Editorial SLT Vol.15 No. 4 December 2024

It is with much pleasure that we welcome readers to the December 2024 edition (citation: SLT 2024/3) of our ground-breaking journal Sports Law and Taxation (SLT) and online database https://sportslawandtaxation.com.

The past year 2024 has provided a feast of sporting events, including the holding of the Olympic and Paralympic Games in Paris, which proved to be a great success as always, but, as usual, the Olympic Games were not without their controversies, to which reference is made later.

One particular feature of the 2024 sporting year has been the continued growth of women’s sport, which has dominated and captured the sporting headlines for all the right as well as the wrong reasons. This growth will continue in 2025 with, amongst other events, the 14th edition of the UEFA Women’s EURO football tournament, which will take place in Switzerland, at seven venues around the country, from 2 to 27 July 2025, with the final being held at Switzerland’s largest football stadium, St. Jakob-Park in Basel, which can accommodate 37,500 spectators.

So, we asked one of our regular and distinguished contributors, prof. dr. Steve Cornelius of the Sports Law Centre at the University of Pretoria, South Africa, to review and comment on the situation for us. Here is his tour d’horizon which, as you will see, makes interesting reading:

“As modern sport developed in the latter half of the nineteenth century, the emphasis was mostly on competitions and events that involved only male participants. This was especially true of competitive leagues, burgeoning international competitions and the establishment of the modern Olympic Games. Sport was considered as being unladylike and there were few opportunities for women to participate in sport. In addition, there was also a common stereotypical misconception that women simply were not strong enough to participate in most events. This misconception was further fuelled by the fact that press reports exaggerated the “extreme” exhaustion of the women who had participated in the first-ever women’s 800 metres Olympic final.

It has taken many years of struggle and rebellion to get to a point where women’s sport can now claim some measure of equality in sport – at least as far as the various sports and events are concerned. However, even today, the question whether there should be a separate women’s category in sport is still not settled. The nature of the debate may have changed, but it endures. Similarly, the debate around women’s sport further revolves around the measures that should be taken to ensure that only women participate in women’s events, has been with us since the first women’s events and has evolved into a complex issue at the present time.

Today, most sports federations accept that women have as much of a right to participate in sport as men do and most sports federations also accept that there should be equal opportunities and some parity in the offering of events for men and women. Most sports federations also accept that there are critical physiological differences between men and women, which result in a significant difference in performance between male and female athletes. As a result, the women’s competition should be protected to ensure that only women participate in women’s events. However, this acceptance is not quite universal and there are still voices that call for the eradication of different men’s and women’s events. However, where these voices were originally fuelled by a chauvinist believe in the frailty of women, today they are often driven by a radical feminist view that any differentiation based on sex or gender is inherently problematic and cannot be justified on any grounds.

The concern that women’s sport should be reserved only for women, has, from the outset, led to the introduction of measures to ensure that only women are admitted to these competitions. Initially, these measures simply amounted to a physical examination by a panel of medical experts appointed by the sports federations concerned. However, these crude “naked parades” have had their limitations. They did not prevent the participation of a male (or perhaps intersex) high jumper, Heinrich Ratjen, in the women’s high jump at the 1936 Berlin Olympics as Dora Ratjen. Nor did they prevent 1932 women’s 100 metres gold medallist, Stamislawa Walasiewicz (Stella Walsh), from questioning the sex of 1936 women’s 100 metres gold medallist, Helen Stephens. In a bizarre twist, Walsh was found to have both male and female genitalia after she was killed in a bank robbery in 1980. They also did not assist when Dutch athlete, Foekje Dillema, set world records in the women’s 200 metres sprint, only to be suspended because she had refused to submit to a gynaecological examination.

