Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very happy to finish this series of interviews with Sven Demeulemeester from Altius, a Belgian law firm based in Brussels with a very fine (and academically-minded!) sports law team. 

1. Can you explain to our readers the work of Altius in international sports law? 

Across different sports’ sectors, Altius’ sports law practice advises and assists some of the world’s most high-profile sports governing bodies, clubs and athletes, at both the national and the international level. The team has 6 fully-dedicated sports lawyers and adopts a multi-disciplinary approach, which guarantees a broad range of legal expertise for handling specific cases or wider issues related to the sports industry. We are proud to be independent but, in cross-border matters, are able to tap into a worldwide network.

2. How is it to be an international sports lawyer? What are the advantages and challenges of the job? 

Sports law goes beyond one specific field of law. The multiplicity of legal angles keeps the work interesting, even after years of practising, and ensures that a sports lawyer rarely has a dull moment. The main downside is that the sports industry is fairly conservative and sometimes ‘political’. While the law is one thing, what happens in practice is often another. Bringing about change is not always easy. 

3. What are the burning issues in international sports law that you would like to see discussed at the conference? 

 The much-anticipated overhaul of the football transfer system is eagerly anticipated and is worth a thorough debate, also in terms of possible, viable alternatives. The impact of EU law - both internal market rules, competition law and fundamental rights – can hardly be underestimated. Also, dispute resolution mechanisms within the realm of sports - and an accessible, transparent, independent and impartial sports arbitration in particular - will remain a ‘hot’ topic in the sector for years to come. Furthermore, ethics and integrity issues should remain top of the agenda, as is being demonstrated by the current money-laundering and match-fixing allegations in Belgium. Finally, in a sector in which the use of data is rife, the newly-adopted GDPR’s impact remains somewhat ‘under the radar’.

4. Why did you decide to support the ISLJ Annual International Sports Law Conference? 

The ISLJ Annual International Sports Law Conference is refreshing, both in terms of its topics and participants. The academic and content-driven approach is a welcome addition to other sports law conferences in which the networking aspect often predominates.

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very proud to start this series of interviews with Women in Sports Law, an association launched in 2016 and which has already done so much to promote and advance the role of women in international sports law (many thanks to Despina Mavromati for kindly responding to our questions on behalf of WISLaw).

1. Can you explain to our readers what WISLaw is about?

Women In Sports Law (WISLaw, www.wislaw.co) is an international association based in Lausanne that unites more than 300 women from 50 countries specializing in sports law. It is a professional network that aims at increasing the visibility of women working in the sector, through a detailed members’ directory and various small-scale talks and events held in different countries around the world. These small-scale events give the opportunity to include everyone in the discussion and enhance the members’ network. Men from the sector and numerous arbitral institutions, conference organizers and universities have come to actively support our initiative.

2. What are the challenges and opportunities for women getting involved in international sports law?

Women used to be invisible in this sector. All-male panels were typical at conferences and nobody seemed to notice this flagrant lack of diversity. WISLaw created this much-needed platform to increase visibility through the members’ directory and through a series of small-scale events where all members, independent of their status or seniority, can attend and be speakers.

Another difficulty is that European football (soccer) is traditionally considered to be a “male-dominated” sport, despite the fact that there are so many great female football teams around the world. The same misperception applies to sports lawyers!

Last, there is a huge number of women lawyers working as in-house counsel and as sports administrators. There is a glass ceiling for many of those women, and the WISLaw annual evaluation of the participation of women in those positions attempts to target their issues and shed more light into this specific problem.

3. What are the burning issues in international sports law that you would like to see discussed at the conference?

The ISLJ Annual Conference has already set up a great lineup of topics combining academic and more practical discussions in the most recent issues in international sports law. 

4. Why did you decide to support the ISLJ Annual International Sports Law Conference?

The Asser International Sports Law Centre has promoted and supported WISLaw since the very beginning. The ISLJ Annual International Sports Law Conference was the first big conference to officially include a WISLaw lunch talk in its program, allowing thus the conference attendees to be part of a wider informal discussion on a specific topical issue and raise their questions with respect to WISLaw. Another important reason why WISLaw supports this conference is because the conference organizers are making sincere efforts to have increased diversity in the panels : this year’s ISLJ Annual International Sports Law Conference is probably the first sports law conference to come close to a full gender balance in its panels, with 40% of the speakers being women !

Dear all,

Last year we decided to launch the 'ISLJ Annual International Sports Law Conference' in order to give a public platform to the academic discussions on international sports law featured in the ISLJ. The first edition of the conference was a great success (don't take my word for it, just check out #ISLJConf17 on twitter), featuring outstanding speakers and lively discussions with the room. We were very happy to see people from some many different parts of the world congregating at the Institute to discuss the burning issues of their field of practice and research.

This year, on 25 and 26 October, we are hosting the second edition and we are again welcoming well-known academics and practitioners in the field. The discussions will turn around the notion of lex sportiva, the role of Swiss law in international sports law, the latest ISU decision of the European Commission, the Mutu/Pechstein ruling of the European Court of Human Rights, or the reform proposal of the FIFA Regulations on the Transfer and Status of Players. It should be, it will be, an exciting two days!

You will find below the final programme of the conference, please feel free to circulate it within your networks. We have still some seats left, so don't hesitate to register (here) and to join us.

Looking forward to seeing you and meeting you there!

Antoine

 Call for papers: Annual International Sports Law Conference of the International Sports Law Journal

Asser Institute, The Hague

25 and 26 October 2018

The editorial board of the International Sports Law Journal (ISLJ) is inviting you to submit abstracts for its second ISLJ Annual Conference on International Sports Law, which will take place on 25 and 26 October at the Asser Institute in The Hague. The ISLJ published by Springer in collaboration with Asser Press is the leading academic publication in the field of international sports law. Its readership includes academics and many practitioners active in the field. This call is open to researchers as well as practitioners. 

