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Abstract: Abstract The World Anti-Doping Agency (WADA)’s World Anti-Doping Code (WADC) provides that anti-doping organizations, such as international sport federations (IFs), may use data from a doping control test to monitor compliance with sex-based eligibility regulations that regulate the serum testosterone levels of transgender and intersex athletes. This contemplated use of doping control data has been incorporated into the regulations of several IFs and is facilitated by WADA’s Anti-Doping Administration Management System (ADAMS)—a web-based database managed by WADA in Canada that contains analytical results from doping control tests and is accessible by anti-doping organizations. WADA’s collection, use and disclosure of personal information through ADAMS is subject to Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA). This paper examines WADA’s non-compliance with PIPEDA when it discloses doping control data in ADAMS to an IF for the purpose of the IF’s administration of sex-based eligibility regulations, and how a complaint about WADA’s data disclosures might be handled by Canada’s Privacy Commissioner. The paper also examines the application of the European Union’s General Data Protection Regulation to IFs that seek to use doping control data stored in or outside of ADAMS to administer sex-based eligibility regulations. The paper concludes with the perspective that data protection laws can be used to challenge the implementation of sex-based eligibility regulations, alongside other human rights-based legal strategies. PubDate: 2024-08-05
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Please help us test our new pre-print finding feature by giving the pre-print link a rating. A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Abstract: Abstract This article examines the regulatory space occupied by principal actors in elite sport, with a particular interest in how dominant actors in sports governance respond to the emergence of third-party competitions or ‘breakaway’ leagues. Applying a regulatory lens, the article identifies actors who, by virtue of their role and position, have long assumed or claimed legitimacy and authority in the running of a sport. In pursing that line of inquiry, the article focuses on the role of dominant actors assuming the constitutional right of prior approval in sanctioning and authorising qualifying events, along with penalties for athletes who participate in breakaway leagues. These controls in elite level swimming present a salient case where the sport has long been ruled by a singular actor, World Aquatics (WA), formerly known as Fédération Internationale De Natation. In recent years, WA’s dominant position has been interrupted by the rise of an emergent actor, the International Swimming League (ISL), which presented opportunities for either regulatory accommodation or disruption. In pursuing that scenario, the article draws on Hancher and Moran’s regulatory space metaphor (1989), which theorises the attributes of dominant actors occupying regulatory spaces. Concurrently, the article draws upon Arts’ Three Faces of Power concept (2003) to interpret the values, behaviours, and characteristics of various types of regulatory actors. By exploring the key characteristics of regulatory actors in the WA-ISL relational context, this article contributes to our understanding of organisational legitimacy and the regulatory power of dominant and emergent actors in global sport’s regulatory space. PubDate: 2024-07-20
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Abstract: Abstract Fundamental Principle 4 of the Olympic Charter provides, ‘[t]he practice of sport is a human right’. However, to think of the practice of sport as a human right is misleading and potentially unhelpful to the true inclusion of children with disability in sport. The various permutations of a human right to sport—a right in sport; a right to participate in sport; a right to the practice of sport; and a right to sport—result in an attitude that children with disability are provided sporting opportunities in a way that are separate, segregated, or unnecessarily different. In this article, we argue that sport should be thought about and analysed through a different human right: the right to non-discrimination. If the right being applied to the experience for a child with a disability in sport, is that of non-discrimination, then the aim is to provide the child with the same experience as a mainstream child. This also means that the focus changes from providing a right to ‘sport’, which results in access to simply the physical activities of sport and shifts to the experience the child has within a sport. Most importantly, the human right to non-discrimination means that a child with disability should have the opportunity to be included in mainstream sport, with adjustments to provide them with a fair and meaningful contest. PubDate: 2024-07-15
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Abstract: Abstract Recent events have once again shone a spotlight on the principle of political neutrality invoked by many Sports Governing Bodies to justify their inaction in response to political issues in the world of sport. The war in Ukraine and the hosting of the FIFA World Cup in Qatar have tested the political neutrality of both FIFA and the IOC. The consequences of this stance have led to FIFA overlooking a number of human rights issues in Qatar and the IOC ignoring human rights concerns in host states, awarding Russia and China recent versions of the Winter Olympics. This article outlines the most salient examples of the politicization of sport, exposing the myth upon which the principle of political neutrality is based. The aim is to offer a clear understanding of the processes behind the politicization of sport, the attraction of sport to governments of all political hues, and its use in ‘sportswashing’ activities and ‘soft power’ acquisition. Such an analysis of sport politics provides a glimpse behind the veneer of apoliticality enshrined in the principle of political neutrality and hence a better basis for scholars of sports law to understand the politically sensitive cases arising in sport in the present day. PubDate: 2024-07-09
