Editor's note:
Daniela is a researcher at the Asser Institute in the field of sport and human rights. She has a
background in public international law and human rights law and defended
her PhD project entitled “Blurred Lines of Responsibility and
Accountability – Human Rights Abuses at Mega-Sporting Events” in April
2021 at Tilburg University. She also works as independent consultant in the field of sport and human rights for the Centre for Sport and Human Rights, or the European Parliament among other clients from the sports ecosystem
As Head of Policy and Outreach, Guido is in charge of the Centre for Sport & Human Rights engagement with governments, international and intergovernmental organisations and sports organisations. He represents the Centre at conferences, events and bilateral dialogues to reach new audiences and partners and raise public awareness and understanding of the Centre’s work .
On February 24,
2022, the Russian military invaded Ukrainian territory. What followed was an
escalation of the war, day by day, causing thousands of victims and forcing
millions of people to flee. On March 2, the UN General Assembly overwhelmingly adopted a resolution deploring "in the strongest possible terms" Russia's
aggression against Ukraine by a vote of 141 to 5, with 35 abstentions. On March
29, Russian and Ukrainian representatives met in Istanbul for another round of
negotiations. No ceasefire has been agreed and hostilities continue.
Many states,
international organizations and corporations quickly took measures in response
to this invasion. Hundreds of companies decided to withdraw
from Russia. Some countries decided to strengthen economic
sanctions against Russia and Belarus and to provide military and economic help
to Ukraine. Many civil society actors mobilised to organize and provide humanitarian
support for Ukraine. Interestingly, international sports organisations like the
International Olympic Committee (IOC), the Fédération Internationale de Football
Association (FIFA), World Athletics and many other international federations, issued
statements condemning the invasion and imposed bans and sanctions on Russian
and Belarussian sports bodies and athletes.
This blog post provides
an overview of the measures adopted by a number of international sports
federations (IFs) that are part of the Olympic Movement since
the beginning of the war and analyses how they relate to the statements issued
by the IOC and other sanctions and measures taken by international sports organisations
in reaction to (geo)political tensions and conflict.
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 mercato, or transfer window, is for some the most
exciting time in the life of a football fan. During this narrow period
each summer and winter (for the Europeans), fantastic football teams are
made or taken apart. What is less often known, or grasped is that
behind the breaking news of the latest move to or from your favourite
club lies a complex web of transnational rules, institutions and
practices.
Our new intensive two-day Masterclass aims to provide a comprehensive
understanding of the FIFA Regulations on the Status and Transfer of
Players (RSTP) to a small group of dedicated legal
professionals who have the ambition to advise football clubs, represent
players or join football governing bodies. The course combines theoretical
insights on FIFA’s regulation of the transfer market with practical
know-how of the actual operation of the RSTP distilled by hands-on practitioners.
Download the full Programme and register HERE.
The Team:
- Dr Antoine Duval is a senior researcher at the Asser Institute and the head of the Asser International Sports Law Centre. He has widely published and lectured on transnational sports law, sports arbitration and the interaction between EU law and sport. He is an avid football fan and football player and looks forward to walking you through the intricacies of the FIFA transfer system.
- Carol Couse is a Partner in the sports team at Mills & Reeve LLP , with extensive in-house and in private practice experience of dealing with sports regulatory matters, whether contentious or non-contentious. She has advised on many multi million pound international football transfer agreements, playing contracts and image rights agreements on behalf clubs, players and agents.
- Jacques Blondin is an Italian lawyer, who joined FIFA inundefined 2015, working for the Disciplinary Department. In 2019, he was appointed Head of FIFA TMS (now called FIFA Regulatory Enforcement) where he is responsible, among other things, for ensuring compliance in international transfers within the FIFA Transfer Matching System.
- Oskar van Maren joined FIFA as a Legal Counsel in December 2017, forming part of the Knowledge Management Hub, a department created in September 2020. Previously, he worked for FIFA’s Players' Status Department. Between April 2014 and March 2017, he worked as a Junior Researcher at the T.M.C. Asser Instituut. He holds an LL.M in European law from Leiden University (The Netherlands).
- Rhys Lenarduzzi is currently a research intern at the Asser International Sports Law Centre, where he focuses in particular on the transnational regulation of football. Prior to this, he acquired over 5 years of experience as a sports agent and consultant, at times representing over 50 professional athletes around the world from various sports, though predominantly football.
