T h 2008/1-2 e I n t e r n a t i o n a l S p o r t s L a w J o u r n a l White Paper on Sport Webster Case WADA Code FIFA Dispute Resolution Chamber Football Hooliganism 2 Olympic Games, China 0 and Human Rights 0 8 / 1 European Club - 2 Association “TRANSLATING IS THINKING CMS Derks Star Busmann WITH ANOTHER PERSON’S MIND” FREELY RENDERED FROM ARTHUR SCHOPENHAUER (1788-1860) For high-quality translations you need a reliable partner: Wilkens c.s. • One of the foremost translation companies in the Netherlands, employing more than 40 in-house translators/editors and experienced project managers. It’s pretty clear. As the keeper you have only one goal: to stop • Offices in the Netherlands and Belgium. the balls whizzing past your ears. • Years of experience in both general and specialist translation. Subjects A flawless performance, that’s include (sports) law, finance and economics, medicine and pharma - what it’s all about. On the ball, ceutics. right through the match. 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Contact our sports law specialists Eric Vilé ([email protected]), Dolph Segaar ([email protected]) or Robert Jan Dil ([email protected]). www.cmsderks.nl E-mail: [email protected] Translators for the T.M.C. Asser Institute and Information: www.wilkens.nl Phone: +31 (0)71 5811211 the ASSER International Sports Law Centre Fax: +31 (0)71 5891149 Mail address: P.O. Box 302 NL-2350 AH Leiderdorp * Member of OVIN (Organisation of Translation Companies in the Netherlands) Office address: Kantoorgebouw Statenhof Reaal 5H Leiderdorp The Netherlands CONTENTS EDITORIAL ARTICLES The White Paper on Sport as an Exercise in Analyzing the New World Anti-Doping Code: ‘Better Regulation’ 3 A Different Perspective 42 Stephen Weatherill Steven Teitler and Herman Ram The EU Commission’s White Paper on Sport: Doping As a Crime? The Policy Issue An Official Coherent, Yet Debated Entrance of Concerning the Choice of Method to the Commission in the Sports Arena 9 Deal with Doping 49 Sophie Cuendet Julia Völlmecke The CAS Appeal Decision in the Andrew Lex Sportiva And Lex Mercatoria 57 Webster Case 14 Boris Kolev Ian Blackshaw True Supporters, Strict Liability, and The Webster Case: Justified Panic as there Feyenoord: The Problem of Fan-Related was after Bosman? 20 Violence in Soccer 63 Frans de Weger Peter Coenen The Prize for Freedom of Movement: The The Evolution and Effectiveness of Football Webster Case 24 Banning Orders 66 Janwillem Soek Clifford Stott and Geoff Pearson The Training Compensation System 29 The Employment Bond in the Area of Sports 77 Mark Bakker José María Sabat Martínez Will The New WADA Code Plug All The Gaps? Will There Be By-Catch? 37 John Marshall and Amy Catherine Hale PAPERS The Olympics, China and Human Rights 82 The Position of the Players’ Agent in European Robert Siekmann Law after the White Paper on Sport 91 Steven Jellinghaus The Societal Role of Sport 85 Jack Anderson From Case-By-Case to a General Playbook! 93 Marjan Olfers OPINION Some Thoughts about the European Club The Legal Basis of the Olympic Charter 100 Association’s Possible Participation in a Social Alexandre Mestre Dialogue in the European Professional Football Sector 95 • The Court of Arbitration for Sport: Provisional and Conservatory Measures Robert Siekmann • Two Stripes and You Are Out? • Can Dwain Chambers Successfully Challenge the Life European Football Agents Association Wants Time Ban on Competing in the Olympics Imposed on Him For a Doping Offence? to End Malpractice in the (International) • Jail Players Who Commit Dangerous Tackles Transfer of Players 96 • English Premier League Record Transfer Fees: For the Roberto Branco Martins Good of the Game? • Restrictions on Foreign Ownership of Football Clubs: For the Good of the Game? Is the Professional Athlete’s Right to Privacy • Foreign Player Quotas in Football Teams: Sporting and Being Tacitly Ignored? 