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Abstract: Abstract The principle of political neutrality in sport, as implemented in Europe, faces significant challenges when applied in the African context. Due to Africa's historical and political circumstances, the strict transposing of political neutrality into sports regulation is not feasible and, the authors argue, results in an arbitrary application of the standard of neutrality. Africa, as a continent of nations emerging from colonial rule, still experiences ongoing economic and political development. The interdependence of politics and sport in these evolving African nations makes it difficult to separate the two spheres of influence effectively. The European approach, which effectively prohibits political interference in sports governance, is not sustainable in African nations. The prime example of this approach is the one adopted by FIFA, which we examine by analysing the cases of the normalisation and suspension of the Zimbabwean and Kenyan Football Associations, shedding light on the complex relationship between politics and sports governance in Africa. These instances demonstrate the challenges faced by African nations in establishing a politically neutral football governance structure. In analysing the African context, the historical legacy of colonisation shall be addressed. The derivative political systems established during colonisation have shaped the trajectory of African politics, which is still evolving alongside the economic and social development of these nations. The conclusion that flows is that a Eurocentric approach to sports governance in Africa, which effectively prohibits government interference in sports, is ill-suited for African nations. Instead, an adapted model that recognizes the unique political circumstances of African countries should be adopted. Such an approach should focus on striking a delicate balance between political involvement and ensuring the integrity, transparency, and autonomy of sports governance. By embracing a more nuanced perspective, African nations can foster sustainable and effective sports regulation while supporting their ongoing political and economic growth. PubDate: 2024-07-07
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Abstract: Abstract Over the years competitive balance has decreased in many football competitions in Europe. This means that the number of clubs with a realistic chance of winning important prizes has declined. Consequently, there is less choice for the many consumers who want to watch, or become fan of, a club from their own country that can win important prices. Put differently, in many national consumer markets competition has decreased. Unfortunately, the legal profession has paid insufficient attention to the effect of decreasing competitive balance on competition in consumer markets. This is also relevant for the Bosman ruling. The ruling prohibited transfer fees for out-of-contract players. This has led to a decrease in competitive balance. Therefore, the ruling has decreased the competition in national consumer markets. However, in making the ruling the European Court of Justice fully neglected the possibility of such a decrease. While it did apply the hard law concerning the free movement of workers, and it did take account of the specific features of the sport and the need for competitive balance more specifically (even though this was not decisive in the end), it neglected hard competition law as regards the competition in consumer markets. If it had not done so the ruling might have been different, and better for the football fans. PubDate: 2024-06-21
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Abstract: Abstract This paper argues that the Superleague Judgment creates the conditions necessary for the political process to step in and do its part in providing a much-needed regulatory framework for transnational sports organizations to exercise their powers in an accountable manner and in accordance with the values usually attributed to the European Sports model. Indeed, the key issues raised in cases such as the Superleague, ISU and Royal Antwerp, as well as in past cases, often require a regulatory follow up and implementation that courts are unfit to undertake. The Court Judgments highlight systemic flaws in the governance of sports that require a public framework regulating both the scope and nature of the powers of transnational sports organisations and ensure the democratic scrutiny and accountability of their regulatory powers. This can only be properly addressed at the political level. That should have been clear by now. Let’s hope that the Superleague, ISU and Royal Antwerp judgments will make it so. PubDate: 2024-06-13 DOI: 10.1007/s40318-024-00269-6
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Abstract: Abstract ‘Yeh Dus Saal Aap key Naam’ (These 10 years are dedicated to the people)-The title of the theme song of the tenth edition of the VIVO Indian Premier League (2017) narrates the story of the sports industry in India. The sports industry has undergone rapid commercialisation since the advent of professional leagues in the various fields of sport. The commercialised sports industry remains to be one of the fastest-growing industries in the world evolving at a rapid pace. However, the path has not been one that has been straightforward. The failure of sound legislation for ‘Sports Law’ in India coupled with various anti-competitive practices arising in the Industry has caused hindrances to the growth of the industry in the near future. The authors in the present paper shed light on the situation concerning ‘Sports Law’ in India. Furthermore, the rapid commercialisation of the industry makes it vital for Competition Law to intervene and safeguard any anti-competitive practices to arise. The paper lays emphasis on the landmark cases which illustrate the interface between competition law and sports in India and various competition law issues such as the abuse of dominance, the identification of relevant market and jurisdiction concerns over the sports federations that arise due to their anti-competitive practices. Therefore, relying on the aforementioned statements, the paper emphasises on the complex relationship between competition law and sports federations in India paving the way for what lies ahead in the near future. PubDate: 2024-03-19 DOI: 10.1007/s40318-024-00255-y
