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

Blog Symposium: FIFA must regulate TPO, not ban it. The point of view of La Liga.

Introduction: FIFA’s TPO ban and its compatibility with EU competition law.
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 4: Third Party Investment from a UK Perspective.
Day 5: Why FIFA's TPO ban is justified.

Editor's note: This is the first blog of our symposium on FIFA's TPO ban, it features the position of La Liga regarding the ban and especially highlights some alternative regulatory measures it would favour. La Liga has launched a complaint in front of the European Commission challenging the compatibility of the ban with EU law, its ability to show that realistic less restrictive alternatives were available is key to winning this challenge. We wish to thank La Liga for sharing its legal (and political) analysis of FIFA's TPO ban with us.

INTRODUCTION

The Spanish Football League (La Liga) has argued for months that the funding of clubs through the conveyance of part of players' economic rights (TPO) is a useful practice for clubs. However, it also recognized that the practice must be strictly regulated. In July 2014, it approved a provisional regulation that was sent to many of the relevant stakeholders, including FIFA’s Legal Affairs Department. More...






Blog Symposium: FIFA’s TPO ban and its compatibility with EU competition law - Introduction - Antoine Duval & Oskar van Maren

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 4: Third Party Investment from a UK Perspective.
Day 5: Why FIFA's TPO ban is justified.

On 22 December 2014, FIFA officially introduced an amendment to its Regulations on the Status and Transfers of Players banning third-party ownership of players’ economic rights (TPO) in football. This decision to put a definitive end to the use of TPO in football is controversial, especially in countries where TPO is a mainstream financing mechanism for clubs, and has led the Portuguese and Spanish football leagues to launch a complaint in front of the European Commission, asking it to find the FIFA ban contrary to EU competition law.

Next week, we will feature a Blog Symposium discussing the FIFA TPO ban and its compatibility with EU competition law. We are proud and honoured to welcome contributions from both the complainant (the Spanish football league, La Liga) and the defendant (FIFA) and three renowned experts on TPO matters: Daniel Geey ( Competition lawyer at Fieldfisher, aka @FootballLaw), Ariel Reck (lawyer at Reck Sports law in Argentina, aka @arielreck) and Raffaele Poli (Social scientist and head of the CIES Football Observatory). The contributions will focus on different aspects of the functioning of TPO and on the impact and consequences of the ban. More...





The CAS and Mutu - Episode 4 - Interpreting the FIFA Transfer Regulations with a little help from EU Law

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...

The UCI Report: The new dawn of professional cycling?

The world of professional cycling and doping have been closely intertwined for many years. Cycling’s International governing Body, Union Cycliste Internationale (UCI), is currently trying to clean up the image of the sport and strengthen its credibility. In order to achieve this goal, in January 2014 the UCI established the Cycling Independent Reform Commission (CIRC) “to conduct a wide ranging independent investigation into the causes of the pattern of doping that developed within cycling and allegations which implicate the UCI and other governing bodies and officials over ineffective investigation of such doping practices.”[1] The final report was submitted to the UCI President on 26 February 2015 and published on the UCI website on 9 March 2015. The report outlines the history of the relationship between cycling and doping throughout the years. Furthermore, it scrutinizes the role of the UCI during the years in which doping usage was at its maximum and addresses the allegations made against the UCI, including allegations of corruption, bad governance, as well as failure to apply or enforce its own anti-doping rules. Finally, the report turns to the state of doping in cycling today, before listing some of the key practical recommendations.[2]

Since the day of publication, articles and commentaries (here and here) on the report have been burgeoning and many of the stakeholders have expressed their views (here and here). However, given the fact that the report is over 200 pages long, commentators could only focus on a limited number of aspects of the report, or only take into account the position of a few stakeholders. In the following two blogs we will try to give a comprehensive overview of the report in a synthetic fashion.

