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 and March 2019. By Tomáš Grell

Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

 

The Headlines

The Court of Arbitration for Sport bans 12 Russian track and field athletes

On 1 February 2019, the Court of Arbitration for Sport (CAS) communicated that it had rendered another 12 decisions in the seemingly endless saga concerning the state-sponsored doping programme in Russia. These first-instance decisions of the CAS involve 12 Russian track and field athletes who were all found guilty of anti-doping rule violations based on the evidence underlying the reports published by professor Richard McLaren and suspended from participating in sports competitions for periods ranging from two to eight years. Arguably the most prominent name that appears on the list of banned athletes is Ivan Ukhov, the 32-year-old high jump champion from the 2012 Olympic Games in London.

The case was brought by the International Association of Athletics Federation (IAAF) that sought to convince the arbitrators that the athletes in question had participated in and/or benefited from anabolic steroid doping programmes and benefited from specific protective methods (washout schedules) in the period between the 2012 Olympic Games in London and the 2013 IAAF World Championships in Moscow. The CAS was acting in lieau of the Russian Athletics Federation that remains suspended and thus unable to conduct any disciplinary procedures. The athletes have had the opportunity to appeal the decisions to the CAS Appeals Arbitration Division.

Federal Cartel Office in Germany finds Rule 40 of the Olympic Charter disproportionately restrictive

At the end of February, the German competition authority Bundeskartellamt announced that it had entered into a commitment agreement with the German Olympic Sports Confederation (DOSB) and the International Olympic Committee (IOC) in which these two organisations had agreed to considerably enhance advertising opportunities for German athletes and their sponsors during the Olympic Games. The respective agreement is a direct consequence of the Bundeskartellamt’s finding that the IOC and the DOSB had abused their dominant position on the market for organising and marketing the Olympic Games by demanding that the athletes refrain from promoting their own sponsors while the Games are ongoing, as well as shortly before and after the Games. This restriction stems from Rule 40(3) of the Olympic Charter under which no competitor who participates in the Games may allow his person, name, picture or sports performances to be used for advertising purposes, unless the IOC Executive Board allows him/her to do so.

As part of fulfilling its obligations under the commitment agreement, the DOSB has relaxed its guidelines on promotional activities of German athletes during the Olympic Games. For its part, the IOC has declared that these new guidelines would take precedence over Rule 40(3) of the Olympic Charter. However, it still remains to be seen whether in response to the conclusions of the German competition authority the IOC will finally change the contentious rule.

The Grand Chamber of the European Court of Human Rights refuses to pronounce itself on Claudia Pechstein’s case

Claudia Pechstein’s challenge against the CAS brought before the European Court of Human Rights (ECtHR) has not yielded the desired result for the German athlete. On 5 February 2019, a Panel of the Grand Chamber of the ECtHR decided that the Grand Chamber would not entertain the case. This means that the judgment handed down by the 3rd Chamber of the ECtHR on 2 October 2018, in which the ECtHR confirmed that except for the lack of publicity of oral hearings the procedures of the CAS are compatible with the right to a fair trial under Article 6(1) of the European Convention on Human Rights, has now become final and binding. However, the protracted legal battle between the five-time Olympic champion in speed skating and the CAS is not over yet since there is one more challenge against the CAS and its independence pending before the German Constitutional Court.  More...

New Event! FIFA and Human Rights: Impacts, Policies, Responsibilities - 8 May 2019 - Asser Institute

In the past few years, FIFA underwent intense public scrutiny for human rights violations surrounding the organisation of the World Cup 2018 in Russia and 2022 in Qatar. This led to a reform process at FIFA, which involved a number of policy changes, such as:

  • Embracing the United Nations Guiding Principles on Business and Human Rights;
  • The inclusion of human rights in the FIFA Statutes;
  • Adopting new bidding rules including human rights requirements;
  • And introducing a Human Rights Advisory Board.

To take stock of these changes, the Asser Institute and the Netherlands Network for Human Rights Research (NNHRR), are organising a conference on the Fédération Internationale de Football Association (FIFA) and human rights, which will take place at the Asser Institute in The Hague on 8 May 2019.

This one-day conference aims to take a deeper look at FIFA’s impacts on human rights and critically investigate the measures it has adopted to deal with them. Finally, we will also address FIFA’s potential legal responsibilities under a variety of human rights laws/instruments.


