My favourite speed skater (Full
disclosure: I have a thing for speed skaters bothering the ISU), Claudia
Pechstein, is back in the news! And not from the place I expected. While
all my attention was absorbed by the Bundesverfassungsgericht in Karlsruhe (BVerfG
or German Constitutional Court), I should have looked to the European Court of
Human Rights in Strasbourg (ECtHR). The Pechstein and Mutu joint cases were pending
for a long time (since 2010) and I did not anticipate
that the ECtHR would render its decision before the BVerfG. The decision released last
week (only available in French at this stage) looked at first like a renewed
vindication of the CAS (similar to the Bundesgerichtshof (BGH) ruling
in the Pechstein case), and is being presented
like that by the CAS, but after careful reading of the judgment I believe this is rather
a pyrrhic victory for the status quo
at the CAS. As I will show, this ruling puts to rest an important debate
surrounding CAS arbitration since 20 years: CAS arbitration is (at least in its
much-used appeal format in disciplinary cases) forced arbitration. Furthermore,
stemming from this important acknowledgment is the recognition that CAS proceedings
must comply with Article 6 § 1 of the European Convention of Human
Rights (ECHR), in particular hearings must in principle be held in public and
decisions freely available to all. Finally, I will criticise the Court’s
finding that CAS complies with the requirements of independence and
impartiality imposed by Article 6 § 1 ECHR. I will not rehash the well-known facts of both cases, in order to
focus on the core findings of the decision. More...
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.
In this first blog, we will try to answer some questions raised in
relation to the Article 12bis procedure on overdue payables based on the
jurisprudence of the DRC and the PSC during the last two years: from 1 April
2015 until 1 April 2017.
 The awards of the Court of
Arbitration for Sport (hereinafter: “the CAS”) in relation to Article 12bis
that are published on CAS’s website will also be brought to the reader’s
attention. In the second blog, we will focus specifically on the sanctions applied
by FIFA under Article 12bis. In addition, explanatory guidelines will be
offered covering the sanctions imposed during the period surveyed. A more
extensive version of both blogs is pending for publication with the
International Sports Law Journal (ISLJ). If necessary, and for a more detailed
and extensive analysis at certain points, we will make reference to this more
extensive article in the ISLJ. More...
Editor’s Note: Saverio
Spera is an Italian lawyer and LL.M. graduate in International Business Law from
King’s College London. He is currently an intern at the ASSER International
Sports Law Centre.
is ripe to take a closer look at the CAS and its transparency, as this is one
of the ways to ensure its public accountability and its legitimacy. From 1986
to 2013, the number of arbitrations submitted to the CAS has grown from 2 to more
than 400 a year. More specifically, the number of appeals submitted almost doubled
in less than ten years (from 175 in 2006, to 349 in 2013).
Therefore, the Court can be considered the judicial apex of an emerging transnational
sports law (or lex sportiva).
In turn, the increased authority and power of this institution calls for
increased transparency, in order to ensure its legitimacy.
On 18 May 2016, the day the first part
of this blog was published, the Commission said in response
to the Hungarian MEP Péter Niedermüller’s question, that it
had “not specifically monitored the tax relief (…) but would consider doing so.
The Commission cannot prejudge the steps that it might take following such
monitoring. However, the Commission thanks (Niedermüller) for drawing its
attention to the report of Transparency International.”
With the actual implementation in Hungary appearing to
deviate from the original objectives and conditions of the aid scheme, as discussed
in part 1 of this blog, a possible monitoring exercise by the Commission of the
Hungarian tax benefit scheme seems appropriate. The question remains, however,
whether the Commission follows up on the intent of monitoring, or whether the
intent should be regarded as empty words. This second part of the blog will outline
the rules on reviewing and monitoring (existing) aid, both substantively and
procedurally. It will determine,
alia, whether the State aid rules impose an obligation upon the Commission
to act and, if so, in what way. More...
benefit scheme in the Hungarian sport sector decision of 9 November 2011 marked a turning point as
regards the Commission’s decisional practice in the field of State aid and
sport. Between this date and early 2014, the Commission reached a total of ten decisions
on State aid to sport infrastructure and opened four formal investigations into
alleged State aid to professional football clubs like Real Madrid
and Valencia CF.
As a result of the experience gained from the decision making, it was decided
to include a Section on State aid to sport infrastructure in the 2014 General Block Exemption Regulation. Moreover, many people, including myself, held that
Commission scrutiny in this sector would serve to achieve better accountability
and transparency in sport governance.
Yet, a recent report by
Transparency International (TI), published in October 2015, raises questions about the efficiency of State aid enforcement in
the sport sector. The report analyzes the results and effects of the Hungarian tax benefit scheme and
financing system suffers from transparency issues and corruption risks. (…) The
lack of transparency poses a serious risk of collusion between politics and
business which leads to opaque lobbying. This might be a reason for the
disproportionateness found in the distribution of the subsidies, which is most
apparent in the case of (football) and (the football club) Felcsút.”
In other words, according to TI, selective economic
advantages from public resources are being granted to professional football
clubs, irrespective of the tax benefit scheme greenlighted by the Commission
or, in fact, because of the tax
benefit scheme. More...