CONSTRAINT WITHOUT SUCCESSION: EXTERNAL LEGAL REVIEW AND RETAINED REGULATORY AUTHORITY IN INTERNATIONAL SPORT
| ALBERT TAN SIN HON * | UDC 349:796 |
|---|---|
| DOIhttps://doi.org/10.30925/slpdj.4.1.4 | |
| Received on July 17, 2026 | |
| Accepted on August 12, 2026 | |
| Preliminary communication | |
| Copyright© 2026 Authors retain copyright and grant the SLPD journal the right of first publication under CC-BY 4.0 licence that allows others to share the work with an acknowledgment of the work’s authorship and initial publication in the journal |
1. THE PROBLEM OF SUCCESSOR AUTHORITY
A court may defeat a sporting rule without becoming its author. That tension now recurs across international sport. National courts, the European Court of Human Rights, and the Court of Justice have scrutinised the making of sporting decisions, the review of compulsory arbitral awards, the domestic effect of those awards, and the criteria by which federations exercise regulatory power. Their interventions can reopen a forum, suspend a sanction, require an individual assessment, or deny an award legal effect in a Member State. Yet the federation may still remain the body responsible for drafting the replacement rule or deciding the remitted matter.
The usual language of power transfer obscures this division. It rightly captures the loss of institutional shelter, but rarely specifies what has changed hands. A claimant who secures a hearing gains a right; the bench remains elsewhere. A national court may disapply an award without taking over the federation's regulatory office. The opposite error is also possible. Formal competence becomes a thin description when another institution controls the legal classification, holds an effective veto, or leaves only one lawful outcome.
The question is therefore not exhausted by asking who won the litigation. After external review, who must act next? That inquiry identifies the institution that must assemble the record, hear the parties, select and interpret the governing norm, classify the facts, choose among lawful alternatives, give reasons, implement the result, and answer for renewed illegality. Those responsibilities may remain with a sports body whose freedom has been sharply narrowed. They may also be divided among the federation, the arbitral body, a national court, and a supervisory authority.
Two familiar legal ideas sharpen the point. Hohfeld's account of legal power separates an athlete's claim-right from authority to alter the governing normative position.1 Dworkin's conception of discretion describes the space left to a decision-maker once legal standards have done their work.2 Together they explain how decisional responsibility can remain while choice contracts. Neither, however, fully identifies which institution bears responsibility for completing a legally operative decision.
That task requires attention to the internal structure of legal justification. A conclusion is not justified merely because it follows formally from stated premises. The relevant facts must be proved, the governing rule must be valid or acceptably interpreted, and the legal classification that connects fact to norm may itself be contested. Logic can test implication and consistency, but it cannot by itself select the legally relevant premise, value, or policy. Compulsory sports arbitration adds an institutional question because the body reviewing transnational sporting power performs a public accountability function, not merely a private dispute-resolution service.3 External review may therefore settle one premise while leaving the rest of the decision elsewhere: CAS may retain the facts, the Court of Justice may fix the EU-law rule, a national court may control classification and remedy, and the federation may still have to choose the successor policy.
Effective control need not follow formal office. A court may invalidate, suspend, disapply, or require reconsideration, and each power can determine the practical result without drafting the rule. Legal classification may be decisive even when the facts stand. Interim relief may preserve a career interest; delay may destroy it. On this account, asking who still holds the pen risks mistaking nominal authorship for real control.
The objection is sound, but it shows that authority can be divided rather than that formal responsibility is irrelevant. The useful object of inquiry is the decision remainder: the work that remains legally necessary after the reviewing body has spoken. A judgment may eliminate options, prescribe a standard, reserve a question of classification, or require a remedy. What survives may range from substantial policy choice to mechanical implementation.
Constraint without succession describes the position in which external law narrows that remainder while the original institution remains legally responsible for completing it. Functional reassignment occurs when a necessary component of the decision, such as legal classification, interim protection, or control over domestic effect, is transferred to another institution. Complete succession requires more. It occurs only when the original regulator is removed from the relevant decision and another body becomes legally responsible for making it, rather than merely reviewing, vetoing, or conditioning it.
