Introduction 

The first part of this two-part blog on multi-club ownership in European football outlined the circumstances leading to the adoption of the initial rule(s) aimed at ensuring the integrity of the UEFA club competitions (Original Rule) and retraced the early existence of such rule(s), focusing primarily on the complaints brought before the Court of Arbitration for Sport and the European Commission by the English company ENIC plc. This second part will, in turn, introduce the relevant rule as it is currently enshrined in Article 5 of the UCL Regulations 2015-18 Cycle, 2017/18 Season (Current Rule). It will then explore how the UEFA Club Financial Control Body (CFCB) interpreted and applied the Current Rule in the Red Bull case, before drawing some concluding remarks. 

The Red Bull case: The concept of decisive influence

Background 

The company Red Bull GmbH (Red Bull) started building its football empire[1] in 2005 by transforming the Austrian club SV Wüstenrot Salzburg[2] into what would henceforth be known as FC Red Bull Salzburg (RB Salzburg). As regards its legal form, RB Salzburg is currently a limited liability company (GmbH) wholly owned by the association FC Red Bull Salzburg e.V. Until 2015, when the club began a disengagement process from Red Bull, the statutes of FC Red Bull Salzburg e.V. conferred on Red Bull the right to appoint and remove the members of the association's board.

In 2009, with the objective of playing the top-flight Bundesliga within a decade, Red Bull invested in the German club SSV Markranstädt, at that time competing in the fifth tier of German football. The club was subsequently rechristened as RasenBallsport[3] Leipzig (RB Leipzig) and rebranded. Although RB Leipzig thrived on the pitch, it attracted much criticism off the pitch for attempting to circumvent the so-called '50+1 rule', according to which German football clubs may not allow investors to acquire a majority of their voting rights.

Since Red Bull's takeover of RB Leipzig in 2009, the two clubs have maintained a close cooperation involving an increased transfer activity which has seen players moving from one club to the other on a regular basis. With the help of players like Naby Keïta, who moved from RB Salzburg to RB Leipzig in the summer of 2016, the German club finished second in the 2016/17 Bundesliga season, its first-ever in the top flight, and qualified for the 2017/18 UCL group stage. RB Salzburg, for their part, added in the 2016/17 campaign another domestic title to their collection and secured a spot in the 2017/18 UCL second qualifying round.

The Current Rule  

As mentioned above, the Current Rule is encapsulated in Article 5 of the UCL Regulations 2015-18 Cycle, 2017/18 Season (UCL Regulations). It preserves the structure of the Original Rule, making admission to the UEFA club competitions conditional upon fulfilment of three specific criteria. In terms of substance, however, the Current Rule differs in two important aspects. First, unlike the Original Rule which outlawed ownership, personal and other links only between clubs participating in the same UEFA club competition, the Current Rule extends this prohibition to clubs participating both in the UCL and the UEFA Europe League. Second, an individual or legal entity is now deemed to have control over a club not only if he/she/it (i) holds a majority of the shareholders' voting rights; (ii) is authorized to appoint or remove a majority of the members of the administrative, management or supervisory body; or (iii) is a shareholder and single-handedly controls a majority of the shareholders' voting rights, but also if he/she/it (iv) is able to exercise by any means a decisive influence in the decision-making of the club.[4] The purpose of this latter change is to address situations where an individual or legal entity falls short of having de jure control over a club, but nevertheless remains able to exercise such an influence that may, if exercised in more than one club, jeopardize the integrity of the UEFA club competitions. As will be discussed in the next section, the concept of decisive influence played a pivotal role in the Red Bull case.