We are also delighted to announce that Prof. Franck Latty (Université Paris Nanterre), Prof. Margareta Baddeley (Université de Genève), and Silvia Schenk (member of FIFA’s Human Rights Advisory Board) have confirmed their participation as keynote speakers.

Abstracts could, for example, tackle questions linked to the following international sports law subjects:

• The interaction between EU law and sport
• Antitrust and sports regulation
• International sports arbitration (CAS, BAT, etc.)
• The functioning of the world anti-doping system (WADA, WADC, etc.)
• The global governance of sports
• The regulation of mega sporting events (Olympics, FIFA World Cup, etc.)
• The transnational regulation of football (e.g. the operation of the FIFA Regulations on the Status and Transfer of Players or the UEFA Financial Fair Play Regulations)
• The global fight against corruption in sport  
• Comparative sports law
• Human rights in sport 

Please send your abstract (no more than 300 words) and CV no later than 30 April 2018 to a.duval@asser.nl. Selected speakers will be informed by 15 May.

The selected participants will be expected to submit a draft paper by 1 September 2018. All papers presented at the conference are eligible for publication in a special edition of the ISLJ.  To be considered for inclusion in the conference edition of the journal, the final draft must be submitted for review by 15 December 2018.  Submissions after this date will be considered for publication in later editions of the Journal.

The Asser Institute will cover one night accommodation for the speakers and will provide a limited amount of travel grants (max. 300€). If you wish to be considered for a grant please justify your request in your submission. 

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 

Anti-doping whereabouts requirements declared compatible with the athletes' right to privacy and family life

On 18 January 2018, the European Court of Human Rights rendered a judgment with important consequences for the world of sport in general and the anti-doping regime in particular. The Strasbourg-based court was called upon to decide whether the anti-doping whereabouts system – which requires that a limited number of top elite athletes provide their National Anti-Doping Organisation or International Federation with regular information about their location, including identifying for each day one specific 60-minute time slot where the athlete will be available for testing at a pre-determined location – is compatible with the athletes' right to private and family life under Article 8 of the European Convention on Human Rights and their freedom of movement pursuant to Article 2 Protocol No. 4 of the Convention. The case was brought by the French cyclist Jeannie Longo and five French athlete unions that had filed their application on behalf of 99 professional handball, football, rugby, and basketball players.

While acknowledging that the whereabouts requirements clash with the athletes' right to private and family life, the judges took the view that such a restriction is necessary in order to protect the health of athletes and ensure a level playing field in sports competitions. They held that ''the reduction or removal of the relevant obligations would lead to an increase in the dangers of doping for the health of sports professionals and of all those who practise sports, and would be at odds with the European and international consensus on the need for unannounced testing as part of doping control''. Accordingly, the judges found no violation of Article 8 of the Convention and, in a similar vein, ruled that Article 2 Protocol No. 4 of the Convention was not applicable to the case.

Football stakeholders preparing to crack down on agents' excessive fees

It has been a record-breaking January transfer window with Premier League clubs having spent an eye-watering £430 million on signing new acquisitions. These spiralling transfer fees enable football agents, nowadays also called intermediaries, to charge impressive sums for their services. However, this might soon no longer be the case as the main stakeholders in European football are preparing to take action. UEFA, FIFPro, the European Club Association and the European Professional Football Leagues acknowledge in their joint resolution that the 2015 FIFA Regulations on Working with Intermediaries failed to address serious concerns in relation to the activities of intermediaries/agents. They recognise in broad terms that a more effective regulatory framework is needed and call among other things for a reasonable and proportionate cap on fees for intermediaries/agents, enhanced transparency and accountability, or stronger provisions to protect minors.

The CAS award in Joseph Odartei Lamptey v. FIFA 

On 15 January 2018, FIFA published on its website an arbitral award delivered on 4 August 2017 by the Court of Arbitration for Sport (CAS) in the dispute between the Ghanian football referee Joseph Odartei Lamptey and FIFA. The CAS sided with FIFA and dismissed the appeal filed by Mr Lamptey against an earlier decision of the FIFA Appeal Committee which (i) found him to have violated Article 69(1) of the FIFA Disciplinary Code as he unlawfully influenced the 2018 World Cup qualifying match between South Africa and Senegal that took place on 12 November 2016; (ii) as a consequence, banned him for life from taking part in any football-related activity; and (iii) ordered the match in question to be replayed. In reaching its conclusion, the CAS relied heavily on multiple reports of irregular betting activities that significantly deviated from usual market developments.  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 International Skating Union's eligibility rules declared incompatible with EU competition law

On 8 December 2017, the European Commission announced that it had rendered a decision in the case against the International Skating Union (ISU). The Commission upheld the complaint lodged in October 2015 by two Dutch professional speed skaters Mark Tuitert and Niels Kerstholt, represented in this case by Ben Van Rompuy and Antoine Duval (you can read their joint statement here), and ruled that the ISU's eligibility rules preventing athletes from participating in speed skating competitions not approved by the ISU under the threat of severe penalties are in violation of EU competition law. In particular, the Commission held that these rules restrict the commercial freedom of (i) athletes who may be deprived of additional source of income as they are not allowed to participate in speed skating competitions other than those authorised by the ISU; and (ii) independent organisers who are unable to attract top athletes. And while the Commission recognised that sporting rules with restrictive effects might be compatible with EU law if they pursue a legitimate objective such as the protection of athletes' health and safety or the protection of the integrity and proper conduct of sport, it found that the ISU's eligibility rules pursue only its own commercial interests to the detriment of athletes and independent organisers of speed skating competitions. The ISU eventually escaped financial sanctions, but it must modify or abolish its eligibility rules within 90 days; otherwise it would be liable for non-compliance payments of up to 5% of its average daily turnover. For more information on this topic, we invite you to read our recent blog written by Professor Stefano Bastianon.