Preliminary Programme

9:00 Registration & Coffee

9:45 Welcome by Antoine Duval (Asser Institute) & Daniela Heerdt (Tilburg University)

10:00 Opening Remarks by Andreas Graf (Human Rights Officer, FIFA)

10:30 Panel 1: FIFA & Human Rights: Impacts

  • Zoher Shabbir (University of York) – The correlation between forced evictions and developing nations hosting the FIFA World Cup
  • Roman Kiselyov (European Human Rights Advocacy Centre) - FIFA World Cup as a Pretext for a Crackdown on Human Rights
  • Eleanor Drywood (Liverpool University) - FIFA and children’s rights: theory, methodology and practice 

12:00 Lunch

13:00 Panel 2: FIFA & Human Rights: Policies

  • Lisa Schöddert & Bodo Bützler (University of Cologne) – FIFA’s eigen-constitutionalisation and its limits
  • Gigi Alford (World Players Association) - Power Play: FIFA’s voluntary human rights playbook does not diminish Switzerland’s state power to protect against corporate harms
  • Brendan Schwab (World Players Association) & Craig Foster - FIFA, human rights and the threatened refoulement of Hakeem Al Araibi 

14:30 Break

15:00 Panel 3: FIFA & Human Rights: Responsibilities

  • Daniel Rietiker (ECtHR and University of Lausanne) - The European Court of Human Rights and Football: Current Issues and Potential
  • Jan Lukomski (Łukomski Niklewicz law firm) - FIFA and the International Covenant on Economic, Social and Cultural Rights : Obligations, duties and remedies regarding the labour rights         protected under the ICESCR
  • Raquel Regueiro Dubra (Complutense University of Madrid) - Shared international responsibility for human rights violations in global events. The case of the 2022 World Cup in Qatar.
  • Wojciech Lewandowski (Polish Academy of Sciences/University of Warsaw) - Is Bauer the new Bosman? – The implications of the newest CJEU jurisprudence for FIFA and other sport governing bodies

17:00 Closing Remarks by Mary Harvey (Chief Executive, Centre for Sports and Human Rights)


More information and registration at https://www.asser.nl/education-events/events/?id=3064

International and European Sports Law – Monthly Report – January 2019 - By Tomáš Grell

 Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

 

The Headlines

#Save(d)Hakeem

The plight of Hakeem al-Araibi – the 25-year-old refugee footballer who was arrested last November in Bangkok upon his arrival from Australia on the basis of a red notice issued by Interpol in contravention of its own policies which afford protection to refugees and asylum-seekers – continued throughout the month of January. Bahrain – the country Hakeem al-Araibi fled in 2014 due to a (well-founded) fear of persecution stemming from his previous experience when he was imprisoned and tortured as part of the crackdown on pro-democracy athletes who had protested against the royal family during the Arab spring – maintained a firm stance, demanding that Hakeem be extradited to serve a prison sentence over a conviction for vandalism charges, which was allegedly based on coerced confessions and ignored evidence.

While international sports governing bodies were critised from the very beginning for not using enough leverage with the governments of Bahrain and Thailand to ensure that Hakeem’s human rights are protected, they have gradually added their voice to the intense campaign for Hakeem’s release led by civil society groups. FIFA, for example, has sent a letter directly to the Prime Minister of Thailand, urging the Thai authorities ‘to take the necessary steps to ensure that Mr al-Araibi is allowed to return safely to Australia at the earliest possible moment, in accordance with the relevant international standards’. Yet many activists have found this action insufficient and called for sporting sanctions to be imposed on the national football associations of Bahrain and Thailand.      

When it looked like Hakeem will continue to be detained in Thailand at least until April this year, the news broke that the Thai authorities agreed to release Hakeem due to the fact that for now the Bahraini government had given up on the idea of bringing Hakeem ‘home’ – a moment that was praised as historic for the sport and human rights movement.

Russia avoids further sanctions from WADA despite missing the deadline for handing over doping data from the Moscow laboratory 

WADA has been back in turmoil ever since the new year began as the Russian authorities failed to provide it with access to crucial doping data from the former Moscow laboratory within the required deadline which expired on 31 December 2018, insisting that the equipment WADA intended to use for the data extraction was not certified under Russian law. The Russian Anti-Doping Agency thus failed to meet one of the two conditions under which its three-year suspension was controversially lifted in September 2018. The missed deadline sparked outrage among many athletes and national anti-doping organisations, who blamed WADA for not applying enough muscle against the Russian authorities.

