Editor's note: Daniela Heerdt is a PhD candidate at Tilburg
Law School in the Netherlands and works as Research Officer for the Centre for Sports and
Human Rights. 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 an article in the International Sports Law Journal that discusses to what extent the revised bidding and hosting
regulations by FIFA, the IOC and UEFA strengthen access to remedy for
mega-sporting events-related human rights violations.
On November
26th, the Human Rights Advisory Board[1]
of the Fédération Internationale de Football Association (FIFA) published its second report. This blog provides a summary and brief
evaluation of the report, by drawing a comparison to the previous report issued by the Human Rights Advisory
Board (hereinafter: the Board) based on the content of the recommendations and
FIFA’s efforts to implement the Board’s recommendations. The third part of this
blog briefly reflects on the broader implications of some of the new
recommendations issued for FIFA’s internal policies. The conclusion provides
five more general points of observation on the report. More...
Editor’s note: Sven Demeulemeester and Niels Verborgh
are sports lawyers at the Belgium law firm, Altius.
Introduction
In its
16 November 2018 judgment, the Court of Justice of the
European Free Trade Association States (the EFTA Court) delivered its eagerly
awaited ruling in the case involving Henrik Kristoffersen and the Norwegian Ski
Federation (NSF).
On 17 October
2016, Kristoffersen had taken the NSF to the Oslo District Court over the
latter’s refusal to let the renowned alpine skier enter into a sponsorship with
Red Bull. At stake were the commercial markings on his helmet and headgear in
races organised under the NSF’s umbrella. The NSF refused this sponsorship because
it had already granted the advertising on helmet and headgear to its own main
sponsor, Telenor. Kristoffersen claimed before the Oslo District Court, that the
NSF should be ordered to permit him to enter into an individual marketing
contract with Red Bull. In the alternative, Kristoffersen claimed damages up to
a maximum of NOK 15 million. By a letter of 25
September 2017, the Oslo District Court referred several legal questions to the
EFTA Court in view of shedding light on the compatibility of the rules that the
NSF had invoked with EEA law.
If rules do not relate to the conduct of the
sport itself, but concern sponsorship rights and hence an economic activity,
these rules are subject to EEA law. The EFTA Court ruling is important in that
it sets out the framework for dealing with - ever more frequent - cases in
which an individual athlete’s endorsement deals conflict with the interest of
the national or international sports governing bodies (SGBs) that he or she
represents in international competitions.More...
Season 2 of #FootballLeaks is now underway
since more than a week and already a significant number of episodes (all the articles published can be found on the European Investigative Collaborations’ website) covering various aspect of the (lack of)
transnational regulation of football have been released (a short German documentary sums up pretty much the state of play). For
me, as a legal scholar, this new series of revelations is an exciting
opportunity to discuss in much more detail than usual various questions related
to the operation of the transnational private regulations of football imposed by
FIFA and UEFA (as we already did during the initial football leaks with our series of blogs on TPO in 2015/2016). Much of what
has been unveiled was known or suspected by many, but the scope and precision
of the documents published makes a difference. At last, the general public, as
well as academics, can have certainty about the nature of various shady practices
in the world of football. One key characteristic that explains the lack of
information usually available is that football, like many international sports,
is actually governed by private administrations (formally Swiss associations),
which are not subject to the similar obligations in terms of transparency than
public ones (e.g. access to document rules, systematic publication of decisions,
etc.). In other words, it’s a total black box! The football leaks are offering
a rare sneak peak into that box.
Based on what I have read so far
(this blog was written on Friday 9 November), there are three main aspects I
find worthy of discussion:
- The (lack of) enforcement of UEFA’s
Financial Fair Play (FFP) Regulations
- The European Super League project and
EU competition law
- The
(lack of) separation of powers inside FIFA and UEFA 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. He is also member of
the IVth Division of the High Court of Sport Justice (Collegio di
Garanzia dello sport) at the National Olympic Committee.
1. On the
20th July 2018, the Court of Arbitration for Sport (hereinafter
referred to as “CAS”) issued its decision in the arbitration procedure between AC Milan
and UEFA. The subject matter of this arbitration procedure was
the appeal filed by AC Milan against the decision of the
Adjudicatory Chamber of the UEFA Financial Control Body
dated 19th June 2018 (hereinafter referred to as “the contested
decision”). As many likely know, the CAS has acknowledged that, although AC
Milan was in breach of the break-even requirement, the related exclusion of the
club from the UEFA Europe League was not proportionate. To date, it is the
first time the CAS clearly ruled that the sanction of exclusion from UEFA club
competitions for a breach of the break-even requirement was not proportionate.
For this reason the CAS award represents a good opportunity to reflect on the
proportionality test under Art. 101 TFEU and the relationship between the
landmark ruling of the European Court of Justice (hereinafter referred to as
“ECJ”) in the Meca Medina and Majcen affair and the very recent case-law of the CAS. More...
