Editor's Note: Frans M. de Weger is legal counsel for the Federation of Dutch Professional Football Clubs (FBO) and CAS arbitrator. De Weger is author of the book “The Jurisprudence of the FIFA Dispute Resolution Chamber”, 2nd edition, published by T.M.C. Asser Press in 2016. Frank John Vrolijk specialises in Sports, Labour and Company Law and is a former legal trainee of FBO and DRC Database.
This second blog will focus
specifically on the sanctions available for FIFA under Article 12bis. It will provide
explanatory guidelines covering the sanctions imposed during the period
The possibility to impose
sanctions under article 12bis constitutes one of the pillars of the 12bis
procedure. Pursuant to Article 12bis of the RSTP, edition 2016, the DRC and the
PSC may impose a sanction on a club if the club is found to have delayed a due
payment for more than 30 days without a prima
facie contractual basis and the creditor have put
the debtor club in default in writing, granting a deadline of at least 10 days. The jurisprudence in
relation to Article 12bis also shows that sanctions are imposed ex officio by the DRC or the PSC and not
per request of the claimant.More...
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 Centre.
This blog is a follow up to my previous contribution on the validity of Unilateral Extension Options
(hereafter UEOs) under national and European law. It focuses on the different
approaches taken to UEOs by the FIFA Dispute Resolution Chamber (DRC) and the
Court of arbitration for sport (CAS). While in general the DRC has adopted a
strict approach towards their validity, the CAS has followed a more liberal
trend. Nonetheless, the two judicial bodies share a common conclusion: UEOs are
not necessarily invalid. In this second blog I will provide an overview of the similarities
and differences of the two judicial bodies in tackling UEOs. More...
Editor’s note: Serhat
is a lecturer in sports law in Loughborough University. His research focuses on
the regulatory framework applicable to intermediaries. Antoine Duval (@Ant1Duval) is the head of
the Asser International Sports Law Centre.
Last week, while FIFA was firing
the heads of its Ethics and Governance committees, the press was overwhelmed
with ‘breaking news’ on the most expensive transfer in history, the come back
of Paul Pogba from Juventus F.C. to Manchester United. Indeed, Politiken
(a Danish newspaper) and Mediapart
(a French website specialized in investigative journalism) had jointly
discovered in the seemingly endless footballleaks
files that Pogba’s agent, Mino Raiola, was involved (and financially
interested) with all three sides (Juventus, Manchester United and Pogba) of the
transfer. In fine, Raiola earned a grand total of € 49,000,000 out of the deal,
a shocking headline number almost as high as Pogba’s total salary at
Manchester, without ever putting a foot on a pitch. This raised eyebrows,
especially that an on-going investigation by FIFA into the transfer was
mentioned, but in the media the sketching of the legal situation was very often
extremely confusing and weak. Is this type of three-way representation legal
under current rules? Could Mino Raiola, Manchester United, Juventus or Paul
Pogba face any sanctions because of it? What does this say about the
effectiveness of FIFA’s Regulations
on Working with Intermediaries? All these questions deserve thorough
answers in light of the publicity of this case, which we ambition to provide in
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: 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
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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...