAS

pursuant to Article 13.4.

23.6 Modification of the Code

23.6.1 WADA shall be responsible for overseeing the evolution and

improvement of the Code. Athletes and all Signatories and

governments shall be invited to participate in such process.

23.6.2 WADA shall initiate proposed amendments to the Code and

shall ensure a consultative process to both receive and respond

to recommendations and to facilitate review and feedback

from Athletes, Signatories and governments on recommend-

ed amendments.

23.6.3 Amendments to the Code shall, after appropriate consulta-

tion, be approved by a two-thirds majority of the WADA

Foundation Board including a majority of both the public

sector and Olympic Movement members casting votes.

Amendments shall, unless provided otherwise, go into effect

three months after such approval.

23.6.4 Signatories shall implement any applicable amendment to the

Code within one year of approval by the WADA Foundation

Board.

23.7 Withdrawal of Acceptance of the Code

23.7.1 Signatories may withdraw acceptance of the Code after pro-

viding WADA six-month’s written notice of their intent to

withdraw.

Article 24: Interpretation of the Code

24.1 The official text of the Code shall be maintained by WADA

and shall be published in English and French. In the event of

any conflict between the English and French versions, the

English version shall prevail.

24.2 The comments annotating various provisions of the Code are

included to assist in the understanding and interpretation of

the Code.

24.3 The Code shall be interpreted as an independent and

autonomous text and not by reference to the existing law or

statutes of the Signatories or governments.

24.4 The headings used for the various Parts and Articles of the

Code are for convenience only and shall not be deemed part

of the substance of the Code or to affect in any way the lan-

guage of the provisions to which they refer.

24.5 The Code shall not apply retrospectively to matters pending

before the date the Code is accepted by a Signatory and

implemented in its rules.

24.6 Appendix I Definitions shall be considered an integral part of

the Code.

Appendix

Competition or Event are invalidated, with all resulting conse-

quences including forfeiture of any medals, points and prizes;

(b)

Ineligibility means the Athlete or other Person is barred for a spec-

ified period of time from participating in any Competition or other

activity or funding as provided in Article 10.9; and

(c)

Provisional Suspension means the Athlete or other Person is barred

temporarily from participating in any Competition prior to the

final decision at a hearing conducted under Article 8 (Right to a

Fair Hearing).

Disqualification:

See Consequences of Anti-Doping Rules Violations above.

Doping Control:

The process including test distribution planning, Sample collection

and handling, laboratory analysis, results management, hearings and

appeals.

Event:

A series of individual Competitions conducted together under one

ruling body (e.g., the Olympic Games, FINA World Championships,

or Pan American Games).

In-Competition:

For purposes of differentiating between InCompetition and Out-of-

Competition Testing, unless provided otherwise in the rules of an

International Federation or other relevant Anti-Doping Organization,

an In-Competition test is a test where an Athlete is selected for test-

ing in connection with a specific Competition.

Independent Observer Program:

A team of observers, under the supervision of WADA, who observe

the Doping Control process at certain Events and report on observa-

tions. If WADA is testing In-Competition at an Event, the observers

shall be supervised by an independent organization.

Ineligibility:

See Consequences of Anti-Doping Rules Violations above.

International Event:

An Event where the International Olympic Committee, the

International Paralympic Committee, an International Federation, a

Major Event Organization, or another international sport organiza-

tion is the ruling body for the Event or appoints the technical officials

for the Event.

International-Level Athlete:

Athletes designated by one or more International Federations as being

within the Registered Testing Pool for an International Federation.

International Standard:

A standard adopted by WADA in support of the Code. Compliance

with an International Standard (as opposed to another alternative

standard, practice or procedure) shall be sufficient to conclude that

the procedures addressed by the International Standard were per-

formed properly.

Major Event Organizations:

This term refers to the continental associations of National Olympic

Committees and other international multi-sport organizations that

function as the ruling body for any continental, regional or other

International Event.

