Antoine Duval

Protecting Athletes’ Right to a Fair Trial Through EU Competition Law: The Pechstein Case

In its Pechstein ruling, the Oberlandesgericht (OLG) Munchen based itself on German antitrust law to challenge the validity of arbitration clauses in favour of the Court of Arbitration for Sport (CAS), which are commonly used across the sporting world. Interestingly, competition law was used to indirectly secure a fundamental right enshrined in Article 6 of the European Convention on Human Rights: the right to a fair trial. In this chapter we analyse whether the OLG could have come to a similar result based on Article 102 TFEU, the EU competition law provision prohibiting the abuse of a dominant position. If the reasoning used by the OLG can be transposed into EU competition law, this would have even more significant consequences for the future of the CAS. The finding of a violation of Article 102 TFEU would give the case a supranational scope and open the door to follow-on damage claims by athletes in all EU Member States. The chapter is structured as follows. The first part elucidates the legal underpinnings of the jurisdiction of the CAS and explicates the forced nature of CAS arbitration. The second part examines whether the imposition of forced CAS arbitration clauses by sports governing bodies may constitute an exploitative abuse of a dominant position under Article 102 TFEU. It will be argued that the answer to this question ultimately depends on the independence of the CAS. The third part, subsequently, scrutinizes whether the CAS fulfils this fundamental requirement. Finally, conclusions are drawn about the challenges ahead for the CAS in the aftermath of the Pechstein case.

The Compatibility of Forced CAS Arbitration with EU Competition Law: Pechstein Reloaded

In its Pechstein ruling, the Oberlandesgericht (OLG) Munchen based itself on German antitrust law to challenge the validity of arbitration clauses in favour of the Court of Arbitration for Sport (CAS), which are commonly used across the sporting world. Interestingly, competition law was used to indirectly secure a fundamental right enshrined in Article 6 of the European Convention of Human Rights: the right to a fair trial. In this paper we analyse whether the OLG could have come to a similar result based on Article 102 TFEU, the EU competition law provision prohibiting the abuse of a dominant position. If the reasoning used by the OLG can be transposed to EU competition law, this would have even more significant consequences for the future of the CAS. The finding of a violation of Article 102 TFEU would give the case a supranational scope and open the door for follow-on damage claims by athletes in all EU Member States.The paper is structured as follows. The first part elucidates the legal underpinnings of the jurisdiction of the CAS and explicates the forced nature of CAS arbitration. The second part examines whether the imposition of forced CAS arbitration clauses by sports governing bodies may constitute an exploitative abuse of a dominant position under Article 102 TFEU. It will be argued that the answer to this question ultimately depends on the independence of the CAS. The third part, subsequently, scrutinizes whether the CAS fulfils this fundamental requirement. Finally, conclusions are drawn about the challenges ahead for the CAS in the aftermath of the Pechstein case.

The Labour Status of Professional Football Players in the European Union: Unity in/and/or diversity?

In 1995, the Bosman ruling granted professional football players the same free movement rights as regular workers. More than 20 years later, the question whether these rights are truly enjoyed still provides for never ending legal and academic debates. An important issue concerns the fact that professional football players are considered workers under national law in most EU Member States, but in some States they are deemed to be self-employed. The choice of one labour status over another has meaningful consequences in terms of social security rights, tax duties, collective labour representation, or more broadly, contractual rights. Such discrepancies at national level lead to two fundamental EU law questions that we aim to address in the present article: Are professional football players subject to the secondary EU legislation applicable to workers when they are in a bogus self-employment relationship: And, can the qualification of football players as self-employed be deemed a restriction on their free movement rights?

The UN Guiding Principles on Business and Human Rights in (National) Action: The Dutch Agreement on Sustainable Garment and Textile

The regulation of transnational corporations is increasingly a multi-actor and multi-level phenomenon. This trend is particularly visible in the garment global value chain. Spurred by the collapse of the Rana Plaza building in Bangladesh, a flurry of public and private initiatives addressing responsible production and supply in the global garment industry appeared on the transnational stage. The Dutch government played its part by entering into a national Agreement on Sustainable Garment and Textile (‘Agreement’ or ‘Dutch Agreement’) together with industry, labour unions and non-governmental organisations. The parties to the Agreement undertake specific commitments connected to responsible business conduct and set up a monitoring mechanism for their enforcement. This chapter aims to critically reflect on the Dutch Agreement and the process that led to its conclusion. It does so by putting the Agreement in the context of transnational rule-making by several other actors in different fora. It reflects on the transnational origin of the obligations contained in the Agreement and illustrates its contribution to the implementation of instruments such as the Organisation for Economic Co-operation and Development (OECD) Due Diligence Guidance for Responsible Supply Chains in the Garment and Footwear Sector and the United Nations (UN) Guiding Principles on Business and Human Rights.