Court of Arbitration for Sport:- Winter 2016/2017- Case Round Up

This article looks at a number of the decisions made by the Court of Arbitration for Sport (“CAS”) between December 2016 and February 2017. For details of all the decisions made by CAS in this period, please consult their website. A video version of this article can be found via this link :- Youtube:- SportsLawin5

1. An appeal by a Turkish weightlifter was dismissed on 8 December 2016, illustrating the Court’s strict approach to an anti-doping rule violation.

Sibel Ozkan Konak, was originally found guilty by the IOC Disciplinary Committee on 21 July 2016 for an anti-doping rule violation. A substance called Stanozolol (a steroid) had been found in a urine sample taken whilst she was competing in the Beijing Olympics. Konak had her competition results declared void and was ordered to return her silver medal. She subsequently filed an appeal at CAS against the ruling.

The appeal was given short shift by the sole arbitrator Hon. Michael J Beloff QC who described the case as ‘straightforward’. Beloff stated that any arguments about the degrees of fault of the athlete were irrelevant. The presence of Stanozolol in the body is prohibited by the Olympic anti-doping rules, and this drug was discovered in Konak’s sample. As a result there was no other option but to impose a sanction, and the appeal was dismissed.

2. In contrast to the weightlifter case, on 23 January 2017 the Belarus Canoe Association managed to get a ban for an anti-doping rule violation overturned on appeal.

On 15 July 2016, the International Canoe Federation imposed a one-year competition ban on the whole Belarusian men’s canoe/kayak team including coaches, staff and athletes, due to a number of alleged doping violations. The allegations were made after French police raided the Belarusian training camp in April 2016. At the raid a number of doping substances and equipment were confiscated and after the raid five of the athletes subsequently tested positive. After appealing to CAS a panel of arbitrators found there was not enough evidence to justify banning the whole Belarusian canoe team and overturned the ban.

3. On appeal, CAS reduced the sanctions imposed on Real Madrid CF for breaching FIFA rules on the transfer of minors.(20 December 2016)

The FIFA Appeal Committee originally found that Real Madrid had breached a number of articles in FIFA’s regulations on the Status and Transfer of Players. Primarily the breach concerned Article 19, which prohibits the international transfer and first registration of foreign players under the age of 18, except in limited circumstances. After a FIFA appeal, Real Madrid appealed to CAS who amended FIFA’s decision as follows:-

1. Real Madrid were banned from registering any new players (international or national) for one transfer period (previously two); and

2. Real Madrid had to pay a fine of 240,000 Swiss francs (previously 360,000).

The arbitrator explained that Real Madrid’s infractions were less serious than was being argued by FIFA’s judiciary bodies, and as such while the ruling was upheld, the sanctions would be reduced.

While Real Madrid welcomed the sanction reduction they argued CAS should have revoked the ruling entirely. On the other hand, many Catalan commentators argued Madrid received favourable treatment. They point to the fact that Barcelona had an appeal for similar violations dismissed in 2014. Either way, with many top European football clubs increasingly looking to recruit young talent in order to gain a competitive advantage, CAS will inevitably deal with this issue again.

4. On 2 February 2017, CAS decided on an employment law dispute between Turkish footballer Hakan Calhanoglu (the “Player”) and Trabzonspor FC (the “Club”).

In April 2013 the club filed a complaint with the FIFA Dispute Resolution Chamber (“FIFA DRA”) claiming the Player had breached the terms of his employment contract without just cause when he signed for another football team in Germany. In January 2016 the FIFA DRA imposed on four-month period of ineligibility on the player. The Player and the Club appealed, with the Player asking for a stay of the four-month ban pending the outcome of the CAS hearing whilst the Club sought compensation.

The panel of arbitrators found the Player had breach the FIFA regulations on the Status and Transfer of Players and dismissed the Player’s appeal. However CAS allowed the Club’s appeal and ordered the Player to pay 100,00 euros in compensation to the Club.

5. CAS usually acts as a final court of appeal, however in the below case, due to suspension of the All Russia Athletics Federation, it acted as a court of first instance.

The case, decided on 23 December 2016, involved a Russian athlete, Anastasiya Bazdyrera (“Athlete”) and Russian coach Vladimir Mokhnev (“Coach”). The Player was found to have breached Article 32.2 (b) of the IAAF competition rules on use of a prohibited substances/methods and was given a two year ban. The coach was found guilty of violating IAAF rules on the possession, trafficking and administration of banned substances and was banned for 10 years.