As a result, other means were sought to determine the biological sex of athletes participating in women’s events. The most important was a chromosome test, which relied on the Barr body test which was used to identify the XX chromosomes attributed to the female sex. However, this has proved to be controversial in the case of Spanish hurdler Maria José Martínez-Patiño, who had initially passed the test at the 1983 Athletics World Championships, only to be told that she had failed the test at the 1985 World University Games. It became apparent that the test was not scientifically sound and has been abandoned. The chromosome test made way for the Polymerase Chain Reaction test to identify male genetic material from DNA samples, but eventually, this has also been abandoned.

What all of these procedures have illustrated is that the determination of biological sex is not as straightforward as most people would want to believe. Between the male and female sex classification lies a whole range of pathological conditions that result in differences of sex development, which make a clear-cut distinction between male and female athletes extremely difficult and, therefore, controversial. In addition, the move towards greater gender inclusivity in many societies today, has also significantly changed the nature of the debate and introduced a tremendous amount of confusion and controversy.

Nowhere has this been more evident than during the 2024 Paris Olympics. Two female boxers, Imane Khelif and Lin Yu-ting, came under scrutiny after media reports surfaced that they were transgender or intersex, and that they had apparently previously failed gender verification testing. The IOC quickly moved to dispel the misinformation, but the gold medals won by Khelif and Lin Yu-ting in their respective categories were still seen as controversial.

The failure of other means to confirm the biological sex of female athletes has led to the introduction of hormone testing, which is not necessarily used to determine the sex of an athlete, but to address perceived performance advantages that female athletes with differences of sex development may enjoy. Initially, similar regulations were also used to allow participation of intersex and transgender athletes in women’s events. These have added to the confusion, with many commentators and others failing to appreciate the difference between intersex and transgender or transsexual people.

An intersex person is a person whose anatomy displays a variation in biological sex characteristics that are not typically male or female. Such a person is born with sex chromosomes, external genitalia or an internal reproductive system that is not typically male or female. Most people with intersex conditions identify clearly as male or female.

Transgender or transsexual people, on the other hand, are people who have a gender identity which differs from their biological or assigned sex. Whilst the gender identity of most people also coincides with their biological sex or sex assigned at birth, transgender people experience a gender identity, which differs from their biological sex or sex assigned at birth. Some transgender people may also have intersex conditions, but this is more often not the case. As a result, care should be taken not to confuse intersex athletes and transgender athletes.

An intersex woman is, therefore, a woman who is considered to be a biological female, but due to a variety of medical conditions, may have one or more characteristics, such as highly elevated levels of the male hormone testosterone, which is not typical of the female sex. A transgender woman, on the other hand, may be a biological male, but experiences a gender identity which is female. Similarly, a transgender male may be a biological female, but experiences a gender identity which is male. In some instances, transgender people may experience no preference of sex and identify as non-binary or gender-fluid. In some instances, transgender people may elect to have gender reassignment surgery, but many prefer to avoid such surgery.

Athletes, such as Dutee Chand and Caster Semenya are intersex female athletes and, therefore, subject to the World Athletics regulations on differences of sex development. These regulations require that athletes with differences of sex development must maintain a testosterone level below 2.5 nmol/L for them to remain eligible for international competition.

Whilst some international sports federations had initially begun to also accept transgender women in women’s sports, provided that they had undergone full gender reassignment surgery and maintained a particular level of testosterone, there has recently been a significant shift in this approach. This shift is primarily based on the lack of credible scientific research, which demonstrates that there is a significant difference in performance when postpubescent endogenous testosterone levels are suppressed. As a result, the conclusion was that a transgender woman who had gone through biological male puberty, had undergone both a physical and physiological transformation which is irreversible, and which, at the very least, provides an unfair competitive advantage and, at most, creates serious risks of injuries to other competitors, particularly in contact sports, such as boxing.