Marker:

A compound, group of compounds or biological parameters that

indicates the Use of a Prohibited Substance or Prohibited Method.

Metabolite:

Any substance produced by a biotransformation process.

Minor:

A natural Person who has not reached the age of majority as estab-

lished by the applicable laws of his or her country of residence.

National Anti-Doping Organization:

The entity(ies) designated by each country as possessing the primary

authority and responsibility to adopt and implement anti-doping

rules, direct the collection of Samples, the management of test results,

and the conduct of hearings, all at the national level. If this designa-

tion has not been made by the competent public authority(ies), the

entity shall be the country’s National Olympic Committee or its

designee.

National Event:

A sport Event involving international or national level Athletes that is

not an International Event.

National Olympic Committee:

The organization recognized by the International Olympic

Committee. The term National Olympic Committee shall also

include the National Sport Confederation in those countries where

the National Sport Confederation assumes typical National Olympic

Committee responsibilities in the anti-doping area.

No Advance Notice:

A Doping Control which takes place with no advance warning to the

Athlete and where the Athlete is continuously chaperoned from the

moment of notification through Sample provision.

No Fault or Negligence:

The Athlete’s establishing that he or she did not know or suspect, and

could not reasonably have known or suspected even with the exercise

of utmost caution, that he or she had Used or been administered the

Prohibited Substance or Prohibited Method.

No Significant Fault or Negligence:

The Athlete’s establishing that his or her fault or negligence, when

viewed in the totality of the circumstances and taking into account

the criteria for No Fault or Negligence, was not significant in relation-

ship to the anti-doping rule violation.

Out-of-Competition:

Any Doping Control which is not In-Competition.

Participant: Any Athlete or Athlete Support Personnel. Person: A nat-

ural Person or an organization or other entity.

Possession:

The actual, physical possession, or the constructive possession (which

shall be found only if the Person has exclusive control over the

Prohibited Substance/Method or the premises in which a Prohibited

Substance/Method exists); provided, however, that if the Person does

not have exclusive control over the Prohibited Substance/Method or

the premises in which a Prohibited Substance/Method exists, con-

structive possession shall only be found if the Person knew about the

presence of the Prohibited Substance/Method and intended to exer-

cise control over it. Provided, however, there shall be no anti-doping

rule violation based solely on possession if, prior to receiving notifica-

tion of any kind that the Person has committed an anti-doping rule

violation, the Person has taken concrete action demonstrating that the

Person no longer intends to have Possession and has renounced the

Person’s previous Possession.

Prohibited List:

The List identifying the Prohibited Substances and Prohibited

Methods.

Prohibited Method:

Any method so described on the Prohibited List.

Prohibited Substance:

Any substance so described on the Prohibited List.

Provisional Hearing:

For purposes of Article 7.5, an expedited abbreviated hearing occur-

ring prior to a hearing under Article 8 (Right to a Fair Hearing) that

provides the Athlete with notice and an opportunity to be heard in

either written or oral form.

Provisional Suspension:

See Consequences above.

Publicly Disclose or Publicly Report:

To disseminate or distribute information to the general public or per-

sons beyond those persons entitled to earlier notification in accor-

dance with Article 14.

Registered Testing Pool:

The pool of top level Athletes established separately by each

International Federation and National Anti-Doping Organization

who are subject to both In-Competition and Out-of-Competition

Testing as part of that International Federation’s or Organization’s test

distribution plan.

Sample Specimen:

Any biological material collected for the purposes of Doping Control.

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2007/3-4

DOCUMENTS

Seventh Annual Asser-Clingendael International Sports Lecture

The Hague, The Netherlands, 6 September 2007

This year’s twin topics were:

The Council of Europe and Sport/The European Union and Sport:

“A New Perspective to Pan-European Sport Cooperation

and the European Commission’s White Paper on Sport”

The Council of Europe was the first international organization established in Europe after the Second World War.