This distinction matters because negative authority and positive office are not interchangeable. A court with a veto may determine what cannot lawfully be done, yet still lack the competence, evidence, or institutional mandate to formulate what should replace it. Conversely, a federation may retain formal authorship while another institution has already settled the decisive criterion. The operative part and reasons of the judgment must therefore be read in light of the task returned to the original decision-maker.
There are institutional reasons not to treat every successful challenge as succession. International federations often possess technical knowledge, rule-making continuity, and the capacity to coordinate a sport across jurisdictions. Courts are generally better placed to police legality than to design competition formats, eligibility categories, transfer systems, or anti-doping administration. Expertise and uniformity, however, cannot justify unframed discretion, especially where a federation combines regulatory and commercial roles or where arbitration is compulsory. Retained office is defensible only when the surrounding legal order supplies adequate criteria, reasons, independence, and effective review.
The focus on the decision remainder also prevents confusion between the beneficiary of review and its institutional addressee. An athlete may secure a right whose correlative duty falls on an arbitral institution, a national court, or a data controller. A preliminary ruling fixes the governing interpretation of EU law while leaving the facts and remedy to the referring court. These are not peripheral qualifications. They determine whether the claimant has obtained a route, protection of an interest, a remedy, or authority over the decision.
The authorities are purposive, as they mark different entry points for external law: the public hearing, state supervision of compulsory arbitration, the treatment of arbitral facts, competition-law limits on federation discretion, prior review of disciplinary sanctions, and preventive data-protection relief. Throughout, judicial holdings are kept separate from procedural history, arbitral findings, party statements, institutional announcements, and authorial inference. In preliminary-ruling proceedings, the Court of Justice states the law; the national court applies it to the dispute. The legal cut-off is 17 July 2026.4
The discussion begins with compulsory sports arbitration, where the route and intensity of review are themselves contested, and then turns to EU cases in which courts supervise federation rules and disciplinary decisions more directly. The final section asks when accumulated constraint becomes displacement and proposes a functional test for answering that question.
2. COMPULSORY SPORTS ARBITRATION AND EXTERNAL JUDICIAL CONTROL
2.1. PECHSTEIN
Claudia Pechstein's dispute did not produce one controlling judgment. It unfolded across sports arbitration, Swiss set-aside proceedings, German civil litigation, Strasbourg review, constitutional remittal, and settlement. In 2009, the International Skating Union imposed a two-year anti-doping suspension. The Court of Arbitration for Sport dismissed Pechstein's appeal and the German federation's related appeal; the Swiss Federal Supreme Court rejected the ensuing challenge.5 The later German proceedings concerned damages and the arbitration agreement. They did not reopen the doping merits.
In 2016, the German Federal Court of Justice accepted CAS as a genuine arbitral tribunal and upheld the arbitration agreement. Its assessment of the compulsory clause found no abuse of market power sufficient to invalidate the agreement. Once the ISU invoked the arbitration objection, the damages claim was inadmissible. The award itself was not considered binding on the domestic court by recognition or res judicata; this issue became irrelevant following the successful objection.6
Strasbourg approached consent from the athlete's perspective. Pechstein could arbitrate or abandon her professional livelihood, which made the proceedings compulsory for the purposes of Article 6. On the evidence before it, the European Court of Human Rights rejected the challenge to CAS independence and impartiality. The public-hearing complaint succeeded. Pechstein had asked for a hearing, and the dispute warranted public scrutiny. Article 6 was violated, but the anti-doping rule, the medical merits, and the domestic damages claim remained undecided.7
The German Federal Constitutional Court later reopened the domestic route. In June 2022, it held that the Federal Court of Justice had given insufficient constitutional weight to public proceedings and access to justice. It set aside the 2016 judgment and returned the case for continued adjudication; damages and causation remained open.8 The litigation ended by settlement in March 2025. The ISU's announcement referred to later medical testing indicating a mild form of dehydrated hereditary stomatocytosis. That account belonged to the settlement statement, not to a judicial finding reached after contested expert evidence.9
Pechstein separates four matters that accounts of judicial intervention often collapse: access to a forum, the procedural quality of that forum, determination of the sporting merits, and the remedy in the civil claim. Strasbourg altered the second. Karlsruhe restored the first and returned responsibility for the civil action to the German courts. Neither institution decided whether the original anti-doping finding was correct, and neither acquired the ISU's rule-making office. The successor question therefore had a different answer for each object of decision.
