Abuse has long been a taboo in sports. However, in recent years, several cases have garnered public attention: the infamous Larry Nassar case, the suspension of USA Gymnastics coach Maggie Haney due to abuse allegations, and the emotional and physical abuse of British gymnasts. A number of studies reveal the extent of harassment and abuse in different sports and at different levels of performance. In a similar vein, the Dutch Ministry of Health, Welfare and Sports funded the Royal Dutch Gymnastics Association (the “KNGU”) to investigate the sports climate and transgressive behaviour in Dutch gymnastics. However, the number of reports and the media coverage have been disproportionate to the number of disciplinary rulings on harassment and abuse in sports.

In the Netherlands, the Dutch Instituut Sportrechtspraak (the “ISR”) implements the disciplinary law for the majority of Dutch sport federations. On 2 May 2022, the Disciplinary Tribunal of the ISR (the “Tribunal”) rendered a noteworthy judgment on a case related to disciplinary measures imposed by the KNGU and allegations of physical and emotional abuse by a professional gymnastics coach (the “KNGU case”). The case garnered national media attention because it dealt with alleged improper behaviour by the coach of the Dutch women’s national gymnastics team in the Rio 2016 Summer Olympics (the “2016 Olympic Games”). However, the claim was dismissed due to procedural errors.

In this article, we discuss the KNGU case and the Dutch landscape for enforcing disciplinary measures. We dive deeper into the remarkable aspects of this high-profile case to explain the ISR’s shortcomings in dealing with complex cases that involve large-scale transgressive behaviour in professional sports. We will also discuss the legal doctrine regarding the fundamental principles of due process in dispute resolution in sports derived from the European Court of Human Rights (the “ECtHR”) case law and the warning of the KNGU case for the international field of disciplinary measures in sports.

The Dutch Sports Justice Institution (the “ISR”)

The ISR is the Dutch independent sports justice institution that deals with the disciplinary decisions for the national sports federations. It was established in 2003, aiming to centralise disciplinary law and bringing more uniformity to disciplinary decisions. As such, the ISR’s function is similar to the Court of Arbitration for Sports (CAS), but on a national level. Currently, there are 76 national sports federations affiliated with the ISR. These sports federations appoint the ISR as the disciplinary judicial body in their articles of association. In addition to the articles of association, an agreement is entered into with the ISR that specifically lays down the ISR’s fields of authority. The ISR administers justice in the name of, on behalf of, and at the expense and risk of the affiliated sports federation. The ISR does not deal with the full spectrum of disciplinary law within the sports, such as decisions following game fouls (these remain within the federation’s authority). The more complex disciplinary issues, such as doping, match-fixing, and transgressive behaviour are generally delegated to the authority of ISR. A few large Dutch sports federations only subject specific issues to the ISR’s jurisdiction. For example, the KNVB (the Royal Netherlands Football Association) and the KNWU (the Royal Dutch Cycling Union) only delegate authority to the ISR to rule on issues related to sexual intimidation and doping. The other issues are dealt by the federation itself. Federations do not have full discretion in delegating authority to the ISR. Under Article 13.2.2. of the 2021 code of the World Anti-Doping Agency (the “WADA Code 2021”), federations are obliged to submit doping related matters to the jurisdiction of an institutionally and operationally independent judicial body. Since the ISR is the only Dutch judicial body that meets the WADA Code 2021’s criteria, all Dutch sports federations must submit doping related matters to the ISR’s jurisdiction.

The ISR facilitates a pool of prosecutors who investigate incoming complaints of the sports federations’ members or the sports federations itself. The sports federation delegates its various powers to the prosecutor, and the ISR appoints them. The prosecutor investigates the complaint, compiles the case file and formally initiates the proceedings. It is also within the prosecutor’s powers to dismiss or close the case, or to advise a sports federation to impose preliminary measures to safeguard or reinstate a safe sports environment. Although the prosecutor is affiliated with the ISR, they work strictly separate and independent from the other bodies of the ISR (such as the Tribunal and the appeals tribunal).