Furthermore, the club coefficient no longer serves as a principal criterion in determining which of the two or more commonly owned clubs should participate in a UEFA club competition. Under the Current Rule, the club which qualifies on sporting merit for the more prestigious UEFA club competition is to be favoured.[5] If two or more commonly owned clubs qualify for the same UEFA club competition, then the club which was best-ranked in its domestic championship should be admitted.[6]

Proceedings before the CFCB

On 15 May 2017, soon after RB Salzburg and RB Leipzig had both secured their place in the 2017/18 UCL, the UEFA General Secretary dispatched a letter to the CFCB, expressing his concern that the clubs might not fulfil the criteria enshrined in the Current Rule. The subsequent investigation conducted by the CFCB Investigatory Chamber relied to a great extent on compliance reports prepared by independent auditors. On 26 May 2017, the CFCB Chief Investigator referred the case to the CFCB Adjudicatory Chamber, concluding that the clubs had failed to satisfy the criteria set out in the Current Rule and, as a result, only RB Salzburg should be admitted to the 2017/18 UCL.[7] In particular, the CFCB Chief Investigator suggested that Red Bull exercised decisive influence in the decision-making of both RB Salzburg and RB Leipzig, and identified several ways in which this influence manifested itself. For instance, the CFCB Chief Investigator drew attention to the presence of certain individuals allegedly linked to Red Bull in the decision-making bodies of both clubs or an unusually high level of income received by the clubs from Red Bull via sponsorship agreements.[8]

In its decision handed down on 16 June 2017, the CFCB Adjudicatory Chamber paid attention mainly to the changes made by RB Salzburg as part of the club's disengagement process from Red Bull. As noted above, Red Bull ceased to have the right to appoint and remove the board members of FC Red Bull Salzburg e.V. in 2015, when the association's statutes were amended accordingly. With this in mind, the CFCB Adjudicatory Chamber had to examine whether Red Bull was not able to exercise decisive influence in the decision-making of RB Salzburg (and RB Leipzig) by any other means.

The CFCB Adjudicatory Chamber was confronted with an onerous task, in particular because the UCL Regulations do not specify when an individual or legal entity is deemed to have decisive influence in the decision-making of a club. Nor do these regulations clarify how such a level of influence could be attained. Having examined the wording and purpose of the Current Rule, the CFCB Adjudicatory Chamber asserted that ''the benchmark for establishing decisive influence is a high one'',[9] finding support for its conclusion in the EU Merger Regulation.[10] For the avoidance of doubt, the Chamber further noted that the concept of decisive influence is not to be confused with that of significant influence which features in the UEFA Club Licensing and Financial Fair Play Regulations, Edition 2015.[11]

In determining whether Red Bull was indeed capable of exercising decisive influence in the decision-making of both clubs, the CFCB Adjudicatory Chamber observed from the aforementioned compliance reports that RB Salzburg had removed certain individuals allegedly linked to Red Bull from the club's decision-making bodies and terminated certain loan agreements entered into with the beverage company.[12] With the aim of refuting the CFCB Chief Investigator's allegations, RB Salzburg presented additional documentary evidence. According to the CFCB Adjudicatory Chamber, it followed from such evidence, inter alia, that Red Bull had reduced the amount of sponsorship money paid to the Austrian club or that a cooperation agreement between the two clubs had been terminated.[13] This evidence alleviated the CFCB Chief Investigator's concerns to such an extent that he eventually decided to withdraw his objection to the admission of RB Salzburg and RB Leipzig to the 2017/18 UCL.[14] Consequently, the CFCB Adjudicatory Chamber held that, at the time of its decision, Red Bull's relationship with RB Salzburg resembled ''only a standard sponsorship relationship''.[15] Having concluded that Red Bull did not have decisive influence in the decision-making of RB Salzburg, there was no need for the Chamber to consider Red Bull's relationship with RB Leipzig.[16]

Furthermore, the CFCB Adjudicatory Chamber verified whether one of the clubs did not exercise decisive influence over the other. In this regard, the Chamber referred to the cooperation agreement and the increased transfer activity between the clubs. Nonetheless, the Chamber eventually stated that there was insufficient evidence to arrive at the conclusion that RB Salzburg exercised decisive influence over RB Leipzig or vice versa.[17]

Further implications and concluding remarks

Rules aimed at ensuring the integrity of club competitions also exist at the national level. In England, the Rules of the Premier League stipulate, inter alia, that a person[18] – be it either natural person, legal entity, firm or unincorporated association – may not (i) be involved in or have any power to determine or influence the management or administration of more than one club participating either in the Premier League or the English Football League;[19] and (ii) hold or acquire any significant interest in more than one club participating in the Premier League. A person is deemed to have acquired significant interest in a club if he/she/it holds 10 per cent or more of the shareholders' voting rights.[20] In Spain, an individual or legal entity may not hold 5 per cent or more of the shareholders' voting rights in more than one club participating in a professional competition at the state level.[21]