The dates disclose a further limit of formal analysis. Strasbourg identified the procedural defect in 2018; Karlsruhe reopened the civil route four years later; settlement came in 2025. A public-hearing right may be legally weighty and practically late, because the competitive interest that made the dispute urgent may have expired by the time the route is restored. Remedial timing can redistribute practical control even when the merits remain formally untouched.
The settlement interrupted rather than completed the successor chain. It cannot be read backwards as a merits judgment, and the later medical account cannot establish what CAS or the German courts would have found on a fully contested record. External review reopened decision-making, but the parties ended the case before an ordinary court supplied the final answer. Source status matters precisely because an institutional narrative is otherwise too easy to complete after the event.
2.2. SEMENYA
In the case of Semenya, the reviewing court confronted the adequacy of state supervision after a full arbitral process, rather than the absence of a hearing at its outset. Caster Semenya and Athletics South Africa challenged the 2018 Eligibility Regulations before CAS. The majority accepted discrimination on grounds of legal sex and innate biological characteristics, yet held the differential treatment necessary, reasonable, and proportionate to fair competition in the female category. Its conclusion carried substantial reservations. The panel recorded uncertainty over implementation, possible side effects, the strict-liability consequences for an athlete unable to maintain the prescribed threshold despite good-faith compliance, and the limited evidence of actual advantage in the 1,500 metres and mile. It also separated its adjudicative task from the federation's responsibility for operating the regime.10
The Swiss Federal Supreme Court reviewed the award under Article 190(2) of the Federal Act on Private International Law. The statutory grounds confined its jurisdiction, and the court proceeded on the facts found by CAS. It left open whether the prohibition of discrimination could be invoked against a private entity in the form argued. A definitive answer was unnecessary, it held, because the CAS majority had weighed the competing interests and reached a result that was neither untenable nor unreasonable. The appeals therefore failed.11
The 2023 Chamber judgment found violations, but its referral to the Grand Chamber prevented it from becoming final. The Grand Chamber's judgment of 10 July 2025 rested on Article 6. Swiss review of the award supplied the jurisdictional link for that provision; the complaints under Articles 8, 13, and 14 were inadmissible for lack of such a link. Compulsory arbitration, structural imbalance, and the fundamental rights engaged required a 'particularly rigorous examination.' The Federal Supreme Court's limited scrutiny fell short, especially given the reservations recorded in the award. The award and eligibility regime remained in place. Strasbourg addressed the quality of Swiss judicial review; it supplied no replacement rule.12
The distinction between a standard of supervision and a first-order regulatory norm is central. The Grand Chamber did not prescribe an eligibility category, an evidential threshold, or a medical protocol. It changed the legal conditions under which Switzerland could accept the arbitral settlement as adequately reviewed. The immediate decisional remainder therefore lay with the Swiss legal order: any renewed judicial determination would have to decide what the reservations in the award meant for the lawfulness and durability of the result.
World Athletics remained the author of eligibility regulation and later adopted Eligibility Rule 3.5 with separate implementation regulations. The materials show continued federation rule-making. They do not establish that the Grand Chamber caused the later changes.13 The regulatory remainder remained with World Athletics, while the supervisory remainder lay with Switzerland. CAS retained the adjudicative position assigned by the sports framework, but the legal security of its award could no longer depend on a form of state review that treated the narrowness of its own jurisdiction as a sufficient answer.
