IN THIS ISSU

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The European Rugby Cup(ERC) is fighting PremierRugby’s plans to set up a break-away competition structure forEuropean rugby union, arguingthat its broadcasting deal withBritish Telecom breachesInternational Rugby Board(IRB) regulations. “Ourposition has always been thatPremier Rugby’s broadcastingdeal is illegal”, said an ERCspokesperson. IRB Regulation 13.2 prevents

any ‘Rugby Body, Club orPerson’ from agreeing a broad-casting deal ‘except with theexpress written consent of theUnion within whose territorialjurisdiction such Match…is tobe played’. It is understood thatunder Premier Rugby’s £152million contract, agreed on 12September 2012, BritishTelecom has the right to broad-cast any games played at AvivaPremiership grounds, includingEuropean competition games.

“The RFU has yet to give itsconsent, however it hasn’trefused consent either”, said aPremier Rugby spokesperson. ERC signed a deal for BSkyB

to broadcast its Heineken andAmlin Cup competitions until2017/18 on the same date, andis keen for English and Frenchteams to stay in the competi-tion. BSkyB declined tocomment on whether their exitwould jeopardise the deal.Premier Rugby and the French

Top-14 competition areunhappy about the qualifica-tion structure for the HeinekenCup. Currently, the top six of 12English clubs and 14 Frenchclubs qualify for the HeinekenCup, as do three of the fourclubs both Ireland and Walesenter in the RaboDirect Pro12competition. The Italian andScottish rugby unions nominatetwo clubs each. “We want tobuild a new rugby frameworkbuilt on merit”, said a Premier

Rugby spokesperson.ERC has invited all parties to

a 23 October meeting to formu-late an agreement to put inplace European rugby competi-tions ‘for the 2014/15 seasonand beyond’. Greame Mew, aPartner with Clyde & Co, hasbeen appointed mediator.However, a Premier Rugbystatement said its clubs ‘see nopurpose in new discussionsstarting as late as the end ofOctober 2013’. RFU ChiefExecutive Ian Ritchie told theDaily Telegraph that he is“optimistic” a compromise willbe reached, but that the RFUwould refuse to “give up ournegotiating position in public”. Premier Rugby and the Top-

14 served notice on 1 June 2012under its ‘Paris Accord’ that theyintend to pull out of ERCcompetitions. The Accord,which governs ERC competi-tion participation, expires at theend of the 2013/14 season.

FIFA has said that it will fightany attempt at compensation ora re-hearing of bids, should itswitch the Qatar 2022 WorldCup from summer to winter atits Executive Committeemeeting on 3-4 October. It hasalso confirmed that no formalinvestigation into the biddingprocess is underway, despitereports to the contrary.“As part of the bidding

documents all bidders, includ-ing the FA Australia, acceptedthat the final decision regardingthe format and dates of thestaging of the FIFA World Cup

and FIFA Confederations Cup,though initially expected to bein June/July, remains subject tothe final decision of the FIFAOrganising Committee”, said aFIFA spokesperson.FIFA said that it was confident

this would protect it againstclaims for bids to be reheard aswell as compensation, despiteall bids being assessed by FIFAon the basis of the tournamentbeing held in summer. “There isno ground for any specula-tion”, said the spokesperson.FIFA also said that no formal

investigation is underway into

the bidding process for the 2022World Cup, despite a 17September statement from theFootball Federation of Australia(FFA) suggesting otherwise. Aspokesperson said FIFA’s EthicsCommittee had only pledged toinvestigate media articlessuggesting corruption at itsCongress in May; media reportssuggesting that an ‘investigation’was about to reveal its resultswere “erroneous” and thatcomments from Sepp Blattersuggesting that political influ-ence had affected the vote hadbeen “lost in translation”.