It follows that both in England and Spain, the pertinent regulations set a relatively low threshold of the shareholders' voting rights that an individual or legal entity may not exceed in more than one club participating in the same domestic club competition. Moving back to UEFA, the Current Rule sets the relevant threshold at 50 per cent (majority of the shareholders' voting rights), but complements it with the 'catch-all' notion of decisive influence.

I believe that the CFCB Adjudicatory Chamber may have missed a golden opportunity in the Red Bull case to clarify further the rather vague concept of decisive influence. Unfortunately, the Chamber limited itself to stating that ''the benchmark for establishing decisive influence is a high one'',[22] without providing any concrete examples of how such a level of influence could be attained or manifested in practice.[23] The concept of decisive influence therefore remains shrouded in legal uncertainty. Moreover, in order to avoid speculations, the Chamber could have provided more details about the changes made by RB Salzburg. For instance, it could have specified which individuals allegedly linked to Red Bull were removed from the club's decision-making bodies or how the amount of sponsorship money paid to the club was reduced. Such details become particularly important if the concept of decisive influence plays a central role, because in this context the general public will not be able to access most of the relevant information via commercial registers. In contrast, this will not be the case with legal systems in England or Spain which employ a threshold of the shareholders' voting rights as a key criterion. Thus, if UEFA fails to provide such details (subject to confidentiality rules) in its decisions, its credibility might suffer.

Despite the fact that this post has identified certain flaws of the concept of decisive influence, I do not believe that a modification of the Current Rule should be a matter of urgency. As suggested above, a well-reasoned decision may foster UEFA's credibility and help reduce the legal uncertainty emanating from the concept of decisive influence. Bearing in mind the recent revitalization of multi-club ownership in European football, UEFA might soon get another opportunity to deliver such decision.

[1]   It should be noted that in addition to FC Red Bull Salzburg and RasenBallsport Leipzig, Red Bull also owns the U.S. club New York Red Bulls and the Brazilian club Red Bull Brasil.

[2]   It was often referred to as SV Austria Salzburg, a name that was given to the club at its foundation in 1933.

[3]   In fact, due to the rules prohibiting clubs to be named after their sponsors, the abbreviation 'RB' does not officially stand for Red Bull, but rather for RasenBallsport which can be roughly translated as 'lawn ball sports'.

[4]   UCL Regulations, Article 5.01(c).

[5]   Ibid. Article 5.02(a).

[6]   Ibid. Article 5.02(b).

[7]   As the Austrian club finished first in its domestic championship (whilst RB Leipzig finished second).

[8]   CFCB Adjudicatory Chamber AC-01/2017 RasenBallsport Leipzig GmbH and FC Red Bull Salzburg GmbH, Decision of 16 June 2017, para. 11.

[9]   Ibid. para. 41.

[10] Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings, Article 3(2). See also Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings.

[11] CFCB Adjudicatory Chamber decision (n 8) para. 40.

[12] Ibid. para. 50.

[13] Ibid. para. 51.        

[14] Ibid. para. 52.

[15] Ibid. para. 55.

[16] Ibid. para. 57.

[17] Ibid. para. 58.

[18] Rules of the Premier League to be found in the Premier League Handbook, Season 2017/18, Rule A.1.122.

[19] Ibid. Rule F.1.2. This provision in essence corresponds to Article 5.01(b) of the UCL Regulations.

[20] Rules of the Premier League, Rule F.1.3.

[21] Royal Decree No 1251/1999 on Sports Limited Liability Companies, Article 17(1) and (2). Professional football competitions at the state level include only La Liga and Segunda División A.

[22] See CFCB Adjudicatory Chamber decision (n 8) para. 41.

[23] Such examples could only be inferred from the changes made by RB Salzburg.

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.