The better reading is therefore divided control without succession. Particularly rigorous examination is not a merits appeal, and the Grand Chamber did not become the regulator. Yet the standard is not merely procedural decoration. If its application reveals a decisive defect, World Athletics may retain formal competence while losing the practical ability to preserve the former arrangement. The reviewing court can determine whether the settlement survives in law, even though it writes neither the eligibility rule nor the arbitral award.
The Grand Chamber's phrase must remain tied to its reasons. Compulsory arbitration, structural imbalance, and the rights at stake justified the required intensity. The judgment did not announce a uniform appellate standard for every CAS award. Its narrower force is that a state may not allow limited review to neutralise the features that make arbitration both compulsory and consequential. Semenya thus relocates the adequacy of supervision, not the general office of sports regulation.
2.3. ROYAL FOOTBALL CLUB SERAING
The pressure point in Royal Football Club Seraing was the domestic legal effect of a compulsory CAS award within the European Union. The club entered two agreements with an investment company. On 30 January 2015, it transferred 30 per cent of the economic rights relating to three players for EUR 300,000; on 7 July 2015, it transferred 25 per cent of the rights relating to a fourth player for EUR 50,000. FIFA disciplinary proceedings and compulsory CAS arbitration followed under rules restricting third-party ownership.14
Belgian law gave an arbitral award res judicata effect between the parties and probative value against third parties. The Court of Justice accepted that EU law does not invariably require a direct action against a sports award. Indirect review will suffice only if a Member State court asked to give effect to an imposed award can test it against EU public policy. That authority includes the interpretation of the relevant EU rules, the legal consequences that follow, and, where appropriate, the legal classification of facts already established and assessed by the arbitral tribunal.15
The last power carries much of the judgment's institutional weight. Fact-finding and legal classification are distinct parts of a decision. A national court may accept that the transactions occurred as CAS found, yet decide that EU competition or free-movement law gives them a different legal character. Classification is the bridge between the established record and the governing norm. Control of that bridge can determine the result as surely as authority to hear evidence afresh.
Review must also be capable of producing legal consequences. Within its jurisdiction, the national court must be able to seek a preliminary ruling, grant interim protection, award damages, order unlawful conduct to cease, and disapply national rules that would otherwise give binding or evidential effect to an inadequately reviewed award.16 The Court of Justice neither annulled the award nor decided the national claim. It required Member State law to preserve a forum with authority to perform the necessary EU-law work.
Seraing therefore disaggregates the arbitral product into at least three institutional objects: the factual record, its EU-law classification, and the domestic legal effect attached to the resulting award. CAS may remain responsible for the first within the sports dispute, while the Member State court controls the latter two for purposes of EU law. An award can survive as a transnational sporting determination yet fail to operate as an unquestionable premise in national proceedings.
This is especially important for non-parties. Domestic rules on res judicata and evidential effect convert a private adjudicative product into a premise of state adjudication. EU law prevents that conversion from insulating a compulsory award that escaped adequate Member State review. FIFA remains responsible for future third-party ownership regulation, but neither FIFA nor CAS can insist that the award's classification and effects pass untouched into a Member State. This is functional reassignment of legal effect, not succession to the federation's general regulatory office.