Following the expiry of the respective deadline, it appeared that further sanctions could be imposed on the Russian Anti-Doping Agency, but such an option was on the table only until WADA finally managed to access the Moscow laboratory and retrieve the doping data on 17 January 2019. Shortly thereafter, WADA President Sir Craig Reedie hailed the progress as a major breakthrough for clean sport and members of the WADA Executive Committee agreed that no further sanctions were needed despite the missed deadline. However, doubts remain as to whether the data have not been manipulated. Before WADA delivers on its promise and builds strong cases against the athletes who doped – to be handled by international sports federations – it first needs to do its homework and verify whether the retrieved data are indeed genuine.  

British track cyclist Jessica Varnish not an employee according to UK employment tribunal

On 16 January 2019, an employment tribunal in Manchester rendered a judgment with wider implications for athletes and sports governing bodies in the United Kingdom, ruling that the female track cyclist Jessica Varnish was neither an employee nor a worker of the national governing body British Cycling and the funding agency UK Sport. The 28-year-old multiple medal winner from the world and European championships takes part in professional sport as an independent contractor but sought to establish before the tribunal that she was in fact an employee of the two organisations. This would enable her to sue either organisation for unfair dismissal as she was dropped from the British cycling squad for the 2016 Olympic Games in Rio de Janeiro and her funding agreement was not renewed, allegedly in response to her critical remarks about some of the previous coaching decisions.

The tribunal eventually dismissed her challenge, concluding that ‘she was not personally performing work provided by the respondent – rather she was personally performing a commitment to train in accordance with the individual rider agreement in the hope of achieving success at international competitions’. Despite the outcome of the dispute, Jessica Varnish has insisted that her legal challenge contributed to a positive change in the structure, policies and personnel of British Cycling and UK Sport, while both organisations have communicated they had already taken action to strengthen the duty of care and welfare provided to athletes.  

 

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Upcoming Events

Call for papers - Third Annual International Sports Law Conference of the International Sports Law Journal - 24 and 25 October 2019 - Asser Institute

The Editors of the International Sports Law Journal (ISLJ) invite you to submit abstracts for the third ISLJ Annual Conference on International Sports Law, which will take place on 24 and 25 October 2019 at the Asser Institute in The Hague. The ISLJ, published by Springer and Asser Press, is the leading academic publication in the field of international sports law. The conference is a unique occasion to discuss the main legal issues affecting international sports with renowned academic experts and practitioners.


We are delighted to announce the following confirmed keynote speakers:


  • Beckie Scott (Chair of the World Anti-Doping Agency (WADA) Athlete Committee, Olympic Champion, former member of the WADA Executive Committee and the International Olympic Committee (IOC)),
  • Ulrich Haas (Professor of Law at Univerzität Zürich, CAS arbitrator), and
  • Kimberly Morris (Head of FIFA Transfer Matching System (TMS) Integrity and Compliance).


We welcome abstracts from academics and practitioners on any question related to international sports law. We also welcome panel proposals (including a minimum of three presenters) on a specific issue. For this year’s edition, we specifically invite submissions on the following themes:


  • The role of athletes in the governance of international sports
  • The evolution of sports arbitration, including the Court of Arbitration for Sport
  •  The role and functioning of the FIFA transfer system, including the FIFA TMS
  •  The intersection between criminal law and international sports (in particular issues of corruption, match-fixing, human trafficking, tax evasion)
  • Hooliganism
  • Protection of minor athletes
  • Civil and criminal liability relating to injuries in sports


Please send your abstract of 300 words and CV no later than 30 April 2019 to a.duval@asser.nl. Selected speakers will be informed by 15 May.


The selected participants will be expected to submit a draft paper by 1 September 2019. All papers presented at the conference are eligible (subjected to peer-review) for publication in a special issue of the ISLJ.  To be considered for inclusion in the conference issue of the journal, the final draft must be submitted for review by 15 December 2019.  Submissions after this date will be considered for publication in later editions of the Journal.