Editor's Note: Daniela
Heerdt is a PhD researcher at Tilburg Law School in the Netherlands. Her PhD
research deals with the establishment of responsibility and accountability for
adverse human rights impacts of mega-sporting events, with a focus on FIFA
World Cups and Olympic Games. She published a number of articles on mega-sporting
events and human rights, in the
International Sports Law Journal, Tilburg Law
Review, and the Netherlands
Quarterly of Human Rights.
In the past couple of years, the Fédération
Internationale de Football Association (FIFA) made remarkable steps towards embedding
human rights into their practices and policies. These developments have been
discussed at length and in detail in this
blog and elsewhere, but
a short overview at this point is necessary to set the scene. Arguably, most
changes were sparked by John
Ruggie’s report from 2016, in which he articulated a set of concrete
recommendations for FIFA “on what it means for FIFA to embed respect for human
rights across its global operations”, using the UN Guiding Principles on Business
and Human Rights (UNGPs) as authoritative standard.[i]
As a result, in May 2017, FIFA
published a human rights policy, in which it commits to respecting
human rights in accordance with the UNGPs, identifies its salient human rights
risks, and acknowledges the potential adverse impacts it can have on human
rights in general and human rights of people belonging to specific groups. In
October 2017, it adopted new bidding regulations requiring
bidders to develop a human rights strategy and conduct an independent human
rights risk assessment as part of their bid. In March 2017, FIFA also created
a Human Rights Advisory Board,
which regularly evaluated FIFA’s human rights progress and made recommendations
on how FIFA should address human rights issues linked to its
activities. The mandate of the Advisory Board expired at the end of last
year and the future of this body is unknown at this point.
While some of these steps can be directly
connected to the recommendations in the Ruggie report, other recommendations
have largely been ignored. One example of the latter and focus of this blog
post is the issue of embedding human rights at the level of national football
associations. It outlines recent steps taken by the German football association
“Deutscher Fussball-Bund” (DFB) and the Dutch football association “Koninklijke
Nederlandse Voetbalbond” (KNVB) in relation to human rights, and explores to
what extent these steps can be regarded as proactive moves by those
associations or rather spillover effects from FIFA’s human rights efforts. More...
Editor’s note: Rhys Lenarduzzi recently
completed a Bachelor of Law (LL.B) and Bachelor of Philosophy (B.Phil.) at the
University of Notre Dame, Sydney, Australia. As a former professional athlete,
then international sports agent and consultant, Rhys is interested in
international sports law, policy and ethics. He is currently undertaking an
internship at the T.M.C. Asser Institute with a focus on Transnational Sports
Law.
As one may have gathered from the series
thus far, the question that comes out of this endeavour for me, is whether
redistribution in football would be better divorced from the transfer system?
In my introductory
blog I point towards historical,
cultural, and of course the legal explanations as to why redistribution was
established, and why it might be held onto despite obvious flaws. In my second
blog, I point out how the training
compensation and solidarity mechanisms work in practice through an African case
study, as well as the hindrance caused and the Eurocentricity of the
regulations. The key take-away from my third
blog on the non-application of training
compensation in women’s football might be that training compensation should
apply to both men’s and women’s football, or neither. The sweeping
generalisation that men’s and women’s football are different as justification for
the non-application to the women’s game is not palatable, given inter alia
the difference between the richest and poorest clubs in men’s football. Nor is
it palatable that the training compensation mechanism is justified in men’s
football to incentivise training, yet not in women’s football.
In the fourth
blog of this series, I raise concerns that
the establishment of the Clearing House prolongs the arrival of a preferable
alternative system. The feature of this final blog is to consider alternatives
to the current systems. This endeavour is manifestly two-fold; firstly, are
there alternatives? Secondly, are they better? More...
Editor’s note: Rhys Lenarduzzi recently completed a Bachelor of Law (LL.B) and a Bachelor of Philosophy (B.Phil.) at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.
In September 2018, the Football Stakeholders Committee endorsed the idea of a Clearing House that was subsequently approved in October of the same year by the FIFA Council. A tender process commenced in July 2019 for bidders to propose jurisdiction, operation and establishment. Whilst many questions go unanswered, it is clear that the Clearing House will be aimed at closing the significant gap between what is owed and what is actually paid, in respect to training compensation and solidarity payments. The Clearing House will have other functions, perhaps in regard to agents’ fees and other transfer related business, though those other operations are for another blog. It will hence act as an intermediary of sorts, receiving funds from a signing and therefore owing club (“new” club) and then moving that money on to training clubs. Whilst separate to FIFA, to what extent is unclear.