With 46 Member States, the Council of Europe, seated in Strasbourg currently represents the image of a “wider

Europe”. The main objective of the Council of Europe is to strengthen democracy, human rights and the rule of

law. The Council of Europe was the first international intergovernmental organization to take initiatives to estab-

lish legal instruments and to offer an institutional framework for the development of sport at the European level.

The first stage of the Council of Europe’s work in this field was marked by the adoption of the Committee of

Ministers’Resolution on Doping of Athletes in 1967. The extensive work of the Council of Europe on sport is evi-

dent through the main texts on sport, such as the European Sports Charter, the Code of Sports Ethics, the European

Convention on Spectator Violence, and the Anti-Doping Convention. Presently, the Council of Europe is in the

process of finding ways to give a new perspective to Pan-European sport cooperation within its framework by the

creation of “a partial agreement on sport”.

The European Union has no direct competence for sport. However, European policies in a number of areas have

a considerable and growing impact on sport. Certain aspects of sport are subject to the full application of EU law,

particularly with respect to Internal Market and competition provisions. Moreover, several types of activities relat-

ing to sport can be supported through EU programmes, including in the fields of education, vocational training,

youth, culture and regional policy. The important role of sport in European society and its specific nature, has been

recognized by the Heads of State and Government of the Member States. For instance, at the European Council,

held in Nice in 2000, a Declaration was issued, which calls on EU bodies to give special consideration to the

social, educational and cultural functions inherent to sport. It points out that certain special characteristics of sport,

such as internal cohesion and solidarity, fair competition, and the protection of the moral and material interests of

sportsmen and women, particularly the younger generation, should be taken into account in current policies pur-

sued by the Community institutions. (continued on page 140)

2007/3-4

139

DOCUMENTS

Signatories:

Those entities signing the Code and agreeing to comply with the

Code, including the International Olympic Committee, International

Federations, International Paralympic Committee, National Olympic

Committees, National Paralympic Committees, Major Event

Organizations, National Anti-Doping Organizations, and WADA.

Tampering:

Altering for an improper purpose or in an improper way; bringing

improper influence to bear; interfering improperly to alter results or

prevent normal procedures from occurring.

Target Testing:

Selection of Athletes for Testing where specific Athletes or groups of

Athletes are selected on a non-random basis for Testing at a specified

time.

Team Sport:

A sport in which the substitution of players is permitted during a

Competition.

Testing:

The parts of the Doping Control process involving test distribution

planning, Sample collection, Sample handling, and Sample transport

to the laboratory.

Tr afficking:

To sell, give, administer, transport, send, deliver or distribute a

Prohibited Substance or Prohibited Method to an Athlete either

directly or through one or more third parties, but excluding the sale

or distribution (by medical personnel or by Persons other than an

Athlete’s Support Personnel) of a Prohibited Substance for genuine

and legal therapeutic purposes.

Use:

The application, ingestion, injection or consumption by any means

whatsoever of any Prohibited Substance or Prohibited Method.

WADA:

The World Anti-Doping Agency.

Conference “Recent Developments in Sport in the European

Union”, Lisbon, Portugal, 26 September 2007

The European Commission has recently issued a White Paper on Sport. During the Portuguese Presidency

of the European Union the content of this White Paper is being discussed and the first contours of the

future approach towards sport in the European Union will become visible.

The ASSER International Sports Law Centre, The Hague, The Netherlands, took the opportunity to organ-

ize a conference on Recent Developments in sport in the European Union in the capital of the current

Presidency of the EU.

The conference aimed to clarify the contents of the European Commission’s White Paper and its possible

impact on the sports sector in the EU and in Portugal. A special focus of the conference lies on the activities

of players’ agents in football. On this occasion the first copy of the book “Players’Agents Worldwide: Legal

Aspects” published by the TMC Asser Press with the collaboration of the Portuguese lawyers Pedro

Cardigos and Ricardo Henriques, was presented to Comandante Vicente Moura, President of the

Portuguese Olympic Committee (COP).

