Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

The legality of surety undertakings in relation to minor football players: the Lokilo case. By Adriaan Wijckmans

Editor's note: Adriaan Wijckmans is an associate specialized in sports law at the Belgium law firm Altius.

In a recent judgment, the Brussels Court of First Instance confirmed the legality of a so-called surety undertaking, i.e. an agreement in which the parents of a minor playing football guarantee that their child will sign a professional contract with a football club as soon as the child reaches the legal age of majority.

This long-awaited ruling was hailed, on the one hand, by clubs as a much needed and eagerly anticipated confirmation of a long-standing practice in Belgian football[1] and, on the other hand, criticised by FIFPro, the international player’s trade union, in a scathing press release. More...



Kosovo at the Court of Arbitration for Sport – Constructing Statehood Through Sport? By Ryan Gauthier (Thompson Rivers University)

Editor's Note: Ryan is Assistant Professor at Thompson Rivers University, he defended his PhD at Erasmus University Rotterdam in December 2015. His dissertation examined human rights violations caused by international sporting events, and how international sporting organisations may be held accountable for these violations. 


“Serious sport…is war minus the shooting.” – George Orwell

 

In May 2016, the Union of European Football Associations (UEFA) admitted the Football Federation of Kosovo (Kosovo) as a member. The voting was close, with 28 member federations in favour, 24 opposed, and 2 whose votes were declared invalid. The practical outcome of this decision is that Kosovo would be able participate in the UEFA Euro championship, and that Kosovo teams could qualify for the UEFA Champions’ League or Europa League. More...


International and European Sports Law – Monthly Report – February 2017. By Tomáš Grell

 Editor's note: This report compiles all 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. More...

FIFA's Responsibility for Human Rights Abuses in Qatar – Part II: The Zurich Court's Ruling - By Tomáš Grell

Editor’s note: Tomáš Grell comes from Slovakia and is currently an LL.M. student in Public International Law at Leiden University. He contributes also to the work of the ASSER International Sports Law Centre as a part-time intern.

This is a follow-up contribution to my previous blog on FIFA's responsibility for human rights abuses in Qatar published last week. Whereas the previous part has examined the lawsuit filed with the Commercial Court of the Canton of Zurich ('Court') jointly by the Dutch trade union FNV, the Bangladeshi Free Trade Union Congress, the Bangladesh Building and Wood Workers Federation and the Bangladeshi citizen Nadim Shariful Alam ('Plaintiffs') against FIFA, this second part will focus on the Court's ruling dated 3 January 2017 ('Ruling').[1]  More...



FIFA's Responsibility for Human Rights Abuses in Qatar - Part I: The Claims Against FIFA - By Tomáš Grell

Editor’s note: Tomáš Grell comes from Slovakia and is currently an LL.M. student in Public International Law at Leiden University. He contributes also to the work of the ASSER International Sports Law Centre as a part-time intern.

On 2 December 2010, the FIFA Executive Committee elected Qatar as host of the 2022 FIFA World Cup ('World Cup'), thereby triggering a wave of controversies which underlined, for the most part, the country's modest size, lack of football history, local climate, disproportionate costs or corruption that accompanied the selection procedure. Furthermore, opponents of the decision to award the World Cup to the tiny oil-rich Gulf country also emphasized the country's negative human rights record.

More than six years later, on 3 January 2017, the Commercial Court of the Canton of Zurich ('Court') dismissed the lawsuit filed against FIFA[1] jointly by the Dutch trade union FNV, the Bangladeshi Free Trade Union Congress, the Bangladesh Building and Wood Workers Federation and the Bangladeshi citizen Nadim Shariful Alam ('Plaintiffs').[2] The Plaintiffs requested the Court to find FIFA responsible for alleged human rights violations of migrant workers in connection with the World Cup in Qatar. Had the Plaintiffs' claims been upheld by the Court, such decision would have had far-reaching consequences on the fate of thousands of migrants, mostly from India, Nepal and Bangladesh, who are currently working on the construction of sporting facilities and other infrastructure associated with organization of the World Cup. More...

Doyen vs. Sporting II: The Bitter End of Sporting’s Fight at the Swiss Federal Supreme Court. By Shervine Nafissi

Editor’s Note: Shervine Nafissi (@SNafissi) is a Phd Student in sports law and teaching assistant in corporate law at University of Lausanne (Switzerland), Faculty of Business and Economics (HEC).