I have landed at the position of it being important to include a section in this blog series on the soon to commence Clearing House, given it appears to be FIFA’s (perhaps main) attempt to improve the training compensation and solidarity mechanisms. As will be expanded upon below, I fear it will create more issues than it will solve. Perhaps one should remain patient and optimistic until it is in operation, and one should be charitable in that there will undoubtedly be teething problems. However, it is of course not just the function of the Clearing House that is of interest, but also what moving forward with the project of the Clearing House represents and leaves unaddressed, namely, the issues I have identified in this blog series. More...
Editor’s note: Rhys Lenarduzzi is a final semester Bachelor of Law (LL.B) and Bachelor of Philosophy (B.Phil.) student, at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.
As recently as September 2020, questions
were raised in the European Parliament on the non-application of training
compensation to women’s football. Whilst this blog will predominantly
consider potential inconsistencies in reasoning for and against training
compensation in men’s and women’s football, the questions before the Commission
were largely on the theme of disrespect and discrimination. Somewhat unfortunately, the questions raised were
side-stepped, with Ms Gabriel (Commissioner for Innovation, Research, Culture, Education and Youth) simply stating
that: “The TFEU does not give the Commission the competence to interfere in the
internal organisation of an independent international organisation such as
FIFA.” This might be true in theory, though one might feel some degree of
uneasiness if privy to the Commission’s role in the 2001 FIFA regulatory
overhaul.
It is currently explicit in the regulations and
the commentary, that in women’s football, signing clubs are not required to
compensate training clubs for developing players, through the training
compensation mechanism that exists in men’s football. Though it is a
contentious comment and as will be expanded below, this may not have always
been the case.
At Article
20 of the FIFA Regulations on the Status and Transfer of Players (RSTP),
one will find that the principles of training compensation shall not apply to
women’s football. Further, in FIFA’s
recently released Women’s Football Administrator Handbook
(the handbook), it states that disputes relating to training compensation are
limited for the moment to male players only.[1]
Regulations on solidarity contributions on the
other hand do apply to women’s football, but given transfer fees are not so
common, the use of the mechanism is not either. As an indication of how
uncommon the activation of the solidarity contribution mechanism in women’s
football might be, FIFA reported in the handbook just four claims with the
Players’ Status Department in 2016 (three claims involving the same player),
and zero since.[2]
That is in comparison to hundreds of claims made per season in men’s football,
where signing and owing clubs had not fulfilled their obligation to pay the
solidarity contribution.
Given
the aforementioned, this blog will largely focus on training compensation and
how it came to be the case that this mechanism, often presented as critical in
the context of men’s football, does not apply in women’s football. To do so, I
will first discuss the reasoning advanced in an unpublished CAS award, which one
may reasonably suspect played a fundamental role in shaping the current
exemption. I will then turn to FIFA’s timely response to the award and the
adoption of its Circular No. 1603. Finally, I will point out the disconnect in FIFA’s
decision to adopt two radically different approaches to the issue of training
compensation in male and female professional football. More...
Editor’s note: Rhys Lenarduzzi is a final semester Bachelor of Law (LL.B) and Bachelor of Philosophy (B.Phil.) student, at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.
Having considered the history and justifications
for the FIFA training compensation and solidarity mechanisms in my previous blog, I will now consider these systems in the African
context. This appears to be a worthwhile undertaking given these global mechanisms
were largely a result of European influence, so understanding their
(extraterritorial) impact beyond the EU seems particularly important. Moreover,
much has been written about the “muscle drain” affecting African football and
the need for such drain to either be brought to a halt, or, more likely and
perhaps more practical, to put in place an adequate system of redistribution to
ensure the flourishing of African football that has essentially acted as a
nursery for European football for at least a century. In the present blog, I
intend to draw on my experiences as a football agent to expand on how FIFA’s
redistributive mechanisms function in practice when an African player signs in
Europe via one of the many kinds of entities that develop or purport to develop
talent in Africa. I will throughout address the question of whether these
mechanisms are effective in a general sense and more specifically in relation
to their operation in Africa.More...