Programme:

Opening by the chairman

Dr. Pedro Cardigos

Partner of the law firm ABBC - Sociedade de Advogados, RL

The impact of the European Commission’s White Paper on Sport

Dr. Richard Parrish

Director, Centre for Sports law Research, Edge Hill University (UK)

140

2007/3-4

Sport organizations and Member States have repeatedly called on the Commission to ensure that the principles

and values developed on the basis of the Nice Declaration are implemented properly and in a coherent manner. In

order to give an appropriate answer to these concerns, the Commission took a political initiative in the area of

sport, which will take the form of a White Paper. The White Paper will take stock of the current situation and out-

line the way forward to address the challenges that European sport faces. It will aim at outlining the role of sport

in European society, its economic dimension, its special organizational features, and its interaction with EU poli-

cies. Special attention will be paid to the identification of areas where EU action can provide added value with

regard to action already taken by sport organisations and Member State authorities. The White Paper on Sport is

planned to be published on 4 July next.

The Lecture was held on Thursday 6 September 2007 at the Clingendael Institute in The Hague and will be co-

chaired by Dr Robert Siekmann, Director of the ASSER international Sports Law Centre and Prof. Ian Blackshaw,

Member of CAS and Honorary Fellow of the Centre.

The guest lecturers were:

- Mr Ralph-René Weingärtner,

Director for Youth and Sport, Council of Europe, Strasbourg:

“The Council of Europe and Sport: A New Perspective to Pan-European Sport Cooperation”

- Mr Michal Krejza

, Head of Sport Unit, European Commission, Brussels:

“The European Commission’s White Paper on Sport: the Challenges that Sport Faces”.

At the Lecture two recent sports law book publications, which were produced by the ASSER International Sports Law Centre

in cooperation with T.M.C. Asser Press were presented to the speakers respectively:

The Council of Europe and Sport: Basic

Documents

and

European Sports Law: Collected Papers

by Stephen Weatherill.

The White Paper on Sport: the perspective of the Portuguese Olympic Committee (COP)

Comandante José Vicente Moura

President of the Portuguese Olympic Committee (COP)

Players’Agents in the EU and the draft FIFA regulations on Players’Agents

Roberto Branco Martins LLM

Asser International Sports Law Centre (NL)

The legal regulation of Players’Agents in Portugal

Dr. Ricardo Henriques

Associate of the law firm ABBC - Sociedade de Advogados, RL

Panel Discussion

Moderator Dr. Pedro Cardigos

with the participation of:

•Dr. João Leal

Legal Director of the Portuguese Football Federation (FPF)

•Dra. Zsuzsanna Jambor

European Commission DG COMP

•Dr. Emanuel Calçada

Director of the Portuguese National Football Agents Association (ANAF)

•Dr. Alexandre Mestre,

collaborator of Mr. José Luis Arnaut regarding the Independent European Sport Review and associate at the

law firm PLMJ Advogados

•Dr. João Nogueira da Rocha

Legal Director of the Portuguese Football Players Union (SJPF)

•Dr. João Orlando de Vieira de Carvalho

The Portuguese Football League (LPFP)

2007/3-4

141

editorial board

Robert Siekmann, Janwillem Soek (general editors), Simon Gardiner, Andrew

Caiger, Jim Gray, Andy Gibson, Frank Hendrickx, Richard Parrish, Klaus

Vieweg, Ian Blackshaw (contributing editor)