The complexity of the human biology and psychology, as well as the ethical restraints on human research, means that the clear scientific evidence to support these findings, is always slightly tainted. For instance, many studies relating to the effect of testosterone on sports performance in postpubescent athletes, have relied on the use of limited dosages of exogenous testosterone. Medical ethics limits the dosages that could be used and the durations of the studies. This inevitably impacts on the reliability of the study in relation to endogenous testosterone and its effect on sports performance. What is clear from most studies, however, is that the major physiological difference between men and women, especially as far as their physiques and physical strength is concerned, occurs as a result of the increase in testosterone that boys produce during puberty. Current studies suggest that these changes are largely irreversible, but more research is probably needed to reach a conclusive result.

These issues remain complicated. On the one hand, sports should be as inclusive as possible, and everybody should be allowed to participate to the best of their natural ability. But, on the other hand, the inclusion of transgender women in women’s events has raised concerns from less liberal and conservative commentators, as well as athletes of biological female sex, who feel that their opportunities to compete fairly against other women of the female sex are being eroded as a result.

Whatever one’s stance on the matter may be, there are important health, safety, legal, moral and ethical considerations that will have to be considered to come up with a fair and pragmatic solution. The current focus on postpubescent testosterone levels is as flawed as previous chromosome and Polymerase Chain Reaction tests. There is no simple solution to a complex problem and sports governing bodies should understand that one-dimensional solutions will always be flawed. In particular, the dignity of women who frequently have their sex questioned in the global media, should be protected and a multi-faceted approach should be adopted to ensure that participation in sport is as inclusive as it can be, as fair as it can be, and as safe as it can be. Exposing athletes to hormone suppressing therapy, which, in itself, poses serious long-term health risks, should not be tolerated.

The IOC should take the lead in convening multidisciplinary panels of experts to find suitable answers to the following vexed questions: should transgender women be allowed to take part in women’s sport? Should transgender men be allowed to take part in men’s sport? Should transgender women, who clearly identify as male, be allowed to take part in women’s sport? Should transgender men, who clearly identify as female be allowed to take part in men’s events. And where do people fit in if they identify as neither male nor female? Should intersex women continue to be exposed to harmful hormone suppressing therapy if the evidence suggests that the effects of puberty are irreversible?”

And we would add to Steve Cornelius’ remarks that all these answers to these vexed questions, with which we would fully agree, should be found, as soon as possible, in the interests of fairness and inclusivity for all concerned in sport, the practice of which is regarded by the IOC – and others – as a human right. After all, these issues are at the heart of and constitute the very nature and essential characteristics of sport in all of its varied forms!

New IOC (International Olympic Committee) President

Reference has been made to the Paris Olympic Games, and, in fact, the New Year will see the election of a new President of the IOC to succeed dr. Thomas Bach. The new President will be elected in March at the 143rd IOC Session in Greece and will assume office in June.

There are seven well-qualified candidates to choose from, including Juan Antonio Samaranch Jr., the son of the former IOC President, from Spain; Kirsty Coventry, from Zimbabwe; and Lord Sebastian Coe, from the United Kingdom, who is considered to be a strong contender.

But, as already mentioned, with the increasing prominence of women’s sport, with the UEFA Women’s Euro Tournament being played in Switzerland in July 2025, will the IOC Session break with tradition and elect, for the first time, a woman President? A truly historic development if the IOC Session does so!

Football

Football, the world’s favourite and most lucrative sport, not surprisingly, also continues to dominate the sporting headlines and is worthy, therefore, of our particular attention.

UK Football Regulator

The appointment in the UK of a Football Regulator, following the recommendations made in the fan-led review of English football by the former UK Sports Minister, Tracey Crouch, who, welcoming the news, stated that she was “delighted.”

It is hoped that the Regulator will be in place sometime in the coming year, and it will be interesting to see who is appointed and, of course, when!

We include in this issue of SLT an article updating the key provisions of the corresponding Bill, which is currently making its way through the UK Parliament, on this ground-breaking subject.

Italian Football Regulator

There is also a similar plan in Italy to establish an independent commission to oversee the financial budgets of football clubs, which has met with strong opposition, both domestically and internationally, and has led to tensions between the Italian government and FIFA and UEFA, the world and European governing bodies of football.

