Editor's note: Marine Montejo is a graduate from the
College of Europe in Bruges and is currently an intern at the ASSER
International Sports Law Centre.
On 14 July 2016, the
Belgian competition authority refused to grant provisional measures to the
White Star Woluwe Football Club (“The White Star”), which would have allowed it
to compete in the Belgian top football division. The club was refused a licence
to compete in the above mentioned competition first by the Licences Commission
of the national football federation (“Union Royale Belge des Sociétés de
Foootball Association” or “URBSFA”) and then by the Belgian court of
arbitration for sports (“Cour Belge d’Arbitrage pour le Sport” or “CBAS”). The
White Star lodged a complaint to the national competition authority (“NCA”) and
requested provisional measures. The
Belgian competition authority rendered a much-overlooked decision (besides one commentary) in which it seems to
accept the reviewability of an arbitral award’s conformity with EU competition
law (articles 101 and 102 TFEU). More...
Editor’s note: Guido graduated cum
laude from the Vrije Universiteit Amsterdam. He teaches law at the Erasmus
Universiteit Rotterdam. He specializes in sports law and provides legal advice for the professional sports sector.
Introduction
This blog is a commentary on a recent case that hit
like a bombshell in the Netherlands (and
beyond) during
the recent Olympic Games in Rio. The case concerns a Dutch athlete, Yuri van
Gelder, who reached the Olympic finals in his sport, got sent home by ‘his’ NOC
(NOC*NSF) after a night out in Rio and launched legal proceedings in front of a
Dutch court to claim back his place in the finals. This commentary will attempt
to explain the Dutch ruling and evaluate whether a different legal route would
have been possible and preferable. More...
This is part two of the blog on the Willem
II and MVV State Aid decisions. Where
part one served as an introduction on the two cases, part two will analyze the
compatibility assessment made by the Commission in two decisions.
The
compatibility of the aid to MVV and Willem II (re-)assessed
Even though it was the Netherlands’
task to invoke possible grounds of compatibility and to demonstrate that the
conditions for such compatibility were met, the aid granted to both Willem II
and MVV was never notified. The Netherland’s failure to fulfill its notification
obligation, therefore, appears to be at odds with the Commission’s final
decision to declare the aid compatible with EU law. Yet, a closer look at the
Commission’s decision of 6 March 2013 to launch the formal investigation shows
that the Commission was giving the Netherlands a ‘second chance’ to invoke
grounds that would lead to a justification of the measures.More...
The European Commission’s decisions of 4 July 2016 to order the recovery of the State aid granted to seven
Spanish professional football clubs[1]
were in a previous blog called historic. It was
the first time that professional football clubs have been ordered to repay aid
received from (local) public authorities. Less attention has been given to five
other decisions also made public that day, which cleared support measures for five football clubs in the Netherlands. The clubs in question were PSV Eindhoven, MVV Maastricht, NEC Nijmegen,
FC Den Bosch and Willem II.
Given the inherent political sensitivity of State aid recovery
decisions, it is logical that the “Spanish decisions” were covered more widely
than the “Dutch decisions”. Furthermore, clubs like Real Madrid and FC
Barcelona automatically get more media attention than FC Den Bosch or Willem
II. Yet, even though the “Dutch decisions” are of a lower profile, from an EU
State aid law perspective, they are not necessarily less interesting.
A few days before entering the quiet month of August, the Commission
published the non-confidential versions of its decisions concerning PSV Eindhoven, Willem II and MVV Maastricht (hereinafter:
“MVV”). The swiftness of these publications is somewhat surprising, since it often
takes at least three months to solve all the confidentiality issues.
Nonetheless, nobody will complain (especially not me) about this opportunity to
analyze in depth these new decisions. More...
Editor's note: Marine Montejo is a graduate from the College of
Europe in Bruges and is currently an intern at the ASSER International Sports
Law Centre.
Part 2. EU competition law and sports funding
The first analysed impact of Brexit on
sport was the one regarding EU internal market rules and free movement.
However, all sport areas that are of interest to the European Union will be
impacted by the result of the future Brexit negotiations. This second part of
the blog will focus on EU competition law and the media sector as well as
direct funding opportunities keeping in mind that if the UK reaches for an EEA
type agreement competition law and state aid rules will remain applicable as
much as the funding programs. More...
On Monday 18 July 2016, Canadian lawyer Richard McLaren presented the Independent Person Report to the World Anti-Doping Agency (WADA), regarding the alleged Russian
doping program surrounding the 2014 Sochi Winter Olympics. The report was expected
to seriously threaten the participation of Russian Athletes to the rapidly
approaching Rio Games, starting on 5
August. In the weekend prior to the report’s publishing, Reuters obtained a leaked
letter drafted by the CEO’s of the US and Canadian anti-doping agencies,
which according to the New York Times was backed by “antidoping officials from at least 10 nations— including
those in the United States, Germany, Spain, Japan, Switzerland and Canada — and
20 athlete groups”, urging the International Olympic Committee (IOC) to
ban all Russian athletes from the upcoming Olympics.