The footballleaks group leaked two types of documents: documents related to the internal structure of Doyen and documents related to the various deals (involving mainly Portuguese and Spanish clubs and FC Twente) signed by Doyen. Regarding Doyen Sports itself as a company, the documents provide a good overview of its functioning and shareholder structure. The company based in Malta was registered in May 2011 and is controlled by two main shareholders, Refik Arif and Malik Ali. The aims of the company, based on its Memorandum and Articles of Association (point 1.1), include:

1.    Acquisition and sale of representation rights of football players, coaches and managers and representation of football players, coaches and managers in all aspects of their football career, including associated off-field and commercial activities (including, where necessary, through licensed agents);

2.     Acquisition and sale of football players and/or the economical rights of football players;

3.     Making an offer to the player for his player registration documentation, a part thereof or some other offer to the player and/or football clubs;

4.     Transferring football players, coaches and managers between different football clubs;

5.     Representing football clubs;

6.     Having a benefit or take an active role in the day-to-day running of football clubs, subject to complying with the FIFA Regulations and other relevant national or international regulations;

7.     Granting loans to football clubs; and

8.     Carry out such activities as may be ancillary to the above or as may be necessary or desirable to achieve the above objects without territorial restriction anywhere in the world. 

Thus, Doyen’s business model blends different types of activities: investment and loans to clubs (broadly speaking the TPO side of Doyen’s activities) and the representation of players/coaches (the agent side of Doyen’s activities). We will not investigate further the internal structure of Doyen or its shareholders; such enquiries are better left to investigative journalists.

We, for our part, are going to focus on the contracts signed by Doyen with two clubs: FC Twente (Twente) and Sporting Club Portugal (Sporting). This analytical and descriptive exercise will feed into an evaluation of the compatibility of FIFA’s TPO ban with EU law. While it is difficult to know who precisely is responsible for footballleaks (maybe the ideal of transparency should also apply to the group), one thing is sure: the group seems to have a keen interest in the activities of Sporting (and Portuguese clubs in general). The emergence of this website targeting in priority Doyen might be linked to the on-going dispute between Doyen and Sporting about the TPO agreement signed over the transfer of the player Marcos Rojo. The dispute has been heard in September by the CAS, which will render its award on the matter in the coming month(s). In any case, the documents released until now by footballleaks enable us to draw a detailed profile of the TPO deals struck by Doyen with Twente and Sporting. The deal between Doyen and Twente, and its legal ramifications, will be the subject of a first blog early next week. We will map the network of obligations to which Twente accepted to be subjected in return for Doyen’s capital injection in the club. The case stirred a public controversy in the Netherlands and already led to the departure of Twente’s President. The second blog will focus on Sporting and more precisely on the “Rojo” TPO-deal with Doyen and its legal implications. Based on these empirical studies of the structure and implementation of the TPO agreements struck by Doyen, we will revisit the crucial pending question of the compatibility of FIFA’s TPO ban with EU competition law.

Introduction: FIFA’s TPO ban and its compatibility with EU competition law.
Day 1: FIFA must regulate TPO, not ban it.
Day 2: Third-party entitlement to shares of transfer fees: problems and solutions
Day 3: The Impact of the TPO Ban on South American Football.
Day 5: Why FIFA's TPO ban is justified.

Editor's note: In this fourth part of our blog symposium on FIFA's TPO ban Daniel Geey shares his 'UK perspective' on the ban. The English Premier League being one of the first leagues to have outlawed TPO in 2010, Daniel will outline the regulatory steps taken to do so and critically assess them. Daniel is an associate in Field Fisher Waterhouse LLP's Competition and EU Regulatory Law Group. As well as being a famous 'football law' twitterer, he has also published numerous articles and blogs on the subject.

What is Third Party Investment?
In brief Third Party Investment (TPI) in the football industry, is where a football club does not own, or is not entitled to, 100% of the future transfer value of a player that is registered to play for that team. There are numerous models for third party player agreements but the basic premise is that companies, businesses and/or individuals provide football clubs or players with money in return for owning a percentage of a player’s future transfer value. This transfer value is also commonly referred to as a player’s economic rights. There are instances where entities will act as speculators by purchasing a percentage share in a player directly from a club in return for a lump sum that the club can then use as it wishes.