ERC: Premier Rugby’s TV deal breaches IRB rules

Stephen Lee has beensuspended for 12 years forinvolvement in fixing sevensnooker games, the WorldProfessional Billiards & SnookerAssociation (WPBSA)announced on 25 September.Lee was sanctioned under Rule12.1(a) of the WPBSA’sDisciplinary Rules and willserve his suspension from 12October 2012, when his interimsuspension was imposed. ‘MrLee has indicated his intentionto appeal against the finding ofguilt’, reads the sanction notice.On 16 September 2013, the

WPBSA found Lee guilty ofaccepting benefits to fix theoutcome of seven matches atthe Malta Cup 2008, the UKChampionships 2008, theChina Open 2009 and theWorld Championships 2009.The judgment finds Lee guiltyof breaching Rule 2.9 of theWPBSA Members Rules andRegulations. The WPBSA began investiga-

tions on 2 October 2012, afterthe Crown Prosecution Service(CPS) decided not to proceedwith a case against Lee underSection 42 of the Gambling Act2005. The CPS decision not toprosecute followed a two-yearpolice and GamblingCommission investigation.

Stephen Lee:12-year banfor fixing

FIFA aims to fight 2022 WorldCup compensation claims

Doping Non-intentionaldoping & sanctions 03Player contractsPortugal & TPO 06Doping Dillian Whyteappeal & Article 10.5 08Broadcasting FAPLblocks FirstRow 10Regulations Amendedretrospective action 12Tax Lionel Messi andSpanish tax law 14

worldsportslawreportTHE NEWSLETTER FOR THE SPORTS BUSINESS

VOLUME 11 ISSUE 09 SEPTEMBER 2013WWW.E-COMLAW.COM

the issue) will be resolved by‘legislative’ change, i.e.,amendment of the WADC. Butuntil the new text takes effect in2015, similarly-situated athletesmay continue to face quitedifferent sanctions for engaging inthe same conduct, somethingwhich runs against the very grainof both the WADC and the CAS,with their focus on harmony,predictability and legal certainty.This article will analyse the Foggov. Oliveira debate in the context ofthe differing solutions to the issueproposed successively in versions1.0, 2.0 and 3.0 of the WADC 2015.

Article 10.4 of WADC 2009 The current text of Article 10.4(WADC 2009) permits reductionor elimination of ineligibilitysanctions for athletes considered tohave credible, non-dopingexplanations for their ‘specifiedsubstance’ positive. This is notavailable to deliberate dopers, suchas steroid-users.According to Article 10.41, two

conditions must be satisfied. Thefirst is for the athlete to establishhow the specified substanceentered their body. The second isfor the athlete to establish (withcorroborating evidence in additionto their word, and to thesatisfaction of the hearing panel)the absence of intent to enhancesport performance.The first condition has posed no

particular problem; it is a merecorollary of the basic anti-dopingrule of ‘strict liability’, i.e., athletesare responsible for what theyingest. The second condition,however, has proven to be ajurisprudential minefield. Whathas been referred to as the‘polarized debate that is nowtaking place between [sporting]tribunals’ involves what might atfirst appear a simple question:what must the athlete show toprove the absence of ‘an intent to

The Foggo v. Oliveira debate Harmonisation of standards acrossthe sporting world is an essentialobject of the World Anti-DopingAgency’s (WADA) World Anti-Doping Code (WADC), firstpromulgated in 2004, with itscurrent version effective from 2009and currently undergoing revisionin anticipation of taking effect in2015. Similarly, the achievement ofa significant level of uniformityand predictability in sports-relatedjurisprudence is the very ‘raisond’être’ for the Court of Arbitrationfor Sport (CAS). By and large, theWADC has achieved its goal ofensuring harmonisation, and theCAS has achieved its goal ofcreating a ‘corpus’ of coherentjurisprudence furthering legalcertainty in the sporting world.But jurisprudential coherence is

not always possible. The recentsplit in CAS jurisprudenceinvolving the proper meaning of‘intent to enhance sportperformance’ for possiblereduction of ineligibility sanctionsin doping cases involving specifiedsubstances (typically involvingtraining or dietary supplements) asset out in WADC Article 10.4 is acase in point. An intractablejurisprudential split (referred to as‘Foggo v. Oliveira’, as these are theleading cases on the two sides of

enhance sport performance’ so asto be in a position to benefit fromthe reduction or elimination ofsanctions contemplated in Article10.4? As a summary of some of theprincipal cases set out below willreflect, few (if any) topics in sportsjurisprudence have been so ‘hot’ inthe past two or three years2.