The articles of association of the affiliated sports federations determine whether decisions of the ISR may be appealed at the CAS.

The KNGU Case

The KNGU case deals with alleged inappropriate behaviour by Vincent Wevers, a professional gymnastics coach who also coached the gymnasts of the Dutch national team participating in the 2016 Olympic Games. Several current and former gymnasts spoke out about physical and mental abuse by Wevers, which allegedly took place before 2012. The various allegations of abuse included ignoring injuries, swearing, shouting and abuse of power. The female gymnasts felt intimidated and belittled. The KNGU therefore initiated an investigation and suspended several other professional coaches while the investigation was pending. In addition to suspending multiple coaches, the KNGU halted the professional sports programme for its national women’s team. The KNGU’s decision had enormous impact for the women’s national team because the Olympic Games in Tokyo were just one year away.

Following an extensive investigation, the disciplinary proceedings against Wevers were initiated in August 2021. The prosecutor demanded a suspension of 28 months, 24 of which were conditional with a probation of two years. However, the Tribunal did not get to a comprehensive dealing with the substance of the case, because it concluded that the fundamental principles of due process were violated.

For example, the Tribunal ruled that the interviews with the gymnasts who filed a complaint about the transgressive behaviour had been of insufficient quality to be used as evidence. The complainants could change their statement several times and it was not always clear who exactly was present during the interviews. Also, the interviewer’s name was not always known, and the interviews were not signed. The coach was not allowed to amend his statement, nor allowed to see the complainants’ original statements. These original statements were also not submitted to the Tribunal. Even one of the complainants noted during the oral arguments that the principles of due process were not considered as the working method was unclear and sloppy. The defendant argued that the inadequate examining of the involved individuals increased the probability of tainted statements and severely damaged their credibility.

The KNGU case shows that the ISR did not properly consider the principles of due process. This resulted in several procedural errors which eventually led to the claim’s dismissal. This has questioned the ISR’s reputation as an institute for disciplinary measures – including its handling of sensitive topics such as improper behaviour.

Following the judgment and the gymnasts’ subsequent indignant reactions, the Dutch Parliament asked the Minister of long-term care and sports and the Minister of justice and security about the inadequacies of the disciplinary proceedings and the administration of justice at the ISR. A few days later, the Dutch Minister of long-term care and sports stressed the urge to professionalise the ISR in a meeting with NOC*NSF (the Dutch Olympic Committee and Dutch Sports Federation). This need for its professionalising has been acknowledged by the ISR itself as well. In its first large investigation on match-fixing in 2021, the ISR encountered so many hinderances in resources, authority, and manpower that it eventually had to put the investigation on hold. This is even more pressing considering the ISR’s exclusive jurisdiction in matters related to doping under the WADA Code 2021.

Whether the principles of due process included in Article 6 § 1 of the European Convention on Human Rights (1950) (ECHR) have been properly applied in proceedings before a private adjudication body has been the subject of widely reported international case law. The Mutu & Pechstein case (Mutu & Pechstein v. Switzerland, ECHR 2 October 2018, 40575/10 and 67474/10) and the Le Compte case (Le Compte, Van Leuven and De Meyere v. Belgium, ECHR 23 June 1981, § 45, Series A no. 43), illustrate how private adjudication bodies such as the CAS are also obliged to adhere to Article 6 ECHR. The Mutu & Pechstein case shows that the CAS is considered an “impartial and independent tribunal established by law” under Article 6 § 1 ECHR and that therefore it should ensure a fair trial in the determination of civil rights. The Le Compte case concludes that whenever the right to practise a profession is directly at stake, this is considered a civil right within the meaning of Article 6 § 1 ECHR and the proceedings that rule on the matter are subject to Article 6 § 1 ECHR. Based on the ECtHR case law on Article 6 § 1 ECHR it is therefore evident that private adjudication bodies such as the ISR are obliged to safeguard a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

The Tribunal’s ruling in the KNGU case indicates that the ISR did not help safeguard a fair trial while a 28-month suspension of a full-time gymnastics coach was at stake. The improper taking of the interviews’ minutes and altering or omission of certain statements in the proceedings were examples of this. The Tribunal’s decision is therefore justified in light of the ECtHR case law regarding Article 6 § 1 ECHR and the right to a fair trial. Nonetheless, the decision faced a backlash as it seemingly disregarded the disheartening stories from professional athletes who allegedly suffered from transgressive behaviour during their time in the women’s national gymnastics team.

