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

International and European Sports Law – Monthly Report – February 2020 - By Thomas Terraz

Editor's note: This report compiles the most relevant legal news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. 

 

The Headlines

Manchester City sanctioned by UEFA’s Financial Fair Play

Manchester City has been sanctioned under UEFA’s Financial Fair Play (FFP) regulations for two seasons for ‘overstating its sponsorship revenue in its accounts and in the break-even information’ it had provided UEFA. The February 14 decision of the Adjudicatory Chamber of the Club Financial Control Body (CFCB) likely heralds the start of a long and bitter legal war between Manchester City and UEFA, which may end up settling many of the questions surrounding the legality of FFP rules. Since its introduction in 2010, the compatibility of FFP with EU law, especially in terms of free movement and competition law, has been a continued point of contention amongst the parties concerned and commentators (see discussion here, here and here). It was only a matter of time that a case would arise to test this issue and the present circumstances seem to indicate that this may go all the way.                                 

Regardless, the ban will not be enforced this season and in light of the appeal process, it is hard to predict when the CFCB’s decision will have any effect. Indeed, Manchester City has shown an incredible willingness to fighting this out in the courts and shows no signs of backing down. The next stop will be the CAS and perhaps followed by the Swiss Federal Tribunal. It should also be recalled that the CAS has already examined FFP in its Galatasaray award, where it found FFP compatible with EU law (see commentary here). There is even a decent chance that this emerging saga may end up in front of the European Commission and eventually the Court of Justice of the European Union.

Sun Yang CAS award published

After a much-anticipated public hearing, the Panel’s award in the Sun Yang case has finally been published, sanctioning Sun Yang with an eight-year period of ineligibility (see here for a detailed commentary). The decision does not reveal anything groundbreaking in terms of its legal reasoning and in many ways the case will most likely be remembered for its historical significance: the case that jumpstarted a new era of increased public hearings at the CAS.

Perhaps of some interest is the extent to which the panel took into account Sun Yang’s behavior during the proceedings in order to support its assessment of the case. For example, the panel describes how Sun Yang had ignored the procedural rules of the hearing by inviting ‘an unknown and unannounced person from the public gallery to join him at his table and act as an impromptu interpreter’. The Panel interpreted this as Sun Yang attempting ‘to take matters into his own hands’ which it found resembled the athlete’s behavior in the case (see para 358). The Panel also found it ‘striking’ that Sun Yang did not express any remorse concerning his actions during the proceedings. Since the proceedings were held publicly and have been recorded, it is possible to verify the Panel’s assessment in this regard.

In the end, it is possible that Sun Yang may seek to reduce the period of ineligibility once the 2021 WADA Code comes into force (see para 368). For now, Sung Yang may also try to appeal the award to the Swiss Federal Tribunal on procedural grounds, and has already indicated his wish to do so. More...

Mega-sporting events and human rights: What role can EU sports diplomacy play? - Conference Report – By Thomas Terraz

Editor’s note: Thomas Terraz is a fourth 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

 On March 05, the T.M.C. Asser Institute hosted ‘Mega-sporting events and human rights: What role can EU sports diplomacy play?’ a Multiplier Sporting Event organized in the framework of a European research project on ‘Promoting a Strategic Approach to EU Sports Diplomacy’. This project funded by the European Commission through its Erasmus+ program aims to help the EU adopt a strategic approach to sports diplomacy and to provide evidence of instances where sport can help amplify EU diplomatic messages and forge better relations with third countries. In particular, Antoine Duval from the Asser Institute is focusing on the role of EU sports diplomacy to strengthen human rights in the context of mega sporting events (MSE) both in Europe and abroad. To this end, he organized the two panels of the day focusing, on the one hand, on the ability of sport governing bodies (SGB) to leverage their diplomatic power to promote human rights, particularly in the context of MSEs and, on the other, on the EU’s role and capacity to strengthened human rights around MSEs. The following report summarizes the main points raised during the discussions. More...

Special Issue Call for Papers: Legal Aspects of Fantasy Sports - International Sports Law Journal

The International Sports Law Journal (ISLJ) invites submissions to a special issue focusing on legal aspects of fantasy sports. For some time, fantasy sports has been a major phenomena in North America and this has been reflected in the sports law literature. Fantasy sports have more recently grown in popularity in the rest of world, raising a number of novel legal questions. The ISLJ wants to support fruitful global discussions about these questions through a special issue. We welcome contributions from different jurisdictions analyzing fantasy sports from the perspective of various areas of law including, but not limited to, intellectual property law, gambling law, and competition law.

Please submit proposed papers through the ISLJ submission system (http://islj.edmgr.com/) no later than November 15, 2020. Submissions should have a reccomended length of 8,000–12,000 words and be prepared in accordance with the ISLJ's house style guidelines (https://www.springer.com/journal/40318/submission-guidelines). All submissions will be subject to double-blind peer review.

Question about the special issue can be directed to the Editor–in-Chief, Johan Lindholm (johan.lindholm@umu.se).

International and European Sports Law – Monthly Report – January 2020 - By Thomas Terraz

Editor's note: This report compiles the most relevant legal news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. 

 

The Headlines

IOC Athlete Commission releases its Rule 50 Guidelines for Tokyo 2020

The IOC Athlete Commission presented its Rule 50 Guidelines for Tokyo 2020 at its annual joint meeting with the IOC Executive Board. It comes as Thomas Bach had recently underlined the importance of political neutrality for the IOC and the Olympic Games in his New Year’s message. Generally, rule 50 of the Olympic Charter prohibits any political and religious expression by athletes and their team during the Games, subject to certain exceptions. The Guidelines clarify that this includes the ‘field of play’, anywhere inside the Olympic Village, ‘during Olympic medal ceremonies’ and ‘during the Opening, Closing and other official ceremonies’. On the other hand, athletes may express their views ‘during press conferences and interview’, ‘at team meetings’ and ‘on digital or traditional media, or on other platforms. While rule 50 is nothing new, the Guidelines have reignited a debate on whether it could be considered as a justified restriction on one’s freedom of expression.

