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...
This is the second and final part of the ‘Real Madrid Saga’. Where the first part outlined the background of the case and
the role played by the Spanish national courts, the second part focuses on the
EU Commission’s recovery decision of 4 July 2016 and dissects the arguments advanced by the Commission to reach it. As
will be shown, the most important question the Commission had to answer was
whether the settlement agreement of 29 July 2011
between the Council of Madrid and Real Madrid constituted a selective economic advantage
for Real Madrid in the sense of Article 107(1) TFEU. Before
delving into that analysis, the blog will commence with the other pending
question, namely whether the Commission also scrutinized the legality of the operation Bernabeú-Opañel under EU State aid law. By way of
reminder, this operation consisted of Real Madrid receiving from the
municipality the land adjacent to the Bernabéu stadium, while transferring in
return €6.6 million, as well as plots of land in other areas of the city. More...
Out of all the State aid investigations of recent years involving
professional football clubs, the outcome of the Real Madrid case was probably the most eagerly awaited.
Few football clubs have such a global impact as this Spanish giant, and any
news item involving the club, whether positive or negative, is bound to make
the headlines everywhere around the globe. But for many Spaniards, this case
involves more than a simple measure by a public authority scrutinized by the
European Commission. For them, it exemplifies the questionable relationship
between the private and the public sector in a country sick of never-ending
Moreover, Spain is only starting to recover from its worst financial crisis in
decades, a crisis founded on real estate speculation, but whose effects were
mostly felt by ordinary citizens.
Given that the Real Madrid case
involves fluctuating values of land that are transferred from the municipality
to the club, and vice versa, it represents a type of operation that used to be
very common in the Spanish professional football sector, but has come under
critical scrutiny in recent years. More...
On 28 September 2016, the Commission published the
non-confidential version of its negative Decision and recovery order regarding the preferential
corporate tax treatment of Real Madrid, Athletic Bilbao, Osasuna and FC
Barcelona. It is the second-to-last publication of the Commission’s Decisions
concerning State aid granted to professional football clubs, all announced on 4 July of this year.
Contrary to the other “State aid in football” cases, this Decision concerns
State aid and taxation, a very hot topic in
today’s State aid landscape. Obviously, this Decision will not have the same
impact as other prominent tax decisions, such as the ones concerning Starbucks and Apple.
This case dates back to November 2009, when a representative
of a number of investors specialised in the purchase of publicly listed shares,
and shareholders of a number of European football clubs drew the attention of
the Commission to a possible preferential corporate tax treatment of the four
mentioned Spanish clubs.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 overlooked.
September hosted the very last bit of the sport summer 2016, most
notably in the form of the Rio Paralympic Games. Next to the spectacular
achievements displayed during these games, in the realm of sports law similar
thrilling developments hit town. The first very much expected #Sportslaw
highlight was the decision by the German Bundesgerichtshof
in the case concerning SV Wilhelmshaven. The second major (less expected) story
was the Statement of Objections issued by the European Commission against the International