Why did the Premier League ban the practice?
The Premier League, Football League, Football Association, the Polish and French leagues have all brought in TPI bans. The original ban in the Premier League came as a result of the Tévez affair where a third party owner had the contractual right to force West Ham to sell the player if a suitable bid was received. This was against the 'material influence' regulations that were in place at the time. Previously, there was no express clause prohibiting TPI; only the act of influencing a club’s policies or performance was forbidden. Tévez’s third party contract contained a clause giving exclusive power to the third party owners, MSI and Just Sports, to facilitate the transfer of the player. West Ham did not have a veto over this right and such a stipulation breached the above Premier League rule as it meant that outside parties had material influence over the decision making of West Ham.
A common misconception throughout and after the Tévez case was that any third party player owner would have been in breach of the Premier League rules. This was not the case. It was the clause giving the owners of Tévez influence over West Ham which incurred the Premier League’s wrath (plus the non-disclosure of the agreement itself). It was for this reason that West Ham was judged to have breached the old Premier League rule Rule U18 and fined £5.5 million by the Premier League.
Subsequently, the Premier League significantly strengthened its regulations to prohibit any type of TPI. Other leagues followed as a result. The Premier League decided that from the beginning of the 2008/9 season an absolute ban on TPI was required. A spokesman stated:
“The clubs decided that third-party ownership was something they did not want to see. It raises too many issues over the integrity of competition, the development of young players and the potential impact on the football pyramid. It was felt the Premier League was in a position to take a stand on this. No one wants to see what has happened to club football in South America repeated over here”.

There are also Football League and Football Association rules prohibiting TPI but the below analysis takes the Premier League rules by way of example. Current Premier League Rules U39-40 (which at the time were rules L34-35) govern the actual prohibition and buy-out mechanism.
Premier League Rule U39 is the exemption rule which covers scenarios where clubs are allowed to receive money or incur a liability, for example, for the player registration or transfer of a player registration. Such instances include payments or receipts of transfer fees, loan fees and sell-on fees, payments for image rights contracts, payments for agency/intermediary work and payment of training compensation and solidarity contributions as set out in the FIFA regulations.
Premier League rule U40 is the mechanism to enable a third party owned player to transfer to a Premier League club. This can occur so long as the Premier League club purchases the third party’s economic interest in the player. It states:
"In respect of a player whom it applies to register as a Contract Player, a Club is permitted to make a payment to buy out the interest of a person or entity who, not being a Club or club, nevertheless has an agreement either with the club with which the player is registered, or with the player, granting it the right to receive money from a new Club or club for which that player becomes registered. Any such payment which is not dependent on the happening of a contingent event may be made either in one lump sum or in instalments provided that all such instalments are paid on or before the expiry date of the initial contract between the Club and the player. Any such payment which is payable upon the happening of a contingent event shall be payable within 7 days of the happening of that event".
This ensures that any future transfer sums, should the player be subsequently sold, would be kept by the selling Premier League club and eliminates any third party element to any future sale transaction. Interestingly, the Premier League club who 'buys-out' the third party interest may still be paying the third party investor through installments during the period that the player is playing for his new Premier League club. Whilst the player is owned by the club and no third party interest is possible, there is still the eventuality that a club could default on the installment plan and then the third party investor could sue based on the buy-out obligations in the contract. It would be unlikely yet is unclear from the regulations whether the investment stake could be transferred back to third party investor if default occurred or what other alternative recourse that an investor may have.
Nonetheless, any player registered to play in the Premier League cannot be third party owned by a TPI company. It means that the buying Premier League club has to satisfy the football authorities that all other economic interests have been extinguished. This occurred over the summer when TPI players Markovic and Mangala were transferred to Liverpool and Manchester City respectively. Premier League clubs undertake to the football authorities that it is the only entity that owns the player’s economic rights and only then can the transfer can be completed. It is likely that Falcao had a TPI contract whilst he was at Porto but as the French league also prohibits TPI, when Monaco bought him, there may well have been a requirement in place to extinguish any third party rights. As such, when he was then loaned to Manchester United this summer, his TPI rights would certainly have been extinguished to ensure there were no major complications with his Premier League registration.