 

The IOC has made the case that it is defending the neutrality of sport and that the Olympics is an international forum that should help bring people together instead of focusing on divisions. Specifically, Richard Pound has recently made the argument that the Guidelines have been formulated by the athletes themselves and are a justified restriction on free expression with its basis in ‘mutual respect’. However, many commentators have expressed their skepticism to this view (see here, here and here) citing that politics and the Olympics are inherently mixed, that the IOC is heavily involved in politics, and that the Olympics has often served as the grounds for some of history’s most iconic political protests. All in all, the Guidelines have certainly been a catalyst for a discussion on the extent to which the Olympics can be considered neutral. It also further highlights a divide between athlete committees from within the Olympic Movement structures and other independent athlete representation groups (see Global Athlete and FIFPro’s statements on rule 50).

 

Doping and Corruption Allegations in Weightlifting 

The International Weightlifting Federation (IWF) has found itself embroiled in a doping and corruption scandal after an ARD documentary was aired early in January which raised a wide array of allegations, including against the President of the IWF, Tamás Aján. The documentary also included hidden camera interviews from a Thai Olympic medalist who admits having taken anabolic steroids before having won a bronze medal at the 2012 London Olympic Games and from a team doctor from the Moldovan national team who describes paying for clean doping tests. The IWF’s initial reaction to the documentary was hostile, describing the allegations as ‘insinuations, unfounded accusations and distorted information’ and ‘categorically denies the unsubstantiated’ accusations. It further claims that it has ‘immediately acted’ concerning the situation with the Thai athletes, and WADA has stated that it will follow up with the concerned actors. However, as the matter gained further attention in the main stream media and faced increasing criticism, the IWF moved to try to ‘restore’ its reputation. In practice, this means that Tamás Aján has ‘delegated a range of operation responsibilities’ to Ursual Papandrea, IWF Vice President, while ‘independent experts’ will conduct a review of the allegations made in the ARD documentary. Richard McLaren has been announced to lead the investigation and ‘is empowered to take whatever measures he sees fit to ensure each and every allegation is fully investigated and reported’. The IWF has also stated that it will open a whistleblower line to help aid the investigation.More...


How 2019 Will Shape the International Sports Law of the 2020s - By Thomas Terraz

Editor’s note: Thomas Terraz is a fourth 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

As we begin plunging into a new decade, it can be helpful to look back and reflect on some of the most influential developments and trends from 2019 that may continue to shape international sports law in 2020 and beyond. Hence, this piece will not attempt to recount every single sports law news item but rather identify a few key sports law stories of 2019 that may have a continued impact in the 2020s. The following sections are not in a particular order.More...

Free Event! Mega-sporting events and human rights: What role can EU sports diplomacy play? - 5 March at the Asser Institute in The Hague

The upcoming 2022 FIFA World Cup in Qatar and its links to human rights violations has been the subject of many debates in the media and beyond. In particular, the respect of migrant workers’ labour rights was at the forefront of much public criticisms directed against FIFA. Similarly, past Olympics in Rio, Sochi or Beijing have also been in the limelight for various human rights issues, such as the lack of freedom of the press, systematic discrimination on the basis of sexual orientation or forced evictions. These controversies have led sports governing bodies (SGBs) to slowly embrace human rights as an integral part of their core values and policies. Leading to an increased expectation for SGBs to put their (private) diplomatic capital at the service of human rights by using their leverage vis-à-vis host countries of their mega-sporting events (MSEs). In turn, this also raises the question of the need for the EU to accompany this change by putting human rights at the heart of its own sports diplomacy.


Research collective 
This Multiplier Sporting Event, organised in the framework of the transnational project on ‘Promoting a Strategic Approach to EU Sports Diplomacy’ funded by the Erasmus + Programme, aims to trigger discussions on the role of an EU sports diplomacy in strengthening respect for human rights in the context of MSEs both at home and abroad. It will feature two roundtables focused on the one hand on the diplomatic power and capacity of SGBs to fend for human rights during MSEs and on the other on the EU’s integration of human rights considerations linked to MSEs in its own sports diplomacy.


Programme

13:20 – 14:00 – Welcome and opening speech –Antoine Duval (Asser Institute)
14:00 - 15:30 - Panel 1: Leveraging the Diplomatic Power of the Sports Governing Bodies for Human Rights

  • Lucy Amis (Unicef UK/Institute for Human Rights and Business)
  • Guido Battaglia (Centre for Sport and Human Rights)
  • Florian Kirschner (World Players Association/UNI Global Union)
  • Claire Jenkin (University of Hertfordshire)

15:30 – 16:00 - Coffee Break

16:00 - 17:30 - Panel 2: A Human Rights Dimension for the EU’s Sports Diplomacy?

  • Arnout Geeraert (Utrecht University)
  • Agata Dziarnowska (European Commission)
  • Alexandre Mestre (Sport and Citizenship)
  • Ministry of Health, Welfare and Sport (TBC)

17:30 - Reception

Balancing Athletes’ Interests and The Olympic Partner Programme: the Bundeskartellamt’s Rule 40 Decision - By Thomas Terraz

Editor’s note: Thomas Terraz is a fourth 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

The International Olympic Committee (IOC), after many years of ineffective pushback (see here, here and here) over bye law 3 of rule 40[1] of the Olympic Charter (OC), which restricts the ability of athletes and their entourage to advertise themselves during the ‘blackout’ period’[2] (also known as the ‘frozen period’) of the Olympic Games, may have been gifted a silver bullet to address a major criticism of its rules. This (potentially) magic formula was handed down in a relatively recent decision of the Bundeskartellamt, the German competition law authority, which elucidated how restrictions to athletes’ advertisements during the frozen period may be scrutinized under EU competition law. The following blog begins by explaining the historical and economic context of rule 40 followed by the facts that led to the decision of the Bundeskartellamt. With this background, the decision of the Bundeskartellamt is analyzed to show to what extent it may serve as a model for EU competition law authorities. More...

International and European Sports Law – Monthly Report – November and December 2019- By Thomas Terraz

Editor's note: This report compiles the most relevant legal news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. 

