Editor’s note: Kester Mekenkamp is an LL.M. student in European Law
at Leiden University and an intern at the ASSER International Sports Law Centre.
This blog is, to a great extent, an excerpt of his forthcoming thesis, which he
shall submit in order to complete his master’s degree.
This is the
second part of a three-piece blog on FIFA’s provision on the protection of
minors, Article 19 of the Regulations
on the Status and Transfer of Players. The contribution in its entirety aims to provide
an encompassing overview of the rule’s lifespan since its inception in 2001. The previous
(first) part has shed light on the “birth” and “first years” of the provision, and
as such illustrated the relevant developments from 2001 till 2009. This second
part covers the rule’s “adolescent years”, which span from 2009 to the present.
The major changes put forward in the 2009, 2015 and 2016 versions of the RSTP
will be addressed. Thereafter the important CAS decisions concerning Article
19, Muhic, Vada I and II, FC Barcelona, RFEF, and the FIFA decisions relating to Real Madrid and Atlético
Madrid, will be scrutinized. The third, and final, part will constitute a
substantive assessment of the provision under EU Internal Market law.
Given that the
version adopted in 2008 left Article 19 untouched, the 2009 RSTP
represented the next significant step in the regulation of the protection of
minors. It had become clear that the system as used up to that point was
inadequate to achieve its goal,[1]
most notably because several national associations still neglected to strictly
apply the rules.[2] More...
Editor’s note: Kester Mekenkamp is an LL.M. student in European Law
at Leiden University and an intern at the ASSER International Sports Law
Centre. This blog is, to a great extent, an excerpt of his forthcoming master
thesis.
On 24 November
2016, a claim was
lodged before a Zurich commercial court against FIFA’s transfer regulations by
a 17-year-old African football player.[1]
The culprit, according to the allegation: The provision on the protection of
minors, Article 19 of the Regulations
for the Status and Transfer of Players.[2]
The claimant and his parents dispute the validity of this measure, based on the
view that it discriminates between football players from the European Union and
those from third countries. Besides to Swiss cartel law, the claim is
substantiated on EU citizenship rights, free movement and competition law. Evidently,
it is difficult to assess the claim’s chance of success based on the sparse information
provided in the press.[3]
Be that as it may, it does provide for an ideal (and unexpected) opportunity to
delve into the fascinating subject of my master thesis on FIFA’s regulatory
system aimed at enhancing the protection of young football players and its
compatibility with EU law. This three-part blog shall therefore try to provide
an encompassing overview of the rule’s lifespan since its inception in 2001. More...
Football intermediaries, or agents, are again under attack in the news. For some, corrupt behaviour has become endemic in football’s culture. It is always dangerous to scapegoat a whole profession or a group of
people. Many intermediaries are trying their best to lawfully defend the
interests of their clients, but some are not. The key focus should be on
providing an adequate legal and administrative framework to limit the
opportunities for corrupt behaviour in the profession. This is easier said than
done, however. We are dealing with an intrinsically transnationalized business,
often conducted by intermediaries who are not subjected to the disciplinary
power of federations. Sports governing bodies are lacking the police power and
human resources necessary to force the intermediaries to abide by their private
standards. In this context, this blog aims to review a recent case in front of
the regional court of Frankfurt in Germany, which highlights the legal
challenges facing (and leeway available to) national federations when
regulating the profession. More...
Footballleaks is now operating since nearly half a year and has already provided an
incredible wealth of legal documents both on TPO (and in particular Doyen’s
contractual arrangements) and on the operation of the transfer system in
football (mainly transfer agreements, player contracts and agents contracts).
This constant stream of information is extremely valuable for academic research
to get a better grip on the functioning of the transfer market. It is also
extremely relevant for the shaping of public debates and political decisions on
the regulation of this market. As pointed out on the footballleaks website, it has triggered a series of press
investigations in major European news outlets.