 

 

 

 

Rio 2016: The Olympics and Ambush Marketing

As the 4-year Olympic cycle comes to Rio de Janeiro, Brazil, this article will look at the issue of ‘ambush marketing’ during the Games. It will briefly analyse the rule put in place by the International Olympic Committee (‘”IOC”) to deal with ambush marketing, and the subsequent impact of these rule.

Ambush Marketing

Ambush marketing can be defined as an attempt by a third party to associate itself with a major event (such as the Olympics) and thereby benefit from the prestige and goodwill of the event without having to pay for that privilege.

It is particularly relevant for the Olympics, as it is an event of high global prominence with a generally positive image (the ‘Olympic spirit’) thereby attracting large amounts of money in sponsorship.

What is Rule 40?

The IOC has provisions in the Olympic Charter, which are designed to prevent ambush marketing. These are known as Rule 40, which states:-

‘Except as permitted by the IOC Executive Board, no competitor, team official or other team personnel who participates in the Olympic Games may allow his person, name, picture or sports performances to be used for advertising purposes during the Olympic Games’

Guidance accompanying Rule 40, clarifies its purpose is:-

‘To preserve the unique nature of the Olympic Games by preventing over commercialisation and to allow the focus to remain on the athletes’ performance and to preserve sources of funding, as 90 per cent of the revenues generated by the IOC are distributed to the wider sporting movement’

The rule is designed to apply during the ‘Games Period’, which runs from 27 July 2016 to 24 August 2016 and relates to coaches and officials as well as athletes.

Changes to Rule 40

Prior to and during the London games in 2012 there was increasing demand for changes to Rule 40. The side effect of the implementation of Rule 40 had been that long-term sponsors of athletes were prevented from benefiting from their athletes at the time they were most publicly exposed. As such in July 2015 the IOC amended the rules to allow:-

“generic (non-Olympic) advertising during the period of the Games…provided it does not create any impression of a commercial connection with any Olympic property and in particular the Olympic Games”.

It has been left to individual National Olympic Committees to regulate and control Rule 40 (within the guidelines set by the IOC) however the IOC is still responsible for enforcement and can put sanctions on athletes such as fines, removal of accreditation, and disqualification.

Impact of the Changes

To implement Rule 40, the British Olympic Association (“BOC”) has issued guidelines on advertising involving British athletes and how to avoid breaching the rule (see link).

https://www.teamgb.com/docs/default-source/default-document-library/default-document-library/rule-40-guidelines-final.pdf?sfvrsn=2

To advertise during the Games Period, you can either get ‘express consent’ to do so (the deadline to obtain this has now passed) or if you meet the criteria you can gain ‘deemed consent’. The full details are outlined in the guidance, however as a general rule, an athlete can continue to feature in an advertising campaign if the advert has been used in the same way consistently prior to 27 March 2016 (4 months prior to the Games Period) This is provided no association is created with team GB or the Olympics. For example the following should be avoided:-

1. A re-tweet of team GB message on twitter;
2. A congratulatory message on social media from a company to an athlete; or
3. Use of any words associated with the Olympics. There has been lots of negative press on this point, with many suggesting the restrictions are absurd. However as a Company you should think logically. If an advert has been designed to promote a link with the Olympics and you think it does. It will most likely breach the rules.

Conclusion

The Guidance to Rule 40, stated served a number of purposes. So have these been achieved?:-

• Firstly it is designed to protect the commercial revenue generated from the Olympics. Namely that the sponsors receive protection for the millions of dollars they invest in the Games. The over $1 billion dollars in sponsorship for the 2016 games suggest that sponsors feel the Olympics is worth the investment and there is adequate protection in place; and

• Secondly it’s designed to prevent over commercialisation. This idea is perhaps outdated and a relic from an era when the Olympics was truly an amateur pursuit. Modern Olympics are heavily commercialised and Rule 40 does not change this, it just protects those companies who have directly sponsored it.

An additional point to note is that the nature of the reforms to Rule 40 have arguably only provided protection for heavily commercialised athletes and their high profile sponsors. For instance the 27 March 2016 deadline set by the BOA provides little help for those less high profile athletes who hadn’t yet made the Olympic team. Such Olympians are often the most reliant on their sponsor’s money; sponsors who will not be as high end as those backing stars like Jessica Ennis-Hill (Santander). Such a sponsor is then denied exposure during a period when it is particularly able to benefit.

Ultimately the changes to Rule 40 and how effective they are, will be put to the test over the next two weeks as the world focuses on the Rio.

Stay tuned for another article!