The International Olympic Committee bans Russia from the upcoming Winter Olympic Games

The world has been waiting impatiently for the International Olympic Committee's (IOC) decision on the participation of Russian athletes in the upcoming 2018 Winter Olympic Games in Pyeongchang. This was finally communicated on 5 December 2017. Having deliberated on the findings of the Schmid Commission, the IOC Executive Board decided to suspend the Russian Olympic Committee with immediate effect, meaning that only those Russian athletes who demonstrate that they had not benefited from the state-sponsored doping programme will be able to participate in the Games. Such clean athletes will be allowed to compete under the Olympic Flag, bearing the name 'Olympic Athlete from Russia (OAR)' on their uniforms. Further to this, the IOC Executive Board sanctioned several officials implicated in the manipulation of the anti-doping system in Russia, including Mr Vitaly Mutko, currently the Deputy Prime Minister of Russia and formerly the Minister of Sport. Mounting public pressure subsequently forced Mr Mutko to step down as head of the Local Organising Committee for the 2018 FIFA World Cup.

Meanwhile, 21 individual Russian athletes were sanctioned (see here, here, here, and here) in December (in addition to 22 athletes in November) by the IOC Oswald Commission that is tasked with investigating the alleged doping violations by Russian athletes at the 2014 Winter Olympic Games in Sochi. The Oswald Commission also published two full decisions in the cases against Evgeny Belov and Aleksandr Tretiakov who were both banned from all future editions of the Games. It is now clear that the Court of Arbitration for Sport will have quite some work in the coming weeks as the banned athletes are turning to this Swiss-based arbitral tribunal to have their sanctions reviewed (see here and here).

Universal Declaration of Player Rights

14 December 2017 was a great day for athletes all over the globe. On this day, representatives of the world's leading player associations met in Washington D.C. to unveil the Universal Declaration of Player Rights, a landmark document developed under the aegis of the World Players Association that strives to protect athletes from ongoing and systemic human rights violations in global sport. The World Players Association's Executive Director Brendan Schwab emphasised that the current system of sports governance ''lacks legitimacy and fails to protect the very people who sit at the heart of sport'' and stated that ''athlete rights can no longer be ignored''. Among other rights, the Declaration recognises the right of athletes to equality of opportunity, fair and just working conditions, privacy and the protection of personal data, due process, or effective remedy.

Chris Froome failed a doping test during the last year's Vuelta a España

The world of cycling suffered yet another blow when it transpired that one of its superstars Chris Froome had failed a doping test during the last year's Vuelta a España, a race he had eventually emerged victorious from for the first time in his career. His urine sample collected on 7 September 2017 contained twice the amount of salbutamol, a medication used to treat asthma, than permissible under the World Anti-Doping Agency's 2017 Prohibited List. Kenyan-born Froome has now hired a team of medical and legal experts to put forward a convincing explanation for the abnormal levels of salbutamol in his urine and thus to avoid sanctions being imposed on him. 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

FIFA and FIFPro sign landmark agreement

A six-year cooperation agreement concluded between FIFA and FIFPro on 6 November 2017 puts an end to protracted negotiations which began after the latter had filed in September 2015 a complaint with the European Commission, challenging the validity of the FIFA transfer system under EU competition law. This agreement, together with an accord reached between FIFA, FIFPro, the European Club Association, and the World Leagues Forum under the umbrella of the FIFA Football Stakeholders Committee, should help streamline dispute resolution between players and clubs, avoid abusive practices in the world of football, or contribute to the growth of professional women's football. In addition, the FIFA Football Stakeholders Committee is now expected to establish a task force to study and conduct a broader review of the transfer system. As part of the deal, FIFPro agreed to withdraw its EU competition law complaint.

FIFA strengthens its human rights commitment amid reports of journalists getting arrested in Russia

It is fair to say that human rights have been at the forefront of FIFA's agenda in 2017. Following the establishment of the Human Rights Advisory Board in March and the adoption of the Human Rights Policy in June this year, in November FIFA published the bidding regulations for the 2026 World Cup. Under these new regulations, member associations bidding to host the final tournament shall, inter alia, commit themselves to respecting all internationally recognised human rights in line with the United Nations Guiding Principles on Business and Human Rights or present a human rights strategy on how they intend to honour this commitment. Importantly, the human rights strategy must include a comprehensive report that is to be complemented and informed by a study elaborated by an independent expert organisation. Moreover, on 9 November 2017, the Human Rights Advisory Board published its first report in which it outlined several recommendations for FIFA on how to further strengthen its efforts to ensure respect for human rights.

While all these attempts to enhance human rights protection are no doubt praiseworthy, they have not yet produced the desired effect as reports of gross human rights abuses linked to FIFA's activities continue to emerge. Most recently, Human Rights Watch documented how Russian police arrested a newspaper editor and a human rights defender whose work focused on exposing World Cup-related corruption and exploitation of migrant construction workers. On a more positive note, a bit of hope comes with the announcement by a diverse coalition, including FIFA, UEFA, and the International Olympic Committee, of its intention to launch a new independent Centre for Sport and Human Rights in 2018.

More than 20 Russian athletes sanctioned by the Oswald Commission for anti-doping rule violations at the Sochi Games   

November has been a busy month for the International Olympic Committee, especially for its Oswald Commission. Established in July 2016 after the first part of the McLaren Independent Investigation Report had been published, the Oswald Commission is tasked with investigating the alleged doping violations by Russian athletes at the 2014 Winter Olympic Games in Sochi. Its first sanctions were handed down last month. As of 30 November 2017, the Commission chaired by the IOC Member Denis Oswald sanctioned 22 athletes (see here, here, here, here, here, and here) who competed at the Sochi Olympics in the following sports: biathlon, bobsleigh, cross country skiing, skeleton, and speed skating. The Commission published its first full decision on 27 November 2017 in the case against the cross country skier Alexander Legkov, a gold and silver medallist from the Sochi Olympics, who was ultimately banned for life from attending another Olympics.More...

