Editor’s Note: Saverio Spera
is an Italian lawyer and LL.M. graduate in International Business Law at King’s
College London. He is currently an intern at the ASSER International Sports Law
football world the use of unilateral extension options (hereafter UEOs) in
favour of the clubs is common practice. Clubs in Europe and, especially, South
America make extensive use of this type of contractual clauses, since it gives
them the exclusive possibility to prolong the employment relationship with
players whose contracts are about to come to an end. This option gives to a
club the right to extend the duration of a player’s contract for a certain
agreed period after its initial expiry, provided that some previously
negotiated conditions are met. In particular, these clauses allow clubs to sign
young promising players for short-term contracts, in order to ascertain their
potential, and then extend the length of their contracts.
Here lies the great value of UEOs for clubs: they can let the player go if he
is not performing as expected, or unilaterally retain him if he is deemed
valuable. Although an indisputably beneficial contractual tool for any football
club, these clauses are especially useful to clubs specialized in the
development of young players. After
case, clubs have increasingly used these clauses in order to prevent players
from leaving their clubs for free at the end of their contracts. The
FIFA Regulations do not contain any provisions regulating this practice,
consequently the duty of clarifying the scope and validity of the options lied
with the national courts, the FIFA Dispute Resolution Chamber (DRC) and the
CAS. This two-part blog will attempt to provide the first general overview on
the issue. My
first blog will be dedicated to the validity of UEOs clauses in light of
national laws and of the jurisprudence of numerous European jurisdictions. In a
second blog, I will review the jurisprudence of the DRC and the CAS on this
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: 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: 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
ruling of the Tribunal of Charleroi
On 19 January 2017, the Hainaut Commercial Tribunal –
Charleroi rendered its decision on the lawsuit filed by the football player
Lassana Diarra against FIFA and the Belgian FA (URBSFA) for damages caused by
not being able to exercise the status of a professional football player during
the entire 2014/2015 season. The lawsuit is linked to the decision, rendered by
the FIFA Dispute Resolution Chamber (DRC) on April 2015, to support Lokomotiv’s
decision to terminate the player’s contract and to order Diarra to pay Lokomotiv
the amount of EUR 10,500,000 for having breached his contract. According to the
plaintiff, Diarra’s opportunity to be recruited by Sporting Charleroi was
denied due to the club being potentially considered jointly liable for Diarra’s
compensation pursuant to Article 17 (2) RSTP. The Belgian court held strongly
that “when the contract is terminated by the club, the player must have the
possibility to sign a new contract with a new employer, without restrictions to
his free movement”. This case highlighted, once again, the need to read
the RSTP in the light of EU law. Moreover, the decision is laying further
ground for broader challenges to the RSTP on the basis of EU law (for a deeper
insight into the Diarra ruling, see the recent blog written by our senior researcher
Antoine Duval) More...
Yesterday the sports law world was
buzzing due to the Diarra decision of
the Tribunal de Commerce du Hainaut (the Tribunal) based in Charleroi, Belgium.
Newspapers were lining up (here, here and here) to spread the
carefully crafted announcement of the new triumph of Jean-Louis Dupont over his
favourite nemesis: the transfer system. Furthermore, I was lucky enough to
receive on this same night a copy of the French text of the judgment. My first
reaction while reading quickly through the ruling, was ‘OMG he did it again’!
“He” meaning Belgian lawyer Jean-Louis Dupont, who after a string of defeats in
his long shot challenge against FIFA’s TPO ban or UEFA’s FFP (see here and here), had [at least
I believed after rushing carelessly through the judgment] manufactured a new
“it”: a Bosman. Yet, after carefully re-reading the judgment, it
became quickly clear to me that this was rather a new Mutu (in the sense of the latest CAS award in the ‘Mutu
saga’, which I have extensively analysed on this blog and in a recent commentary for the new Yearbook of International Sports Arbitration) coupled with some reflections reminding a bit (but
not really as will be explicated below) the Pechstein
In this blog, I will retrace briefly
the story behind the case and then analyse the decision of the Belgium court.
In doing so, I will focus on its reasoning regarding its jurisdiction and the
compatibility of article 17(2) RSTP with EU law.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...
Football intermediaries, or agents, are again under attack in the news. For some, corrupt behaviour has become endemic in football’s culture. It is always dangerous to scapegoat a whole profession or a group of
people. Many intermediaries are trying their best to lawfully defend the
interests of their clients, but some are not. The key focus should be on
providing an adequate legal and administrative framework to limit the
opportunities for corrupt behaviour in the profession. This is easier said than
done, however. We are dealing with an intrinsically transnationalized business,
often conducted by intermediaries who are not subjected to the disciplinary
power of federations. Sports governing bodies are lacking the police power and
human resources necessary to force the intermediaries to abide by their private
standards. In this context, this blog aims to review a recent case in front of
the regional court of Frankfurt in Germany, which highlights the legal
challenges facing (and leeway available to) national federations when
regulating the profession. More...