The Asser Institute will cover one night accommodation for the speakers and will provide a limited amount of travel grants (max. 250€). If you wish to be considered for a grant please indicate it in your submission. 

A Reflection on the Second Report of FIFA’s Human Rights Advisory Board - By Daniela Heerdt (Tilburg University)

Editor's note: Daniela Heerdt is a PhD candidate at Tilburg Law School in the Netherlands and works as Research Officer for the Centre for Sports and Human Rights. Her PhD research deals with the establishment of responsibility and accountability for adverse human rights impacts of mega-sporting events, with a focus on FIFA World Cups and Olympic Games. She published an article in the International Sports Law Journal that discusses to what extent the revised bidding and hosting regulations by FIFA, the IOC and UEFA strengthen access to remedy for mega-sporting events-related human rights violations.

 

On November 26th, the Human Rights Advisory Board[1] of the Fédération Internationale de Football Association (FIFA) published its second report. This blog provides a summary and brief evaluation of the report, by drawing a comparison to the previous report issued by the Human Rights Advisory Board (hereinafter: the Board) based on the content of the recommendations and FIFA’s efforts to implement the Board’s recommendations. The third part of this blog briefly reflects on the broader implications of some of the new recommendations issued for FIFA’s internal policies. The conclusion provides five more general points of observation on the report. More...

The Kristoffersen ruling: the EFTA Court targets athlete endorsement deals - By Sven Demeulemeester and Niels Verborgh

Editor’s note: Sven Demeulemeester and Niels Verborgh are sports lawyers at the Belgium law firm, Altius.

 

Introduction

In its 16 November 2018 judgment, the Court of Justice of the European Free Trade Association States (the EFTA Court) delivered its eagerly awaited ruling in the case involving Henrik Kristoffersen and the Norwegian Ski Federation (NSF). 

On 17 October 2016, Kristoffersen had taken the NSF to the Oslo District Court over the latter’s refusal to let the renowned alpine skier enter into a sponsorship with Red Bull. At stake were the commercial markings on his helmet and headgear in races organised under the NSF’s umbrella. The NSF refused this sponsorship because it had already granted the advertising on helmet and headgear to its own main sponsor, Telenor. Kristoffersen claimed before the Oslo District Court, that the NSF should be ordered to permit him to enter into an individual marketing contract with Red Bull. In the alternative, Kristoffersen claimed damages up to a maximum of NOK 15 million. By a letter of 25 September 2017, the Oslo District Court referred several legal questions to the EFTA Court in view of shedding light on the compatibility of the rules that the NSF had invoked with EEA law.

If rules do not relate to the conduct of the sport itself, but concern sponsorship rights and hence an economic activity, these rules are subject to EEA law. The EFTA Court ruling is important in that it sets out the framework for dealing with - ever more frequent - cases in which an individual athlete’s endorsement deals conflict with the interest of the national or international sports governing bodies (SGBs) that he or she represents in international competitions.More...


Season 2 of football leaks: A review of the first episodes

Season 2 of #FootballLeaks is now underway since more than a week and already a significant number of episodes (all the articles published can be found on the European Investigative Collaborations’ website) covering various aspect of the (lack of) transnational regulation of football have been released (a short German documentary sums up pretty much the state of play). For me, as a legal scholar, this new series of revelations is an exciting opportunity to discuss in much more detail than usual various questions related to the operation of the transnational private regulations of football imposed by FIFA and UEFA (as we already did during the initial football leaks with our series of blogs on TPO in 2015/2016). Much of what has been unveiled was known or suspected by many, but the scope and precision of the documents published makes a difference. At last, the general public, as well as academics, can have certainty about the nature of various shady practices in the world of football. One key characteristic that explains the lack of information usually available is that football, like many international sports, is actually governed by private administrations (formally Swiss associations), which are not subject to the similar obligations in terms of transparency than public ones (e.g. access to document rules, systematic publication of decisions, etc.). In other words, it’s a total black box! The football leaks are offering a rare sneak peak into that box.

Based on what I have read so far (this blog was written on Friday 9 November), there are three main aspects I find worthy of discussion:

  • The (lack of) enforcement of UEFA’s Financial Fair Play (FFP) Regulations
  • The European Super League project and EU competition law
  • The (lack of) separation of powers inside FIFA and UEFA More...