 

The Headlines

WADA Conference and the Adoption of 2021 WADA Code Amid Calls for Reform

On November 5-7, WADA held its Fifth World Conference on Doping in Sport where it faced a busy schedule, including the adoption of the revised 2021 World Anti-Doping Code and the election of a new WADA President and Vice-President by the Foundation Board. Concerning the latter, Witold Bańka, Poland’s Minister of Sport and Tourism, was elected as WADA President and Yang Yang, a former Chinese speed skater, elected as Vice-President, replacing Sir Craig Reedie and Linda Helleland respectively.  As Helleland leaves her position, she has expressed some strong views on the state of sport governance, particularly that ‘there is an absence of good governance, openness and independence in the highest levels of international sports’. Helleland was not the only one to recently voice governance concerns, as Rob Koehler, Director General of Global Athlete, also called for a ‘wholesale structural change at WADA’, which includes giving ‘independent’ athletes a vote in WADA’s Foundation Board, ensuring a greater ‘separation of powers’ and ensuring greater protection of athletes’ rights.

In the midst of the calls for reform, the amended 2021 WADA Code and the amended International Standards were also adopted after a two year, three stage code review process. Furthermore, a major milestone in athletes’ rights was achieved with the adoption of the Athletes’ Anti-Doping Rights Acts (separate from the WADA Code), which enumerates certain basic rights to help ‘ensure that Athlete rights within anti-doping are clearly set out, accessible, and universally applicable’. On the other hand, the Act ‘is not a legal document’, which clearly circumscribes some of the potential effects the Act may have. Nonetheless, athlete representative groups have ‘cautiously welcomed’ some of the changes brought by the 2021 WADA Code, such as the ‘modified sanctions for substances of abuse violations’.

Sung Yang’s Historical Public Hearing at the CAS

After much anticipation, the second public hearing in CAS history occurred on November 15 in Montreux, Switzerland in the Sun Yang case (details of this case were discussed in August and September’s monthly report), which was livestreamed and can be seen in its totality in four different parts (Part 1, Part 2, Part 3, Part 4). This was an extremely unique opportunity, which hopefully will become a more common occurrence, to see just how CAS hearings are conducted and perhaps get a taste of some of the logistical issues that can emerge during live oral hearings. One of these problems, accurate translations, rapidly became apparent as soon as Sun Yang sat in the witness chair to give his opening statements. The translators in the box seemed to struggle to provide an intelligible English interpretation of Sun Yang and other witnesses’ statements, while Sun Yang also seemingly had trouble understanding the translated questions being posed to him. The situation degenerated to such an extent that ultimately one of WADA’s officials was called to replace the translators. However, the translation drama did not end there, since during Sun Yang’s closing statements an almost seemingly random person from the public appeared next to Sun Yang who claimed to have been requested from Sun Yang’s team to ‘facilitate’ the translation. Franco Frattini, president of the panel, questioned the identity of the ‘facilitator’ and explained that one could not just simply appear before the court without notice. Interestingly, Sun Yang’s legal team also rapidly intervened claiming that it had not been made of aware of the inclusion of the supporting translator, further complicating the matter. In the end, Sun Yang concluded his statements with the translation from the WADA official.

While it was Sun Yang’s legal team that had provided the original translators in the box, it still raises the question as to how translation at CAS could be improved to ensure a certain standard of translators. After all, quality translation is critical to the parties’ right to be heard under Article 6 (e) ECHR. Regardless, in the end, neither parties made an objection that their right to be heard was violated.

Russian Doping Saga Continues: WADA Compliance Review Committee Recommends Strong Sanctions

As was already discussed in August and September’s monthly report, WADA uncovered numerous inconsistencies concerning data taken from the Moscow Laboratory. After further investigation, WADA’s Compliance Review Committee has recommended that the Russian Anti-Doping Agency (RUSADA) be found non-compliant with the WADA Code. Accompanying the recommendation, the Compliance Review Committee also suggested several sanctions, which include prohibiting Russian athletes from participating in major events like the Olympic Games and ‘any World Championships organized or sanctioned by any Signatory’ for the next four years unless they may ‘dmonstrate that they are not implicated in any way by the non-compliance’. It would also see an embargo on events hosted in Russia during the same period. However, these sanctions did not go far enough for some, like Travis Tygart, chief executive of USADA, who wishes to prevent a repeat of Rio 2016 and PyeongChang 2018 ‘in which a secretly-managed process permitting Russians to compete – did not work’. On the other hand, the IOC has advocated for a softer, individual based approach that pursues ‘the rules of natural justice and respect human rights’. In the midst of these developments, the Athletics Integrity Unit also decided to charge several members of the Russian Athletics Federation (RusAF), including its President Dmitry Shlyakhtin, after a 15 month investigation for ‘tampering and complicity’ concerning a Russian athlete’s whereabouts violations.

Following many calls for strong consequences, the WADA Executive Committee met on December 9th and adopted the recommendations of the Compliance Review Committee. Athlete representatives have expressed their disappointment with the sanctions, calling the decision ‘spineless’ since it did not pursue a complete ban on Russian participation at events such as Euro 2020 and the 2020 Olympics. At this point, RUSADA has sent notice to WADA that it will be disputing the decision of WADA’s Executive Committee’s decision at the CAS.More...


Is UCI the new ISU? Analysing Velon’s Competition Law Complaint to the European Commission - By Thomas Terraz

Editor’s note: Thomas Terraz is a fourth 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

The UCI may soon have to navigate treacherous legal waters after being the subject of two competition law based complaints (see here and here) to the European Commission in less than a month over rule changes and decisions made over the past year. One of these complaints stems from Velon, a private limited company owned by 11 out of the 18 World Tour Teams,[1] and the other comes from the Lega del Ciclismo Professionistico, an entity based in Italy representing an amalgamation of stakeholders in Italian professional cycling. While each of the complaints differ on the actual substance, the essence is the same: both are challenging the way the UCI exercises its regulatory power over cycling because of a growing sense that the UCI is impeding the development of cycling as a sport. Albeit in different ways: Velon sees the UCI infringing on its ability to introduce new race structures and technologies; the Lega del Ciclismo Professionistico believes the UCI is cutting opportunities for semi-professional cycling teams, the middle ground between the World Tour Teams and the amateur teams.