Editor’s note: Rhys Lenarduzzi is a final semester Bachelor
of Law (LL.B) and Bachelor of Philosophy (B.Phil.) student, at the University
of Notre Dame, Sydney, Australia. As a former professional athlete, then
international sports agent and consultant, Rhys is interested in international
sports law, policy and ethics. He is currently undertaking an internship at the
T.M.C. Asser Institute with a focus on Transnational Sports Law.
In 2019, training
compensation and solidarity contributions based on FIFA’s Regulations on the Status and Transfer
of Players (RSTP) amounted to US$ 75,5 million. This transfer of
wealth from the clubs in the core of the football hierarchy to the clubs where the
professional players originated is a peculiar arrangement unknown in other
global industries. Beyond briefly pointing out or reminding the reader of how these
systems work and the history behind them, this blog series aims to revisit the
justifications for FIFA-imposed training compensation and the solidarity
mechanism, assess their efficacy and effects through a case study of their
operation in the African context, and finally analyse the potential impact of upcoming
reforms of the FIFA RSTP in this context.
First,
it is important to go back to the roots of this, arguably, strange practice. The current transfer system and the legal mechanisms constituting
it were largely the result of a complex negotiation between European football’s
main stakeholders and the European Commission dating back to 2001. The conclusion
of these negotiations led to a new regulatory system enshrined in Article 20 and
Annex 4 of the RSTP in the case of training compensation, and at Article 21 and
Annex 5 in the case of the solidarity mechanism. Before paying some attention
to the historical influences and how we arrived at these changes, as well as the
justifications from the relevant bodies for their existence, let us briefly recall
what training compensation and the solidarity mechanisms actually are. 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.
1. EU law and the CAS case-law
Bearing in mind these questions, it is possible to
affirm that under EU law, the specificity of sport
i) refers to the inherent characteristics of sport that
set it apart from other economic and social activities and which have to be
taken into account in assessing the compatibility of sporting rules with EU
law; and
ii) under EU law these inherent characteristics of
sport must be considered on a case by
case basis, per the Wouters test
as developed by the ECJ in the Meca Medina ruling.
Both aspects can be found in the CAS case-law too,
although the CAS case-law shows some remarkable differences and peculiarities. From
a general point of view, the application of the principle of specificity of
sport in the CAS case-law represents an aspect of the more general issue
related to the application of EU law by the CAS. However, the purpose of this
paper is not to fully examine if and to what extent the CAS arbitrators apply
EU law rules on free movement and competition; rather, the aim is to analyse
the way the CAS deals with the concept of the specificity of sport,
highlighting similarities and differences compared to the ECJ.
Taking for granted that ‘a CAS panel is not only
allowed, but also obliged to deal with the issues involving the application of
[EU] law’,[1]
as far as the compatibility of sporting rules with EU law is concerned the CAS
case-law shows different degrees of engagement. For instance, in the ENIC
award concerning the so-called UEFA integrity rule, the CAS panel went through
a complete competition-law analysis in perfect harmony with the Wouters et al.
ruling by the ECJ.[2]
On the contrary, in the above-quoted Mutu case, the issue of
compatibility of the FIFA’s transfer regulations with EU competition law was
analysed in a rather simple way, merely stating that the FIFA rules at stake
were not anti-competitive under EU competition law without giving any reason to
support this conclusion.
More recently, in the Galatasaray
and Milan A.C. awards, concerning the
UEFA’s financial fair-play regulations, the CAS applied a detailed analysis of EU competition
law. However, in both cases, according to the CAS the proportionate character
of sanctions listed in the UEFA’s financial fair-play regulations cannot affect
the evaluation of the legitimacy of these regulations under Art. 101 TFEU. This
conclusion represents a clear breaking point with respect to the ECJ case-law,
according to which the evaluation of the restrictive effects of a rule
necessarily presupposes the analysis of the proportionate character of the
sanction imposed in the event of a violation of that rule as well.[3] In
regard to EU free movement, the CAS case-law tends to be less analytical in
terms of the principle of proportionality. For instance, in the RFC Seraing award which concerned both EU free movement and
competition law, the CAS panel mainly focused on the legitimate objectives of
the contested rule (FIFA’s ban on Third-Party Ownership – TPO), merely affirming
that the restrictive measures under EU free movement were justified and
inherent in the pursuit of those objectives.More...