Supporters of the ISLJ Annual International Sports Law Conference 2018: Altius

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very happy to finish this series of interviews with Sven Demeulemeester from Altius, a Belgian law firm based in Brussels with a very fine (and academically-minded!) sports law team. 


1. Can you explain to our readers the work of Altius in international sports law? 

Across different sports’ sectors, Altius’ sports law practice advises and assists some of the world’s most high-profile sports governing bodies, clubs and athletes, at both the national and the international level. The team has 6 fully-dedicated sports lawyers and adopts a multi-disciplinary approach, which guarantees a broad range of legal expertise for handling specific cases or wider issues related to the sports industry. We are proud to be independent but, in cross-border matters, are able to tap into a worldwide network.

2. How is it to be an international sports lawyer? What are the advantages and challenges of the job? 

Sports law goes beyond one specific field of law. The multiplicity of legal angles keeps the work interesting, even after years of practising, and ensures that a sports lawyer rarely has a dull moment. The main downside is that the sports industry is fairly conservative and sometimes ‘political’. While the law is one thing, what happens in practice is often another. Bringing about change is not always easy. 

3. What are the burning issues in international sports law that you would like to see discussed at the conference? 

 The much-anticipated overhaul of the football transfer system is eagerly anticipated and is worth a thorough debate, also in terms of possible, viable alternatives. The impact of EU law - both internal market rules, competition law and fundamental rights – can hardly be underestimated. Also, dispute resolution mechanisms within the realm of sports - and an accessible, transparent, independent and impartial sports arbitration in particular - will remain a ‘hot’ topic in the sector for years to come. Furthermore, ethics and integrity issues should remain top of the agenda, as is being demonstrated by the current money-laundering and match-fixing allegations in Belgium. Finally, in a sector in which the use of data is rife, the newly-adopted GDPR’s impact remains somewhat ‘under the radar’.

4. Why did you decide to support the ISLJ Annual International Sports Law Conference? 

The ISLJ Annual International Sports Law Conference is refreshing, both in terms of its topics and participants. The academic and content-driven approach is a welcome addition to other sports law conferences in which the networking aspect often predominates.

Supporters of the ISLJ Annual International Sports Law Conference 2018: LawInSport

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very happy to continue this series of interviews with LawInSport, a knowledge hub and educational platform for the community of people working in or with an interest in sport and the law  (many thanks to LawInSport's CEO Sean Cottrell for kindly responding to our questions).


1. Can you explain to our readers what LawInSport is about?

LawInSport is a knowledge hub, educational platform and global community of people working in or with an interest in sport and the law.

Our objective is to help people ‘understand the rules of the game™’. What does this mean? It means people in sport having access to information that enables them to have a better understanding the rules and regulations that govern the relationships, behaviours and processes within sports. This in turn creates a foundation based on the principles of the rule of law, protecting the rights of everyone working and participating in sport.  

2. What are the challenges and perks of being an international sports law 'reporter’ ?

I do not consider myself a reporter, but as the head of an organisation that has a responsibility to provide the highest quality information on legal issues in sport,  focusing on what is important and not just what is popular, whilst trying to stay free from conflicts of interests. These two issues, popularism and conflict of interest, are the two of the biggest challenges.

Popularism and the drive to win attention is, in my opinion, causing a lack of discipline when it comes to factual and legal accuracy in coverage of sports law issues, which on their own may seem harmless, but can cause harm to organisations and individuals (athletes, employees, etc).

Conflict of interest will obviously arise in such a small sector, however, there is not a commonly agreed standard in internationally, let alone in sports law. Therefore, one needs to be diligent when consuming information to understand why someone may or may not hold a point of view, if they have paid to get it published or has someone paid them to write it. For this reason it can be hard to get a full picture of what is happening in the sector.

In terms of perks, I get to do something that is both challenging and rewarding on a daily basis, and as  a business owner I have the additional benefit of work with colleagues I enjoy working with. I have the privilege of meeting world leaders in their respective fields (law, sport, business, science, education, etc) and gain insights from them about their work and life experiences which is incredibly enriching.  Getting access to speak to the people who are on the front line, either athletes, coaches, lawyers, scientists, rather than from a third party is great as it gives you an unfiltered insight into what is going on.