Close to 100 participants from 37 different countries attended the first ISLJ Annual International Sports Law Conference that took place on 26-27 October 2017 in The Hague. The two-day programme featured panels on the FIFA transfer system, the labour rights and relations in sport, the protection of human rights in sport, EU law and sport, the Court of Arbitration for Sport, and the world anti-doping system. On top of that, a number of keynote speakers presented their views on contemporary topics and challenges in international sports law. This report provides a brief summary of the conference for both those who could not come and those who participated and would like to relive their time spent at the T.M.C. Asser Institute.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. 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 

2024 and 2028 Olympic Games to be held in Paris and Los Angeles respectively

On 13 September 2017, the Session of the International Olympic Committee (IOC) held in Lima, Peru, elected Paris and Los Angeles as host cities of the 2024 and 2028 Olympic Games respectively. On this occasion, the IOC President Thomas Bach said that ''this historic double allocation is a 'win-win-win' situation for the city of Paris, the city of Los Angeles and the IOC''. The idea of a tripartite agreement whereby two editions of the Olympic Games would be awarded at the same time was presented by a working group of the IOC Vice-Presidents established in March 2017. Both Paris and Los Angeles have pledged to make the Olympic Games cost-efficient, in particular through the use of a record-breaking number of existing and temporary facilities. In addition to economic aspects, it will be worthwhile to keep an eye on how both cities will address human rights and other similar concerns that may arise in the run-up to the Olympic Games. More...

Editor's note: Saverio P. Spera is an Italian qualified attorney-at-law. He has practiced civil and employment law in Italy and briefly worked at the Asser International Sports Law Centre before joining FIFA in 2017. Until May 2024, he has worked within the FIFA legal division - Litigation Department, and lectured in several FIFA sports law programmes. In the spring of 2024 he has co-founded SP.IN Law, a Zurich based international sports law firm.

On 21 December 2023 a judicial hat-trick stormed the scene of EU sports law. That day, the European Court of Justice (the “ECJ”) issued three decisions: (i) European Superleague Company, SL v FIFA and UEFA (Case C-333/21); (ii) UL and SA Royal Antwerp Football Club v Union royale belge des sociétés de football association ASBL (Case C-680/21)and (iii) International Skating Union (ISU) v. European Commission – Case C-124/21.

These judgments were much scrutinised (see here, here and here) in the past 6 months. For the reader’s relief, this paper will not venture into adding another opinion on whether this was a fatal blow to the foundation of EU sports law or if, after all, the substantive change is minimal (as persuasively argued here). It will analyse, instead, UEFA’s recent amendments of its Statutes and Authorisation Rules governing International Club Competitions (the “Authorisation Rules”) and whether these amendments, clearly responding to the concerns raised in the ISU judgment with respect to the sports arbitration system,[1] might pave the way for other Sports Governing Bodies (SGBs) to follow suit and what the implications for CAS arbitration might be. More...

Join us on 14 December at 12:00 CET for an online discussion on FIFA and UEFA’s responsibility in responding to the incident that overshadowed Spains’ victory of the Women's World Cup, when Spanish national team player Jennifer Hermoso experienced a violation of her bodily integrity and physical autonomy due to a forced kiss given to her by Luis Rubiales, then the Spanish FA's president. 

During the 2023/2024 academic year, the Asser International Sports Law Centre dedicates special attention to the intersection between transnational sports law and governance and gender. This online discussion is the second in a series of (online and offline) events, which explore the way in which international sports governing bodies define the gender divide in international sports, police gender-based abuses, and secure gender-specific rights to athletes. You can watch the recording of our first virtual discussion on the Semenya judgment of the ECtHR on our Youtube Channel.  

Just minutes after the Spanish women's national team had won the FIFA Women's World Cup, Rubiales congratulated the players on the podium and grabbed Hermoso's head and kissed her on the lips. This act not only shocked the players and the audience but also caused immediate international uproar and calls for resignation. Rubiales first defended his act, claiming that Hermoso had agreed to it. However, her statements right after it happened, as well as her official statement published just a few days after the event forcefully denied the consensual nature of the kiss. Hermoso felt “vulnerable and a victim of aggression, an impulsive act, sexist, out of place and without any type of consent". Three months later, Rubiales has been suspended by FIFA for three years, resigned as president of the Spanish FA, and is facing criminal prosecution for the crimes of sexual assault and coercion in Spanish national courts. 

As extreme as this case sounds, it is not. In fact, it is a reflection of structural issues that exist in the world of women's football and women's sport more generally. Furthermore, this incident raises the question of the rights of the players subjected to such behaviour and the responsibility of sports governing bodies, and FIFA and UEFA in particular, insanctioning those who are engaging in such actions. How should SGBs respond to such incidents? What type of rules and procedures should they have in place? What are the measures that should be introduced to prevent similar actions in the future? What is the role of states (the Spanish state in the present instance) in investigating and prosecuting these cases?  

We look forward to discussing these issues (and many others) with our three speakers, who have followed the case closely: 

• Kat Craig, human rights lawyer, founder and CEO of Athlead, Senior Adviser to the Centre for Sport and Human Rights; 

• Alexandra Gómez Bruinewoud, is a Senior Legal Counsel at FIFPRO and a judge at the FIFA Dispute Resolution Chamber; 

• Borja Garcia is Reader in Sport Policy and Governance at School of Sport, Exercise and Health Sciences in Loughborough University

The online discussion will be introduced and moderated by Dr Antoine Duval and Dr Daniela Heerdt, and will include short presentations by the speakers and a Q&A with the audience. 