While some of the details remain vague, this blog will aim to unpack part of the claims made by Velon in light of previous case law from both the European Commission and the Court of Justice of the European Union (CJEU) to give a preliminary overview of the main legal issues at stake and some of the potential outcomes of the complaint. First, it will be crucial to understand just who/what Velon is before analyzing the substance of Velon’s complaint. More...

International and European Sports Law – Monthly Report – October 2019 by Thomas Terraz

Editor's note: This report compiles the most relevant legal news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. 


The Headlines

International Sports Law Journal (ISLJ) Conference 2019

The T.M.C. Asser Institute and the Asser International Sports Law Centre held the third International Sports Law Journal (ISLJ) Conference on October 24-25. The Conference created a forum for academics and practitioners to discuss, debate and share knowledge on the latest developments of sports law. It featured six uniquely themed panels, which included topics such as ‘Transfer systems in international sports’ and ‘Revisiting the (in)dependence and transparency of the CAS’ to ‘The future of sports: sports law of the future’. The ISLJ Conference was also honored to have two exceptional keynote speakers: Moya Dodd and Ulrich Haas. To kick off the conference, Moya Dodd shared her experiences from an athlete’s perspective in the various boardrooms of FIFA. The second day was then launched by Ulrich Haas, who gave an incredibly thorough and insightful lecture on the importance, function and legal basis of association tribunals in international sport. For a detailed overview of this year’s ISLJ Conference, click here for the official conference report.

The Asser International Sports Law Centre was delighted to have been able to host another great edition of the ISLJ Conference and is thankful to all the participants and speakers who made this edition such a success.

Moving towards greater transparency: Launch of FIFA’s Legal Portal

On October 31, FIFA announced that it was introducing a new legal portal on its website that will give greater access to numerous documents that previously were kept private. FIFA explains that this is in order to help increase its transparency, which was one of the key ‘Guiding Principles’ highlighted in FIFA 2.0: The Vision for the Future released in 2016. This development comes as many sport governing bodies face increasing criticism for the opacity of its judicial bodies’ decisions, which can have tremendous economic and societal impacts. The newly available documents will include: ‘decisions rendered on the merits by the FIFA Disciplinary Committee and the FIFA Appeal Committee (notified as of 1 January 2019); decisions rendered on the merits by the FIFA Ethics Committee (notified since 1 January 2019); decisions rendered on the merits by the FIFA Players’ Status Committee and the FIFA Dispute Resolution Chamber; non-confidential CAS awards in proceedings to which FIFA is a party (notified since 1 January 2019); list of CAS arbitrators proposed by FIFA for appointment by ICAS, and the number of times they have been nominated in CAS proceedings’. The list of decisions from all the aforementioned bodies are updated every four months, according to their respective webpages. However, time will ultimately tell how consistently decisions are published. Nevertheless, this move is a major milestone in FIFA’s journey towards increasing its transparency.

Hong Kong Protests, Human Rights and (e)Sports Law: The Blizzard and NBA controversies

Both Blizzard, a major video game developer, and the NBA received a flurry of criticism for their responses to persons expressing support for the Hong Kong protests over the past month. On October 8, Blizzard sanctioned Blitzchung, a professional Hearthstone player who expressed support of the Hong Kong protest during a post-match interview, by eliminating the prize money he had won and suspending him for one year from any Hearthstone tournament. Additionally, Blizzard will cease to work with the casters who conducted the interview. With mounting disapproval over the sanctions,  J. Allen Brack, the president of Blizzard, restored the prize money and reduced the period of ineligibility to 6 months.

The NBA controversy started when Daryl Morey, the general manager of the Houston Rockets, tweeted his support for the protests in Hong Kong. The tweet garnered much attention, especially in China where it received a lot of backlash, including an announcement from CCTV, the official state broadcaster in China, that it was suspending all broadcasts of the NBA preseason games. In attempts to appease its Chinese audience, which is a highly profitable market for the NBA, Morey deleted the tweet and posted an apology, and the NBA responded by saying that the initial tweet was ‘regrettable’. Many scolded these actions and accused the NBA of censorship to which the NBA Commissioner, Adam Silver, responded that the NBA remains committed to freedom of expression.

Both cases highlighted how (e)sport organizations may be faced with competing interests to either guarantee greater protection of human rights or to pursue interests that perhaps have certain financial motivations. More...


Asser International Sports Law Blog | De- or Re-regulating the middlemen? The DFB’s regulation of intermediaries under EU law scrutiny at the OLG Frankfurt. By Antoine Duval and Kester Mekenkamp.

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

De- or Re-regulating the middlemen? The DFB’s regulation of intermediaries under EU law scrutiny at the OLG Frankfurt. By Antoine Duval and Kester Mekenkamp.

Football intermediaries, or agents, are again under attack in the news. For some, corrupt behaviour has become endemic in football’s culture. It is always dangerous to scapegoat a whole profession or a group of people. Many intermediaries are trying their best to lawfully defend the interests of their clients, but some are not. The key focus should be on providing an adequate legal and administrative framework to limit the opportunities for corrupt behaviour in the profession. This is easier said than done, however. We are dealing with an intrinsically transnationalized business, often conducted by intermediaries who are not subjected to the disciplinary power of federations. Sports governing bodies are lacking the police power and human resources necessary to force the intermediaries to abide by their private standards. In this context, this blog aims to review a recent case in front of the regional court of Frankfurt in Germany, which highlights the legal challenges facing (and leeway available to) national federations when regulating the profession.