On the other side of things, we get the opportunity to help people through either having a better understand of the legal and regulatory issues in sports or to understand how to progress themselves towards their goals academically and professionally is probably the most rewarding part of my work. 

3. What are the burning issues in international sports law that you would like to see discussed at the conference?

  • The long-term implications of human rights law in sport;
  • The importance of meaningful of stakeholder consultation in the creation and drafting of regulations in sport;
  • Effective international safeguarding in sport.

4. Why did you decide to support the ISLJ Annual International Sports Law Conference?

We support ISLJ Annual International Sports Law Conference as it is a non-profit conference that’s purpose is to create a space to explore a wide range of legal issues in sport. The conference is an academic conference that does a great job in bringing a diverse range of speakers and delegates. The discussions and debates that take place will benefit the wider sports law community.  Therefore, as LawInSport’s objective is focused on education it was a straight forward decision to support the conferences as it is aligned with our objectives. 

Asser International Sports Law Blog | EU Law is not enough: Why FIFA's TPO ban survived its first challenge before the Brussels Court

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

EU Law is not enough: Why FIFA's TPO ban survived its first challenge before the Brussels Court


Star Lawyer Jean-Louis Dupont is almost a monopolist as far as high profile EU law and football cases are concerned. This year, besides a mediatised challenge against UEFA’s FFP regulations, he is going after FIFA’s TPO ban on behalf of the Spanish and Portuguese leagues in front of the EU Commission, but also before the Brussels First Instance Court defending the infamous Malta-based football investment firm Doyen Sport. FIFA and UEFA’s archenemy, probably electrified by the 20 years of the Bosman ruling, is emphatically trying to reproduce his world-famous legal prowess. Despite a first spark at a success in the FFP case against UEFA with the Court of first instance of Brussels sending a preliminary reference to the Court of Justice of the EU (CJEU), this has proven to be a mirage as the CJEU refused, as foretold, to answer the questions of the Brussels Court, while the provisory measures ordered by the judge have been suspended due to UEFA’s appeal. But, there was still hope, the case against FIFA’s TPO ban, also involving UEFA and the Belgium federation, was pending in front of the same Brussels Court of First Instance, which had proven to be very willing to block UEFA’s FFP regulations. Yet, the final ruling is another disappointment for Dupont (and good news for FIFA). The Court refused to give way to Doyen’s demands for provisional measures and a preliminary reference. The likelihood of a timely Bosman bis repetita is fading away. Fortunately, we got hold of the judgment of the Brussels court and it is certainly of interest to all those eagerly awaiting to know whether FIFA’s TPO ban will be deemed compatible or not with EU law.


I.               Facts and Procedure

The case was introduced in March 2015 by Doyen Sports Investments Limited, the Maltese investment fund specialised in football and an obscure Belgium football club, the RFC Seresien/Seraing United, against the Belgium federation (URBSFA), FIFA and UEFA. For its part, FIFPro decided to voluntarily intervene in the debates.

Seraing United plays in the Proximus League, the Belgium Second Division, and signed a specific collaboration contract with Doyen Sports on 30 January 2015. This collaboration contract foresees that Doyen and Seraing United will collaborate to select at least two players in each summer transfer window to be recruited by Seraing via a TPI (Third-Party Investment). In return, Doyen will contribute 300 000€ for the 2015/2016 season to Seraing’s budget and own 30% of rights of the players it has picked. For example, during this summer’s transfer window Seraing and Doyen have concluded a TPI contract to finance the recruitment of Ferraz Pereira. It is this contract that led to the present dispute. Indeed, as Seraing indicated in its filing for registration that Ferraz Perreira was recruited via a TPI contract, the URBSFA decided to block the registration of the player in the FIFA TMS system. The procedure regarding the release of an International Transfer Certificate is still on-going in front of FIFA’s internal bodies.

The claimants demanded that the judge blocked any attempt of FIFA, UEFA and the Belgium federation to implement the TPO ban (in the form of FIFA Circular 1464) and, if necessary, to send a preliminary reference to the CJEU.


II.             Jurisdiction of the Brussels Court

The first key question, as in the FFP case, was whether the Brussels Court had jurisdiction over the matter. This was unproblematic as far as the demands against the Belgium federation are concerned, as it is seated in Belgium and a potential arbitration clause does not hinder the demand of provisory measures to the national judge under Belgium law.