In this blog, I want to come to a
closure on our reporting on Doyen’s TPO deals. In the past months, we have
already dealt with the specific cases of FC Twente and Sporting Lisbon, reviewed Doyen’s TPO deals with Spanish clubs, as well as discussed the compatibility of the TPO ban with EU law. In the Sporting
Lisbon case, Doyen has since earned an
important legal victory in front of the CAS (the ensuing award was just
published by Footballleaks). This victory should not be overstated, however, it
was not unexpected due to the liberal understanding of the freedom of contract
under Swiss law. As such it does not support the necessity of TPO as an
investment practice and does not threaten the legality (especially under EU
law) of FIFA’s ban.
In our previous blogs on Doyen’s
TPO deals we decided to focus only on specific deals, Twente and Sporting
Lisbon, or a specific country (Spain). However, nearly six months after the whole footballleaks project started, we can
now provide a more comprehensive analysis of the TPO deals signed by Doyen.
Though, it is still possible that other, yet unknown, deals would be revealed, I
believe that few of Doyen’s TPO agreements are still hidden. Thanks to footballleaks, we now know how Doyen
operates, we have a precise idea of its turnover, its return on investments and
the pool of clubs with which it signed a TPO agreement. Moreover, we have a
good understanding of the contractual structure used by Doyen in those deals.
This blog will offer a brief synthesis and analysis of this data.More...
Since
last year, Doyen Sports, represented by Jean-Louis Dupont, embarked on a legal
crusade against FIFA’s TPO ban. It has lodged a competition law complaint with
the EU Commission and started court proceedings in France and Belgium. In a first
decision on Doyen’s request for provisory measures, the Brussels Court of First
Instance rejected the demands raised by Doyen and already refused to send a
preliminary reference to the CJEU. Doyen, supported by the Belgium club Seraing,
decided to appeal this decision to the Brussels Appeal Court, which rendered
its final ruling on the question on 10 March 2016.[1] The
decision (on file with us) is rather unspectacular and in line with the first
instance judgment. This blog post will rehash the three interesting aspects of
the case.
·
The jurisdiction of the Belgian courts
·
The admissibility of Doyen’s action
·
The conditions for awarding provisory measures More...
FIFA’s Third-Party Ownership (TPO)
ban entered into force on the 1 May 2015[1].
Since then, an academic and practitioner’s debate is raging over its compatibility with EU law,
and in particular the EU Free Movement rights and competition rules.
The European Commission, national
courts (and probably in the end the Court of Justice of the EU) and the Court
of Arbitration for Sport (CAS) will soon have to propose their interpretations
of the impact of EU law on FIFA’s TPO ban. Advised by the world-famous Bosman lawyer, Jean-Louis Dupont, Doyen
has decided to wage through a proxy (the Belgian club FC Seraing) a legal war
against the ban. The first skirmishes have already taken place in front of the
Brussels Court of first instance, which denied in July Seraing’s request for provisional
measures. For its part, FIFA has already sanctioned the club for closing a TPO deal
with Doyen, thus opening the way to an ultimate appeal to the CAS. In parallel,
the Spanish and Portuguese leagues have lodged a complaint with the European
Commission arguing that the FIFA ban is contrary to EU competition law. One
academic has already published an assessment of the compatibility of the ban
with EU law, and many practitioners have offered their take (see here and here for example). It is undeniable that the FIFA
ban is per se restrictive of the
economic freedoms of investors and can easily be constructed as a restriction
on free competition. Yet, the key and core question under an EU law analysis,
is not whether the ban is restrictive (any regulation inherently is), but
whether it is proportionate, in other words justified. More...
In this blog we continue unpacking Doyen’s TPO deals based on the
documents obtained via footballleaks. This time we focus on the battle between Doyen and
Sporting over the Rojo case, which raises different legal issues as the FC
Twente deals dealt with in our first blog.
I.