Since April 2015, the FIFA Regulations on Working with Intermediaries (“Intermediaries Regulations”) entered into force. They replaced the 2008 FIFA Players’ Agents Regulation and introduced dramatic changes to the regulation of players’ agents (for a quick introduction read our short guide here). Although seeing its first light on April Fools’ Day, the Intermediaries Regulations are not to be taken lightly. On the contrary, the new rules constitute a major turning point in the governance of player and club representation. Furthermore, the question of the compatibility of the Intermediaries Regulations with EU competition law promptly arose when the Landgericht Frankfurt am Main (LG) had to rule on a challenge to the Reglement für Spielervermittlung (DFB-regulations), the national measure implementing the FIFA Regulations issued by the German Football Federation (DFB, Deutschen Fußball Bund). In its injunction of 29 April 2015 the LG found some provisions of the DFB-regulations to be contrary to Article 101 TFEU (see our earlier blog). This decision was appealed by both parties to the Oberlandesgericht Frankfurt am Main (OLG), which rendered its ruling on 2 February 2016. This blog aims to analyse the decision of the OLG, while also putting it into its wider legal and social context.

I.              Back to the future: The Piau case revived

It is not the first time that the regulation of football agents/intermediaries by football federations and EU law are colliding. The previous Piau saga that started on 23 March 1998 with a complaint to the European Commission by a French agent, Laurent Piau, ended only very recently in front of the French Courts with a painful defeat for Mr. Piau. In the framework of that case, the then Court of First Instance of the EC (CFI) issued a ruling on the compatibility of the FIFA Agents Regulations with EU competition law, on appeal against the Commission’s decision to reject the complaint by Laurent Piau. In that decision, the CFI famously showed its surprise to see a private association engaging in regulatory activity without an express delegation of public power. In the words of the Tribunal, “the rule-making power claimed by a private organisation like FIFA, whose main statutory purpose is to promote football, is indeed open to question”.[1] Indeed, “[i]n principle, such regulation, which constitutes policing of an economic activity and touches on fundamental freedoms, falls within the competence of the public authorities”.[2] Yet, as many know, the world of football is special and in practice national states have very much relinquish regulatory control over it.

The CFI was pragmatic enough to recognize this unusual state of affairs. In fact, this peculiarity also enabled it to consider that the FIFA regulations, issued by a private organization, could not escape the scope of EU competition law.[3] Yet, in fine, the CFI endorsed the compatibility of the FIFA regulations with EU Competition law. It considered first that the European Commission (EC) was right in holding that it obtained the repeal of the most restrictive provisions contained in the original FIFA regulations.[4] Furthermore, the CFI supported the EC’s view that the compulsory nature of the FIFA licensing mechanism could be justified under the framework of then Article 81(3) EC [now 101(3)TFEU]. It stated that the “Commission did not commit a manifest error of assessment by considering that the restrictions stemming from the compulsory nature of the licence might benefit from an exemption on the basis of Article 81(3) EC”.[5] Finally, the CFI affirmed the applicability of Article 82 EC [now 102 TFEU] to the FIFA regulations, but concluded that “it follows from the above considerations regarding the amended regulations and the possible exemption under Article 81(3) EC that such an abuse [of a dominant position] has not been established”.[6]

Thus, based on the framework of analysis used in Piau, there is absolutely no doubt that EU competition law is applicable to the DFB-regulations (and analogically to all the other national regulations implementing the new FIFA Intermediaries Regulations).[7] The key question, however, is whether the restrictive effect on competition of those new rules can be justified. Such a justificatory framework of analysis is also broadly in line with the CJEU’s case law on competition law and sport, and in particular its Meca-Medina ruling.[8] The question of the legitimate objectives and proportionality of the new rules was rightly identified by the LG and OLG as the defining one to assess rule-by-rule the legality of the DFB’s regulations.

II.            The OLG Frankfurt and the Compatibility of the DFB regulations with EU Competition Law

The OLG’s ruling bears no clear winner or loser, as both parties can claim to have prevailed on parts of their claims. In its decision the Court clearly outlined a set of provisions that it deemed compatible with EU law, and another contrary to it. In any event, this case is again a good reminder that EU law is no golden bullet against the regulations of the Sports Governing Bodies (SGBs). Instead, their compatibility with EU law must be assessed on a case-by-case basis, bearing in mind their contexts and objectives. Nevertheless, EU law can be invoked to challenge the rationality of the SGBs’ regulations and to check any disproportionate encroachment on the economic freedom of the affected actors.

A.    The DFB rules incompatible with EU Law

In the present case, the DFB’s regulations for intermediaries faced a relatively detailed quasi-constitutional control by the OLG. The German court found that parts of the regulatory options adopted by the German federation are disproportionate to attain their objectives and therefore contrary to Article 101 TFEU. This is especially true of the rule forcing intermediaries to abide by the rules and jurisdictions of the DFB, UEFA and FIFA, and of the rule imposing a duty to provide an extended certificate of good conduct usually reserved for professions involving a risk to the integrity of minors.

In line with the decision in first instance, the OLG ruled against the provision requiring intermediaries to submit to the jurisdictions of FIFA, UEFA, DFB and its members in connection with all violations of their regulations and statutes (see point 1 of DFB Vermittlererklärung für natürliche Personen – Anhang 1, and a related notice later issued by the DFB).[9] In the OLG’s view, it would result in an impossible situation for intermediaries, as they would be required to have a ‘reasonable’ knowledge of, at least, 35 different association statutes and face being subjected to 30 different jurisdictions.[10] The court puts forward that it is necessary, as a prerequisite for the submission of non-members to the rules of an association and its jurisdiction, to be able, at any time to take knowledge, in a reasonable manner, of the content of the regulations, compliance mechanisms and sanctions. This possibility was not warranted in the present case. In other words, if the DFB wishes to subject intermediaries to its jurisdiction it is possible, but it would need to clearly define what such a submission would entail in terms both of the rules and procedures that would be applicable. In fact, as recognized by the European Parliament,[11] some type of disciplinary control by the national federations over the intermediaries is necessary to give some teeth to their regulations.

Furthermore, the OLG also rules that agents cannot be forced to submit an extended certificate of good conduct (erweiterten Führungszeugnisses).[12] The OLG agrees with the appellant that this duty is impossible to fulfil as under German criminal law, such certificate can be issued only for occupations suitable to establish/result in contacts with children and young people. Yet, such a contact with minors is not at the heart of an intermediary’s profession, especially that, as we will see below, intermediaries cannot derive any financial compensation for a transfer or employment contract involving a minor, it seems thus impossible for he or she to obtain the requisite certificate.[13]

The OLG has clearly drawn a line in the sand. There is a limit to the obligations the DFB can impose, they must be rationally possible to fulfil and connected to the objectives pursued and must not be unreasonably burdensome for the intermediaries.