 

Introduction

The factual background

The dispute concerns a TPO contract entitled “Economic Rights Participation Agreement” (hereinafter “ERPA”) concluded in 2012 between Sporting Lisbon and the investment fund Doyen Sports. The Argentine player was transferred in 2012 by Spartak Moscow to Sporting Lisbon for a transfer fee of €4 million. Actually, Sporting only paid €1 million of the fee while Doyen Sports financed the remaining €3 million. In return, the investment company became the owner of 75% of the economic rights of the player.[1] Thus, in this specific case, the Portuguese club was interested in recruiting Marcos Rojo but was unable to pay the transfer fee required by Spartak Moscow, so that they required the assistance of Doyen Sports. The latter provided them with the necessary funds to pay part of the transfer fee in exchange of an interest on the economic rights of the player.

Given that the facts and circumstances leading to the dispute, as well as the decision of the CAS, were fully described by Antoine Duval in last week’s blog of Doyen vs. Sporting, this blog will solely focus on the decision of the Swiss Federal Supreme Court (“FSC”) following Sporting’s appeal against the CAS award. As a preliminary point, the role of the FSC in the appeal against CAS awards should be clarified.More...

Doyen vs. Sporting I: Doyen’s Pyrrhic Victory at the CAS

At the end of December 2015, the CAS decided on a very public contractual dispute between Sporting Clube de Portugal Futebol SAD (Sporting) and Doyen Sports Investments Limited (Doyen). The club was claiming that Doyen’s Economic Rights Participation Agreement (ERPA) was invalid and refused to pay Doyen’s due share on the transfer of Marcos Rojo to Manchester United. The dispute made a lot of noise (see the excellent coverage by Tariq Panja from Bloomberg here, here and here) as it was the first TPO case heard by the CAS after FIFA’s ban. Yet, and it has to be clear from the outset, the case does not affect the legality of FIFA’s TPO ban; it concerned only the compatibility of Doyen’s ERPA with Swiss civil law. The hearing took place in June 2015, but the case was put under a new light by the football leaks revelations unveiled at the end of 2015 (see our blog from December 2015). Despite these revelations, the CAS award favoured Doyen, and was luckily for us quickly made available on the old football leaks website. This blog will provide a commentary of the CAS decision. It will be followed in the coming days by a commentary by Shervine Nafissi on the judgment, on appeal, by the Swiss Federal Tribunal. More...

UEFA’s Financial Fair Play Regulations and the Rise of Football’s 1%

On 12 January 2017 UEFA published its eighth club licensing benchmarking report on European football, concerning the financial year of 2015. In the press release that accompanied the report, UEFA proudly announced that Financial Fair Play (FFP) has had a huge positive impact on European football, creating a more stable financial environment. Important findings included a rise of aggregate operating profits of €1.5bn in the last two years, compared to losses of €700m in the two years immediately prior to the introduction of Financial Fair Play.



Source: UEFA’s eighth club licensing benchmarking report on European football, slide 107.


 Meanwhile the aggregate losses dropped by 81% from €1.7bn in 2011 to just over €300m in 2015.More...




International and European Sports Law – Monthly Report – January 2017. By Saverio Spera.

Editor’s note: This report compiles all 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 Diarra ruling of the Tribunal of Charleroi

On 19 January 2017, the Hainaut Commercial Tribunal – Charleroi rendered its decision on the lawsuit filed by the football player Lassana Diarra against FIFA and the Belgian FA (URBSFA) for damages caused by not being able to exercise the status of a professional football player during the entire 2014/2015 season. The lawsuit is linked to the decision, rendered by the FIFA Dispute Resolution Chamber (DRC) on April 2015, to support Lokomotiv’s decision to terminate the player’s contract and to order Diarra to pay Lokomotiv the amount of EUR 10,500,000 for having breached his contract. According to the plaintiff, Diarra’s opportunity to be recruited by Sporting Charleroi was denied due to the club being potentially considered jointly liable for Diarra’s compensation pursuant to Article 17 (2) RSTP. The Belgian court held strongly that “when the contract is terminated by the club, the player must have the possibility to sign a new contract with a new employer, without restrictions to his free movement”. This case highlighted, once again, the need to read the RSTP in the light of EU law. Moreover, the decision is laying further ground for broader challenges to the RSTP on the basis of EU law (for a deeper insight into the Diarra ruling, see the recent blog written by our senior researcher Antoine Duval) More...


