“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...
Introduction
On 25 March 2015, the Labour Court of Mainz
issued its decision in proceedings brought by a German footballer,
Heinz Müller, against his (now former) club 1. FSV Mainz 05 (Mainz 05). The
Court sided with the player and ruled that Müller should have been employed by
Mainz 05 for an indefinite period following his 2009 three year contract with
the club which was subsequently extended in 2011 to run until mid-2014. The
judgment was based on national law implementing Directive 1999/70 on fixed-term
work[1]
(Directive) with the latter being introduced pursuant to art. 155(2) TFEU (ex
art. 139(2) TEC). On the basis of this
article, European social partners’ may request a framework agreement which they
conclude to be implemented on the European Union (EU, Union) level by a Council
decision on a proposal from the Commission. One of the objectives of the framework
agreement,[2]
and therefore of the Directive, was to establish a system to prevent abuse
arising from the use of successive fixed-term employment contracts or
relationships[3]
which lies at the heart of the discussed problem.[4]
More...
Ever since UEFA started imposing disciplinary
measures to football clubs for not complying with Financial Fair Play’s break-even requirement in 2014, it remained a mystery how UEFA’s
disciplinary bodies were enforcing the Club Licensing and Financial Fair Play (“FFP”)
regulations, what measures it was imposing, and what the justifications were for
the imposition of these measures. For over a year, the general public could
only take note of the 23 settlement agreements between Europe’s footballing
body and the clubs. The evidential obstacle for a proper analysis was that the
actual settlements remained confidential, as was stressed in several of our
previous Blogs.[1]
The information provided by the press releases lacked the necessary information
to answer the abovementioned questions.
On 24 April 2015, the UEFA Club Financial
Control Body lifted part of the veil by referring FC
Dynamo Moscow to the Adjudicatory Body. Finally, the Adjudicatory Body had the
opportunity to decide on a “FFP case. The anxiously-awaited Decision was reached by
the Adjudicatory Chamber on 19 June and published not long after. Now that the
Decision has been made public, a new stage of the debate regarding UEFA’s FFP
policy can start.More...
…and
everything under the sun is in tune,
but the sun
is eclipsed by the moon…[1]
The issue
Ruffling a few feathers, on 30 May 2015 the FIFA Executive Committee rather unsurprisingly, considering the previous warnings,[2]
adopted a decision to suspend with immediate effect the Indonesian Football
Federation (PSSI) until such time as PSSI is able to comply with its
obligations under Articles 13 and 17 of the FIFA Statutes.[3] Stripping PSSI of its membership rights, the decision
results in a prohibition of all Indonesian teams (national or club) from having
any international sporting contact. In other words, the decision precludes all
Indonesian teams from participating in any competition organised by either FIFA
or the Asian Football Confederation (AFC). In addition, the suspension of
rights also precludes all PSSI members and officials from benefits of any FIFA
or AFC development programme, course or training during the term of suspension.
This decision coincides with a very recent award by the Court of Arbitration
for Sport (CAS) in this ambit, which shall be discussed further below.[4]More...
On 29
May 2015, the Brussels Court of First Instance delivered its highly anticipated
judgment on the challenge brought by football players’ agent Daniel Striani (and
others) against UEFA’s Club Licensing and Financial Fair Play Regulations
(FFP). In media reports,[1]
the judgment was generally portrayed as a significant initial victory for the
opponents of FFP. The Brussels Court not only made a reference for a
preliminary ruling to the European Court of Justice (CJEU) but also imposed an
interim order blocking UEFA from implementing the second phase of the FFP that
involves reducing the permitted deficit for clubs.
A
careful reading of the judgment, however, challenges the widespread expectation
that the CJEU will now pronounce itself on the compatibility of the FFP with EU
law. More...
FIFA’s freshly adopted TPO ban entered into
force on 1 May (see our Blog symposium). Though it is difficult to
anticipate to what extent FIFA will be able to enforce the ban, it is likely
that many of the third-party investors will try to have recourse to alternative
solutions to pursue their commercial involvement in the football transfer
market. One potential way to circumvent the FIFA ban is to use the proxy of
what has been coined “bridge transfers”. A bridge transfer occurs when a club
is used as an intermediary bridge in the transfer of a player from one club to
another. The fictitious passage through this club is used to circumscribe, for
example, the payment of training compensation or to whitewash a third-party
ownership by transforming it into a classical employment relationship. This is
a legal construction that has gained currency especially in South American
football, but not only. On 5 May 2015, in the Racing Club v. FIFA case, the Court of Arbitration for Sport (CAS)
rendered its first award involving directly a bridge transfer. As this practice
could become prevalent in the coming years we think that this case deserves a
close look. More...
UEFA announced on 8
May that it had entered into Financial Fair Play settlement agreements with 10 European
football clubs. Together with the four other agreements made in February 2015, this brings the total to 14 FFP
settlements for 2015 and 23 since UEFA adopted modifications in its Procedural
rules and allowed settlements agreements to be made between the Clubs and the Chief
Investigator of the UEFA Club Financial Control Body (CFCB).[1]
In the two years during
which UEFA’s FFP regulations have been truly up and running we have witnessed the
centrality taken by the settlement procedure in their enforcement. It is
extremely rare for a club to be referred to the FFP adjudication chamber. In
fact, only the case regarding Dynamo Moscow has been referred to the adjudication chamber. Thus, having
a close look at the settlement practice of UEFA is crucial to gaining a good
understanding of the functioning of FFP. Hence, this blog offers a detailed
analysis of this year’s settlement agreements and compares them with last year’s settlements. More...
On 21 January 2015, the Court of
arbitration for sport (CAS) rendered its award in the latest avatar of the Mutu case, aka THE sports law case that
keeps on giving (this decision might still be appealed to the Swiss Federal
tribunal and a complaint by Mutu is still pending in front of the European
Court of Human Right). The decision was finally published on the CAS website on
Tuesday. Basically, the core question focuses on the interpretation of Article
14. 3 of the FIFA Regulations on the Status and
Transfer of Players in its 2001 version. More precisely, whether, in case of a dismissal of a player
(Mutu) due to a breach of the contract without just cause by the
player, the new club (Juventus and/or Livorno) bears the duty to pay the
compensation due by the player to his former club (Chelsea). Despite winning maybe
the most high profile case in the history of the CAS, Chelsea has been desperately
hunting for its money since the rendering of the award (as far as the US), but
it is a daunting task. Thus, the English football club had the idea to turn
against Mutu’s first employers after his dismissal in 2005, Juventus and
Livorno, with success in front of the FIFA Dispute Resolution Chamber (DRC),
but as we will see the CAS decided otherwise[1]. More...
It took only days for the de facto immunity of the Court of
Arbitration for Sport (CAS) awards from State court interference to collapse
like a house of cards on the grounds
of the public policy exception mandated under Article V(2)(b) of the New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards . On 15 January 2015, the
Munich Court of Appeals signalled an unprecedented turn in the
longstanding legal dispute between the German speed skater, Claudia Pechstein,
and the International Skating Union (ISU). It refused to recognise a CAS
arbitral award, confirming the validity of a doping ban, on the grounds that it
violated a core principle of German cartel law which forms part of the German public
policy. A few weeks before, namely on 30 December 2014, the Court of Appeal of Bremen held a CAS award, which ordered the German Club, SV Wilhelmshaven, to
pay ‘training compensation’, unenforceable for non-compliance with mandatory
European Union law and, thereby, for violation of German ordre public. More...