Oliveira and some of its progeny Flavia Oliveira v. United StatesAnti-Doping Agency3 (USADA)involved a cyclist who testedpositive for oxiolofrine, a stimulantthat was contained in a dietarysupplement called Hyperdrive,which she took to combat thefatigue that her allergy medicationcaused. It is the same substance forwhich Jamaican sprinter AsafaPowell tested positive in July.The Panel said the case raised ‘an

important issue of first impression’as to Article 10.4’s requirement forthe athlete to establish the absenceof intent to enhance sportperformance, involvinginterpretation or reconciliation ofambiguous drafting: the first clauseof Article 10.4 points clearly tointent with respect to the specifiedsubstance, but not the productcontaining it, but the second clausedoesn’t mention the specifiedsubstance and appears to focus theinquiry on a general intent/lack ofintent to enhance performance bytaking the product.Observing that ‘the express

language of this clause isambiguous and susceptible tomore than one interpretation’, theOliveira Panel rejected USADA’sargument that Article 10.4‘required the athlete to prove thatshe did not take the product(Hyperdrive)... with the intent toenhance her sport performance’.The Panel instead held that ‘Article10.4 requires Oliveira only to proveher ingestion of oxiolofrine [i.e.,the substance, not the product]was not intended to enhance her

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Sanctions for non-intentionaldoping: Article 10.4Clifford J. Hendel, a Partner withAraoz & Rueda Abogados, is anexpert in international arbitrationhaving acted in numerousproceedings administered by theCourt of Arbitration for Sport (CAS).In this article, he examinesdifficulties regarding a serious recentsplit in CAS jurisprudence (reflectedin the jurisprudence of other sportstribunals) involving Article 10.4 ofthe 2009 World Anti-Doping Code.

world sports law report september 2013

body through the intake of a foodsupplement, the label of which didnot mention MHA, but didmention its synonym, 1.3-dimethylamine.The Panel found, and the IWF

did not dispute, that the athlete didnot know that MHA was containedin the product. Asserting that ‘thewording of Article 10.4... speaks infavor of Oliveira’ and that thepurpose of the article is to reflectthe general risk in everyday life thatspecified substances may be takeninadvertently by an athlete, thePanel concluded that the relevantabsence of intent to be establishedby the athlete was with respect tothe substance (MHA).

Foggo and some of its progeny Kurt Foggo v. National RugbyLeague6 represents the other polein the ‘bi-polar’ debate on the issueof ‘intent to enhance’ under Article10.4. The case involved a rugbyleague player who had testedpositive for the stimulant 1.3-dimethylpentylamine contained ina popular vitamin supplementknown as Jack3d, which the athletehad purchased after havingsearched the internet as to theingredients of Jack3d and findingno prohibited or specifiedsubstances identified.The Foggo Panel rejected (‘[w]ith

respect’) the approach taken fivemonths earlier by the Panel inOliveira, holding that both the‘natural and ordinary meaning’ ofthe text of Article 10.4 and ‘thecontext of the rules as a whole’rendered the proper constructionof the rule such as ‘to require theathlete to show that the ingestionof the product which contained thespecified substance was notintended to enhance his sportperformance’, and thus the merefact that the athlete did not knowthat the product contained aspecified substance did not itselfestablish the absence of intent.