FIFA and UEFA have unequivocally voiced their objections to this plan, based on their fundamental principle of prohibiting governmental interference in the operations of national football federations, breaches of which can lead to the football clubs concerned being excluded from their competitions.

The Italian government’s decision to intervene in sports budgeting stems from a recent series of financial and regulatory issues involving prominent Italian football clubs. Amongst the most notable is Juventus, which has faced serious consequences due to accounting irregularities.

In this context, the Italian government considers that stricter oversight is essential to ensure the financial sustainability of professional sports, including football. However, the Italian approach conflicts with the FIFA and UEFA rules, even though there are some precedents, such as in the United Kingdom, where, as mentioned above, an independent regulator for English football is being introduced without objections from FIFA and UEFA.

The planned commission is designed to act as an independent body responsible for monitoring the accuracy of club financial budgets and proposing corrective measures to mitigate or neutralise the impact of extraordinary financial operations. In doing so, the commission will have intrusive powers, such as conducting inspections at club premises and requesting information about those directly or indirectly controlling the clubs.

Criticism of the plan has focused on two main issues:

• the risk of conflict with international sports governing bodies; and
• excessive bureaucratic complexity in decision-making processes.

The mandatory inclusion of institutional figures, such as the President of Istituto Nazionale della Previdenza Sociale (the Italian pensions authority) and the Head of the Agenzia delle entrate (the Italian tax authority), to lead the commission, has raised concerns about the commission’s real independence.

As mentioned, the Italian government’s plan aims to ensure transparency and economic stability, addressing the financial challenges that have plagued Italian football in recent years. However, its implementation risks provoking institutional disputes and undermining the autonomy of sports, a fundamental principle.

Thus, the Italian government faces a delicate challenge: balancing the need for control and transparency with adherence to international regulations and respect for the independence of sports federations.

The expected date for the commission to begin its operations is 1 July 2025.

Manchester City’s alleged financial rules breaches

Likewise, another football-related financial issue that is worth highlighting is the Manchester City Football Club’s alleged breach of the following 115 charges of alleged breaches of financial rules over a period of 14 seasons:

• 54 × failure to provide accurate financial information 2009-10 to 2017-18;
• 14 × failure to provide accurate details for player and manager payments from 2009-10 to 2017-18;
• 5 × failure to comply with UEFA’s rules including Financial Fair Play Rules 2013-14 to 2017-18;
• 7 × breaching Premier League’s Profit and Sustainability Rules 2015-16 to 2017-18; and
• 35 × failure to cooperate with Premier League investigations December 2018-February 2023.

These charges have been heard by an independent tribunal, which began its siting in London, United Kingdom, on 16 September 2024 and the Manchester City case has been billed as “sport’s trial of the century” and expected to last for ten weeks, with a decision expected early in 2025.

The club has always denied these charges, stating that it has a “comprehensive body of irrefutable evidence” in support of its financial position, and it will be interesting to see what will be the outcome of this case, which is quite unprecedented!

FIFA Qatar World Cup Legacy Fund

Again, another football-related controversial financial issue that has recently arisen and should be mentioned is the establishment by FIFA of a new 2022 Qatar World Cup Legacy Fund of £ 39.4 million, derived from the sums generated by this major quadrennial event, which amounted to a record £ 6 billion, for investment in social programmes around the region.

The key beneficiaries of this fund will be programmes for occupational health, education, and football development.

However, not part of this fund will go towards compensating the family of migrant workers, who died as a result of World Cup-related projects. The number of such workers is reputed to be between 400 and 500.

In fact, it is reported that FIFA has resisted calls by campaigners, players unions and representatives of fans and some European Football Federations for setting up a £ 350 million compensation fund for the families of workers who had died or were injured in connection with the organisation of the World Cup in Qatar.