This is a free event, you can register for it HERE

Editor's note: Robby Houben is a professor at the University of Antwerp, specializing in sports enterprise law and corporate law. He founded the University of Antwerp’s Football College, championing good governance in professional football. He is editor of the Research Handbook on the Law of Professional Football Clubs (Edward Elgar Publishing 2023). Siniša Petrović is a professor at the University of Zagreb, specializing in sports law and corporate law.

Mid-March, the YouTube channel The Overlap released an interview with Aleksander Čeferin, the current president of UEFA. Asked about the Super League’s court case against UEFA, Čeferin referred to it as ‘mainly symbolical’. This statement reveals a deep trust in the status quo. In this short note we assess if such trust is justified. On the basis of advocate general (AG) Szpunar’s recent opinion in a case on home grown player rules, we argue it is not. 

What is it about? On 9 March, AG Szpunar of the Court of Justice of the EU (‘CJEU’) delivered his opinion in the case of Royal Antwerp FC against the Royal Belgian Football Association (‘RBFA’) and the European Football Association UEFA. The case relates to the so-called ‘home grown players’ rule (‘HGP rule’). This rule requires clubs to include at least 8 locally trained players in the list of 25 players that make the A team. According to Szpunar, this likely amounts to an indirect nationality discrimination and, at least, to a restriction of the free movement rights of football players under Article 45 of the Treaty on the Functioning of the EU (‘TFEU’). Nevertheless, the AG considers the HGP rule valid as such, as, according to him, it serves the legitimate aims of stimulating the training of youth players and increasing the competitive balance between clubs. Only insofar as it allows that home grown players includes players trained by another club in the same league (under the UEFA HGP rule, 4 out of 8 home grown players), instead of by the club itself, the HGP rule is not suitable to achieve these aims. His recommendation to the court is, hence, to partially invalidate the HGP rule. He would likely find a (future) HGP rule requiring home grown players to be trained only at the club compatible with EU law. 

Is sport so special that it deserves special treatment? On the basis of Wouters and Meca-Medina it is widely accepted that restrictions of competition in sports can be justified if they proportionately pursue legitimate aims. Interestingly, in his assessment of the proportionality of the HGP rule, AG Szpunar seems to do Wouters away as a peculiar case. He finds ‘it difficult to deduce a general principle … according to which private entities bound by Article 45 TFEU would have a greater discretion than that of Member States in comparable situations’. Moreover, he argues, such greater discretion may be warranted in matters transcending classical economic policy, but the HGP rule has a strong economic component and is not such a matter (paras 76-78). As a result, Szpunar sees no reason ‘to afford UEFA and the RBFA a wider discretion than would be the norm for a Member State to justify a restriction of Article 45 TFEU’ (para 78). So, no specific exceptions for football that do not apply to other economic sectors! Wrong, because, at the same time, the AG allows to justify the HGP rule in view of legitimate aims, in this case youth development and competitive balance. Hence, while closing the back door for exceptional treatment of football in his assessment of proportionality, he opens the front door for such exceptional treatment as a matter of principle quite widely - without really underpinning why, nor providing evidence of why football is so special compared to let’s say universities or hospitals, who educate youngsters too, undoubtedly for the public good, and don’t enjoy such special treatment. 

But let’s assume sport is somehow special and deserves a special treatment. Does the HGP rule serve both the aim of youth development and increasing competitive balance? Probably not. It seems the aims are conflated here. Yes, the HGP rule serves the aim of encouraging the training of players (at professional football clubs that is), and arguably it makes sense to incentivize clubs to train players. But it is unlikely that this will contribute to more competitive balance between clubs. This has to do with the territorial model of football: ‘domestic’ competitions are organized along national borders. Clubs from larger countries logically have a larger talent pool to recruit young players from than clubs from smaller countries, and therefore they likely have a competitive advantage. Moreover, assuming the pool of talented young players is larger in bigger countries, it is likely that these youngsters will add sporting value to the A-team. That’s a win-win. In smaller countries, clubs will typically have a tougher job recruiting domestic top talent, simply because the pool is smaller. Adding to that is that the real top youngsters of smaller countries will probably sign their first professional player contract with a club of a top tier foreign competition, leaving only the ‘best of the rest’ for the local clubs. At the age of 16, the next Kevin De Bruyne will of course become a ‘club-trained’ local player somewhere, but not in a Belgian club. Cutting a long story short, from the perspective of fair competition, the HGP rule is not neutral and favors clubs that happen to reside in larger countries. 

Overboard with domestic borders then? That is what small Luxemburg club Swift Hespérange claims. Swift argues its free movement rights and free competition is infringed because it has to play football within the Luxembourg borders. As a result, it cannot grow and become competitive with clubs from surrounding leagues. Szpunar’s opinion provides food for thought for this case too, as he recognizes that the territorial model of football favors clubs in larger countries more than clubs in smaller countries (paras 68 and 70). His opinion therefore seems to accord with Swift’s intuition. 

How could a HGP rule become more neutral in a territorial model of football, with club football organized along domestic borders? Arguably, the rule could concentrate on the under 21 teams, and/or under 23 teams, where training actually takes place, allowing clubs to compose their A-teams with the best players, regardless of where they were trained. Talented club-trained young players will make their way to A-teams on the basis of merit. Clubs could be incentivized to field club-trained players in their A-team through increased solidarity payments from centralized earnings. Such an approach could serve both the aims of stimulating the training of players and increasing (or better: not deteriorating) the competitiveness of local clubs. 