100 Legal Pros and Cons 102 Janwillem Soek Ian Blackshaw 2008/1-2 1 CONFERENCES The Row Must Go On - Report on the Final Sports Law Conference in South Africa: Conference of the Row the Boat Intellectual Property Rights and the Project, Arnhem, 7-8 February 2008 110 FIFA World Cup 2010, Durban, 20-22 November 2007 115 Report on the Conference “Sport and Work”, Lille, 10-13 December 2007 113 Sport Governance Focuses Discussions at Chester, 6-7 July 2007 115 BOOK REVIEWS • The Jurisprudence of the FIFA Dispute Resolution • The Sporting Exception in European Union Law by Chamber by Frans de Weger Richard Parrish and Samuli Miettinen • The Legality of Boxing: A Punch Drunk Love? by Jack • Players’ Agents Worldwide: Legal Aspects, edited by Anderson R.C.R. Siekmann, R. Parrish, R. Branco Martins and J.W. Soek 117 Ian Blackshaw HISTORY DOCUMENTS The Sports Boycott of Nigeria: Sports, Politics United Nations General Assembly Resolutions and Human Rights 121 on the Olympic Truce 128 Robert Siekmann Publication of CAS Awards (per March 2007) 133 ❖ EDITORIAL In this ISLJ issue’s lead article Weatherill examines the European The ASSER International Sports Law Centre has just completed an Commission’s White Paper on Sport in the perspective of the “Better EU-co-financed Study into the identification of themes and issues Regulation” debate that is currently underway throughout Europe. which can be dealt with in a Social Dialogue in the European profes- The next three articles by Blackshaw, De Weger and Soek respective- sional football sector (DG Employment and Social Affairs). A propos- ly, critically discuss the CAS award in the Webster case of January last al for a similar research project regarding professional cycling in where it was examined under what conditions a professional football Europe has recently been submitted to the European Commission, player may terminate his contract after what is known as the protect- given that AIGCP and IPCT (teams) and CPA (riders) in October ed period. De Weger is also the author of the latest book to appear in 2007 jointly requested the European Commission to establish a Social the Asser International Sports Law Series entitled “The Jurisprudence Dialogue in this sport sector. of the FIFA Dispute Resolution Chamber” (T.M.C. Asser Press). Within the European Commission’s TAIEX instrument’s frame- Following up on Soek’s analysis in the previous issue of ISLJ of the work (DG Enlargement) an Asser/Edge Hill team of speakers partic- way in which the “just cause” concept is applied in the case law of the ipated in workshops on the impact of the EU acquis on sport - in Kiev FIFA Dispute Resolution Chamber, Bakker now adds a further ana- (Ukraine), November 2007 and Tirana (Albania), this April. lytical paper on the DRC’s jurisprudence regarding the training com- Finally, we extend a heartfelt welcome to our dear colleagues pensation system under the FIFA Status and Transfer Regulations. In Michelle Colucci, Boris Kolev, Michel Marmayou and Andras Nemes November 2007, WADA adopted some substantial amendments to as new members of ISLJ’s Advisory Board. the WADA Code, and in this issue of ISLJ Marshall and Hale take a closer look at the new document which will be operational by January The Editors 2009. Teitler and Ram then take this analysis as their starting point for offering additional insights and opinions on the new Code and the way in which this set of rules will work out in practice. Coenen sub- sequently discusses the jurisprudence of CAS in football hooliganism cases, thereby focusing on the strict liability of clubs-for-their-fans issue, after which we have included the core chapter on UK interna- tional banning orders from Stott and Pearson’s recent book on “Football Hooliganism”. Finally, Siekmann deals with “China, Olympic Games and Human Rights” against the background of pre- vious international sports boycotts, and presents some ideas on the possible participation of the newly established European Club Association (ECA) in a Social Dialogue Committee in the European professional football sector. 2 2008/1-2 The White Paper on Sport as an ARTICLES Exercise in ‘Better Regulation’ by Stephen Weatherill* I Better Regulation solutions. Active consultation of affected parties is an essential ele- The quest for ‘Better Regulation’ has been a major preoccupation of ment in this. It needs to address matters of legal competence and it the European Commission in recent years. The campaign possesses its needs to comply with conditions that govern the legality of the exer- own web site, which helpfully collects relevant documentation and cise of a competence, most prominent among them the principles of reveals three priorities (which do not concern the Commission alone): subsidiarity and proportionality. Better