The ISR’s appointed prosecutor and the KNGU have announced that they will appeal the Tribunal’s decision. A decision in appeal is expected by mid-2023. However, considering the case’s magnitude and the aforementioned lack of resources at the ISR, postponing the decision cannot be ruled out. A decision of the appeals tribunal may even be appealed at the CAS. However, jurisdiction of the CAS following a decision of the appeals tribunal is not firmly established in the underlying regulations, which means that inadmissibility questions could arise once parties submit the case to the CAS.

What Lies Ahead for the ISR

Over the past few years, the ISR’s caseload has increased significantly. In addition, the ISR has become responsible for more areas of disciplinary sports law and the societal debates about the matters under their discretion have intensified. However, resources, authorities and its staff have not been growing proportionately to the caseload and complexity. Not surprisingly, the ISR has been having difficulties keeping up with its own growth. Luckily for the ISR, the Dutch Minister of long-term care and sports has recently acknowledged the urgency for a rapid professionalisation of the ISR. After all, this is not only in the best interest of Dutch athletes, but also of professional sports environments.

What Lies Ahead for the Sports Federation’s Internal Instances and Arbitral Sports Tribunals

Although the number of reports have been disproportionate to the number of disciplinary rulings on (sexual) harassment and abuse in sports – there are currently only two CAS awards known dealing with the subject of harassment and sexual abuse (CAS 2019/A/6388, Karim Keramuddin v. FIFA; and CAS 2018/A/5641, Cyril Sen v. ITTF) – it is expected that the number of (international) disciplinary rulings on abuse will increase within the next years. This is because the discussion about abuse is no longer a taboo in sports and (former) athletes no longer feel a barrier to filing a complaint. These cases are of a sensitive nature, often receive lots of media attention and require extensive and careful investigation.

As follows from the KNGU case, complications might arise once the principles of due process are not properly taken into account during the proceedings or the preliminary investigation. The fact that sports federation’s internal instances may lack the resources and professionalism to properly execute their function, puts pressure on the disciplinary landscape in sports law as a whole. The KNGU case does not appear to be an isolated incident, as other jurisdictions also seem to struggle with the proper functioning of the disciplinary institutions that deal with harassment and abuse in sports (See for example the SafeSport institution in the United States).

Harassment cases are often highly complex and traumatic for those affected. Although disciplinary law is considered to be civil law (See for example CAS 2013/A/3139, Fenerbahce SK v. UEFA, para. 90), cases dealing with (sexual) harassment and abuse tend to have characteristics of a criminal case. Certain principles of due process, which are deeply rooted within the criminal law, are therefore not applicable to disciplinary proceedings. In order to have disciplinary institutions function properly, it is important that procedural safeguards are sufficiently guaranteed. The KNGU case is an example that this aspect is not yet given sufficient attention. Internal institutions and sports tribunals will have to critically examine whether they are able to deal with these sensitive cases and, more importantly, whether their procedural rules sufficiently safeguard the principles of due process as laid down in Article 6 § 1 ECHR.

Fortunately, the discussion about abuse in sports is losing its taboo and thus the amount of cases regarding disciplinary measures against the perpetrators are increasing across the world. We do however expect this will lead to an increased caseload for these private adjudication bodies, putting even more pressure on them. The KNGU case has shown that these private adjudication bodies may face challenges in safeguarding the principles of due process as laid down in Article 6 § 1 ECHR. Hopefully, the KNGU case can function as a warning for disciplinary institutions around the world to sharpen their aim at safeguarding a fair trial.

This blog was first published on the JusMundi's Blog.