Maurice Holmes led in arbitration determining the lawfulness of Davis Cup eligibility rules under EU and domestic law
(1) Aljaž Bedene and (2) The Lawn Tennis Association v The International Tennis Federation
In a notable decision concerning the ‘sporting exception’ under EU law, sole arbitrator Charles Hollander QC has ruled that the ineligibility of professional tennis player, Aljaž Bedene, to represent Great Britain in the Davis Cup is not unlawful.
Mr Bedene and the LTA were represented by Maurice Holmes of Crown Office Chambers, who was led by Thomas de la Mare QC of Blackstone Chambers. Counsel were instructed by Jamie Singer of Onside Law. The ITF was represented by Marie Demetriou QC, of Brick Court Chambers, who was instructed by Kendrah Potts of Mishcon de Reya.
The arbitral award is accessible by clicking here.
The arbitration concerned: (1) the implementation of a new rule by the ITF which prevented Mr Bedene – who established himself in the UK in 2008 – from representing Great Britain in Davis Cup tennis, having previously already represented a different country (Slovenia); and (2) the ITF’s exercise of discretion in refusing to grant Mr Bedene an exemption to the new rule.
When Mr Bedene moved to the UK, the eligibility rules for the Davis Cup provided various qualification requirements by which, had Mr Bedene satisfied them, he would have been eligible to represent Great Britain (notwithstanding his previous representation of Slovenia). However, before Mr Bedene was able to complete the qualification process, the ITF adopted a new rule whereby a player who has previously represented one country at senior level is not eligible to represent another (the “one country rule”).
Mr Hollander QC observed [25–26]: “I have no doubt that [Mr Bedene’s] desire to settle in the UK has been genuine and that he has a genuine desire to play for Great Britain. He has been in the unfortunate position that the ITF change in rules has come at precisely the wrong time for him. He cannot be characterised as one of those players who desire to adopt a ‘flag of convenience’.”
The primary issue required a determination as to whether these circumstances engaged Mr Bedene’s directly effective free movement rights as protected by the TFEU (and, in particular, Article 49 TFEU on the freedom of establishment). This was described  by Mr Hollander QC as “the most interesting and knotty legal issue in the case. I do not think the answer is straightforward or free from doubt. I can see the question could readily tax the CJEU.”
If the primary issue was answered affirmatively, the case required an assessment of whether those rights (and/or Mr Bedene’s rights under domestic law) had been infringed. Although the Applicants accepted the legitimacy of the objective behind the one country rule, their argument was  “a narrower one which [focused] on the lack of transitional provisions which would protect someone such as Mr Bedene who had relied on the old rules.”
Referring to Meca Medina v Commission of the European Communities (C-519/04 P)  ECR I-6991, Mr Hollander QC held : “It does not appear consistent with the objectives of the TFEU to exclude the operation of Community law in relation to rules designed to restrict the ability of players to transfer their national affiliations for economic reasons.”
Mr Hollander QC accepted  the Applicants’ submission that the one country rule “is in fact a rule based on the change of nationality which brings it squarely within Article 49.”
Therefore, it was held : “being a rule which seeks to target and deter those who wish to change affiliations [the one country rule] must necessarily become a rule that restricts freedom of movement as it will act as a barrier to free movement”.
On the facts of the case, however, Mr Hollander QC considered there had been no infringement of Mr Bedene’s rights by the ITF, whether under Community or domestic law.
This decision, by an experienced and respected arbitrator, supports the view that – following Meca-Medina – rules concerning sporting nationality are subject to the protections afforded by the Treaty (including free movement provisions), and do not escape the scrutiny of EU judicial authorities by virtue of the ‘sporting exception’.
This will be of obvious little comfort to Mr Bedene. Mr Hollander QC stated : “[i]t is sufficient to say that I have the greatest of sympathy for Mr Bedene and his predicament”.
The LTA was expressly commended by Mr Hollander QC for its support of Mr Bedene : “I should also say that the LTA has acted creditably in supporting Mr Bedene’s case throughout and giving him not inconsiderable assistance.”
In his conclusion, Mr Hollander QC referred to the possibility of a further application to the ITF for an exemption, commenting : “I hope that the passage of time […] will be sufficient to persuade the ITF that Mr Bedene is a worthy candidate for an exemption”.
Mr Hollander QC also expressed  his gratitude to Counsel for “very well-argued submissions on both sides.”
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