As far as UEFA and FIFA are concerned, however, the question is more complex. The Brussels Court quickly side-lined the objection based on a putative CAS arbitration clause, but it went into greater details concerning its international jurisdiction on the basis of the Lugano Convention. Under article 6 par. 1 of the Lugano Convention a defendant can be sued in the court of a place where one of the defendants is domiciled if “the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings”. In the FFP case, it is this close connection between the claims raised against UEFA and the Belgium Federation that could not be decisively proven and that led the Court to declare itself incompetent to deal with the matter. In the present case, the Court clearly distinguishes between FIFA and UEFA.

Concerning the claims raised against FIFA, the Court considers that:

“The relations between FIFA and the URBSFA are characterized by the fact that FIFA is the association adopting the international regulations which national federations, members of FIFA, including the URBSFA, have the duty to respect and enforce against their own members, i.e. the football clubs.” (para.42 of the judgment)

It deduces from this consideration that the URBSFA will have to implement FIFA’s TPO ban. However, this close connection exists only insofar as the claims raised are connected with provisory measures to be applied on the Belgian territory. In the eyes of the Court, FIFA’s objections to its jurisdiction based on article 22.2 of the Lugano Convention are not relevant, insofar that the case does not involve primarily a question of company or association law. The Court, contrary to the FFP case against UEFA, concludes that it has jurisdiction to deal with the claims raised against FIFA. This is a first, clear, legal victory for Jean-Louis Dupont. Yet this does not apply to UEFA as it did not adopt the regulations challenged, nor is the Belgium federation implementing its rules when enforcing the TPO ban. Thus, a close link in the sense of article 6 par. 1 of the Lugano Convention is missing[1]. Neither is article 31 of the Lugano Convention suitable to ground the Court’s jurisdiction against UEFA[2]. Hence, the Court declares itself incompetent to deal with the claims raised against UEFA.

The Court’s recognition that it has jurisdiction to deal with the claims directed against FIFA’s TPO ban insofar as FIFA’s rules have to be implemented by the URBSFA on the Belgium territory meant that this time Dupont could hope for a viable preliminary reference. Yet, as we will see, this did not lead to the award of the provisory measures hoped by the claimants.

 

III.           The conditions for awarding provisory measures under Belgium law

Under Belgium law two main conditions need to be fulfilled to lead to the granting of provisory measures: there need to be urgency and “appearance of right” (condition de l’apparence), which is analogous to the likelihood to prevail. There is urgency when it is feared that harm of certain intensity, or the likelihood of a serious inconvenience, make an immediate decision preferable. In the present case, the Court considers that Doyen is necessarily negatively affected by the TPO ban, as it is unable to exercise its economic activity[3]. The ban prejudices also Seraing United, which is deprived of an opportunity to finance its activities in a difficult context (URBSFA’s new regulations restricting the conditions to be considered a professional club). Thus, the Court finds that the urgency of the matter is given.

However, and this is the crux of the case, the judge refuses to consider that there is an appearance of right. In other words, he denied that the claimants are likely to prevail on the substance of the application of EU competition law. This is the most important part of the judgment, as it is the first time that a judicial authority adopts a legally binding (though provisional) opinion on the potential compatibility of the TPO ban with EU competition law (the much-cited Spanish’s Competition Authority opinion is advisory and does not cover the application of EU competition law). The claimants argued that the TPO ban is contrary to EU competition law (Article 101 and 102 TFEU) and to the EU free movement rights (Article 63, 56 and 45 TFEU). While, FIFPro, to which the Court recognized the privilege of expressing the collective opinion of professional players, FIFA and UEFA considered that it is compatible with EU law. 