3. JUDICIAL CONTROL OF FEDERATION RULES AND DECISIONS
3.1. INTERNATIONAL SKATING UNION
International Skating Union concerned a federation that regulated, sanctioned, organised, and commercially exploited competitions in the same market. Skaters who entered unauthorised events faced severe eligibility penalties. The Court of Justice upheld the finding that the prior-authorisation and eligibility rules restricted competition by object. The defect lay not only in their substance. The ISU's powers lacked clearly defined, objective, transparent, non-discriminatory, and proportionate criteria, leaving an economically interested regulator with unframed discretion.17
The arbitration provisions required more exact treatment. Neither the Commission nor the Court treated arbitration as an independent infringement of Article 101 TFEU, and the judgment did not find that CAS as an institution violated the right to a fair hearing. The problem arose from the conjunction of unframed federation power and an exclusive arbitral route that impeded effective competition-law review. Articles 101 and 102 TFEU form part of EU public policy. Review of an imposed award must be able to reach them. Proceedings confined to the Swiss Federal Supreme Court could not perform that function within the EU judicial system, and the absence of adequate protective measures reinforced the anticompetitive arrangement.18
The Court left room for prior authorisation. The ISU could design a compliant system, but it could no longer combine commercial self-interest, criteria-free discretion, and an arbitral route that insulated EU public policy. The judgment is therefore best understood as meta-regulation of the federation's office. It did not decide which competitions should be authorised. It prescribed the legal qualities of the criteria, procedure, and review through which that decision could validly be made.
This is a substantial loss of authority even though the successor rule remained the ISU's responsibility. The federation retained first-order choice over sporting design, evidence, and administration. It lost the capacity to define the limits of its own discretion or the reach of external review. Formal authorship survived, but the legal architecture governing that authorship moved outside the federation.
3.2. FIGC AND CONI
The joined proceedings in FIGC and CONI arose from temporary professional bans imposed on two directors of a football club following findings concerning false financial and accounting statements. Once the sports justice system had been exhausted, the ordinary administrative court could award compensation for an unlawful sanction, but could neither annul nor suspend it. The Court of Justice therefore confronted two questions at once: what substantive standards could govern the discipline, and where an effective remedy had to be found.19
Rules protecting financial and accounting compliance may serve the proper conduct of sporting competitions. The national court must still ask whether those rules pursue that objective consistently and systematically. Sanctions require transparent, objective, non-discriminatory, and verifiable criteria, applied to the individual case and open to effective review. The more difficult issue was institutional: which body had to possess the power to intervene before the ban had run its course?
The Court answered conditionally. A court that establishes an infringement must ordinarily be able to provide an effective remedy, including annulment or suspension where necessary. An ordinary court limited to damages may still satisfy EU law if the last-instance sports-justice body qualifies as a court or tribunal with the required guarantees. Its existence, composition, and organisation must be established by law. It must be independent and impartial, perform a genuine judicial function, respect the rights of the defence, and conduct effective prior review. If no sports body meets those conditions, the ordinary court must supply the missing protection.20
The allocation follows institutional properties rather than labels. A body situated within sports justice may retain adjudicative and remedial responsibility if it actually performs the judicial function EU law requires. If it does not, the ordinary court acquires the missing power. The Court of Justice supplied the legal test, while the referring court must determine whether the national structure satisfies it in practice. The private sporting order cannot conclusively define the adequacy of its own remedial architecture.
A temporary professional ban may be substantially spent before damages are granted. Compensation cannot preserve the position that suspension or annulment might have saved. Remedial competence is therefore not an accessory to the underlying decision. The institution able to prevent the sanction from exhausting itself shares practical control of its legal effect, even if the federation retains disciplinary rule-making.
3.3. NADA AUSTRIA AND OTHERS
In NADA Austria and Others concerned Austrian rules requiring online publication of a sanctioned athlete's name, discipline, infringement, sanction, and duration. The Grand Chamber held that the processing fell within EU law and the General Data Protection Regulation. A doping violation and sanction are not automatically health data. They may become so where the named substance or method, along with other information, can reveal physical or mental health; the referring court had to make that assessment.21
The Court did not reject category-based publication in principle. Publication may deter doping, and legislation may identify categories in which it is generally justified. Online dissemination nevertheless creates a grave interference: the material may reach an unlimited audience, be copied elsewhere, and remain accessible after removal from the original site. Where predefined criteria fail to secure proportionality in the individual case, the controller must be able to balance before publication. The gravity of the violation, the athlete's profile, and the publication period may matter. A period extending manifestly beyond the athlete's career may be disproportionate.22
Article 10 GDPR did not govern because the sanctions were disciplinary, rather than criminal, for that provision. Article 77 nevertheless permits a complaint before publication where specific indications show that publication is imminent or likely in the near future.23 The athlete gains preventive access to the supervisory authority. Control of publication does not pass to the athlete.