Is this THE solution? We don’t know, and we don’t pretend to know. We raise it to illustrate a point: the importance of alternative systems to the HGP rule in the Antwerp case. AG Szpunar rightly asserts that the burden of proof to evidence that a rule is proportionate in view of legitimate aims, so that it can be upheld instead of invalidated, lies with the claimant of such exception, in the Antwerp case UEFA and the RBFA (para 61). Remarkably, the proportionality of the HGP rule is subsequently simply assumed. Moreover, alternatives brought forward by Antwerp, whereas the burden of proof lay with UEFA and the RBFA, were put aside as more restrictive, and considered not to be equally effective without much consideration (paras 79-81). Is it not more in line with logic that when the burden of proof falls upon a party, if it fails to discharge it then its claim is simply denied? More fundamentally, if rules are simply assumed to pursue legitimate objectives instead of evidenced to do so, is this not an open invitation for ‘sports washing’, the equivalent of green washing in sports? Of course, judges are not industry experts. As a result, we may not reasonably expect too much. Regulators must have leeway to make choices. But judges can and should perform oversight, assuring: i) rules are at least aiming for the target, ii) the regulator effectively considered alternatives, iii) there are good reasons for the regulator to prefer the chosen solution over another. If the questioned rule fails this test, it should be declared invalid – and the regulator should be sent back to the drawing board.[1]

So, AG Szpunar’s opinion is not perfect. Yet, it certainly puts the finger on the sore spot of football governance: double hatting and the inherent conflicts of interest that brings. In this respect, AG Szpunar’s opinion seems to provide counterweight to AG Rantos’ opinion in the European Super League (‘ESL’) case (see the subtill ‘in this respect’ in fn 39 of Szpunar’s opinion). In essence, AG Rantos argues that UEFA’s potential design errors are irrelevant, as the ESL, because of its (at the time) semi-closed set-up, should have been rejected anyway. He even asserts that open sport competitions are a constitutional principle of EU law, enshrined in Article 165 TFEU. This is a (too) far stretch, notably not repeated by AG Szpunar. Moreover, Szpunar makes UEFA’s governance deficit so much more explicit than Rantos. Because UEFA is both the regulator and monopolist of European club football, Szpunar considers that conflicts of interest are ‘bound to arise’ (in the French official version: ‘inévitable’; in Dutch: ‘onvermijdelijk’ – so: inevitable). Moreover, confronted with such conflict, he believes UEFA and domestic football regulators will have a natural reflex to let their own commercial interests prevail over the public interest (para 58). 

AG’s Szpunar’s opinion is authoritative, and probably even more than usual. Szpunar is first advocate general, and primus inter pares. His opinion will weigh in on the other football cases pending before the CJEU too, especially the ESL case and the aforementioned Swift case. As such, it could serve as a ‘canary in the coalmine’ for what is still to come later this year. Anyway, if the CJEU judges in the ESL case follow Szpunar’s assessment of UEFA’s double hatting, those who were celebrating the status quo after the Rantos opinion might be in for a scare soon.  

2023 is a year of truth for the organization of professional football. Dissatisfaction with the status quo has led to a record number of football related cases before the CJEU. These cases are heard separately, but at the same time inevitably interconnected, because they run in parallel on similar subject matters. Szpunar’s opinion makes at least clear that all cards are still on the table and the status quo might not prevail. 

Courts can only do what they are allowed to: apply the law in a given case. They can’t solve football’s governance deficit. Only politicians can ‘save football from itself’ by regulating it and by tackling policy failures exposed by professional football’s commercial explosion fueled primarily by clubs and players. Stakeholders such as clubs and players deserve a seat at the decision-making table in a governance model for pro football 2.0. For example, it is not acceptable any more for football regulators with no skin in the game to continue to congest match calendars (40 or so more matches in the 2026 World Cup !) without consulting clubs and players. Furthermore, the cleanest way to resolve conflicts of interest once and for all would be to separate UEFA’s functions - at least to ensure that adequate procedures are in place to avoid, mitigate and make transparent conflict of interests (in that order), and allowing access to public courts for judicial scrutiny. To be meaningful, such action should be taken at EU level, so as to create a level playing field for clubs across Europe and – because of the ‘Brussels’ effect – beyond.  

We are not naïve. There is no political appetite for reforming football yet. That was made clear during the ESL hearing early July 2022, where more than 20 Member States intervened in support of UEFA and the status quo. But, one, two or three critical decisions of the CJEU might inspire politicians to take action. That way, this wave of court cases may trigger a much more profound reform of the governance of the beautiful game.    

[1] In that sense AG Szpunar seems to go too far when in his answer to the court he suggests to invalidate the current HGP rule and already advises how the new rule should look – the latter is more a matter for the regulator.

Join us for a round table co-organized by GLawNet and the Asser Institute at the Campus Brussels of the Maastricht University (Avenue de Tervueren 153, 1150 Brussels) just one day after the publication of the Opinion of Advocate General Rantos in the European Super League (ESL) case. The discussion between academics and stakeholders will focus on the role played by the EU, as well as the role it ought to play, in determining the way football is organised and governed.

In 2021, the announcement of the creation of a breakaway European Super League (ESL), as well as the drama of its early demise, stunned the world.  Since then, the company behind the ESL and UEFA (as well as FIFA) are locked into a legal battle that will soon come to an end at the Court of Justice of the European Union (CJEU). Following the preliminary questions raised by a Spanish court, the CJEU will weigh in on whether UEFA and FIFA breached EU competition law with their attempts to thwart the emergence of the ESL. It will not be the first time that the governing bodies of football, both Swiss associations, face scrutiny before the EU courts - many will remember the 1995 Bosman ruling. However, this time around various stakeholders and observers are calling for the EU to not only referee this particular dispute, but to as well start playing a stronger governance role by regulating European football.

Programme:

15:00 – 15:05 Opening: Mariolina Eliantonio (Maastricht University)

15:05 – 16:30 - Roundtable: Governing European Football: What role for the European Union?
Moderator: Carlo Colombo (Maastricht University)

•        Antoine Duval (Senior Researcher at the Asser Institute)
•        Benoit Keane (Keane Legal)
•        Alexander Bielefeld (Director Global Policy and Strategic Relations at FIFPro)
•        Arnout Geeraert (Assistant Professor, Utrecht university)

16:30 Reception

This is an In-Person event only and will take place at the Campus Brussels of the Maastricht University (Avenue de Tervueren 153, 1150 Brussels). If you wish to attend, please register HERE.