The Court, first, refers to the Piau ruling of the CJEU to affirm that FIFA has a dominant position on the market for the services of players’ agents[4]. This is not surprising. In fact the judge insists that the key legal question is whether there is an abuse of this dominant position. In this regard it considers that both abuses of dominant position under article 102 TFEU and restrictions on free competition under article 101 par. 1 TFEU must be analysed with due consideration to the specific sector in which FIFA is active and to the legitimate objectives it claims to pursue.[5] Subsequently, the judgment lists a number of factors highlighted by FIFA and FIFPro underlying the legitimate objectives of the ban:

·      These practices are mainly the deed of investment firms

·      From which we do not know the shareholders

·      Which conclude contracts with different clubs, potentially directly competing against each other on the field

·      These contracts are opaque as they are not registered

·      They can be easily transferred

·      The third-party investors are interested in the players’ quick transfers, in short sequences, as they will then reap their benefits

·      This is contradictory with the objective of contractual stability during the players contract with their club

·      If the transfer is not effectuated before the end of the employment contract (knowing that at this time the player recovers his full contractual freedom), the clubs are due to pay compensation […].[6]

The Court concludes that it is likely that third-party investors/owners will be in a conflict of interest, with equally important risks of manipulations and match-fixing arising, all of this in a totally opaque environment. Thus, though the TPI/TPO practice is apparently of financial nature, it is deemed to have important sporting consequences. Moreover, the Court remarks that the ban on the influence of third parties on clubs introduced by FIFA a few years ago via article 18 bis of the FIFA RSTP has proven ineffective. This hints at the necessity of a total ban. Additionally, it referred to the legitimate objectives of the ban invoked by FIFPro as representative of the point of view of the players.

In fine, the Court concluded that the likelihood that FIFA’s TPO ban would fail the tests of proportionality and necessity is not proven “with the force necessary” to warrant awarding provisional measures and, subsequently, rejects the demands of the claimants.


Conclusion: EU law is no magic bullet against FIFA’s regulations

Jean-Louis Dupont lost a new battle, but as far as FIFA’s TPO ban is concerned it is only the beginning of a long legal war. He still has a case to defend in the main proceedings and the opening of an investigation of the EU Commission to hope for (as well as a potential appeal to the CJEU in case the complaint on behalf of Doyen and the Iberian leagues is rejected). Nevertheless, this decision is no good omen for the future of his case. It is a worthy reminder that EU law is no magic bullets against the regulations of Sports Governing Bodies (SGBs), and FIFA in particular. The Meca-Medina/Wouters inherency test prevailing in competition cases and the similar proportionality test applied in the context of free movement rights ensure that the legitimate objectives of the regulatory practices of the SGBs are duly taken into account in the judicial or administrative review process. In fact, despite the recurrent complaints voiced by SGBs against EU law’s deregulatory bias and insensitivity to sports’ specificity, in reality the case law of the CJEU and the decisional practice of the Commission has been rather (too?) accommodating with sport’s specificities, regulatory needs and ideals. What EU law imposes is a duty to properly justify private regulations that find no sufficient legitimacy, to say the least, in the democratic nature of their legislative process[7]. Yet, especially when the diverse set of stakeholders active in a specific sporting field converge in favour of a particular policy orientation, as is the case with the TPO ban, which is supported by ECA and FIFPro, there is a strong presumption that the regulations concerned will be deemed proportionate and in the general interest. The implicit presumption of legitimacy and necessity of FIFA’s TPO ban can only be rebutted with extremely thorough arguments from the part of the claimants and will probably require that they convincingly demonstrate the easy availability of a less restrictive alternative system to deal with the perceived risks resulting from the widespread recourse to TPO/TPI agreements. As the Belgium Court aptly put it, the EU free movement rights are not absolute; if necessary they can, and will, be restricted in the name of the general interest[8].

 

[1] Ordinance, Brussels Court of First Instance, n°15/67/C, 24.07.2015, para.53-54

[2] Ibid, para. 55-57

[3] Ibid, para. 87.

[4] Ibid, para.94

[5]« L’existence d’un éventuel abus de position dominante (article 102 TUE) mais également celle d’une éventuelle restriction de la concurrence (article 101.1 TUE) sont notamment analysées au regard du secteur spécifique dans lequel la Fifa est active et des objectifs légitimes qui sous-tendent l’interdictiom nouvelle des TPI/TPO », Ibid, para.95.

[6] My translation of the bullet points included at para.95 of the decision.

[7] On this important role of EU law, see B. Van Rompuy, ‘The Role of EU Competition Law in Tackling Abuse of Regulatory Power by Sports Associations’, Maastricht Journal of European and Comparative Law, Vol.22, Issue 2, 2015 pp.179-208.

[8] « Ces droits ne sont pas absolus, mais peuvent connaître des limites nécessitées par l’intérêt général ». Para.99 of the decision.

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