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Abstract: Abstract This article reflects on sport interests as accounted for by the European Court of Justice in the three judgments delivered on the 21st of December 2023: Case C-333/21 European Superleague Company SL v FIFA, UEFA, Case C-680/21 UL, SA Royal Antwerp Football Club v URBSFA, UEFA and Case C-124/21 P International Skating Union v Commission. In the cases, the Court does not treat sport as a special interest that would justify excluding the application of European Union (EU) substantive law to the situations at hand. Rather, the Court adopts a strict reading of Article 165 TFEU as a provision that does not shield the sport sector from the application of EU law. However, the paper demonstrates that the Court does recognise the particularities of sport and accounts for them in the application of EU free movement and competition law. This is especially when characterising rules as object or effect restrictions, but also when exploring the defence under Article 102 TFEU, the justifications under Article 101(3) TFEU as well as under free movement law. The Court guides and encourages the referring courts to pay attention to the specific content of the rules and the context in which they are implemented. The Court thereby follows the traditional assessment of a measure and its context under EU substantive law while devoting great attention to the specific characteristics of the sport sector in its substantive analysis. PubDate: 2024-03-15 DOI: 10.1007/s40318-024-00267-8
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Abstract: Abstract Being a quick and professional way to resolve disputes, arbitration has been firmly established as the predominant method of sports conflict resolution. Implementing emergency arbitration in sports disputes speeds up the case analysis, allowing claimants to request a pre-arbitration interim measure directly to an arbitral institution, not the courts. This paper aims to unfold emergency arbitration as a provisional remedy focusing on sports arbitration in Brazil under a comparative perspective with the Court of Arbitration for Sport (CAS). An explanatory case study of six sports emergency arbitration cases from the Brazilian Center for Mediation and Arbitration—CBMA allows us to conclude that a short time frame benefits emergency arbitration. It requires diligence from the arbitration center and emergency arbitrator, so the rules on emergency arbitration must be properly designed. This study offers a theoretical and practical approach to emergency sports arbitration, providing benefits for rulemaking, arbitrators, and sports arbitration lawyers and contributing to future research. PubDate: 2024-03-15 DOI: 10.1007/s40318-024-00256-x
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Abstract: Abstract On January 21, 2023, the Court of Justice of the European Union issued two judgments on European Union (EU) law as a check on the regulatory power of sport governing bodies: European Super League (ESL) and International Skating Union (ISU). These judgments clarify that private entities who wield regulatory power are under EU law subject to what can be characterized as good governance requirements. After examining how ESL and ISU enhance substantive and procedural good governance, this article explores who benefits—and more importantly who does not benefit—from these good governance requirements. While there is some ambiguity in the judgments regarding the scope of the good governance requirements, the article argues that they both can and ought to be applied broadly to all who enjoy rights under EU law. PubDate: 2024-03-10 DOI: 10.1007/s40318-024-00259-8
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Abstract: Abstract 295 rugby players have begun legal proceedings against World Rugby, the Rugby Football Union and the Welsh Rugby Union. The claimants report they are suffering from chronic traumatic encephalopathy. Among the allegations against the defendants is that the player safety regulations (i.e. the Pitch Side Concussion Assessment and Return to Play protocols) in place at the time of injury were done without proper medical foresight and increased the risks of concussion to players. World Rugby’s safety regulations are informed by the work of the Concussion in Sport Group which maintains that the link between collisions and concussion is unclear. However, recent studies report an unprecedented confidence that sports-related concussion causes brain disease. In 2022, the Concussion in Sport Groups lead author resigned due to 10 counts of plagiarism. This saga risks damaging public respect for both the safety regulations and the science underpinning it. This article examines the state of the scientific literature and considers the challenges in proving (1) the governing bodies breached their duty of care and; (2) the causal link between collisions and brain injury. This article argues that 2022 marked the year that defendants can no longer deny the dangers of sports-related concussion, however, defining the moment when the risks ought to be known remains onerous. On causation, this article examines the principles of material contribution, doubling of the risk, and the material increase in risk. The article concludes with policy considerations inviting an extension of the material increase in risk principle to sports settings. PubDate: 2024-03-10 DOI: 10.1007/s40318-024-00257-w
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Abstract: Abstract The trio of rulings handed down by the CJEU on 21 December 2023 have certainly sparked much discussion and debate amongst sports lawyers across the world during the past few months. In this commentary, the authors discuss the Royal Antwerp ruling and outline the CJEU’s assessment of the compatibility of the Belgian Football Association’s ‘home grown player’ rules with EU free movement law, the practical implications of the ruling and, the potential impact it may have on UEFA’s own ‘home grown player’ rule and the wider football transfer system. PubDate: 2024-03-04 DOI: 10.1007/s40318-024-00262-z