The judgment exposes two linked decisions: whether publication is proportionate and whether it may occur before review. The controller remains responsible for the first application of the statutory scheme, including individual balancing when the categories do not secure proportionality. The supervisory authority acquires an ex ante gatekeeping function capable of
preventing dissemination before the harm becomes difficult to reverse.
This is authority over timing rather than succession to the publication office. Yet timing is not secondary where internet disclosure can be copied, indexed, and retained beyond the original site. A remedy confined to later erasure may leave the legally protected interest largely spent. NADA Austria, like FIGC and CONI, shows that effective protection may require intervention before a nominally temporary or reversible act becomes practically irreversible.
4. WHEN DOES CONSTRAINT BECOME DISPLACEMENT?
The cases expose the central difficulty that an institution can exercise decisive control without acquiring the federation's office. Annulment, disapplication, interim relief, mandatory legal classification, and exacting proportionality review may remove outcomes from the regulator's lawful reach. A court with an effective veto can be more powerful in practice than the body required to draft again. Yet a veto ordinarily determines what may not stand, rather than who must construct and defend the successor arrangement.
EU sports law has long denied economically significant sporting rules any categorical exemption. Bosman brought transfer and nationality rules within free movement; Meca-Medina required attention to context, objective, and proportionality.24 European Superleague and FIFA v BZ show how far that substantive control can reach without transferring the regulatory office.
European Superleague concerned prior approval, participation, and sanctions in a market where FIFA and UEFA also organised and commercially exploited competitions. The Court of Justice did not condemn prior authorisation as such. It held that the powers at issue abused Article 102 TFEU and restricted competition by object under Article 101 because no substantive criteria or detailed procedures secured transparent, objective, non-discriminatory, and proportionate exercise. Article 56 likewise precluded the unframed regime.25 FIFA and UEFA still had to devise replacement arrangements. They could not reproduce the discretionary structure the judgment had condemned.
FIFA v BZ addressed compensation after a player's termination without just cause, the new club's joint and several liability, sporting sanctions, and the withholding of an international transfer certificate during the dispute. Subject to verification by the referring court, several features appeared to go beyond, and in places far beyond, what contractual stability and the regularity of competitions required. The Court also treated the rules as a restriction of competition by object, leaving Article 101(3) to the national proceedings.26 FIFA retained responsibility for revision, but important elements of the old mechanism had fallen outside the lawful range.
A disciplined successor inquiry begins by identifying the exact object of decision rather than the institution in the abstract. It then asks which body is under a legal duty to act, which matters the reviewing judgment has conclusively settled, what evidential and normative choices remain, which institution can make the result effective, and who is responsible for inaction or renewed illegality. The answers may differ for the general rule, the individual application, the arbitral award, its domestic effect, and the interim remedy.
The extent of the decision remainder is more important than the number of formally available options. Several drafting routes may all lead to the same legal outcome. Conversely, a closely reasoned judgment may prohibit central features of the former scheme while leaving genuine choices about scope, evidence, procedure, transition, and enforcement. If only mechanical execution remains, review approaches substitution even without a formal change of title. If substantial normative choices survive, retained responsibility is more than administrative residue.
Negative control should therefore be distinguished from positive regulatory office. Courts in International Skating Union, European Superleague, and FIFA v BZ removed unlawful structures and criteria from the available range, but did not assume responsibility for designing the next system. The federations retained the burden of selecting a lawful means, explaining it, administering it, and defending it against renewed challenge. That burden is a legally significant form of authority, not a ceremonial privilege.
