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: 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...
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: Etienne
Gard graduated from the University of Zurich and from King's College London. He
currently manages a project in the field of digitalization with Bratschi Ltd.,
a major Swiss law firm where he did his traineeship with a focus in
international commercial arbitration.
1. Prelude
On the
10th of June, 1958, the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, widely known as the “New York
Convention”, was signed in New York by 10 countries.[1] This rather shy figure progressively grew over the decades to now
reach 157 signatory countries, turning the New York Convention into the global
recognition and enforcement instrument it is today. As V.V. Veeder’s puts it, “One English law lord is said to have said, extra judicially, that the
New York Convention is both the Best Thing since sliced bread and also whatever
was the Best Thing before sliced bread replaced it as the Best Thing.”[2]
However,
among the overall appraisal regarding the New York Convention, some criticisms
have been expressed. For instance, some states use their public policy rather
as a pretext not to enforce an award than an actual ground for refusal.[3] A further issue is the
recurring bias in favor of local companies.[4] Additionally, recognition and enforcement procedures in application
of the New York Convention take place in front of State authorities, for the
most part in front of courts of law, according to national proceeding rules.
This usually leads to the retaining of a local law firm, the translation of
several documents, written submissions and one, if not several hearings. Hence,
the efficiency of the New York Convention as a recognition and enforcement
mechanism comes to the expense of both money and time of both parties of the
arbitral procedure.
In
contrast with the field of commercial arbitration, where the New York
Convention is often considered the only viable option in order to enforce an
award, international football organizations, together with the Court of
Arbitration for Sport (“CAS”), offer an effective enforcement alternative. This
article aims at outlining the main features of the indirect enforcement of CAS
awards in football matters in light of a recent case. 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...