Why is it such a problem?
As the Premier League spokesman explained above, their major concerns related to integrity, youth player development and money flowing out of the game. An internal FIFA report recently concluded that TPI trapped clubs in a “vicious cycle of debt and dependence” and “posed risks to players and to the integrity of the game”.
The main concerns about TPI include:
1. Conflicts of interests can potentially occur between investors, club owners, agents and coaches. For example, what if the owner of Club A also owns an economic stake in Player B playing against his club? What if an agent of a manager who buys TPI players is also an advisor of a TPI fund? Regardless of any actual conflict, there is certainly a perceived conflict which may damage the image of the game, public confidence in integrity of competitions and even lead to potential match-fixing or insider trading concerns. Questions continue to be asked over the transparency of the TPI funds and what role they have, if any, in influencing clubs.
2. Clubs become reliant on such funding which in turn leads to dependence on external owners to continue to assist in such financing arrangements. As such, TPI encourages short-term profit making with economic owners looking to the club to sell its players to realise their ‘asset’ ahead of purely on-field sporting concerns. The consequence is that the rapid turnover of TPI players at certain clubs means fans become less loyal to the players who know they will be transferred when the right offer is received. Clubs are seen as a short term ‘speculation tools’ with the result that money leaves the football family.

Why is the practice necessary?
To counter the arguments set out above, the following points demonstrate are why TPI is so vital for many clubs around the world.
1. A growing number of clubs cannot compete with the larger commercial and broadcasting deals of the bigger European leagues. Clubs in so-called smaller European leagues, for example, need to leverage their assets and find innovative ways to find competitive advantage for playing against teams in the Champions League.
2. Purchasing players is an inherently risky business. Clubs with less money to spend would therefore usually be more risk-averse when having to invest heavily in transfers. One way of limiting such risk, is to share the financial burden. Therefore contracts are entered into between economic owners and clubs to either help the club with the purchase price for a talented individual or free up capital and ‘monetise’ a current players value whilst he still remains at the club. In either event, the club benefits from external finance that cushions the club’s position if the player is not a world beater. Both the club and the fund then benefit if the player is a success through a large transfer fee received that is shared according to the contract.
3. There are various ways to alleviate conflict of interest, integrity and transparency issues. Instead of banning TPI, many believe regulation through a transparent approach to TPI by disclosing a register of interests would alleviate a number of concerns as well as making TPI contracts available to FIFA/UEFA to ensure ‘material influence’ issues are correctly dealt with in the TPI contracts.
With FIFA regulating to ban players who are third party owned, many are questioning whether regulation of the practice rather than an outright ban would be preferable. In addition, some believe that it is not a ban but total transparency of the arrangements that is required. This could even be expanded to include a list of the owners of such transfer rights. Such transparency could allow the football family to scrutinise any potential conflicts of interest between, for example, those who own the economic rights of a player and those who also own a stake in a football club. With FIFA’s regulation governing the TPI prohibition, UEFA and FIFPro have backed such a position too.