The context: The free-fall of Sporting
Sporting Lisbon, or Sporting Club de Portugal as the club is officially
known, is a Portuguese club active in 44 different sports. Although the club
has the legal status of Sociedade Anónima
Desportiva, a specific form of public limited company, it also has over
130.000 club members, making it one of the biggest sports clubs in the world.
The professional football branch of Sporting is by far the most
important and famous part of the club, and with its 19 league titles in total,
it is a proud member of the big three cartel, with FC Porto and Benfica,
dominating Portuguese football. Yet, it has not won a league title since 2002. More...
The football world has been buzzing with
Doyen’s name for a few years now. Yet, in practice very little is known about
the way Doyen Sports (the Doyen entity involved in the
football business) operates. The content of the contracts it signs with clubs
was speculative, as they are subjected to strict confidentiality policies.
Nonetheless, Doyen became a political (and public) scapegoat and is widely
perceived as exemplifying the ‘TPOisation’ of football. This mythical status of
Doyen is also entertained by the firm itself, which has multiplied the (until
now failed) legal actions against FIFA’s TPO ban (on the
ban see our blog symposium here) in a bid to attract attention and to publicly
defend its business model. In short, it has become the mysterious flag bearer
of TPO around the world. Thanks to a new anonymous group, inspired by the WikiLeaks
model, we can now better assess how Doyen Sports truly functions. Since 5 November
someone has been publishing different types of documents involving more or less
directly the work of Doyen in football. These documents are all freely
available at http://footballleaks.livejournal.com/. By doing so, the group has given
us (legal scholars not involved directly in the trade) the opportunity to
finally peruse the contractual structure of a TPO deal offered by Doyen and, as
we purport to show in the coming weeks, to embark upon a journey into Doyen’s
TPO-world. More...
Editor’s note
Wil is working as a lawyer since 1980. He
started his legal career at Rechtshulp Rotterdam. Later on he worked for the
Dutch national trade union FNV and law firm Varrolaan Advocaten. Currently he
is participating in the Labour Law Section of lawfirm MHZ-advocaten in Schiedam
in the Netherlands. He is also a member of a joint committee advising the government
in labour issues.
Since 1991 he is dealing with the labour issues
of the trade union for professional football players VVCS and cyclists’ union
VVBW. Since 2002, he works for FIFPro, the worldwide union for professional
football players based in Hoofddorp in the Netherlands. He is involved in many
international football cases and provides legal support for FIFPro members all
over the world. Wil was also involved in the FIFPro Black Book campaign on
match fixing and corruption in Eastern Europe. More...
Star Lawyer Jean-Louis Dupont is almost
a monopolist as far as high profile EU law and football cases are concerned.
This year, besides a mediatised challenge against UEFA’s FFP regulations, he
is going after FIFA’s TPO ban on behalf of the Spanish and
Portuguese leagues
in front of the EU Commission, but also before the Brussels First Instance
Court defending the infamous Malta-based football
investment firm Doyen Sport. FIFA and UEFA’s archenemy,
probably electrified by the 20 years of the Bosman ruling, is emphatically trying to
reproduce his world-famous legal prowess. Despite a first spark at a success in
the FFP case against UEFA with the Court of first instance of Brussels sending
a preliminary reference to the Court of Justice of the EU (CJEU), this has
proven to be a mirage as the CJEU refused, as foretold, to answer the questions of the Brussels Court,
while the provisory measures ordered by the judge have been suspended due to
UEFA’s appeal. But, there was still hope, the case against FIFA’s TPO ban, also
involving UEFA and the Belgium federation, was pending in front of the same
Brussels Court of First Instance, which had proven to be very willing to block UEFA’s
FFP regulations. Yet, the final ruling is another disappointment for Dupont
(and good news for FIFA). The Court refused to give way to Doyen’s
demands for provisional measures and a preliminary reference. The likelihood of
a timely Bosman bis repetita is
fading away. Fortunately, we got hold of the judgment of the Brussels court and
it is certainly of interest to all those eagerly awaiting to know whether
FIFA’s TPO ban will be deemed compatible or not with EU law. More...