B.    The DFB rules compatible with EU Law

The judgment is rather remarkable for what it considers proportionate regulation by the DFB.

First, it endorses, contrary to the LG, the proportionality of the ban on intermediary fees for transfers or contracts involving minors.[14] This ban was a very controversial part of the new FIFA regulations, as it was deemed extremely restrictive of the economic freedom of intermediaries and potentially counter-productive. [15] However, in the view of the OLG, article 7.7 of the DFB-regulations pursues a legitimate objective: the protection of minors (der Minderjährigenschutz).[16] It aims, more specifically, to prevent the transfer of underage players based solely on the economic interests of the intermediary and/or that underage players are taken to Germany without a stable employment perspective.[17] Moreover, the OLG deems this prohibition to be necessary as the other legal protections for minors provided by the German civil code are often inapplicable.[18] Finally, the court considers this prohibition to be proportionate. First, because intermediaries are not barred from being remunerated for advising minors when this advice is not requested in the framework of the conclusion of an employment contract or a transfer. Furthermore, the OLG notes that similar measures have been adopted in all other European countries and is supportive of a uniform approach to the regulation of the role of intermediaries in transfers of minors.[19] Overall, this is not a surprising assessment. The need to combat human trafficking and to fight abuses linked to transfers of minors have been repeatedly emphasised by the European institutions in their soft law.[20] Recently, the European Parliament underlined ‘the specific vulnerability of young players and the risk of them becoming victims of human trafficking’[21]. Only time will tell whether this type of draconian measure will rein such abuses. In any event, if reducing the economic incentives of intermediaries linked to transfers of minors will most probably restrict their economic opportunities, it is also likely to diminish the connected incentives for human trafficking in football.[22]

Furthermore, the OLG’s judgment also endorses the transparency requirements imposed by the DFB. More precisely, it deemed the obligation for clubs and players to disclose the contract details covering remuneration and payments to intermediaries’ enshrined in article 6.1 DFB-regulations compatible with EU competition law.[23] The legitimate aim pursued is the transparency and traceability of the market for intermediaries. Behind this objective, lies the idea that player transfers should be primarily based on sporting, rather than financial reasons. Consequently, it deems that an obligation to disclose payments connected to intermediation is necessarily linked to the attainment of this goal. This duty to disclose is also considered proportionate. For the OLG, it does not run counter the German data protection rules, nor does it constitute a disproportionate infringement in the commercial operations of an intermediary. When balancing the interest of the intermediary to keep the financial flows secret and the interest of the DFB in unveiling these flows, the OLG finds that transparency aimed at limiting the external influence of intermediaries on transfers should prevail.[24] In the eyes of the court, the DFB has concretely demonstrated that the negotiation of transfers is linked with important fees (erheblichen Zahlungen), which are liable to trigger a transfer of a player for economic reasons, rather than sporting ones. This, the OLG argues, runs counter to the ideal of fair sporting competitions. [25] In general, striving for greater transparency/publicity in the intermediary market is at the heart of the regulatory shift intended by the new FIFA regulations.[26] In fact, a recent report by two Harvard based scholars argues that the lack of transparency in the transfer market is one of the main causes for money laundering and corruption in football.[27] This is reinforced by the concentration of the market for intermediaries, with a group of happy few constituting an oligopoly.[28] Besides, due to the inherently transnational operation of the market, it is extremely difficult to monitor for national authorities. Intermediaries rely on complex contractual structures (many of them have been recently exposed on the footballleaks website), juggling with national laws and arbitration clauses to reduce both their taxes and regulatory oversight. Though the transparency requirements imposed by the DFB are extremely limited (a first rough synthesis for 2015 is available here) and way bolder proposals must be put on the table,[29] this is an important step in the right direction. This quest for transparency and openness around the financial flows involving intermediaries is very much “applauded” by the European parliament.[30] In fact, if supporters and citizens, who are often in fine called to financial rescue when an overspending club is ailing, are expected to exercise a public check over the over-optimistic (and sometimes corrupt) management of clubs and the correlated extravagant fees paid to intermediaries, they must be able to rely on trustful data to conduct such a critical assessment.

Finally, and this is most interesting in light of the on-going legal battle over FIFA’s third-party ownership ban, the OLG, confirming the LG’s assessment, also recognized the legitimacy of the DFB’s ban on an intermediary having an interest in future transfer compensations.[31] Its legitimate purpose is to rein the disproportionate influence, based on personal financial incentives, of intermediaries on a player’s transfers.[32] The OLG seems to follow the LG’s view that the potentiality of obtaining a share of future transfer fees constitutes a major incentive for intermediaries to actively encourage an early termination of a player’s contract.[33] In short, the German court endorses the need to limit incentives for intermediaries to trigger contractual ruptures over their personal financial interest in a future transfer of a player. A similar logic could be applied to the proportionality assessment of the TPO ban. Indeed, this ban is also aimed at avoiding that transfers be triggered for purely financial reasons. The idea being that a club should not be in a position of dependence vis-à-vis a third-party (in practice often an intermediary) that would force it to transfer a player to satisfy its own purely economic rationale. In this regard, the OLG’s judgment is very encouraging for FIFA as it supports a logic of ‘de-financiarization’ of football. The court is very much recognizing that economic incentives should not be front-and-centre in contemporary football and that the fact that there is a clear economic dimension to sport (triggering for example the application of EU law and/or labour law) should not overshadow its other dimensions (cultural, social, ethical, educational). Conciliation is necessary, players are not amateurs anymore, transfers are possible, TV rights money can trickle down, but the rampant financiarization (and collateralization) of labour contracts seems both dangerous in terms of the economic instability it might trigger (think FC Twente) and of the unethical abuses it might incite and conceal.

