Editor's note: Branislav
Hock (@bran_hock) is PhD Researcher at the Tilburg Law and Economics Center at Tilburg
University. His areas of interests are transnational regulation of corruption, public
procurement, extraterritoriality, compliance, law and economics, and private
ordering. Author can be contacted via email: email@example.com.
This blog post is based on a paper
co-authored with Suren Gomtsian, Annemarie Balvert, and Oguz Kirman.
Game-changers that lead to financial
success, political revolutions, or innovation, do not come “out of the blue”;
they come from a logical sequence of events supported by well-functioning
institutions. Many of these game changers originate from transnational private
actors—such as business and sport associations—that produce positive spillover
effects on the economy. In a recent paper forthcoming
in the Yale Journal of International Law, using the example of FIFA, football’s
world-governing body, with co-authors Suren Gomtsian, Annemarie Balvert, and
Oguz Kirman, we show that the success of private associations in creating and
maintaining private legal order depends on the ability to offer better
institutions than their public alternatives do. While financial scandals and
other global problems that relate to the functioning of these private member
associations may call for public interventions, such interventions, in most
cases, should aim to improve private orders rather than replace them. More...
Doyen (aka Doyen Sports Investment Limited) is
nothing short of heroic in its fight against FIFA’s TPO ban. It has (sometimes
indirectly through RFC Seraing) attacked the ban in front of the French courts,
the Belgium courts, the European Commission and the Court of Arbitration for
Sport. This costly, and until now fruitless, legal battle has been chronicled
in numerous of our blogs (here
It is coordinated by Jean-Louis Dupont, a lawyer who is, to say the least, not
afraid of fighting the windmills of sport’s private regulators. Yet, this time
around he might have hit the limits of his stubbornness and legal ‘maestria’.
As illustrated by the most recent decision of the saga, rendered in March by
the Court of Arbitration for Sport (CAS) in a case opposing the Belgium club
RFC Seraing (or Seraing) to FIFA. The arguments in favour of the ban might override
those against it. At least this is the view espoused by the CAS, and until
tested in front of another court (preferably the CJEU) it will remain an influential
one. The French text of the CAS award has just been published
and I will take the opportunity of having for once an award in my native
language to offer a first assessment of the CAS’s reasoning in the case,
especially with regard to its application of EU law. More...
Editor's note: Adriaan Wijckmans is an associate specialized in sports law at the Belgium law firm Altius.
In a recent judgment, the Brussels Court of
First Instance confirmed the legality of a so-called surety undertaking, i.e. an
agreement in which the parents of a minor playing football guarantee that their
child will sign a professional contract with a football club as soon as the child
reaches the legal age of majority.
This long-awaited ruling was hailed, on the one hand, by clubs as a
much needed and eagerly anticipated confirmation of a long-standing practice in
Belgian football and, on
the other hand, criticised by FIFPro, the international
player’s trade union, in a scathing press release. More...
Editor's note: This report compiles all relevant news, events and
materials on International and European Sports Law based on the daily coverage
provided on our twitter feed @Sportslaw_asser. You
are invited to complete this survey via the comments section below, feel free
to add links to important cases, documents and articles we might have
Editor’s Note: Shervine Nafissi (@SNafissi) is a Phd Student in sports law and teaching assistant in corporate law at University of Lausanne (Switzerland), Faculty of Business and Economics (HEC).
The factual background
The dispute concerns a TPO contract entitled “Economic Rights Participation Agreement” (hereinafter “ERPA”) concluded in 2012 between Sporting Lisbon and the investment fund Doyen Sports. The Argentine player was transferred in 2012 by Spartak Moscow to Sporting Lisbon for a transfer fee of €4 million. Actually, Sporting only paid €1 million of the fee while Doyen Sports financed the remaining €3 million. In return, the investment company became the owner of 75% of the economic rights of the player. Thus, in this specific case, the Portuguese club was interested in recruiting Marcos Rojo but was unable to pay the transfer fee required by Spartak Moscow, so that they required the assistance of Doyen Sports. The latter provided them with the necessary funds to pay part of the transfer fee in exchange of an interest on the economic rights of the player.
Given that the facts and circumstances leading to the dispute, as well as the decision of the CAS, were fully described by Antoine Duval in last week’s blog of Doyen vs. Sporting, this blog will solely focus on the decision of the Swiss Federal Supreme Court (“FSC”) following Sporting’s appeal against the CAS award. As a preliminary point, the role of the FSC in the appeal against CAS awards should be clarified.More...
the end of December 2015, the CAS decided on a very public contractual
dispute between Sporting Clube de Portugal Futebol SAD (Sporting) and
Doyen Sports Investments Limited (Doyen). The club was claiming that
Doyen’s Economic Rights Participation Agreement
(ERPA) was invalid and refused to pay Doyen’s due share on the transfer
of Marcos Rojo to Manchester United. The dispute made a lot of noise
(see the excellent coverage by Tariq Panja from Bloomberg here, here and here)
as it was the first TPO case heard by the CAS after FIFA’s ban. Yet,
and it has to be clear from the outset, the case does not affect the
legality of FIFA’s TPO ban; it concerned only the compatibility of
Doyen’s ERPA with Swiss civil law. The hearing took place in June 2015,
but the case was put under a new light by the football leaks revelations unveiled at the end of 2015 (see our blog from December 2015). Despite these revelations, the CAS award favoured Doyen, and was luckily for us quickly made available on the old football leaks website.