Asser International Sports Law Blog | A New Chapter for EU Sports Law and European Citizenship Rights? The TopFit Decision - By Thomas Terraz

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

A New Chapter for EU Sports Law and European Citizenship Rights? The TopFit Decision - By Thomas Terraz

Editor’s note: Thomas Terraz is a third year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.

 

1.     Introduction

Christmas has come very early this year for the EU sports law world in the form of the Court of Justice of the European Union’s (CJEU) judgment in TopFit eV, Daniele Biffi v Deutscher Leichtathletikverband eV by exclusively analyzing the case on the basis of European citizenship rights and its application to rules of sports governing bodies that limit their exercise. The case concerned an Italian national, Daniele Biffi, who has been residing in Germany for over 15 years and participates in athletic competitions in the senior category, including the German national championships. In 2016, the Deutscher Leichtathletikverband (DLV), the German Athletics Federation, decided to omit a paragraph in its rules that allowed the participation of EU nationals in national championships on the same footing as German citizens. As a result, participation in the national championship was subject to prior authorization of the organizers of the event, and even if participation was granted, the athlete may only compete outside of classification and may not participate in the final heat of the competition. After having been required to compete out of classification for one national championship and even dismissed from participating in another, Mr. Biffi and TopFit, his athletics club based in Berlin, brought proceedings to a German national court. The national court submitted a request for a preliminary ruling to the CJEU in which it asked essentially whether the rules of the DLV, which may preclude or at least require a non-national to compete outside classification and the final heat, are contrary to Articles 18, 21 and 165 TFEU. Articles 18 and 21 TFEU, read together, preclude discrimination on the basis of nationality against European citizens exercising their free movement. The underlying (massive) question here is whether these provisions can be relied on by an amateur athlete against a private body, the DLV.

Covered in a previous blog, the Advocate General’s (AG) opinion addressed the case from an entirely different angle. Instead of tackling the potentially sensitive questions attached with interpreting the scope of European citizenship rights, the opinion focused on the application of the freedom of establishment because the AG found that participation in the national championships was sufficiently connected to the fact Mr. Biffi was a professional trainer who advertised his achievements in those competitions on his website. Thus, according to the AG, there was a sufficient economic factor to review the case under a market freedom. The CJEU, in its decision, sidelined this approach and took the application of European citizenship rights head on.

The following will dissect the Court’s decision by examining the three central legal moves of the ruling: the general applicability of EU law to amateur sport, the horizontal applicability of European citizenship rights, and justifications and proportionality requirements of access restrictions to national competitions.

 

2.     Applicability of EU Law to Amateur Sport

The CJEU has long made the distinction that sporting activity falls under the scope of EU law “in so far as it constitutes an economic activity.”[1]  Since this ruling in the 1974, treaty revisions, the natural development of the CJEU’s case law, and the increasing economic interests involved in sport has meant that defining the boundaries of EU law’s application to sport has become increasingly difficult. These borderline cases can especially arise when an amateur athlete is barred from a competition, since amateur athletes prima facie do not have an economic interest. For example, the CJEU in the Deliège case explored the extent to which amateur athletes may enjoy market freedoms. The Court ruled that amateur athletes may come within the scope of EU law when the exercise of their sporting activity is sufficiently connected to an economic sphere. In this case, an amateur athlete’s sponsorship contracts and grants were considered to be sufficient economic activity to fall within the scope of the freedom to provide services.[2] Amateur athletes in this case still needed to demonstrate that they had a minimum economic interest that was being affected by a sport rule. Sporting rules lacking economic effect would thus fall outside the scope of the market freedoms.

The TopFit ruling changes this understanding because Mr. Biffi is an amateur athlete and instead of invoking the market freedoms, he decided to rely on his European citizenship rights. These rights derive from being a citizen of the Union and do not require the exercise of an economic activity to be applicable. Indeed, Article 21 TFEU gives the free movement of persons a whole new dimension where an economic interest is no longer a prerequisite to fall under the aegis of the fundamental freedoms.[3] The CJEU confirmed this reality in Baumbast when it declared that the introduction of Union citizenship “has conferred a right, for every citizen, to move and reside freely within the territory of the Member States” regardless of their status as economically active or nonactive.[4] Thus, the Court in TopFit states, in reference to other cases, that one’s exercise of their free movement under their European citizenship, includes the “access to leisure activities” and that Article 21 (1) TFEU also intends “to promote the gradual integration of the EU citizen concerned in the society of the host Member State.”[5] It then extends this reasoning to sport by relying on Article 165 TFEU, the Article which explicitly introduced sport into the Treaties, which “reflects the considerable social importance of sport” and that the practice of an amateur sport helps “to create bonds with the society of the State” or “to consolidate them.”[6] The Court goes even further to unequivocally state that this is the “case with regard to participation in sporting competitions at all levels.”[7] On this basis, it is possible for amateur sportspersons to rely on Article 18 and 21 TFEU.[8] Therefore, the Court has confirmed that EU law, through rights derived from European citizenship, may apply to restrictions of free movement that arise from ‘all levels’ of amateur sport, basically extending the reach of EU law applicability to all types of sports activity on the territory of the EU, provided by public authorities or (as we will see in the next section) by private ones.  

