Editor’s note: Tomáš Grell comes from Slovakia and is currently an LL.M. student in Public International Law at Leiden University. He contributes also to the work of the ASSER International Sports Law Centre as a part-time intern.
On 2 December 2010, the FIFA Executive Committee elected Qatar as host of the 2022 FIFA World Cup ('World Cup'), thereby triggering a wave of controversies which underlined, for the most part, the country's modest size, lack of football history, local climate, disproportionate costs or corruption that accompanied the selection procedure. Furthermore, opponents of the decision to award the World Cup to the tiny oil-rich Gulf country also emphasized the country's negative human rights record.
More than six years later, on 3 January 2017, the Commercial Court of the Canton of Zurich ('Court') dismissed the lawsuit filed against FIFA[1] jointly by the Dutch trade union FNV, the Bangladeshi Free Trade Union Congress, the Bangladesh Building and Wood Workers Federation and the Bangladeshi citizen Nadim Shariful Alam ('Plaintiffs').[2] The Plaintiffs requested the Court to find FIFA responsible for alleged human rights violations of migrant workers in connection with the World Cup in Qatar. Had the Plaintiffs' claims been upheld by the Court, such decision would have had far-reaching consequences on the fate of thousands of migrants, mostly from India, Nepal and Bangladesh, who are currently working on the construction of sporting facilities and other infrastructure associated with organization of the World Cup. 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).
Introduction
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.[1] 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...
At
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
overlooked.
The Headlines
The Diarra
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
case.
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: 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.
The Headlines
The Russian State Doping Scandal and the
crisis of the World Anti-Doping System
Russian
doping and the state of the Anti-Doping System has been the dominant international
sports law story in November and December. This is mainly due to the release of
the
second
report
of the McLaren’s investigation on 9 December 2016. The
outcome of McLaren’s work showed a “well-oiled systemic cheating scheme” that
reached to the highest level of Russian sports and government, involving the striking
figure of 30 sports and more than 1000 athletes in doping practices over four
years and two Olympic Games. The report detailed tampering with samples to swap
out athletes’ dirty urine with clean urine.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
picture
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.
Article
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.[1]
Visas and passports can be falsified.[2]
Work permits can be obtained on the basis of jobs arranged by clubs.[3]
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 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,[1]
most notably because several national associations still neglected to strictly
apply the rules.[2] 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
thesis.
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.[1]
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.[2]
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.[3]
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.
Article
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
2001[1],
and subsequent modifications introduced in the FIFA-RSTP revised version of
2005 to ensure the compatibility of the transfer system with EU law.[2]
This
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.[3] 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...