Other cases reassign a component that is necessary to the result. Seraing reserves EU-law classification and domestic legal effect to the Member State court. FIGC and CONI conditionally place annulment and suspension with the ordinary court when sports justice lacks the required qualities. Semenya makes sufficiently rigorous state supervision part of the legal acceptability of compulsory arbitration. NADA Austria gives preventive review temporal force. These interventions do not transfer the general rule-making office, but they do distribute the powers through which a sporting decision becomes legally operative.
The emerging pattern may be described as publicization without institutional succession. Sporting bodies remain first-order regulators, while public institutions control the legal standards, review intensity, classification, remedial capacity, and timing that determine whether private decisions can operate within domestic and EU legal orders. Public law enters the governance structure without nationalising it. The result is neither autonomous private ordering nor judicial management of sport, but a divided architecture in which no single institution possesses every component of the decision.
Technical knowledge, transnational coordination, and continuity may support leaving first-order rule-making with federations. Compulsory participation, market power, commercial conflicts, fundamental rights, and potentially irreversible sanctions or disclosures support stronger public control. The cases do not resolve that balance through a single formula. They require the federation's retained expertise to operate inside standards of legality that it cannot define for itself.
Complete succession should consequently be reserved for the point at which another institution becomes legally responsible for the next operative decision. It is clearest where legislation vests the function in an independent public authority, or where a judgment substitutes the governing rule and removes the federation from reconsideration. Nothing in this corpus goes that far for a general sporting rule. No court or claimant becomes wholly responsible for the successor regulatory regime.
The cases instead occupy different positions within retained responsibility and functional reassignment. Pechstein alters forum and procedure while leaving the sporting merits and anti-doping office elsewhere. NADA Austria reallocates preventive timing. International Skating Union, European Superleague, and FIFA v BZ sharply narrow lawful regulatory design. Seraing relocates classification and domestic effect. FIGC and CONI conditionally relocate remedial power. Semenya leaves World Athletics as regulator but makes the adequacy of state supervision capable of determining whether the arbitral settlement is legally durable.
Claims of transferred power should therefore identify the function, the institution that now controls it, and the work left to the original regulator. The answer may be retained responsibility, functional reassignment, conditional displacement, or complete succession. This method prevents formal competence from masquerading as vindication, but also prevents every successful challenge from being misdescribed as judicial takeover.
5. CONCLUSION
External law has stripped international sports governance of much of its former insulation. Decisions once treated as matters for sport alone are now subject to public hearings, more demanding state review, EU public policy, prior remedies, and individual proportionality. The significance of that development lies not simply in a larger judicial role, but in the redistribution of the components through which a sporting decision acquires legal force.
The central question remains who must make the subsequent operative decision. In most of the authorities examined here, a sports body still had to write the successor rule or decide the remitted matter. That responsibility carried real work: selecting evidence, interpreting the governing standards, making policy choices within the lawful range, giving reasons, implementing the result, and answering for renewed illegality. Retained responsibility was therefore neither unchanged autonomy nor a merely formal title.
External review can settle one premise or relocate one function without absorbing the whole office. Pechstein separates access, procedure, merits, and remedy. Semenya distinguishes the standard of state supervision from first-order eligibility regulation. Seraing divides fact-finding from EU-law classification and domestic effect. FIGC and CONI make remedial authority depend on institutional adequacy. NADA Austria shows that control of timing may determine whether protection is effective at all.
The result is publicization without institutional succession. Private regulators continue to govern, but they do so within a denser arrangement of judicial supervision, public-law standards, and remedial exposure. Courts and supervisory authorities may hold decisive powers over validity, classification, legal effect, and timing, while the federation retains the duty to formulate and administer the first-order rule. Authority is divided before office changes hands.
Institutional succession should therefore be claimed only when responsibility for completing the relevant decision moves. Hence the more accurate question is how much of the decision remains, where each necessary function is located, and whether the original body retains genuine normative choice. The holder of the pen matters, but only after asking which parts of the page have already been written elsewhere.
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0009-0001-8996-7933. 🖂 s.h.a.tan@rug.nl.