 

3.     Horizontal Applicability of European Citizenship Rights

The next issue that materializes from the ability of amateur sports persons to rely on European citizenship rights is whether these rights may be invoked against private entities, the sport governing bodies. Indeed, sports throughout the European Union is primarily governed by a network of private associations integrated in the famous pyramid of sports. Treaty articles may be relied upon horizontally, meaning against other private parties, by individuals so long as the relevant article is “sufficiently clear, precise and unconditional to be invoked by individuals.”[9] AG Tanchev rightly argued in his opinion that giving Article 21 TFEU horizontal direct effect would be a “significant constitutional step” by being the “first time this century that a provision of the Treaty has been selected to join the small number of provisions having the quality of horizontal direct effect.”[10] In particular, the AG explains that Article 21 TFEU has always been used in relation to disputes arising between an individual and the State and giving horizontal direct effect to Article 21 TFEU could damage legal certainty.[11] 

Regardless, the Court in TopFit was not dissuaded and decided to allow Mr. Biffi to rely on Articles 18 and 21 TFEU against the DLV, a private entity. It explains that the fundamental objectives of the European Union “would be compromised if the abolition of barriers of national origin could be neutralised by obstacles” emanating from private entities.[12] The Court then goes on to elaborate that this principle applies “where a group or organisation exercises a certain power over individuals and is in a position to impose on them conditions which adversely affect the exercise of the fundamental freedoms.”[13] Such an interpretation of the horizontal direct effect of Article 21 TFEU is in line with the ‘relatively’ limited horizontal direct effect already described by De Mol for Article 18 TFEU that “concerns private relations in which one party is weaker than the other party.”[14] Thus, in order for one to invoke Article 21 TFEU horizontally, it is necessary to scrutinize the nature of the relationship and power (im)balance between the parties. The more asymmetrical the relationship, the more likely Article 21 TFEU may be relied on horizontally. On the whole, TopFit confirms that not only may Article 21 TFEU have horizontal direct effect but that perhaps this horizontal effect is not completely unlimited, although it is questionable what the practical consequences of this distinction actually entails.

In the sporting context, however, the message is clear: non-economic sporting activity, such as amateur level sports with zero economic benefits derived from it, falls under the scope of EU law and Article 21 TFEU may be invoked by EU citizens against the private associations which are more often than not ruling sports at a local, regional and national level in the Member States. In short, all (economic and non-economic) sports activity is now subjected to the control of EU law (in particular with regard to anti-discrimination).


4.     Justifications and Proportionality of Access Restrictions to National Competitions

After having found that Mr. Biffi may rely on his European citizenship rights against the DLV, the Court quite readily finds that there has been a restriction to this right. It asserts that the DLV’s rules could result in non-German athletes receiving less investment from their clubs since they may not participate in the national championships in the same manner as German athletes. Consequently, “athletes of other Member States would be less able to integrate themselves” in their club and the wider society of the Member State, and the effects of this “are likely to make amateur sport less attractive for EU citizens.”[15] However, a restriction on a fundamental freedom may be justified if it pursues a legitimate objective and meets the proportionality requirements. The Court goes on to entertain several justifications put forward by the DLV and firmly rejects each as an illegitimate objective. These rejected justifications include: “the argument that the public expects that the national champion of a country will have the nationality of that country”; that the national champion is used to represent his country in the international championship (it was clear that this was not the case for those competing in the senior category); and a “need to adopt the same rules for all age categories” (since it was obvious the DLV had adopted different rules in regards to national selection depending on the age category).[16] In the end, the Court only accepts one justification concerning preventing the participation of non-nationals in the final heat specifically due to the nature of eliminatory heats in some sports. It recognizes that the participation of a non-national may prevent a national from “winning the championship and of hindering the designation of the best nationals.”[17]

Having found a legitimate justification, the Court moves on to considerations of proportionality and reasons that “non-admission of non-nationals to the final must no go beyond what is necessary”, and it recalls the fact that the exclusion of non-nationals is only recent.[18] In other words, the Court essentially finds it rather strange that a sudden rule change became necessary to prevent the participation of non-nationals in the finals and, in light of this, finds the means to be unnecessary and generally disproportionate to the aim sought.