This first blogpost will focus on the relevant findings and recommendations of the report. In continuation, a second blogpost will address the reforms engaged by the UCI and other long and short term consequences the report could have on professional cycling. Will the recommendations lead to a different governing structure within the UCI, or will the report fundamentally change the way the UCI and other sport governing bodies deal with the doping problem? More...

Book Review - Camille Boillat & Raffaele Poli: Governance models across football associations and leagues (2014)

Camille Boillat & Raffaele Poli: Governance models across football associations and leagues (2014)

Vol. 4, Centre International d'Etude du Sport, Neuchâtel, Switzerland, softback, 114 pages, ISBN 2-940241-24-4, Price: €24




Source: http://www.cies.ch/en/cies/news/news/article/new-publication-in-the-collection-editions-cies-governance-models-across-football-associations-an/

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The aftermath of the Pechstein ruling: Can the Swiss Federal Tribunal save CAS arbitration? By Thalia Diathesopoulou

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...

‘The reform of football': Yes, but how? By Marco van der Harst

'Can't fight corruption with con tricks
They use the law to commit crime
And I dread, dread to think what the future will bring
When we're living in gangster time'
The Specials - Gangsters


The pressing need for change 

The Parliamentary Assembly (PACE) of the Council of Europe (CoE), which is composed of 318 MPs chosen from the national parliaments of the 47 CoE member states, unanimously adopted a report entitled ‘the reform of football’ on January 27, 2015. A draft resolution on the report will be debated during the PACE April 2015 session and, interestingly, (only?) FIFA’s president Sepp Blatter has been sent an invitation

The PACE report highlights the pressing need of reforming the governance of football by FIFA and UEFA respectively. Accordingly, the report contains some interesting recommendations to improve FIFA’s (e.g., Qatargate[1]) and UEFA’s governance (e.g., gender representation). Unfortunately, it remains unclear how the report’s recommendations will actually be implemented and enforced. 

The report is a welcomed secondary effect of the recent Qatargate directly involving former FIFA officials such as Jack Warner, Chuck Blazer, and Mohamed Bin Hammam[2] and highlighting the dramatic failures of FIFA’s governance in putting its house in order. Thus, it is undeniably time to correct the governance of football by FIFA and its confederate member UEFA – nolens volens. The real question is how to do it.



            Photograph: Fabrice Coffrini/AFP/Getty Images                   Photograph: Octav Ganea/AP

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SV Wilhelmshaven: a Rebel with a cause! Challenging the compatibility of FIFA’s training compensation system with EU law

Due to the legitimate excitement over the recent Pechstein ruling, many have overlooked a previous German decision rendered in the Wilhelmshaven SV case (the German press did report on the decision here and here). The few academic commentaries (see here and here) focused on the fact that the German Court had not recognized the res judicata effect of a CAS award. Thus, it placed Germany at the spearhead of a mounting rebellion against the legitimacy of the CAS and the validity of its awards. None of the commentators weighed in on the substance of the decision, however. Contrary to the Court in Pechstein, the judges decided to evaluate the compatibility of the FIFA rules on training compensations with the EU free movement rights. To properly report on the decision and assess the threat it may constitute for the FIFA training compensation system, we will first summarize the facts of the case (I), briefly explicate the mode of functioning of the FIFA training compensation system (II), and finally reconstruct the reasoning of the Court on the compatibility of the FIFA rules with EU law (III).More...

In Egypt, Broadcasting Football is a Question of Sovereignty … for Now! By Tarek Badawy, Inji Fathalla, and Nadim Magdy

On 15 April 2014, the Cairo Economic Court (the “Court") issued a seminal judgment declaring the broadcasting of a football match a sovereign act of State.[1]


Background

In Al-Jazeera v. the Minister of Culture, Minister of Information, and the Chairman of the Board of Directors of the Radio and Television Union, a case registered under 819/5JY, the Al-Jazeera TV Network (the “Plaintiff” or “Al-Jazeera”) sued the Egyptian Radio and Television Union (“ERTU” or the “Union”) et al. (collectively, the “Respondents”) seeking compensation for material and moral damages amounting to three (3) million USD, in addition to interest, for their alleged breach of the Plaintiff’s exclusive right to broadcast a World Cup-qualification match in Egypt.  Al-Jazeera obtained such exclusive right through an agreement it signed with Sportfive, a sports marketing company that had acquired the right to broadcast Confederation of African Football (“CAF”) World Cup-qualification matches.