This blog will provide a commentary of the CAS decision. It will be
followed in the coming days by a commentary by Shervine Nafissi on the
judgment, on appeal, by the Swiss Federal Tribunal. More...
Editor’s note: Kester
Mekenkamp is an LL.M. student in European Law at Leiden University and an
intern at the ASSER International Sports Law Centre. This blog is, to a great
extent, an excerpt of his forthcoming thesis, which he shall submit in order to
complete his master’s degree.
This final blog aims to provide some broader
perspective, by sketching first the grander scheme in which Article 19 RSTP –
FIFA's provision on the protection of minors – operates. Thereafter, the focus will
shift towards testing Article 19 RSTP, thereby keeping in mind the previous
blogs (Part 1: The Early Years and Part 2: The 2009 reform and its aftermath), against EU free movement law.
Putting Article 19 RSTP into perspective: The bigger
After having investigated the nuts and bolts of FIFA’s
provision on the protection of minors in the first two parts of this blog, it
might be useful to address its bigger picture.
19 RSTP and its accompanying provisions regulate only a small share of the targeted
activity. There is, unfortunately, also an illegal
world. Circumvention of the prohibition is allegedly commonplace.
Visas and passports can be falsified.
Work permits can be obtained on the basis of jobs arranged by clubs.
Editor’s note: Kester Mekenkamp is an LL.M. student in European Law
at Leiden University and an intern at the ASSER International Sports Law Centre.
This blog is, to a great extent, an excerpt of his forthcoming thesis, which he
shall submit in order to complete his master’s degree.
This is the
second part of a three-piece blog on FIFA’s provision on the protection of
minors, Article 19 of the Regulations
on the Status and Transfer of Players. The contribution in its entirety aims to provide
an encompassing overview of the rule’s lifespan since its inception in 2001. The previous
(first) part has shed light on the “birth” and “first years” of the provision, and
as such illustrated the relevant developments from 2001 till 2009. This second
part covers the rule’s “adolescent years”, which span from 2009 to the present.
The major changes put forward in the 2009, 2015 and 2016 versions of the RSTP
will be addressed. Thereafter the important CAS decisions concerning Article
19, Muhic, Vada I and II, FC Barcelona, RFEF, and the FIFA decisions relating to Real Madrid and Atlético
Madrid, will be scrutinized. The third, and final, part will constitute a
substantive assessment of the provision under EU Internal Market law.
Given that the
version adopted in 2008 left Article 19 untouched, the 2009 RSTP
represented the next significant step in the regulation of the protection of
minors. It had become clear that the system as used up to that point was
inadequate to achieve its goal,
most notably because several national associations still neglected to strictly
apply the rules. More...
Editor’s note: Kester Mekenkamp is an LL.M. student in European Law
at Leiden University and an intern at the ASSER International Sports Law
Centre. This blog is, to a great extent, an excerpt of his forthcoming master
On 24 November
2016, a claim was
lodged before a Zurich commercial court against FIFA’s transfer regulations by
a 17-year-old African football player.
The culprit, according to the allegation: The provision on the protection of
minors, Article 19 of the Regulations
for the Status and Transfer of Players.
The claimant and his parents dispute the validity of this measure, based on the
view that it discriminates between football players from the European Union and
those from third countries. Besides to Swiss cartel law, the claim is
substantiated on EU citizenship rights, free movement and competition law. Evidently,
it is difficult to assess the claim’s chance of success based on the sparse information
provided in the press.
Be that as it may, it does provide for an ideal (and unexpected) opportunity to
delve into the fascinating subject of my master thesis on FIFA’s regulatory
system aimed at enhancing the protection of young football players and its
compatibility with EU law. This three-part blog shall therefore try to provide
an encompassing overview of the rule’s lifespan since its inception in 2001. More...
Editor’s note: Josep
F. Vandellos is an international sports lawyer associated to RH&C (Spain).
He is also a member of the Editorial Board of the publication Football
Legal and a guest lecturer in the ISDE-FC Barcelona
Masters’ Degree in Sports Management and Legal Skills.
6 of Annexe IV (Training compensation) of the
FIFA-RSTP (Ed. 2016) contains the so-called “Special Provisions for the EU/EEA” applicable to players moving
from one association to another inside the territory of the European Union (EU)
or the European Economic Area (EEA).
The provisions regarding training compensation result from the
understanding reached between FIFA and UEFA with the European Union in March
and subsequent modifications introduced in the FIFA-RSTP revised version of
2005 to ensure the compatibility of the transfer system with EU law.
blog will focus on the exception contained in article 6(3) Annexe IV of the
FIFA-RSTP. According to this article, when “the
former club” fails to offer a contract to the player, it loses its right to
claim training compensation from the players’ new club, unless it can justify that
it is entitled to such compensation. Instead, the right of “previous clubs” to training compensation
is fully preserved irrespective of their behaviour with the player. From
a legal standpoint, such discrimination between the “former club” and the “previous
clubs” raises some questions that I will try to address in this paper. More...