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On 2 March 2017, an arbitral tribunal with Charles Hollander QC serving as sole arbitrator issued an award confirming that Aljaž Bedene (a professional tennis player with a career high singles ranking of 45) is ineligible to represent Great Britain in the Davis Cup competition, despite having acquired UK nationality in 2015. Mr Bedene, represented by Thomas de la Mare QC of Blackstone Chambers, had challenged a decision of the International Tennis Federation (‘ITF’) to reject his eligibility on the basis that he had previously represented Slovenia in the competition. In the course of its reasoning, the tribunal examined a number of issues of great importance for international sport more generally, particularly concerning whether rules restricting sporting eligibility might contravene European Union law.

An athlete’s nationality generally determines which country or countries they may represent. This raises the concern that international competition might be distorted by resource disparities between states, with the wealthiest states able to attract the strongest athletes through offering increased funding and conferring nationality. To prevent such distortions, the rules of international sporting competitions commonly impose further conditions on eligibility, beyond nationality itself. An evident danger with such rules is that they may hamper the careers of athletes who change nationality for reasons other than seeking increased sports funding.

The Bedene arbitration concerned Regulation 35 of the 2015 ITF Davis Cup Regulations, which provided that eligibility would generally be based on nationality, but with the restriction that “A player or captain is entitled to represent one nation only at senior professional international level.” Such a restriction had not previously been part of the ITF Regulations. A further sub-rule provided that:

(d) A National Association may appeal to the Davis Cup Committee to nominate a player who is not eligible under the above Rules and the Davis Cup Committee may agree the application if the full circumstances warrant an exception being made.

The rules have since been redrafted and are now found in Regulation 34, but still operate to very similar effect. As Mr Bedene had represented Slovenia at senior level, he had applied for an exception under Regulation 35(d), but this application had been denied. The key issues in the arbitration thus concerned (i) the validity of Regulation 35, and (ii) the validity of the Committee’s decision to refuse an exception.

The challenge to the validity of Regulation 35 centred around Article 49 of the Treaty on the Functioning of the European Union, which provides that Member States may not impose restrictions on the freedom of establishment of nationals of other Member States. As the tribunal observed, it is well established that professional sporting activity falls within the remit of Article 49.[1] Although Article 49 appears directly applicable only to Member States, the Court of Justice of the European Union has held that it must extend to the regulatory activities of sporting associations, and thus might be relied on as a potential basis to invalidate a Regulation of the ITF.[2] The Court has also long held, however, that restrictions on eligibility which are adopted for a sporting purpose and proportionate, like nationality requirements, may be compatible with Article 49.[3] In the Bedene arbitration, the tribunal held that there was no doubt that Regulation 35 might impose a restriction on freedom of establishment, as it would make it less likely for a professional tennis player who has played for the Davis Cup team of one Member State to move to another Member State for economic reasons. However, the tribunal held that the possibility of an exception under Regulation 35(d) meant that the rule could not be considered an unjustifiable restriction in breach of Article 49. Put simply, the rule could not be disproportionate per se, because its application was potentially discretionary.

The key issue was thus whether the discretion ought to have been exercised in favour of Mr Bedene. It was argued that this was the case because Mr Bedene had represented Slovenia prior to the introduction of the new ‘one country rule’, and had no way of knowing at the time that this could preclude him representing another country in future. The tribunal held, however, that Mr Bedene’s argument faced an insurmountable obstacle. The ITF refused his application for an exception without giving reasons, as is its normal practice. This meant, according to the tribunal, that the decision of the ITF could only be challenged if Mr Bedene could establish that there were no possible legitimate reasons for his application to be refused. The tribunal found that this had not been established.

There are two key points which may be taken from this decision. The first point is that eligibility restrictions in international sporting competitions do have to be consistent with Article 49 of the Treaty on the Functioning of the European Union. Although in this case Regulation 35 was found to satisfy the requirements of Article 49, we may expect further arbitral tribunals and courts to scrutinise the eligibility rules of other sporting competitions on this basis. The second point is that in practical terms the exercise of a discretionary power by a sports regulatory body may be very difficult to challenge, particularly where the practice is not to give reasons for a decision. Although in this case the tribunal observed that “this is not a case where there is or can be an allegation of procedural unfairness” (at [70]), it may be queried whether other courts and tribunals will take a similar approach in future, given the role which a requirement to give reasons plays in questions of procedural fairness under administrative law. The influence of public law principles will, in any case, undoubtedly continue to be an important and contested area of sports law.

Dr Alex Mills

Member of Blackstone Chambers’ Academic Research Panel and Reader in Public and Private International Law at UCL Faculty of Laws.

[1] Case C-519/04 Meca-Medina [2006] ECR I-6991.

[2] Joined Cases C-51/96 and C-191/97 Deliège [2000] ECR I-2549.

[3] Case 13/76 Donà [1976] ECR 1333.