ERTU reportedly broadcasted the much-anticipated match between Egypt and Ghana live on 15 October 2013 without obtaining Al-Jazeera’s written approval, in violation of the Plaintiff’s intellectual property rights.

More...


Why the European Commission will not star in the Spanish TV rights Telenovela. By Ben Van Rompuy and Oskar van Maren

The selling of media rights is currently a hot topic in European football. Last week, the English Premier League cashed in around 7 billion Euros for the sale of its live domestic media rights (2016 to 2019) – once again a 70 percent increase in comparison to the previous tender. This means that even the bottom club in the Premier League will receive approximately €130 million while the champions can expect well over €200 million per season.

The Premier League’s new deal has already led the President of the Spanish National Professional Football League (LNFP), Javier Tebas, to express his concerns that this could see La Liga lose its position as one of Europe’s leading leagues. He reiterated that establishing a centralised sales model in Spain is of utmost importance, if not long overdue.

Concrete plans to reintroduce a system of joint selling for the media rights of the Primera División, Segunda División A, and la Copa del Rey by means of a Royal Decree were already announced two years ago. The road has surely been long and bumpy. The draft Decree is finally on the table, but now it misses political approval. All the parties involved are blaming each other for the current failure: the LNFP blames the Sport Governmental Council for Sport (CSD) for not taking the lead; the Spanish Football Federation (RFEF) is arguing that the Federation and non-professional football entities should receive more money and that it should have a stronger say in the matter in accordance with the FIFA Statutes;  and there are widespread rumours that the two big earners, Real Madrid and FC Barcelona, are actively lobbying to prevent the Royal Decree of actually being adopted.

To keep the soap opera drama flowing,  on 30 December 2014, FASFE (an organisation consisting of groups of fans, club members, and minority shareholders of several Spanish professional football clubs) and the International Soccer Centre (a movement that aims to obtain more balanced and transparent football and basketball competitions in Spain) filed an antitrust complaint with the European Commission against the LNFP. They argue that the current system of individual selling of LNFP media rights, with unequal shares of revenue widening the gap between clubs, violates EU competition law.


Source:http://www.gopixpic.com/600/buscar%C3%A1n-el-amor-verdadero-nueva-novela-de-televisa/http:%7C%7Cassets*zocalo*com*mx%7Cuploads%7Carticles%7C5%7C134666912427*jpg/

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Asser International Sports Law Blog | Chess and Doping: Two ships passing in the Night? By Salomeja Zaksaite, Postdoctoral researcher at Mykolas Romeris University (Lithuania), and Woman International Chess Master (WIM)

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

Chess and Doping: Two ships passing in the Night? By Salomeja Zaksaite, Postdoctoral researcher at Mykolas Romeris University (Lithuania), and Woman International Chess Master (WIM)

It may come as a surprise to laymen, but chess players are subjected to doping testing. Naturally, then, the questions follow as to why they are tested, and if they are really tested (at least, with a level of scrutiny comparable to that which physically-oriented athletes are regularly subjected).