advisory board

Paul Anderson, Gerard Auneau, John Barnes, Roger Blanpain, Rian Cloete,

Lucio Colantuoni, Pierre Collomb, Steve Cornelius, Brian Doyle, Jean-Louis

Dupont, Hazel Hartley, Johnny Maeschalck, Luiz Roberto Martins Castro,

Jose Meirim, Jim Nafziger, John O’Leary, Dimitrios Panagiotopoulos, Luis

Relogio, José Manuel Rey, Gary Rice, Gary Roberts, Denis Rogachev, Rochelle

le Roux, Martin Schimke, Shixi Huang, Luc Silance, Gerald Simon, Paul

Singh, Heiko van Staveren, Andrzej Szwarc, Christoph Vedder, Eric Vilé, Dan

Visoiu, Alex Voicu, Wang Xiaoping, Stephen Weatherill

general editor / publishing office islj

Asser International Sports Law Centre

c/o T.M.C. Asser Instituut

Institute for Private and Public International Law, International Commercial

Arbitration and European Law

P. O . Box 30461

2500 GL The Hague

Tel.: +31-(0)70-3420300

Fax: +31-(0)70-3420359

E-mail: sportslaw@asser.nl

Website: www.sportslaw.nl

printed by

Krips BV

P. O . Box 1106

7940 KC Meppel

design and layout

MMS Graﬁsch Werk, Amsterdam

subscriptions

The International Sports Law Journal (ISLJ) can be ordered via ASSER

International Sports Law Centre.

Price € 100,-, per annum (four issues)

€ 250,- (full page), € 100,- (half page)

ISSN 1567-7559

Abstracting services: SPORTDiscus (SIRC), http://www.sirc.ca

Thomson Gale, a part of Cengage Learning is allowed by the ASSER

International Sports Law Centre to license The International Sports Law Journal

(ISLJ)

the asser international sports law centre is supported by

CMS Derks Star Busmann, Wilkens c.s., Taylor Wessing, Larrauri & López

Ante, Legal Netlink Alliance, De Keersmaeker Vromans, LCA, TOLUN,

Daguara Farrugia Advocates

COLOPHON

142

2007/3-4

The 3rd Annual Convention of the Asian Sports Law Society and the

Annual Convention of the Sports Law Seminar of the China Law

Society

The board meeting of the Asian Sports Law Society was held in Seoul, Korea, from 1 to 3 December 2006.

The topics under discussion included the modification of the Asian Sports Law Society Statute and the host city

of the 2007 international academic forum. With the 2008 Olympic Games due to be held in Beijing, the

directors present unanimously voted for Beijing as the host city, with the China Sports Law Seminar as the

sponsor and the legal issues concerning 2008 Olympic Games as the major theme.

Since its foundation in 2005, the Asian Sports Law Society has held two successful international sports law

forums, focusing on “The Tasks and Challenges Confronting Asian Sports Law” and “Challenges Confronting

Sports Law as an Embodiment of National Obligation” respectively, which evoked worldwide response.

Considering the contribution of the Research Centre for Sports Law (CUPL) to the establishment of the Asian

Sports Law Society and academic research into sports law in China, the China Sports Law Seminar asked the

China University of Political Science and Law to organise the 2007 sports law international forum.

Objective:

To provide an excellent platform for international exchange and cooperation in sports science, a convenient

channel for a comprehensive understanding of the current sports law situations both in Asia and worldwide, as

well as all related issues and their countermeasures. Furthermore, to provide legal support for the 2008

Olympic Games, thereby contributing to the development of sports science.

Theme: Legal issues concerning the Olympic Games

The forum will discuss the following topics:

Topic 1: Legal status of the participants in Olympic Games

Topic 2: Legal relationship between sports clubs and players

Topic 3: Sports disputes tackling mechanism

Topic 4: Protection of Olympic intellectual property

Topic 5: Legal issues concerning the commercial development and utilisation of the Olympic facilities

Topic 6: Sports morality and anti-doping measures

Goal:

To organise a unique, top level, highly influential international academic forum and to make a significant con-

tribution to sports science and Olympic law research.