Conclusion: The legal consequences of FIFA’s retreat

The new FIFA Regulations for Intermediaries are first and foremost a confession of impotence from the part of FIFA. Fifteen years after introducing a worldwide regulatory mechanism applicable to football agents, FIFA basically acknowledged its incapacity to control the profession and rein its negative externalities. The old licensing system proved unable to provide a qualitative level playing field for agents, nor was FIFA capable (or willing to invest enough resources) to truly enforce its rules. In fact, at the local level, a multitude of informal agents and practices had practically hollowed out the FIFA Regulations.[34] Yet, instead of strengthening its regulatory apparatus and enforcement mechanisms, FIFA decided to retreat and basically handed over the responsibility to regulate intermediaries to the multitude of national federations. One can be excused for doubting at first that such a re-nationalization is well suited to control an inherently transnational market.[35] Yet, there is still some room left for hope.

The re-nationalization of the Regulations will undoubtedly bring about a complex regulatory landscape with different regimes applicable in each national jurisdiction.[36] Moreover, agents/intermediaries might face an enhanced amount of red tape and administrative fees if they aim at entering each and every national market. These negative consequences can be tempered, however, by a number of things. First of all, the market for intermediaries has never been truly transnational. Sociologists have shown that it operates more as a chain of national actors rather than with truly transnational players.[37] Furthermore, the big transfer money (and thus intermediary money) in football is concentrated on a small number of national markets (mainly the European big five[38]). This means that if those markets jointly engage in a strict regulation of intermediaries it will affect disproportionately (probably positively) the profession. Due to massive TV rights revenues these national federations and leagues also dispose of the necessary (financial and administrative) resources to rigorously enforce their rules. For example, if at a European level, national federations were able to coordinate their new intermediaries regulations and provide a level regulatory field for the profession, which would involve both reducing the administrative costs to exercise it and a sharper control of its negative externalities, FIFA’s regulatory retreat would be largely compensated by a potentially more effective regulatory system.

What is the role of EU law in this regard? The Piau case is a good reminder that the CJEU is sympathetic to the need to regulate the market for intermediaries. Since then, the soft law of the European institutions (and especially the European Parliament’s position) has very much comforted this sympathy.[39] However, it would be rather naïve to believe that the EU would be able and willing to take on the task of single-handedly re-regulating such a complex transnational field. It has currently other burning priorities and crucially lacks the resources and expertise to do so. The role of EU law is rather one of a careful catalyst and counter-power, aimed at encouraging private regulations at the national or transnational level and eschewing that they go too far in scapegoating the intermediaries and in restricting their economic freedoms. In this regard, the OLG Frankfurt provided, on the basis of EU law, a rather balanced review of the DFB regulations, striking down some of the more intrusive (or arguably less rational) parts of the regulations, while recognizing the legitimacy and proportionality of others. EU law can be invoked to open up a critical discussion over the regulatory trade-offs of transnational private regulations. Not more but also not less.


[1] Case T-193/02, Laurent Piau v Commission [2005] ECR II-0209, paras. 112-115; Landesgericht Frankfurt am Main: Urteil vom 29. April 2015 · Az. 2-06 O 142/15, para. 77. On the Piau ruling see D. Waelbroeck & P. Ibañez-Colomo, ‘Case C-171/05 P, Laurent Piau, Order of the Court of Justice (Third Chamber) of 23 February 2006, [2006] ECR I-37’, Common Market Law Review 43: 1743–1756, 2006.

[2] Ibid., para. 78.

[3] “On the other hand, since they are binding on national associations that are members of FIFA, which are required to draw up similar rules that are subsequently approved by FIFA, and on clubs, players and players’ agents, those regulations are the reflection of FIFA’s resolve to coordinate the conduct of its members with regard to the activity of players’ agents. They therefore constitute a decision by an association of undertakings within the meaning of Article 81(1) EC (Case 45/85 Verband der Sachversicherer v Commission [1987] ECR 405, paragraphs 29 to 32, and Wouters and Others, paragraph 71), which must comply with the Community rules on competition, where such a decision has effects in the Community.” Ibid., para. 75.

[4] Ibid., paras 83-99.

[5] Ibid., para. 104.

[6] Ibid., para. 117.

[7] This is well recognized and explicated in the OLG’s judgment. See, OLG Frankfurt am Main, Urt. v. 02.02.2016, Az.: 11 U 70/15 (Kart), para. II.1.

[8] Case C-519/04 P David Meca-Medina and Igor Majcen v Commission [2006] ECR I-6991, para. 42 ff. See further S. Weatherill, ‘Anti-doping Revisited: The Demise of the Rule of ‘Purely Sporting Interest’?’ in S. Weatherill, European Sports Law, ASSER Press, Springer, 2014, pp. 379-399 and B. Van Rompuy, The Role of EU Competition Law in Tackling Abuse of Regulatory Power by Sports Associations, available at http://ssrn.com/abstract=2767467.

[9] OLG Frankfurt am Main, Urt. v. 02.02.2016, Az.: 11 U 70/15 (Kart),, II.2.b.

[10] Ibid, II.2.b

[11] The European Parliament “Underscores the finding of the study that the regulations of agents established by sports federations are basically aimed at controlling access to the profession and regulating its exercise, but that these bodies have only limited supervisory and sanctioning powers, since they lack any means of control or direct action vis-à-vis sports agents who are not registered with them; nor are they entitled to impose civil or criminal penalties”. European Parliament, Resolution on players’ agents in sports, 17 June 2010, (2011/C 236 E/14), para.8.

[12] OLG Frankfurt am Main, Urt. v. 02.02.2016, Az.: 11 U 70/15 (Kart), II.3.a

[13] Ibid, II.3.a: Art. 3.2 and 3.3 DFB-regulations

[14] Ibid, II.2.a

[15] For a good critique see N. de Marco, ‘The new FA Football Intermediaries Regulations and the Disputes Likely to arise’, at §23-25.