The answer to the first question is two-fold. There is an “official” answer and a “pragmatic” answer. Regarding the ostensible one, rather typical doping terminology is employed: certain substances might enhance performance in chess, and thus, they are prohibited. A layperson might ask: “what substances are these?” One fair guess could be beta-blockers – those medications which help reduce heart rates in times of anxiety and thus contribute to clearer thinking, and which are prohibited inter alia in shooting. That sounds pretty sensible; however (mainly due of the lack of scientific evidence on the actual performance enhancing), beta-blockers are not prohibited in chess.[1] As far as I know, chess players do not use beta-blockers, and I cannot imagine that they ever actually will use them to enhance their performance. Nor do chess players use anabolics, EPO, growth hormones – or any other of the “classical” doping substances. What might be an issue is caffeine because of its stimulant properties, but it was excluded from the list of prohibited substances in 2004.[2]


So what are the substances chess players do use? The reigning world champion Magnus Carlsen drinks freshly squeezed orange juice and many top players drink either water or coffee, or both… This is “doping” for chess players. The aforementioned champion was tested several times and said that “there is not so much point of drugs testing in chess, I must admit. However, if I must, then I must.”[3] In 2008 Dresden Chess Olympiad, Vassily Ivanchuk refused to participate in a doping control and actually no penalties were applied as the whole chess community defended him. The official FIDE (World Chess Federation) statement was that he “apparently failed to understand the instructions, especially since English is not Mr. Ivanchuk’s first language.”[4] Such a “flexible” formulation employed by FIDE suggests that the anti-doping system hardly has a real deterrent effect on elite chess players.


Returning to the legal discourse, we should pose some fundamental questions originally coming from the jurisprudence of European Court of Human Rights. These questions read as follows: Is the anti-doping system restrictive, and is the restrictiveness proportionate to the aim that is being sought to achieve? The answer to the first question is positive: the doping system is undoubtedly restrictive. Testing might not only be unpleasant, but also, some accidental factors must be taken into account, and additional time is needed to grasp the medical instructions in order not to trigger a positive test because of some inadvertently taken substances. Most people might not know it, but ephedrine and its form pseudoephedrine[5] (used to treat nasal and sinus congestion and available as the well-known medicine Theraflu) are prohibited, as is heptaminol [6] which falls into Ginkorfort and/or other herbal products. These medicines are sold in pharmacy without a prescription. So, all the athletes – including chess players – should avoid such substances in-competition and some period before the competition. For instance, although the swimmer Frédérick Bousquet stated that he bought the incriminated medicine from a pharmacy, he was tested positive for the heptaminol in 2010, and handed a two month doping ban. Last but not least, each doping test costs about $400 USD. Therefore, some proportionality test should also be applied, weighing the costs and benefits of the anti-doping fight. Thus, to my mind the anti-doping system within the context of chess is not proportionate to achieve its aim – which is to create a level playing field and a clean game.


Perhaps, leaving the legal discourse aside is necessary to unveil the real (not postulated) aims lying behind the adoption of an anti-doping policy in chess. Indeed, political considerations overruled the proportionality test, and all the more interesting is that the chess community, in turn, “silently” accepted those pragmatic considerations. Guess what? Chess officials as well as players really want to get into the Olympic Games. In other words, the chess community would love being an Olympic sport, and hence, if we must, we would silently accept those unnecessary tests. To my knowledge, only a few players have ever been caught and punished. For instance, the games of two players were forfeited, since they refused to provide a sample to doping control at the Calvia Olympiad 2004.[7] It is quite a telling indicator of the potential gap between anti-doping rules and the practical implementation of those rules. And it is not because chess players are absolutely clean (who knows – perhaps they use cannabis or cocaine not less frequently than other athletes caught). It is because everyone understands that the system is designed not for chess, and therefore, “sensibly” does not strictly implement it.


Regarding the title of the blog post: chess players hardly could be associated with doping, but they are! Chess and doping could be compared to the two ships in the darkness that are just saying “hello” to each other, but not really communicating. Hence, we carry the little burden of some inconvenience related to doping testing, but the sweetness of such burden (that is the utopian hopes for inclusion in the Olympics, which probably will not come into effect in the upcoming decade or so) somehow compensates for such discomfort.