Supported by

Editor's note: Rhys was an intern at the T.M.C. Asser Institute. He now advises on investments and Notre acquisitions in sport (mainly football) via Lovelle Street Advisory. Following a career as a professional athlete, Rhys has spent much of his professional life as an international sports agent, predominantly operating in football. Rhys has a Bachelor of Laws (LL.B) and a Bachelor of Philosophy (B.Phil.) from the University of Dame, Sydney, Australia. He is currently completing an LL.M at the University of Zurich in International Business Law / International Sports Law.

Having looked at the different types of investors in football in part one of this two-part blog series, “A non-exhaustive Typology”, it is fitting to now consider the regulations that apply to investors who seek to build a portfolio of football clubs.

One way to measure the momentum of a particular practice and how serious it ought to be taken, might be when that practice earns its own initialism. Multi-club ownership or MCO as it is increasingly known today, is the name given to those entities that have an ownership stake in multiple clubs. Within the little research and writing that has been undertaken on the topic, some authors submit that investors with minority stakes in multiple clubs ought not to be captured by the MCO definition.  This position appears problematic given some of the regulations draw the line at influence rather than stake.

There are now approximately 50 MCO’s across the football world that own approximately 150 clubs.^[1] Given the way MCO is trending, one might consider it important that the regulations keep up with the developing MCO practice, so as to ensure the integrity of football competitions, and to regulate any other potentially questionable benefit an MCO might derive that would be contrary to football’s best interests.

In this blog, I focus on the variety of ways (and levels at which) this practice is being regulated.  I will move through the football pyramid from member associations (MA’s) to FIFA, laying the foundations to support a proposition that FIFA and only FIFA is positioned to regulate MCO. More...

Editor’s note: Stephen Weatherill is the Jacques Delors Professor of European Law at Oxford University. He also serves as Deputy Director for European Law in the Institute of European and Comparative Law, and is a Fellow of Somerville College. This blog appeared first on eulawanalysis.blogspot.com and is reproduced here with the agreement of the author. 

The crumbling of the ‘SuperLeague’ is a source of joy to many football fans, but the very fact that such an idea could be advanced reveals something troublingly weak about the internal governance of football in Europe – UEFA’s most of all – and about the inadequacies of legal regulation practised by the EU and/ or by states. This note explains why a SuperLeague is difficult to stop under the current pattern of legal regulation and why accordingly reform is required in order to defend the European model of sport with more muscularity. More...

The Headlines

CAS Decision on Manchester City FC Case

After the UEFA’s Adjudicatory Chamber of the Club Financial Control’s (CFCB) decision earlier this year to ban Manchester City FC for two seasons, observers waited impatiently to see the outcome of this high profile dispute. The CFCB’s decision had found that Manchester City FC overstated sponsorship revenues and in its break-even information given to UEFA. While some feared this showdown could lead to the demise of UEFA’s Financial Fair Play (FFP) regulations, the now publicized CAS panel’s decision is more nuanced. The panel’s decision turned on (see analysis here and here) (a) whether the ‘Leaked Emails’ were authentic and could be admissible evidence, (b) whether the ‘CFCB breached its obligations of due process’, (c) whether the conclusions of the 2014 Settlement Agreement prevents the CFCB from charging Manchester City FC, (d) whether the charges are time-barred, (e) the applicable standard of proof, (f) whether Manchester City FC masked equity funding as sponsorship contributions, and (g) whether Manchester City FC failed to cooperate with CFCB. In the end, among other findings, the Panel held that some of the alleged breaches were time-barred but maintained that Manchester City FC had failed to cooperate with CFCB’s investigation. In light of this, the Panel significantly reduced the sanction placed on Manchester City FC by removing the two-season suspension and reducing the sanction from 30 million euros to 10 million euros.

Qatar Labour Law Reforms Effectively Abolishes the Kafala System

Just a few days after Human Rights Watch released a lengthy report on abusive practices suffered by migrant workers in Qatar, Qatar adopted a series of laws that effectively gets rid of the Kafala system by no longer requiring migrant workers to obtain a ‘No Objection Certificate’ from their employer in order to start another job. The International Labour Organization declared that this development along with the elimination of the ‘exit permit requirements’ from earlier this year means that the kafala system has been effectively abolished. In addition to these changes, Qatar has also adopted a minimum wage that covers all workers and requires that employers who do not provide food or housing at least give a minimum allowance for both of these living costs. Lastly, the new laws better define the procedure for the termination of employment contracts.

In reaction to these changes, Amnesty International welcomed the reforms and called for them to be ‘swiftly and properly implemented’. Indeed, while these amendments to Qatar’s labour laws are a step in the right direction, Amnesty International also cautions that the minimum wage may still be too low, and in order to be effective, these new laws will have to be followed with ‘strong inspection and complaint mechanisms’.

CAS Decision Concerning Keramuddin Karim Abuse Case

In June of last year, Keramuddin Karim, former president of Afghanistan’s soccer federation, was banned by FIFA for life (see the decision of the adjudicatory Chamber of the FIFA Ethics Committee) after reports of sexual and physical abuse that emerged in late 2018. Following a lengthy and tumultuous investigation in Afghanistan, Afghan officials came forward with an arrest warrant for Mr. Karim. Nevertheless, despite attempts to apprehend Mr. Karim, Mr. Karim has still avoided arrest over a year later. Most recently in August, Afghan Special Operation officers attempted to apprehend him but he was not at the residence when they arrived.