In a nuanced, exhaustive and(some might say) ‘tour de force’opinion, a majority Panel inDimitri Kutrovsky InternationalTennis Federation7 came down onthe Foggo side of the debate. Thecase involved a tennis player who,as in Foggo, tested positive forMHA contained in the foodsupplement Jack3d.The athlete testified that he had

been advised that the productwould give him energy (‘like RedBull, but stronger’) for training andrecovery and to combat jet lag. TheKutrovsky majority concluded thatthe Oliveira-based reading ofclauses one and two of Article 10.4as reflecting a significant andintended differentiation is over-literal and supported by neither thetext nor the context. Accordingly,the majority asserted, while anathlete’s knowledge (or lack of)that he has ingested a specificsubstance is relevant to the issue ofintent, it is not dispositive, andwhat is essential for purposes ofbenefiting from Article 10.4 - whatis the true focus of the secondcondition - is the absence ofintention to enhance performanceby taking whatever was taken.Thus, no relevant distinction forArticle 10.4 purposes should bedrawn between a product and thespecified substance that it maycontain. The Kutrovsky majorityforcefully observed that ‘[i]t iscounter-intuitive that in a codewhich imposes on an athlete a dutyto take responsibility for what heingests, ignorance alone works tohis advantage’.The CAS may be ‘the Supreme

Court of Sport’, but each CASpanel is unique and of equalstature, and there is no formal,hierarchical mechanism toharmonise divergentjurisprudential lines. As mentionedby the Kutrovsky Panel, the morecogent and well-reasoned a CASdecision is, the less likely another

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sport performance’.The Panel found it had been

established that the athlete did notknow that the product Hyperdrivecontained oxilofrine (the substancewas labelled differently on theproduct than on WADA’s list) andthus did not intend to enhance herperformance by unknowinglyingesting the substance.Oliveira was followed in UCI v.

Alexander Kolobnev & RussianCycling Federation4. The caseinvolved a cyclist who testedpositive in the 2011 Tour de Francefor the diuretic HTC, contained ina food supplement recommendedby the athlete’s personal doctor totreat varicose veins.The Panel was satisfied that the

athlete didn’t know the productcontained HTC and concludedthat ‘no intent to use HTC, forwhatever purpose, could beimputed’. Concurring withOliveira’s conclusion that anathlete only needs to prove thathe/she did not take the specifiedsubstance (here, HTC) with anintent to enhance performance, butnot that he/she did not take theproduct (the supplement) withsuch intent, the Panel stated‘[I]ndeed, only the construction ofthe (ambiguous) second paragraphof Article 295 [10.4] as having thesame meaning of the (muchclearer) first paragraph harmonizesthe provision and appears to beconsistent with the very concept of“Specified Substances” asprohibited substances “which areparticularly susceptible tounintentional anti-doping ruleviolation” or susceptible to have a“credible non-dopingexplanation’’’.Erkand Qerimaj v. International

Weightlifting Federation5 (IWF)also adopted the Oliveiraapproach. The case involved awrestler who had tested positive forthe stimulant methylhexaneamine(MHA) which had entered his

Clifford J.Hendel

CAS panel would be to disregard it;but it is free to do so. Given theimpasse at the jurisprudential levelof the ‘intent to enhance’ issue,hopes for finding a common wayforward have turned to thelegislative arena, i.e., to the ongoingWADC revision process.

WADC 2015 After a review phase commencingin November 2011, Version 1 of theWADC 2015 revision wascirculated to WADA stakeholdersworldwide in June 2012. After afurther review, Version 2 wascirculated in November 2012. Afinal consultation phase havingnow concluded, Version 3.0 hasrecently been tabled and isscheduled to be presented for finalapproval in November of this year.The treatment in the variousversions of WADC 2015 of Article10.4 and in particular of the Foggov. Oliveira debate reflects aninteresting evolution.

Version 1.0 Version 1.0 of WADC 2015addressed the issue in a simple andsuccinct fashion, without makingmaterial language changes fromthe text of WADC 2009 orintroducing new explanatorycommentary - i.e. it just takes sideson the interpretation issue, comingdown in favour of the Foggo line ofauthority. As set out in a proposedComment to Article 10.4.1:‘Contrary to the CAS decision in

Oliveira v. USADA, CAS2010/A/2107, where an Athlete orother Person Uses or Possesses aproduct to enhance sportperformance, then, regardless ofwhether the Athlete or otherPerson knew that the productcontained a Prohibited Substance,Article 10.4.1 does not apply.’

