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...
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...
It’s been a long wait, but they’re finally here!
On Monday, the European Commission released its decisions regarding State aid to seven Spanish professional football clubs (Real Madrid on two occasions) and five Dutch professional football clubs. The decisions mark the end of the formal
investigations, which were opened in 2013. The Commission decided as follows:
no State aid to PSV Eindhoven (1); compatible aid to the Dutch clubs FC Den
Bosch, MVV Maastricht, NEC Nijmegen and Willem II (2); and incompatible aid granted
to the Spanish football clubs Real Madrid, FC Barcelona, Valencia CF, Athletic
Bilbao, Atlético Osasuna, Elche and Hércules (3).
The recovery decisions in particular are truly historic.
The rules on State aid have existed since the foundation of the European
Economic Community in 1958, but it is the very first time
that professional football clubs have been ordered to repay aid received from
(local) public authorities.
In a way, these decisions complete a development set in motion with the Walrave
and Koch ruling of 1974, where
the CJEU held that professional sporting activity, and therefore also football,
is subject to EU law. The landmark Bosman case of 1995 proved to be of great significance as
regards free movement of (professional) athletes and the Meca-Medina case of 2006 settled that EU competition rules were
equally applicable to the regulatory activity of sport. The fact that the first
ever State aid recovery decision concerns major clubs like Real Madrid, FC
Barcelona and Valencia, give the decisions extra bite. Therefore, this blog
post will focus primarily on the negative/recovery decisions,
their consequences and the legal remedies available to the parties involved.
The selling of media rights is currently a hot
topic in European football. Last week, the English Premier League cashed in
around 7 billion Euros for the sale of its live domestic media rights (2016 to
2019) – once again a 70 percent increase in comparison to the previous tender. This
means that even the bottom club in the Premier League will receive
approximately €130 million while the champions can expect well over €200
million per season.
The Premier League’s new deal has already led
the President of the Spanish National Professional Football League (LNFP),
Javier Tebas, to express his concerns that this could see La Liga lose its position as one of Europe’s leading leagues. He reiterated
that establishing a centralised sales model in Spain is of utmost importance,
if not long overdue.
Concrete plans to reintroduce a system of joint
selling for the media rights of the Primera
División, Segunda División A, and la
Copa del Rey by means of a Royal Decree were already announced two years
ago. The road has surely been long and bumpy. The draft Decree is finally on
the table, but now it misses political approval. All the parties involved are
blaming each other for the current failure: the LNFP blames the Sport
Governmental Council for Sport (CSD) for not taking the lead; the Spanish Football
Federation (RFEF) is arguing that the Federation and non-professional
football entities should receive more money and that it should have a stronger
say in the matter in accordance with the FIFA Statutes; and there are widespread rumours that the two big earners, Real Madrid and FC Barcelona, are actively
lobbying to prevent the Royal Decree of actually being adopted.
To keep the soap opera drama flowing, on 30 December 2014, FASFE (an
organisation consisting of groups of fans, club members, and minority
shareholders of several Spanish professional football clubs) and the
International Soccer Centre (a movement that aims to obtain more balanced and
transparent football and basketball competitions in Spain) filed an antitrust complaint with the European Commission against the LNFP. They
argue that the current system of individual selling of LNFP media rights, with
unequal shares of revenue widening the gap between clubs, violates EU
The summer saga surrounding Luis
Suarez’s vampire instincts is long forgotten, even though it might still play a
role in his surprisingly muted football debut in FC Barcelona’s magic triangle.
However, the full text of the CAS award in the Suarez
case has recently be made available on CAS’s website and we want to grasp this
opportunity to offer a close reading of its holdings. In this regard, one has
to keep in mind that “the object of the appeal is not to request the complete
annulment of the sanction imposed on the Player” (par.33). Instead, Suarez and
Barcelona were seeking to reduce the sanction imposed by FIFA. In their eyes, the
four-month ban handed out by FIFA extending to all football-related activities
and to the access to football stadiums was excessive and disproportionate. Accordingly,
the case offered a great opportunity for CAS to discuss and analyse the
proportionality of disciplinary sanctions based on the FIFA Disciplinary Code (FIFA DC). More...
In the same week that saw Europe’s best eight teams compete in the
Champions League quarter finals, one of its competitors received such a severe
disciplinary sanction by FIFA that it could see its status as one of the
world’s top teams jeopardized. FC Barcelona, a club that owes its success both
at a national and international level for a large part to its outstanding youth academy, La Masia, got to FIFA’s attention for breaching FIFA
Regulations on international transfers of minors. More...