Next, it also recalls that participation of non-nationals was also subject to the authorization of the organizers and had resulted in Mr. Biffi’s complete exclusion in one competition. The Court explains that such an authorization scheme must “be based on objective and non-discriminatory criteria which are known in advance” to be justified. In regard to proportionality, it finds that “total non-admission” of a non-national athlete to the national championship in this circumstance to be disproportionate because due to the DLV’s own admission, there were ways for athletes to compete in the competition, either in the preliminary heats and/or outside classification. None of the DLV’s justifications were able to survive the proportionality requirements.

However, this does not mean that there could never be a legitimate justification that can meet the proportionality requirements. Interestingly, before it examined any of the DLV’s submitted justifications, the Court essentially gave a hint to sport governing bodies wishing to introduce nationality restrictions to the organization of their national competitions. It states that it is legitimate to limit the award of the national title to a national of the relevant Member State because the nationality requirement is an essential feature of holding the title.[19] Thus, it seems the Court would readily accept a restriction to the ability of non-national athletes to actually win the title.


5.     Conclusion

The CJEU took full advantage of the case before it by demonstrating how a lack of an economic interest does not give sport governing bodies full reign to prevent amateur athletes seeking to further integrate themselves in their host Member State’s society through amateur sport. It also signals the Court’s willingness to observe and take into consideration the specific characteristics of the sport and competition structure in question. Additionally, TopFit has opened exciting new judicial avenues for the exercise and enforcement of European citizenship rights against powerful private entities. In particular, sport governing bodies should pay close attention to the TopFit ruling because it further illustrates how they may exercise their regulatory autonomy provided they follow the analytical framework imposed by the CJEU in its control of discriminatory restrictions to market freedoms and European citizenship rights.


[1] Case 36-74 B.N.O. Walrave and L.J.N. Koch v Association Union cycliste internationale, Koninklijke Nederlandsche Wielren Unie and Federación Española Ciclismo [1974] ECR 1974 –01405 para 4.

[2] Joined Cases C-51/96 and C-191/97 Christelle Deliège v Ligue francophone de judo et disciplines associées ASBL, Ligue belge de judo ASBL, Union européenne de judo [2000] ECR I-02549 para 51.

[3] See Section III, Ferdinand Wollenschlager, ‘A New Fundamental Freedom beyond Market Integration: Union Citizenship and its Dynamics for Shifting the Economic Paradigm of European Integration’ [2011] European Law Journal 1.

[4] Case C-413/99 Baumbast and R v Secretary of State for the Home Department [2002] ECR I-08091 para 81 and 83.

[5] Case C-22/18 TopFit e.V. Daniele Biffi v Deutscher Leichtathletikverband e.V. [2019] ECLI:EU:C:2019:497 para 31-32.

[6] ibid para 33-34.

[7] ibid para 34.

[8] ibid para 35.

[9] Case C-438-05 International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti [2007] ECR I-10779 para 66; see also Paul Craig and Gráinne de Búrca, EU Law: Text, Cases, and Materials (6th edn, OUP 2015) 192.

[10] Case C-22/18 TopFit e.V. Daniele Biffi v Deutscher Leichtathletikverband e.V. [2019] ECLI:EU:C:2019:181, Opinion of AG Tanchev, para 56 and 100.

[11] ibid para 101 and 103.

[12] TopFit (n 5) para 38.

[13] ibid para 39.

[14] Mirjam de Mol, ‘The Novel Approach of the CJEU on the Horizontal Direct Effect of the EU Principle of Non-Discrimination: (Unbridled) Expansionism of EU law?’ [2011] Maastricht Journal of European and Comparative Law 109.

[15] TopFit (n 5) para 46-47.

[16] ibid para 54 and 56-57.

[17] ibid para 61.

[18] ibid para 62

[19] ibid para 50.

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