[16] Art. 7.7 DFB-regulations

[17] OLG Frankfurt am Main, Urt. v. 02.02.2016, Az.: 11 U 70/15 (Kart), II.2.a

[18] “Die Regelung ist auch notwendig; insbesondere bieten entgegen den Darstellungen der Klägerin die Regelungen zur beschränkten Geschäftsfähigkeit Minderjähriger gemäß §§ 104 ff BGB im vorvertraglichen Feld der Anbahnung eines möglichen Vertragsschlusses keinen Schutz. Dies erlangt Bedeutung, sofern - wie vom Beklagten dargestellt - eine Mehrzahl an potentiellen Spielern angeworben, jedoch nur einer tatsächlich vermittelt wird.” Ibid, II.2.a.

[19] “Schließlich erlangt bei der Verhältnismäßigkeitsprüfung auch Bedeutung, dass im europäischen Ausland ausnahmslos Regelungen hinsichtlich des Verbots der kostenpflichtigen Vermittlung minderjähriger Spieler verabschiedet wurden, so dass eine einheitliche Handhabung im Sinne des Minderjährigenschutzes in besonderer Weise geboten erscheint.” Ibid, II.2.a.

[20] See amongst others: European Parliament, Resolution on the future of professional football in Europe, 29 March 2007, (2006/2130(INI)), paras 35-38; European Parliament, Resolution on players’ agents in sports, 17 June 2010, (2011/C 236 E/14), para.6-7;

[21] European Parliament, Resolution on players’ agents in sports, para.6.

[22] This is a truly worrying development. See A. C. Najarian, ‘"The Lost Boys": FIFA's Insufficient Efforts To Stop Trafficking of Youth Footballers’, 22 Sports Law. J. 151 2015. On the ‘muscle drain’ phenomena, see W. Andreff, ‘“Muscle Drain” in Sport and how to regulate it? A plea for a “Coubertobin” tax’ and J. Scherrens, ‘The muscle drain of African Football Players to Europe: Trade or Trafficking?’, Master Thesis 2007.

[23] OLG Frankfurt am Main, Urt. v. 02.02.2016, Az.: 11 U 70/15 (Kart), II.3.b; Art. 6.1 DFB-regulations

[24] Ibid, II.3.b

[25] “Dies widerspricht dem Grundsatz eines am fairen Wettbewerb orientierten sportlichen Wettkampfs [...]“. Ibid, II.3.b

[26] In FIFA’s own words: “The new system does not regulate access to the activity but provide a framework for tighter control and supervision of the transactions relating to transfer of football players in order to enhance transparency.” FIFA, Working with intermediaries – reform of FIFA’s players’ agents system, Background information, April 2015, p.2.

[27] M. Andrews and P. Harrington, Off Pitch: Football’s financial integrity weaknesses, and how to strengthen them, CID Working Paper No. 311 January 2016, p.68-103.

[28]“The analysis of shares highlights that the big five league players’ representation market is highly concentrated: half of the footballers are managed by 83 football agents or agencies. Our study reveals the existence of closed relational networks that clearly favors the concentration of players under the control of few agents.”R. Poli, G. Rossi & R. Besson, Football Agents in the biggest five European football markets. An empirical research report, CIES, February 2012, p.2.

[29] Andrew and Harrington suggest for example to create both a “Transfer Clearinghouse to house transfer process information” and a “centralized processes for registering and managing intermediaries”, op.cit. 27, p.96-99.

[30] The EP “[a]pplauds sport governing bodies’ efforts to bring about more transparency and supervision of financial flows.” European Parliament, Resolution on players’ agents in sports, 17 June 2010, (2011/C 236 E/14), para.11. See also European Parliament, Resolution on the European dimension in sport, 2 February 2012 (2011/2087(INI)), paras 76, 78 and 87.

[31] OLG Frankfurt am Main, Urt. v. 02.02.2016, Az.: 11 U 70/15 (Kart),, II.3.c; Art. 7.3 DFB-regulations

[32]“Zweck der Regelung ist es, einer an sachfremden, d.h. nicht sportlichen Interessen ausgerichteten Einflussnahme der Vermittler auf Spielerwechsel, insbesondere im Bereich der vorzeitigen Vertragsbeendigung, entgegenzuwirken. Die Regelung ist geboten, da dieser Zweck durch das Verbot insbesondere der Zahlung von Transferentschädigungen oder Beteiligungen an einem künftigen Transferwert eines Spielers den Anreiz zur sachfremden, finanziell motivierten Einflussnahme mindert.” Ibid, II.3.c.

[33] LG Frankfurt am Main: Urteil vom 29. April 2015 · Az. 2-06 O 142/15, paras. 83-84

[34] A finding shared by the CIES study and the Study on Sports Agents in the European Union commissioned by the EC in 2009.

[35] The European Parliament stated in its 2010 Resolution on Agents that « doing away with the existing FIFA licence system for player’s agents without setting up a robust alternative system would not be the appropriate way to tackle the problems surrounding player’s agents in football”. European Parliament, Resolution on players’ agents in sports, 17 June 2010, (2011/C 236 E/14), para. 10. The same scepticism is displayed by M. Andrews and P. Harrington, Off Pitch: Football’s financial integrity weaknesses, and how to strengthen them, CID Working Paper No. 311 January 2016, at p.98.

[36] For a preliminary rough mapping, see M. Colucci (ed.), The FIFA Regulations on Working with Intermediaries – Implementation at National Level, International Sports Law and Policy Bulletin, Issue 1-2015.

[37] This is highlighted in the CIES study of 2012.

[38] I.e. the English Premier League, the German Bundesliga, the Spanish La Liga, the Italian Serie A and the French Ligue 1.

[39] European Parliament, Resolution on the future of professional football in Europe, 29 March 2007, (2006/2130(INI)), para. 44; European Parliament, Resolution on the White Paper on Sport, 8 May 2008 (2007/2261(INI)), para. 100; European Parliament, Resolution on players’ agents in sports, 17 June 2010, (2011/C 236 E/14); European Parliament, Resolution on the European dimension in sport, 2 February 2012 (2011/2087(INI)), paras 75-78. This need for regulation is also embraced, though more carefully, by the European Commission in its White Paper on Sport, see European Commission, White Paper on Sport, COM(2007) 391, at para. 4.4. See also European Commission, ‘Commission blows the whistle over inflated football transfer fees and lack of level playing field’, 7 February 2013

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