My favourite speed skater (Full
disclosure: I have a thing for speed skaters bothering the ISU), Claudia
Pechstein, is back in the news! And not from the place I expected. While
all my attention was absorbed by the Bundesverfassungsgericht in Karlsruhe (BVerfG
or German Constitutional Court), I should have looked to the European Court of
Human Rights in Strasbourg (ECtHR). The Pechstein and Mutu joint cases were pending
for a long time (since 2010) and I did not anticipate
that the ECtHR would render its decision before the BVerfG. The decision released last
week (only available in French at this stage) looked at first like a renewed
vindication of the CAS (similar to the Bundesgerichtshof (BGH) ruling
in the Pechstein case), and is being presented
like that by the CAS, but after careful reading of the judgment I believe this is rather
a pyrrhic victory for the status quo
at the CAS. As I will show, this ruling puts to rest an important debate
surrounding CAS arbitration since 20 years: CAS arbitration is (at least in its
much-used appeal format in disciplinary cases) forced arbitration. Furthermore,
stemming from this important acknowledgment is the recognition that CAS proceedings
must comply with Article 6 § 1 of the European Convention of Human
Rights (ECHR), in particular hearings must in principle be held in public and
decisions freely available to all. Finally, I will criticise the Court’s
finding that CAS complies with the requirements of independence and
impartiality imposed by Article 6 § 1 ECHR. I will not rehash the well-known facts of both cases, in order to
focus on the core findings of the decision. More...
Editor's note: Panagiotis
Roumeliotis holds an LL.B. degree from National and Kapodistrian University of
Athens, Greece and an LL.M. degree in European and International Tax Law from
University of Luxembourg. He is qualified lawyer in Greece and is presently
working as tax advisor with KPMG Luxembourg while pursuing, concomitantly, an
LL.M. in International Sports Law at Sheffield Hallam University, England. His
interest lies in the realm of tax and sports law. He may be contacted by e-mail
at ‘p.roumeliotis@hotmail.com’.
Introduction
The landmark Bosman
Ruling triggered
the Europeanization of the labour market for football players by banning
nationality quotas. In turn, in conjunction with the boom in TV revenues, this
led to a flourishing transfer market in which players’ agents or intermediaries
play a pivotal role, despite having a controversial
reputation.
As a preliminary remark, it is important to touch upon the fiduciary
duty of sports agents towards their clients. The
principal-agent relationship implies that the former employs the agent so as to
secure the best employment and/or commercial opportunities. Conversely, the
latter is expected to act in the interest of the player as their relationship should be
predicated on trust and confidence, as much was made
clear in the English
Court of Appeal case of Imageview Management
Ltd v. Kelvin Jack. Notably, agents are bound to exercise the utmost
degree of good faith, honesty and loyalty towards the players.[1]
At the core of this blog
lies a comparative case study
of the implementation of the FIFA Regulations on working with intermediaries (hereinafter “FIFA RWI”) in eight European FAs covering most of the transfers during the mercato. I will then critically analyze
the issues raised by the implementation of the RWI and, as a conclusion, offer
some recommendations. More...
Rumours are swirling around the
decision (available in French here) of the Court of Appeal of Brussels in the
case opposing RFC Seraing United to FIFA (as well as UEFA and the Belgian
Football Federation, URSBFA) over the latter’s ban on third-party ownership.
The headlines in various media are quite dramatic (see here and here), references are made to a new Bosman, or to a shaken sport’s legal system. Yet, after swiftly reading the
decision for the first time on 29th August, I did not have, unlike with the Pechstein
ruling of the Oberlandesgericht München, the immediate impression that this
would be a major game-changer for the Court of Arbitration for Sport (CAS) and
the role of arbitration in sports in general. After careful re-reading, I
understand how certain parts of the ruling can be misunderstood or
over-interpreted. I believe that much of the press coverage failed to accurately
reflect the reasoning of the court and to capture the real impact of the
decision. In order to explain why, I decided to write a short Q&A
(including the (not water-proof) English translations of some of the key
paragraphs of the decision).
More...
Editor’s note: Daniela Heerdt is a PhD candidate 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
recently published an article in
the International Sports Law Journal that discusses to what extent the
revised bidding and hosting regulations by FIFA, the IOC and UEFA strengthen
access to remedy for mega-sporting events-related human rights violations.
The 21st FIFA World Cup is currently
underway. Billions of people around the world follow the matches with much enthusiasm
and support. For the time being, it almost seems forgotten that in the final
weeks leading up to the events, critical reports on human rights issues related to the event piled up. This
blog explains why addressing these issues has to start well in advance of the
first ball being kicked and cannot end when the final match has been played. More...
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...
Editor's note: Prof. Thomas Kruessmann is key expert in the EU Technical Assistant Project "Strengthening Teaching and Research Capacity at ADA University" in Baku (Azerbaijan). At the same time, he is co-ordinator of the Jean-Monnet Network "Developing European Studies in the Caucasus" with Skytte Institute of Political Studies at the University of Tartu (Estonia).
The notion that “fish
rots from the head down” is known to many cultures and serves as a practical
reminder on what is at stake in the current wave of anti-corruption / integrity
and good governance initiatives. The purpose of this blog post is to provide a
short update on the recent founding of the International Partnership against
Corruption in Sport (IPACS), intermittently known as the International Sports
Integrity Partnership (IPAS), and to propose some critical perspectives from a
legal scholar’s point of view.
During the past couple
of years, the sports world has seen a never-ending wave of corruption
allegations, often followed by revelations, incriminations and new allegation.
There are ongoing investigations, most notably in the United States where the
U.S. Department of Justice has just recently intensified its probe
into corruption at the major sports governing bodies (SGBs). By all accounts,
we are witnessing only the tip of the iceberg. And after ten years of debate
and half-hearted reforms, there is the widespread notion, as expressed by the
Council of Europe’s (CoE’s) Parliamentary Assembly (PACE) Resolution
2199/2018 that “the sports movement cannot be left to resolve its failures
alone”. More...