The International Sports Law Journal 2007, No
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Omslag_ISLJ2007_1-2 26-06-2007 11:43 Pagina 1 The InternationalSportsLawJournal 2007/1-4 2007/1-2 Doping Corruption in Sport Council of Europe Player’s Agents European Sports Law Announcements CONTENTS EDITORIAL 2 ARTICLES The “Official Statement from WADA on the The Laurent Piau Case of the ECJ on the Vrijman Report”: Unintentional Proof to the Status of Players’ Agents 43 Contrary? 3 Roberto Branco Martins Emile Vrijman France 52 Proportionality in the World Anti-Doping Code: Delphine Verheyden Is There Enough Room for Flexibility? 10 Jannica Houben Germany 58 Martin Schimke Sports People’s Right to Defence under the New Spanish Anti-Doping Law. A Perspective 19 Italy 65 Fernando del Cacho Millán Luca Ferrari On the Front Foot Against Corruption 21 Spain 75 Urvasi Naidoo and Simon Gardiner José M. Rey The Council of Europe and Sport 30 United Kingdom 82 Stanislas Frossard Nick White European Sports Law: Collected Papers 33 Wayne Rooney Wins Domain Name Dispute 92 Stephen Weatherill Ian Blackshaw Regulating Players’ Agents: A Global 38 Perspective Richard Parrish PAPERS The European Union and Sport: Law and Policy 99 Effects of the EU Anti-Doping Laws and Robert C.R. Siekmann Politics for the International and Domestic Sports Law in Member States 111 Freedom of Movement in Relation to Sport 100 Magdalena Kedzior Roberto Branco Martins Conceptual Approaches to Protecting the Corruption in Sport: Time for an EU Statement Publicity Value of Athletes in Germany and the of Integrity and Good Conduct in Sport? 108 United States 114 Jack Anderson Saskia Lettmaier OPINION Why WADA Should Not Ban Athletes For •The Independent European Sport Review - Recreational Drug Use 119 An Update 120 Ian Smith •FIFA’s Powers to Sanction Clubs Upheld 121 • French Football Clubs ‘To Float’ in 2007 - A Topical Note 121 •WADA Should Ban Athletes Who Take • Hackney Spikes Nike Guns 121 Recreational Drugs 119 Ian Blackshaw 2007/1-2 1 BOOK REVIEWS The Council of Europe and Sport: Basic Legal Comparison and the Harmonisation of Documents by Robert C.R.Siekmann & Doping Rules: Pilot Study for the European Janwillem Soek (Editors) 123 Commission by Klaus Vieweg and Robert Siekmann (Editors) 123 ANNOUNCEMENTS ❖ EDITORIAL This issue of ISLJ opens with Emile Vrijman’s comment regarding the This issue of ISLJ also contains several papers that were presented at official statement of the World Anti-Doping Agency (WADA) on the the Conference on “The Implications of Poland’s Membership of the Report “Analysis Samples from the 1999 Tour de France” which was European Union for Polish Sport” that was organized by the Polish drafted by Emile Vrijman and others at the request of the Union Institute of International Affairs in cooperation with the Polish Cyclist International (UCI) by way of an independent investigation Ministry of Sport, Warsaw, 28-29 September 2006. In this Conference into Lance Armstrong having been accused of the use of doping. Roberto Branco Martins and Robert Siekmann participated on behalf of the ASSER International Sports Law Centre. In this issue, particular attention is further paid to the Council of Europe, European Sports Law, and Players’ Agents. The ASSER International Sports Law Centre has launched a new ini- tiative to regularly publish data on sports law centres and journals In this context it should be mentioned that the ASSER International abroad as well as regarding national sports law associations on Sports Law Centre in cooperation with T.M.C. Asser Press has recent- www.sportslaw.nl and in ISLJ. This initiative is also instrumental to ly produced three books on these subjects, namely “The Council of the Centre’s support of the Peace Palace Library in The Hague in its Europe and Sport - Basic Documents” with a Foreword by Dr Ralf- effort to maintain and improve its Bibliography on Sports Law. René Weingärtner, Director for Youth and Sport at the Council of Europe, “European Sports Law: Collected Papers” by Stephen Last but not least, we heartily welcome Dr Richard Parish, Edge Hill Weatherill with a Foreword by Jean-Louis Dupont, Avocat in University, United Kingdom, and honorary chairman of the Belgium, and “Players’ Agents Worldwide: Legal Aspects” with a Association for the Study of Sport and the European Union, as a new Foreword by Roger Blanpain, who is a Professor in Labour Law at the member of ISLJ’s Editorial Board. Universities of Leuven (Belgium) and Tilburg (The Netherlands) and one of the founders and the first President of the global players’ union The Editors FIFPro. ❖ General Agreement of Cooperation with Budapest Universities on International Sports Law On 19 March last a General Agreement of Cooperation was signed in Budapest (Hungary) between the Deans of the Faculty of Physical Education and Sport Sciences, Semmelweis University and the Faculty of Law and Political Sciences, Peter Pazmany Catholic University, Dr Mihaly Nyerges and Dr Gyula Bandi respectively, and Dr Robert