Meanwhile, Mr. Karim had appealed FIFA’s lifetime ban to the CAS and the CAS Panel’s decision has recently been released. In its decision, the Panel upheld both the lifetime ban and the 1,000,000 CHF fine, finding that due to the particular egregious nature of Karim’s acts, ‘they warrant the most severe sanction possible available under the FCE’. Since both Karim and his witnesses were unable to be heard, the case raises questions connected to the respect of fundamental procedural rights at the CAS.  More...

Season 2 of #FootballLeaks is now underway since more than a week and already a significant number of episodes (all the articles published can be found on the European Investigative Collaborations’ website) covering various aspect of the (lack of) transnational regulation of football have been released (a short German documentary sums up pretty much the state of play). For me, as a legal scholar, this new series of revelations is an exciting opportunity to discuss in much more detail than usual various questions related to the operation of the transnational private regulations of football imposed by FIFA and UEFA (as we already did during the initial football leaks with our series of blogs on TPO in 2015/2016). Much of what has been unveiled was known or suspected by many, but the scope and precision of the documents published makes a difference. At last, the general public, as well as academics, can have certainty about the nature of various shady practices in the world of football. One key characteristic that explains the lack of information usually available is that football, like many international sports, is actually governed by private administrations (formally Swiss associations), which are not subject to the similar obligations in terms of transparency than public ones (e.g. access to document rules, systematic publication of decisions, etc.). In other words, it’s a total black box! The football leaks are offering a rare sneak peak into that box.

Based on what I have read so far (this blog was written on Friday 9 November), there are three main aspects I find worthy of discussion:

• The (lack of) enforcement of UEFA’s Financial Fair Play (FFP) Regulations
• The European Super League project and EU competition law
• The (lack of) separation of powers inside FIFA and UEFA More...

Editor’s note: Stefano Bastianon is Associate Professor in EU Law and EU sports law at the University of Bergamo and lawyer admitted to the Busto Arsizio bar. He is also member of the IV^th Division of the High Court of Sport Justice (Collegio di Garanzia dello sport) at the National Olympic Committee.

1. On the 20^th July 2018, the Court of Arbitration for Sport (hereinafter referred to as “CAS”) issued its decision in the arbitration procedure between AC Milan and UEFA. The subject matter of this arbitration procedure was the appeal filed by AC Milan against the decision of the Adjudicatory Chamber of the UEFA Financial Control Body dated 19^th June 2018 (hereinafter referred to as “the contested decision”). As many likely know, the CAS has acknowledged that, although AC Milan was in breach of the break-even requirement, the related exclusion of the club from the UEFA Europe League was not proportionate. To date, it is the first time the CAS clearly ruled that the sanction of exclusion from UEFA club competitions for a breach of the break-even requirement was not proportionate. For this reason the CAS award represents a good opportunity to reflect on the proportionality test under Art. 101 TFEU and the relationship between the landmark ruling of the European Court of Justice (hereinafter referred to as “ECJ”) in the Meca Medina and Majcen affair and the very recent case-law of the CAS. 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 

Anti-doping whereabouts requirements declared compatible with the athletes' right to privacy and family life

On 18 January 2018, the European Court of Human Rights rendered a judgment with important consequences for the world of sport in general and the anti-doping regime in particular. The Strasbourg-based court was called upon to decide whether the anti-doping whereabouts system – which requires that a limited number of top elite athletes provide their National Anti-Doping Organisation or International Federation with regular information about their location, including identifying for each day one specific 60-minute time slot where the athlete will be available for testing at a pre-determined location – is compatible with the athletes' right to private and family life under Article 8 of the European Convention on Human Rights and their freedom of movement pursuant to Article 2 Protocol No. 4 of the Convention. The case was brought by the French cyclist Jeannie Longo and five French athlete unions that had filed their application on behalf of 99 professional handball, football, rugby, and basketball players.

While acknowledging that the whereabouts requirements clash with the athletes' right to private and family life, the judges took the view that such a restriction is necessary in order to protect the health of athletes and ensure a level playing field in sports competitions. They held that ''the reduction or removal of the relevant obligations would lead to an increase in the dangers of doping for the health of sports professionals and of all those who practise sports, and would be at odds with the European and international consensus on the need for unannounced testing as part of doping control''. Accordingly, the judges found no violation of Article 8 of the Convention and, in a similar vein, ruled that Article 2 Protocol No. 4 of the Convention was not applicable to the case.

Football stakeholders preparing to crack down on agents' excessive fees

It has been a record-breaking January transfer window with Premier League clubs having spent an eye-watering £430 million on signing new acquisitions. These spiralling transfer fees enable football agents, nowadays also called intermediaries, to charge impressive sums for their services. However, this might soon no longer be the case as the main stakeholders in European football are preparing to take action. UEFA, FIFPro, the European Club Association and the European Professional Football Leagues acknowledge in their joint resolution that the 2015 FIFA Regulations on Working with Intermediaries failed to address serious concerns in relation to the activities of intermediaries/agents. They recognise in broad terms that a more effective regulatory framework is needed and call among other things for a reasonable and proportionate cap on fees for intermediaries/agents, enhanced transparency and accountability, or stronger provisions to protect minors.

The CAS award in Joseph Odartei Lamptey v. FIFA 

On 15 January 2018, FIFA published on its website an arbitral award delivered on 4 August 2017 by the Court of Arbitration for Sport (CAS) in the dispute between the Ghanian football referee Joseph Odartei Lamptey and FIFA. The CAS sided with FIFA and dismissed the appeal filed by Mr Lamptey against an earlier decision of the FIFA Appeal Committee which (i) found him to have violated Article 69(1) of the FIFA Disciplinary Code as he unlawfully influenced the 2018 World Cup qualifying match between South Africa and Senegal that took place on 12 November 2016; (ii) as a consequence, banned him for life from taking part in any football-related activity; and (iii) ordered the match in question to be replayed. In reaching its conclusion, the CAS relied heavily on multiple reports of irregular betting activities that significantly deviated from usual market developments.  More...