Source: http://ww4.hdnux.com/photos/50/23/01/10563667/3/920x920.jpgThis Book Review is published at 26 Marquette Sports Law Review 247 (2015).
This
comprehensive treatise of more than 700 pages on the Code of the Court of
Arbitration for Sport (CAS) (the Code) is an excellent resource that is useful
to a wide audience, including attorneys representing parties before the CAS,
CAS arbitrators, and sports law professors and scholars, as well as
international arbitration counsel, arbitrators, and scholars. It also should be of interest to national
court judges and their law clerks because it facilitates their understanding of
the CAS arbitration process for resolving Olympic and international sports
disputes and demonstrates that the Code provides procedural fairness and
substantive justice to the parties, thereby justifying judicial recognition and
enforcement of its awards.[1]
Because the Code has been in existence
for more than twenty years—since November 22, 1994—and has been revised four
times, this book provides an important and much needed historical perspective
and overview that identifies and explains well-established principles of CAS
case law and consistent practices of CAS arbitrators and the CAS Court Office. Both authors formerly served as Counsel to
the CAS and now serve as Head of Research and Mediation at CAS and CAS
Secretary General, respectively, giving them the collective expertise and
experience that makes them eminently well-qualified to research and write this
book.More...
Editor’s note: Our first innovation for the
year 2016 will be a monthly report compiling 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 world of professional sport has been making
headlines for the wrong reasons in January. Football’s governing body FIFA is
in such a complete governance and corruption mess that one wonders whether a
new President (chosen on 26 February[1])
will solve anything. More recently, however, it is the turn of the athletics
governing body, IAAF, to undergo “the walk of shame”. On 14 January the WADA
Independent Commission released its second report into doping in international
athletics. More...
The first part of our “Unpacking Doyen’s TPO deals” blog series concerns
the agreements signed between Doyen Sports and the Dutch football club FC
Twente. In particular we focus on the so-called Economic Rights Participation Agreement (ERPA) of 25 February 2014. Based on the ERPA we will be able to better
assess how TPO works in practice. To do so, however, it is necessary to explore
FC Twente’s rationale behind recourse to third-party funding. Thus, we will
first provide a short introduction to the recent history of the club and its
precarious financial situation. More...
Editor's note
Zlatka Koleva is a graduate from the Erasmus University Rotterdam and is currently an Intern at the ASSER International Sports Law Centre.
The decision on appeal in the case
of O’Bannon v. NCAA seems,
at first sight, to deliver answers right on time regarding the unpaid use of
names, images and likenesses (NILs) of amateur college athletes, which has been
an ongoing debate in the US after last year’s district court decision that
amateur players in the college games deserve to receive compensation for their
NILs.[1]
The ongoing struggle for compensation in exchange for NILs used in TV
broadcasts and video games in the US has reached a turning point and many have
waited impatiently for the final say of the Court of Appeal for the 9th
circuit. The court’s ruling on appeal for the 9th circuit, however,
raises more legitimate concerns for amateur sports in general than it offers
consolation to unprofessional college sportsmen. While the appellate court
agreed with the district court that NCAA should provide scholarships amounting
to the full cost of college attendance to student athletes, the former rejected
deferred payment to students of up to 5,000 dollars for NILs rights. The
conclusions reached in the case relate to the central antitrust concerns raised
by NCAA, namely the preservation of consumer demand for amateur sports and how
these interests can be best protected under antitrust law. More...
In June 2014, two prominent Dutch speed skaters, Mark Tuitert
(Olympic Champion 1500m) and Niels Kerstholt
(World Champion short track), filed a competition law complaint against the
International Skating Union (ISU) with the European Commission.
ChanceToCompeteTwitter.png (50.4KB)
Today, the
European Commission announced that it has opened a
formal antitrust investigation into International Skating Union (ISU) rules
that permanently ban skaters from competitions such as the Winter Olympics and
the ISU World and European Championships if they take part in events not organised
or promoted by the ISU. The Commissioner for Competition, Margrethe Vestager, stated that the Commission "will
investigate if such rules are being abused to enforce a monopoly over the
organisation of sporting events or otherwise restrict competition. Athletes can
only compete at the highest level for a limited number of years, so there must
be good reasons for preventing them to take part in events."
Since
the case originates from legal advice provided by the ASSER International
Sports Law Centre, we thought it would be helpful to provide some
clarifications on the background of the case and the main legal issues at
stake. More...
Rien ne va plus at FIFA. The news that FIFA’s Secretary General Jérôme Valcke
was put on leave and released from his
duties has been quickly overtaken by the opening of a criminal investigation targeting
both Blatter and Platini.