Siekmann on behalf of the ASSER International Sports Law Centre. The agreement concerns in particular cooperation on “sports law-specific lawyer training” as from the 2008/2009 academic year. In cooperation with the sports lawyer Dr Andras Nemes of Semmelweis University who also is an Executive Board Member of the International Association of Sports Law (IASL) the programme will be elaborated in the forthcoming year. After the signing of the Agreement at Semmelweis University Robert Siekmann and Roberto Branco Martins lectured on “European and Sport: Law and Policy: Developments and Prospects”. In the afternoon a visit was paid by both lectur- ers to the Law Faculty Library of Peter Pazmany Catholic University and to the tomb of Ferenc Puskas in Budapest. In the evening as part of the social programme of their visit to Hungary they attended the Premier League association football match MTK v. Vasas Budapest. 2 2007/1-2 The “Official Statement from WADA on the Vrijman ARTICLES Report”: Unintentional Proof to the Contrary? by Emile Vrijman* I. Introduction In its initial response on May 31, 2006, WADA carefully re-iterat- 1.1 It is surely nothing less than remarkable that there has, to date - ed its position that, as far as this investigation was concerned,: particularly in view of the media attention which the matter of the alleged use by American cyclist Lance Armstrong of prohibited sub- “an investigation into the matter must consider all aspects - not limit- stances itself received at the time - been little or no substantive ed to how the damaging information regarding the athletes’ urine sam- response to, let alone criticism of, the findings of what has become ples became public, but also addressing the question whether anti - known as the “independent investigation of all facts and circumstances doping rules were violated by athletes”8 regarding the analyses of the urine samples of the 1999 Tour de France con- ducted by the French WADA-accredited laboratory, the ‘Laboratoire and that: Nationale de Dépistage du Dopage’ (hereinafter: the ‘LNDD’) in Châtenay - Malabry, France”, as reported in “the Vrijman report”1. In “WADA will respond in due course once it has fully examined the spite of the very strong criticism expressed in this report regarding report”9. (the quality of) the research it conducted and its subequent behaviour in this matter, the LNDD has, to this day, not responded to any of However, on 2 June 2006, barely two days later and almost three the findings of the investigation, while the French newspaper weeks before the results of WADA’s examination of the Vrijman ‘L’Equipe’ - responsible for publishing the relevant article in which report were published, WADA Presient Richard Pound, already con- Lance Armstrong was accused of using the prohibited substance cluded in an interview with the press agency “Agence France - Presse” “recombinant erythropoetin” (“r-EPO”) during the 1999 Tour de (“AFP”) that the investigation report was full of holes. “They put as France2 - merely stated in an editorial that it continued to support facts things that are suppositions, suspicions and possibilities”, said fully the findings of its own investigation. Pound10. He also announced that WADA rejected the “Vrijman report” and “will consider legal action against Vrijman and any organi- “There is nothing to retract from the revelations. [...]. For our part, we zations including the UCI, that may publicly adopt its conclusions”11. On remain convinced of the need to battle without compromise against 19 June 2006, WADA eventually published its so-called “Official mafialike tendencies that still and always threaten the sport of cycling. Statement From WADA On The Vrijman Report” (hereinafter: “the Both in the method and the substance, L’Equipe stands firm.” 3 Statement”), “highlighting a number of unprofessional, inaccurate, unfair and misleading elements of the [Vrijman] report”12. Procedural aspects Where there has been criticism in respect of the investigation that has 1.4 Purpose of this article been conducted, it usually related to the procedural aspects of that Based on a general analysis of (the content of) the Statement itself, this investigation. The premature publication of the most important find- article will examine in detail WADA’s criticism regrading (the conduct ings of the investigation in the Netherlands newspaper “de Volkskrant” of) the investigation in general and, more specifically, its results, in on May 31, 2006, in particular appears to have been the cause of this4. particular as far as the assessment of (the extent and nature of) For some, also my reputation as being pro-athlete - earned because of WADA’s involvement in this matter and the legitimacy of that the role I allegedly played according to some in the doping affair involvement are concerned. Furthermore, this article will show why involving the German athletes Katrin Krabbe, Grit Breuer and Silke both the manner of WADA’s response, as well as the arguments it has Möller - as well as my being acquainted with Mr.