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Abstract: Abstract The three rulings of 21 December 2023 make three changes to the way we understand the structure of EU sports law. I examine all three in this paper, but I do not think any of the changes are radical. Things have changed – but not much, and the fundamentals of EU sports law, nurtured by the Court in case law that commenced in 1974, are untouched by the Court’s latest three rulings. To be clear: my concern in this paper is only with the structure of EU sports law. For UEFA, and in particular for its power to act as a ‘gatekeeper’ through a system of prior approval for new competitions offered by third parties, things have changed a lot, but that is a separate issue. PubDate: 2024-03-04 DOI: 10.1007/s40318-024-00265-w
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Abstract: Abstract The rulings of the CJEU in Superleague, Royal Antwerp and ISU endorse some of the characteristics of the European Model of Sport without explicitly referring to it. The Court recognises across the three judgments the specific nature of sport, the cultural importance of sport in Europe, the primacy of sporting merit and equal opportunities in sport competitions, and the relevance of redistribution to maintain amateur and commercial sport intertwined. The CJEU also acknowledges the legitimacy of sport governing bodies as regulators of their sport, but severely limits their autonomy to do so. The judgments are extremely critical of sport governance structures in two main areas: policy-making processes, and accountability mechanisms. The latter is severely criticised with demands for sport federations to produce thorough and convincing evidence that could demonstrate the benefits of their anticompetitive rules and regulations, so they can be granted and exemption under EU law. Furthermore, the Court criticises forced arbitration through the Court of Arbitration for Sport. The judgments assert the primacy of EU law over politics in European sport regulation, whilst also reinforcing the supervised nature of sport autonomy in the European Union. The judgments can also be interpreted as a warning to the Commission, European Parliament, and Council of the EU on the limits of Article 165 TFEU in the development of a European sport policy. PubDate: 2024-02-28 DOI: 10.1007/s40318-024-00264-x
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Abstract: Abstract The ISU, Royal Antwerp and the European Superleague cases have upheld athletes’ individual employment rights and provided access to national courts to challenge overly restrictive measures pursuant to EU competition law, amongst other things. The immediate impact on the labour relations environment in sport, however, is less obvious. This article discusses the effects of the CJEU decisions for employment relations and the broader trade union movement in sport. It considers the decisions’ effect on collective bargaining, highlights the effectiveness of independent players’ associations as a countervailing power to regulatory power and discusses whether the decisions may be a catalyst for the greater use of social dialogue as a mode of governance insofar as concerns regulation of the labour market. PubDate: 2024-02-27 DOI: 10.1007/s40318-024-00266-9
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Abstract: Abstract According to the European Superleague Company ruling of 21 December 2023, the UEFA rules for the approval of football competitions are inadequate. In search of better rules, this paper proposes three criteria for the approval of competitions: they should (1) improve welfare; (2) reflect the preferences of the consumers (football fans); and (3) be compatible with competition law. All Super Leagues proposed before 2022 would not have met criteria 1 and 3 in any case, as they would have reduced welfare and would have reduced the competition in consumer markets in a way incompatible with competition law. The same holds (or is likely to hold) for the reforms of the Champions League that UEFA has made since 1998 in reaction to threats of big clubs to start a Super League. However, if UEFA improves its own competitions in line with the criteria above, it should be able to outcompete the organizers of alternative competitions. PubDate: 2024-02-27 DOI: 10.1007/s40318-024-00260-1
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Abstract: Abstract The three December rulings of the Court of Justice of the European Union—European Superleague, International Skating Union, and Royal Antwerp—are important milestones in the development of EU sports law and policy. This article focuses on what is perhaps their most striking feature: the prominent place accorded to competition law. The judgments make several important changes and clarifications to how EU competition rules apply in the sporting context. This paper argues that the new legal framework paves the way for a more active use of competition law in sports cases. Although this is likely to have some positive effects on the quality of sports governance, it also carries the risk of exposing the field to an ill-fitting set of rules which follow a predominantly economic and de-regulatory rationale. Ultimately, even enhanced competition law will not be able to solve the manifold problems marring the world of sports—and is a poor substitute for sports regulation through legislative means. PubDate: 2024-02-27 DOI: 10.1007/s40318-024-00258-9
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Abstract: Abstract The paper compares the legal frameworks of France and Germany as regards the dual nature of sports organisations and private regulators. The historical background, relevant constitutional and statutory law as well as current political and institutional arrangements are covered. Borrowing from a recent ISLJ paper by Rook, Prado and Heerdt, it uses the concept of ‘responsible sport’ to frame a discussion of oversight by the state, using France and Germany as two paradigmatically relevant case studies, although not as a discussion of corporate social responsibility but rather as one of accountability in the state-sport relationship. PubDate: 2023-12-06 DOI: 10.1007/s40318-023-00252-7
Hybrid journal (It can contain Open Access articles)