By Salomeja Zaksaite, Postdoctoral researcher[8] at Mykolas Romeris University (Lithuania), and Woman International Chess Master (WIM)



[1] Beta-blockers are prohibited in Archery (WA) (also prohibited Out-of-Competition), Automobile (FIA), Billiards (all disciplines) (WCBS), Darts (WDF), Golf (IGF), Shooting (ISSF, IPC) (also prohibited Out-of-Competition), Skiing/Snowboarding (FIS) in ski jumping, freestyle aerials/halfpipe and snowboard halfpipe/big air, http://list.wada-ama.org/prohibited-in-particular-sports/prohibited-substances/.      

[2] In 2004, WADA took all caffeine products out of the prohibited list, in spite of the fact that some caffeine products, such as Animine, can induce serious heart problems and even death if taken in high dosages (de Mondenard, 2004). Quoted from: Paoli L., Donati A. (2014), The Sports Doping Market. Understanding Supply and Demand, and the Challenges of Their Control. Springer New York Heidelberg Dordrecht London, pp. 8.

[3] Venkata Krishna “Now, even Chess players subjected to dope testing”, 20 November 2013, http://www.newindianexpress.com/sport/Now-even-Chess-players-subjected-to-dope-testing/2013/11/20/article1899989.ece .

[4]Decision of the FIDE Doping Hearing Panel, Wijk aan Zee (NED), 21 January 2009, http://www.fide.com/component/content/article/1-fide-news/3704-decision-of-the-fide-doping-hearing-panel

[5] Ephedrine is classified as a specified stimulant (S6) and is prohibited in-competition in all sports, http://list.wada-ama.org/prohibited-in-competition/prohibited-substances/.

[6] Heptaminol is classified as a specified stimulant (S6) and is prohibited in-competition in all sports, http://list.wada-ama.org/prohibited-in-competition/prohibited-substances/.

[7] Actually, the events at Calvia Olympiad are the most known to the chess community. One of those players wrote a blog post accusing FIDE of somewhat “highly flawed” disciplinary hearing.  Shaun Press “FIDE gets it right on drug testing”, 29 November 2008, http://chessexpress.blogspot.nl/2008/11/fide-gets-it-right-on-drug-testing.html. Yet, of course, there were more attempts to test and sanction chess players for anti-doping violations. For example, 2013 WADA report indicates that there were 3 adverse analytical findings (AAF) within those tested (80 samples were taken), however, to my knowledge, the outcomes of these AAF are not publicly available. 2013 Anti‐Doping Testing Figures Samples Analyzed and Reported by Accredited Laboratories in ADAMS, http://www.wada-ama.org/Documents/Resources/Testing-Figures/WADA-2013-Anti-Doping-Testing-Figures-SPORT-REPORT.pdf, pp. 6.

[8] Postdoctoral fellowship is being funded by European Union Structural Funds project ”Postdoctoral Fellowship Implementation in Lithuania”, www.postdoc.lt.

Comments (2) -

  • Clifford

    7/24/2015 9:37:43 AM |

    You fail to consider that abiding by the testing regime may actually be damaging for the health of, particularly older, chessplayers.
    Hans Ree reported that one GM retired after health problems made worse by  abiding by the doping code and avoiding the best drugs for the illness.

  • CLEM REYNOLDS

    12/12/2015 10:02:38 AM |

    "certain substances might enhance performance in chess, and thus, they are prohibited"

    This is not really the case. The general WADA list of banned substances is used (though w/o the beta-blocker appendix), independent of whether such substances might actually enhance chess performance. WADA has repeatedly rejected arguments (in all sports) when a competitor tries to plead that a banned substance isn't really performance enhancing. The Anti-Doping Code is specific about this.

    FIDE had two people refuse tests in 2004 largely for political reasons (and a large number of grandmasters not compete in the first place), and the 2008 Ivanchuk incident, with a related refusal case in a national championship. Back then they might have been able to skirt it, but 10 years down the road, WADA will slap them as being non-compliant if they don't follow the protocol.

Comments are closed