Version 2.0 Version 2.0, however, reflected adeparture from the approach taken

in Version 1.0. Rather thanresolving the dispute by quashingOliveira in favour of Foggo,Version 2.0 took the dispute off thetable: it deleted from Article 10.4.1all mention of ‘intent to enhance’(together with the large part of therelated comments involvingcorroborating/credible evidence,the comfortable satisfaction level ofproof, etc.)8.As a result, the scope for dispute

as to ‘intent to enhance’ would nolonger apply in the typicalsupplement case. Instead, in thesecases, the focus would be limited towhether the athlete is able toestablish No Significant Fault - butnothing with respect to his intentor absence of intent to enhanceperformance - in respect of thespecified substance. To this extent,it can be said that the proposedchange harmonises Article 10.4.1with the more familiar Article10.5.2, save that the reduction cango all the way down to no periodof ineligibility.

Version 3.0 - endgame? Version 3.0 confirms the approachanticipated in Version 2.0:references to ‘intent to enhancesport performance’ are suppressedon the basis of a simplified Article10.4.1 (now 10.5.1)9, withreduction (or even elimination) insanction now available if theathlete can show the absence ofsignificant (or any) fault ornegligence. This change can be viewed as a

commendable compromise amongWADA’s various constituencies,reflecting apparent stakeholderconsensus for the dual objectives ofproviding for longer (four v. twoyears) periods of ineligibility for‘real cheats’, but at the same timeaffording greater flexibility inspecific circumstances meriting thesame10. Without entirely tippingthe balance towards Foggo as perthe Version 1.0 approach (in what

would surely have been considereda very stringent resolution of theissue, raising very vocal oppositionfrom athletic and other quarters),the new text will tighten to acertain extent the standards underthe current version of Article10.4.1. If under the Oliveira line ofauthority sanction reduction insupplement cases was available insituations perhaps not appropriatefor the same, e.g., for failing tocheck labels properly, this will bethe case no longer. WADC 2015 isheaded for a more harmonised,fault or intention-based standardfor reduction of sanctions.Still, the revised WADC will only

take effect in 2015. Between nowand then, the legacy of the Foggoand Oliveira dichotomy willcontinue to plague sportingtribunals and athletes.

Clifford J. Hendel PartnerAraoz & Rueda Abogados, Madridhendel@araozyrueda.com

A version of this article was preparedwith the assistance of Elijah Ochoga aspart of the requirements of the InstitutoSuperior de Derecho y Economía (ISDE)Global Executive Masters in Sports Law.A full version of the following footnotes isavailable on World Sports Law Report’sinternet site: www.e-comlaw.com/world-sports-law-report

1. See Article 10.4 of the 2009 Code at:www.wada-ama.org/rtecontent/document/code_v2009_en.pdf2. See ‘A Revised WADA Code for 2015Tackles Article 10.4’, in the October2012 issue of PPF Sports Focus, ‘ToughLove for Accidental Dopers’, http://e-comlaw.com/sportslawblog/template_permalink.asp?id=516 and‘UKAD V. Whyte: CAS interpretation ofArticle 10.4’, World Sports Law Report,July 2013, discussed again on page 8 ofthis issue.3 CAS 2010/A/2107.4. CAS 2011/A/2645.5. CAS 2012/A/2822.6. CAS A2/2011.7. CAS 2012/A/2804.8. See Version 2.0 text of Article 10.4.1on the WADA website.’9. The proposed text of Article 10.5.1,similar to that proposed in Version 2.0 forArticle 10.4.1, is available on the WADAwebsite.

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Each CASpanel isunique and ofequal stature,and there isno formal,hierarchicalmechanism toharmonisedivergentjurisprudentiallines