Sponsored by: the Asian Sports Law Society and Sports Law Seminar of the China Law Society

Organised by: China University of Political Science and Law and Hongfan Guangzhu Law Firm

Date: 10 to

November

2007

9 November: check-in

10-11 November: convention

12 November: departure

Place:

New Red Building on Changping Campus, CUPL

Scale:

about 120 participants

2007/3-4

143

Guests of Honour:

Officials from the Law Committee of the National People’s Congress, the Supreme Court, Supreme People’s

Procuratorate, Legislative Affairs Office of the State Council, State Sports General Administration, Beijing

Municipal Government, Organisational Committee of the 29th Olympic Games, Ministry of Education and

Ministry of Justice; leaders from China University of Political Science and Law and China Law Society and

Beijing Municipal Law Society; President of the Korea Sports and Entertainment Law Society, President of the

Japan Sports Law Society, managing director of the Asian Sports Law Society.

Participants:

Directors from the China Sports Law Seminar of the China Law Society, national and international sports and

legal experts and scholars from Hong Kong, Macao SARs, Taiwan, Korea, Japan, India, Vietnam, Australia,

Europe, US, as well as news media.

Schedule:

9November: Check-in (24-hour service available),

18.00: Welcome banquet

2. 10 November:

7.00-8.00: Breakfast

8.30 Opening ceremony; welcome speeches delivered by:

President of China University of Political Science and Law

Leader of the China Law Society,

Leader of the State Sports General Administration

Leader of the Beijing Organisational Committee of Olympic Games

President of the Korea Sports and Entertainment Law Society

President of the Japan Sports Law Society

Experts in international sports law

Group photo

9.45-10.00: Tea break

10.00-12.00: Speeches at the Main Meeting:

Keynote speech by Professor Jiao Hongchang,

Academic speech by Professor Jiang Ping,

Comment on the forum by Mr Wei JiZhong

12.00-13.00: Lunch

13.00-14.00: Siesta

3. 14.00-16.00: Topics for Group Discussion:

Legal Status of the Participants in the Olympic Games (branch meeting room 1)

Legal relationship between sports clubs and players (branch meeting room 2),

Sports Disputes Tackling Mechanism (branch meeting room 3)

16.00-16.15: Tea break

16.15-18.00 Comments by experts and question-and-answer session

18.00-19.00: Dinner

4. 11 November:

7.00-8.00: Breakfast

8.30-10.30: Topics for group discussion:

Sports morality and anti-doping measures (branch meeting room 1)

Protection of Olympic intellectual property (branch meeting room 2)

Legal issues concerning the commercialised development and utilisation of the Olympic

facilities (branch meeting room 3)

10.0-10.45: Tea break

10.45-12.10: Comments by experts and question-and-answer session

12.10-13.00: Lunch

13.00-14.00: Siesta

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2007/3-4

5. 14.00-15.30: Closing ceremony

Summary speeches delivered by representatives from branch meetings

Summary speech delivered by the current chairman of the Asian Sports Law Society

Closing speech delivered by leaders of China University of Political Science and Law

17.30-19.00: Banquet

Thesis submission:

Please write your thesis on the convention’s theme and send it by e-mail to the convention committee.

Thesis requirement:

1 Not published in a national academic convention or publicity publication

2Write the thesis in English or Chinese in accordance with the required format, including footnotes for com-

ments, page number

3Usual number of words: 5000.

Organisational Committee of the Convention: composed of Research Centre for Sports Law, CUPL and relevant

departments and branches, including secretariat, liaison office, cooperation and development office, academic

office, financial office, and supervision board.

China Sports Law Seminar of China Law Society

Research Centre for Sports Law of CUPL

01-08-2007

(dd-mm-yy)

Contact information for the Organisational Committee of the Convention:

Contact: Wang Xiaoping, Zhang XiaoShi, Ma HongJun

Tel: 010-58909492, 010-58909493, 13501235801

Address: Research Centre for Sports Law, CUPL, Changping District

Zip Code: 102249

Fax: 010-58909492, 010-58909493

E-mail: [email protected]

[email protected]