With FIFA hopping from one scandal to the next, one
tends to disregard the fact that it has been attempting (or rather pretending) to
improve the governance of the organisation for some years now. In previous
blogs (here and here), we
discussed the so-called ‘FIFA Governance Reform Project’, a project carried out
by the Independent Governance Committee (IGC) under the leadership of Prof. Dr.
Mark Pieth of the Basel Institute on Governance. Their third and final report, published
on 22 April 2014, listed a set of achievements made by FIFA in the area of good
governance since 2011, such as establishing an Audit and Compliance Committee (A&C).
However, the report also indicated the reform proposals that FIFA had not met.
These proposals included the introduction of term limits for specific FIFA
officials (e.g. the President) as well as introducing an integrity review
procedure for all the members of the Executive Committee (ExCo) and the
Standing Committees. More...
Editor's note: James Kitching is Legal Counsel and Secretary to the AFC judicial bodies at the Asian Football Confederation. James is an Australian and Italian citizen and one of the few Australians working in international sports law. He is admitted as barrister and solicitor in the Supreme Court of South Australia. James graduated from the International Master in the Management, Law, and Humanities of Sport offered by the Centre International d'Etude du Sport in July 2012.
Introduction
On 12 May 2015, the Court of Arbitration for Sport (CAS) announced that the World
Anti-Doping Agency (WADA) had filed
an appeal against the decision issued by the Australian Football League (AFL) Anti-Doping Tribunal (AADT) that thirty-four current and
former players of Essendon Football Club (Essendon)
had not committed any anti-doping rule violation (ADRV) identified within the AFL Anti-Doping Code (AADC). The players had each been charged with using
Thymosin-Beta 4 (TB4) during the
2012 AFL season.
On 1 June 2015, WADA announced that it had filed an appeal against the decision by the AADT to clear Mr.
Stephen Dank (Dank), a sports
scientist employed at Essendon during the relevant period, of twenty-one
charges of violating the AADC. Dank was, however, found guilty of ten charges and banned for life.
This blog will solely discuss the likelihood of the
first AADT decision (the Decision)
being overturned by the CAS. It will briefly summarise the facts, discuss the
applicable rules and decision of the AADT, review similar cases involving ‘non-analytical
positive’ ADRVs relating to the use of a prohibited substance or a prohibited
method, and examine whether the Code of Sports-related Arbitration (CAS Code) is able to assist WADA in its
appeal.
This blog will not examine the soap opera that was
the two years leading-up to the Decision. Readers seeking a comprehensive
factual background should view the excellent up-to-date timeline published by the
Australian Broadcasting Corporation. More...
“I'm
sure that in 1985, plutonium is available in every corner drugstore, but in
1955, it's a little hard to come by.” (Dr. Emmett L. Brown)[1]
Back to the future?
Availing oneself of EU law in the ambit of sports in
1995 must have felt a bit like digging for plutonium, but following the
landmark ruling of the European Court of Justice (ECJ) in the Bosman case[2],
20 years later, with all the buzz surrounding several cases where EU law is
being used as an efficient ammunition for shelling various sports governing or
organising bodies, one may wonder if in 2015 EU law is to be “found in every
drug store” and the recent cases (see inter alia Heinz Müller v 1. FSV Mainz 05, Daniel Striani ao v UEFA, Doyen Sports ao v URBSFA, FIFA, UEFA) [3] cannot
but invitingly evoke the spirit of 1995.
One of the aforementioned cases that also stands out
pertains to the injunction decision[4] issued
on 29 April 2015 by the Regional Court (Landesgericht) in Frankfurt am Main
(hereinafter: the Court) in the dispute between the intermediary company Firma
Rogon Sportmanagement (hereinafter: the claimant) and the German Football
Federation (Deutschen Fußball-Bund, DFB), where the claimant challenged the
provisions of the newly adopted DFB Regulations on Intermediaries (hereinafter: DFB Regulations)[5] for
being incompatible with Articles 101 and 102 TFEU.[6]
The Court, by acknowledging the urgency of the matter stemming from the
upcoming transfer window and the potential loss of clients, deemed a couple of
shells directed at the DFB Regulations to be well-aimed, and granted an
injunction due to breach of Article 101 TFEU. More...
Introduction
The first part of the present blog article provided a
general introduction to the compatibility of fixed-term contracts in football
with Directive 1999/70/EC[1]
(Directive). However, as the Member States of the European Union enjoy a
considerable discretion in the implementation of a directive, grasping the
impact of the Directive on the world of football would not be possible without considering
the national context. The recent ruling of the Arbeitsgericht Mainz (the lowest
German labour court; hereinafter the Court) in proceedings brought by a German
footballer Heinz Müller provides an important example in this regard. This second
part of the blog on the legality of fixed-term contract in football is devoted
to presenting and assessing the Court’s decision.
I. Facts and Procedure
Heinz Müller, the main protagonist of this case, was a goalkeeper
playing for 1.FSV Mainz 05 a club partaking to the German Bundesliga. More...