As a result, Steve Cockburn, head of labour rights and sport at Amnesty International, the human rights group, has criticised this failure by FIFA and called it “shameful”. And has added that:

“[…] this legacy fund cannot be the end of the story. FIFA must finally do the right thing and provide meaningful remedy for all whose rights were violated and abused as a result of its flagship tournament.”

However, FIFA has stated that the new Fund will support an initiative to safeguard the health and safety of workers from extreme heat resulting from climate change.

Articles in this issue

Let us now turn our attention to some of the articles, which we publish in this issue of SLT.

On the sports law side, we would mention particularly the article by Deirdre McCarthy on tackling racism in football. In her introduction, she writes:

“Football is truly a global game, played and followed in every corner of the world. Undoubtedly, football unites fans and players and has the power to break down societal barriers, challenge stereotypes and promote inclusivity and multiculturalism.

Teams across men’s and women’s professional football are nearly always comprised of players from different nationalities, race, religion and ethnicities. Also, there is usually significant cultural diversity amongst fans, match officials, managers and back-room staff at clubs and leagues around the world.

However, although the football governing bodies are committed to tackling racism and other forms of discrimination, regrettably, discriminatory behaviour remains a serious issue in the modern football era.

In particular, incidents of racist abuse aimed at players have unfortunately made the headlines in different countries around the world in recent times. This racist abuse comes in different forms (including language and/or gestures) and has often been directed at players and match officials in stadiums during matches and “off-field” via social media.”

And she concludes her article as follows:

“There is an imperative need to tackle racism in football so that players, match officials and all those who work within the game are safeguarded and that fans of all ages can attend matches in a safe and secure environment.

Clearly, the football governing bodies are striving to send a clear message to those who engage in racism that such behaviour will not be tolerated and has no place in football.

However, it is vital that such efforts continue unabated so that all those who play and follow “the beautiful game” can continue to do so without racism or any other form of discrimination.”

On the sports tax side, we would mention the article by Eduardo Montejo and Álvaro Gómez on the taxation obligations of coaches and managers of sportspersons in Spain. They write:

“We […] explain the general tax residence rules according to the Spanish internal legislation and afterwards the tax burdens derived from its consideration according to the type of income obtained by the individual and the residence of the taxpayer.”

And they point out that:

“In Spain, the fiscal year coincides with the calendar year (1 January to 31 December). In addition, the Spanish tax regulations do not foresee partial year status. Consequently, if an individual is considered as either a tax resident or a non-tax resident, this classification will remain in effect for the entirety of the fiscal year.”

And, in their concluding remarks, they draw our readers’ attention to the following important facts:

“In Spain, there are five different tax administrations with different regulations and tax rates (the Common Territory, Bizkaia, Alava, Gipuzkoa and Navarra), so, for tax purposes, it is essential to consider in which part of the Spanish territory the coach is based.

Even in those cases in which the taxpayer lives in the “Common Territory”, taxation may vary depending upon the autonomous community in which the coach resides, since each autonomous community of the “Common Territory” has the capacity to determine the tax rate applicable to 50% of the income, as well as to approve certain deductions.”

As you will see from the Table of Contents of this issue, we include, in addition to the two articles highlighted above, a wide range of topical sports law and sports tax articles, which, we believe, will once again engage our readers’ attention and provide them with much “food for thought”.

As always, we would welcome and value your contributions in the form of articles and topical case notes and commentaries for our journal and also for posting on the SLT dedicated website https://sportslawandtaxation.com, which continues to go from strength to strength and covers important sports legal and tax developments and issues.

Finally, we take this opportunity of wishing all of our contributors and readers the compliments of the festive season and all the best in the new year 2025, which promises, again, to be an exciting and challenging one for sport in the fractious world which we inhabit!

So, now read on and enjoy the December 2024 edition of SLT.

Dr. Rijkele Betten (Managing Editor)

Prof. dr. Ian S. Blackshaw (Consulting Editor)

December 2024