What is the current state of play?
The current FIFA Rule Article 18bis of FIFA’s Rules on the Status and Transfer of Players states that:
“No club shall enter into a contract which enables any other party to that contract or any third party to acquire the ability to influence in employment and transfer related matters its independence, its policies or the performance of its teams.”
This was not a specific ban on TPI but a ban on a third party owner from influencing a club’s employment or transfer related matters.
Throughout 2014, UEFA and FIFA made a number of public statements concerning their aim to outlaw TPI. In September FIFA’s President Sepp Blatter explained that:
“We took a firm decision that [TPI] should be banned but it cannot be banned immediately there will be a transitional period”.
FIFA then set up a working group to address the topic of TPI. At the time, in their press release there was no explicit mention of a ban but “to analyse all possible regulatory options in relation to this complex practice and to make preliminary suggestions”. It was to the surprise of many that in late December, whilst the working group was still debating several possibilities that FIFA announced that they were to ban TPI globally. It is important to set out the exact wording of the FIFA circular to grasp the wide scope of the prohibition. Specifically, a third party is defined as "a party other than the two clubs transferring a player from one to the other, or any previous club, with which the player has been registered".
"Article 18ter Third-party ownership of players' economic rights
1. No club or player shall enter into an agreement with a third party whereby a third party is being entitled to participate, either in full or in part, in compensation payable in relation to the future transfer of a player from one club to another, or is being assigned any rights in relation to a future transfer or transfer compensation.
2. The interdiction as per paragraph 1 comes into force on 1 May 2015.
3. Agreements covered by paragraph 1 which predate 1 May 2015 may continue to be in place until their contractual expiration. However, their duration may not be extended.
4. The validity of any agreement covered by paragraph 1 signed between 1 January 2015 and 30 April 2015 may not have a contractual duration of more than 1 year beyond the effective date.
5. By the end of April 2015, all existing agreements covered by paragraph 1 need to be recorded within the Transfer Matching System (TMS). All clubs that have signed such agreements are required to upload them in their entirety, including possible annexes or amendments, in TMS, specifying the details of the third party concerned, the full name of the player as well as the duration of the agreement.
6. The FIFA Disciplinary Committee may impose disciplinary measures on clubs or players that do not observe the obligations set out in this article".
Article 18ter imposes a blanket global ban for TPI specifically forbidding any entity that is not a club from being entitled to future economic rights and/or transfer compensation. Whilst it has been explicitly considered that the prohibition only comes into force in May 2015, agreements entered into from 1 January can only be one year in length. This effectively reduces the possibility of new TPI contracts being entered into. Interestingly, Sporting Lisbon for example, recently announced that they had bought back a number of economic rights contracts from third party investors. They presumably considered that their position may well have been strengthened as a result of the new regulations.
Nonetheless, existing third party contracts will continue until expiry meaning that some players may still be subject to third party investment contracts for a number of seasons to come.  Such contracts will however be monitored through FIFA's TMS system as any club will be required to disclose a valid third party contract due to the mandatory disclosure obligations set out in paragraph 5 above. Such obligations are required to be adhered to in a relatively short time period (by the end of April 2015). The result of such disclosure may be that the contracts submitted to FIFA may themselves breach Article 18bis, for example, regarding TPI material influence clauses. Clubs will be faced with the obligation to provide all continuing TPI contracts to FIFA and will be subject to disciplinary measures if they do not. There is now an added compliance factor for clubs to adhere to under the new regulations and a variety of disciplinary cases against clubs should not be ruled out.
Lastly, the Portuguese and Spanish leagues are reported to have made a formal complaint to the European Commission, presumably assessing that Article 18ter is contrary to the free movement and competition rules. They will no doubt be arguing that the absolute ban that FIFA has imposed, is disproportionate i.e. that there are less restrictive ways of achieving the same objective.
Many have suggested that regulating TPI through transparency and disclosure obligations is a better alternative than an outright ban. It will be for the European Commission to decide whether to take the complaint forward and make a more substantive assessment or to reject the complaint. It should be noted that when the Premier League banned TPI, although there were some that argued that the prohibition breached competition law, no one actually came forward to challenge the regulation. A mere two months after FIFA announced the ban did the two Iberian associations challenge Article 18ter. That suggests, as many believe, that TPI has played an integral part in the way that clubs in those leagues use finance to 'de-risk' transfers and compete against clubs in associations with higher revenue generating capabilities. TPI has been an essential financing option.

Conclusion

Whilst the Premier League, as a reaction to the Tévez affair, made a strong policy decision to ban the practice in its league, a more fundamental shift is occurring on the global stage. Football specifically is very much in the European Commission's view with current Intermediary and TPI complaints and a previous Financial Fair Play complaint that was rejected but is now before the Belgian national courts. The TPI complaint will not be a quick process and in the meantime, unless interim relief is sought, existing TPI contracts will soon have to be lodged with FIFA and from 1 May, no new contracts can be entered into. Whether the practice is banned for good is now in the hands of the European Commission