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

Overdue payables in action: Reviewing two years of FIFA jurisprudence on the 12bis procedure – Part 2. By Frans M. de Weger and Frank John Vrolijk.

Editor's Note: Frans M. de Weger is legal counsel for the Federation of Dutch Professional Football Clubs (FBO) and CAS arbitrator. De Weger is author of the book “The Jurisprudence of the FIFA Dispute Resolution Chamber”, 2nd edition, published by T.M.C. Asser Press in 2016. Frank John Vrolijk specialises in Sports, Labour and Company Law and is a former legal trainee of FBO and DRC Database.

This second blog will focus specifically on the sanctions available for FIFA under Article 12bis. It will provide explanatory guidelines covering the sanctions imposed during the period surveyed.


Introduction

The possibility to impose sanctions under article 12bis constitutes one of the pillars of the 12bis procedure. Pursuant to Article 12bis of the RSTP, edition 2016, the DRC and the PSC may impose a sanction on a club if the club is found to have delayed a due payment for more than 30 days without a prima facie contractual basis[1] and the creditor have put the debtor club in default in writing, granting a deadline of at least 10 days.[2] The jurisprudence in relation to Article 12bis also shows that sanctions are imposed ex officio by the DRC or the PSC and not per request of the claimant.More...





Overdue payables in action: Reviewing two years of FIFA jurisprudence on the 12bis procedure – Part 1. By Frans M. de Weger and Frank John Vrolijk.

Editor's Note: Frans M. de Weger is legal counsel for the Federation of Dutch Professional Football Clubs (FBO) and CAS arbitrator. De Weger is author of the book “The Jurisprudence of the FIFA Dispute Resolution Chamber”, 2nd edition, published by T.M.C. Asser Press in 2016. Frank John Vrolijk specialises in Sports, Labour and Company Law and is a former legal trainee of FBO and DRC Database.

In this first blog, we will try to answer some questions raised in relation to the Article 12bis procedure on overdue payables based on the jurisprudence of the DRC and the PSC during the last two years: from 1 April 2015 until 1 April 2017. [1] The awards of the Court of Arbitration for Sport (hereinafter: “the CAS”) in relation to Article 12bis that are published on CAS’s website will also be brought to the reader’s attention. In the second blog, we will focus specifically on the sanctions applied by FIFA under Article 12bis. In addition, explanatory guidelines will be offered covering the sanctions imposed during the period surveyed. A more extensive version of both blogs is pending for publication with the International Sports Law Journal (ISLJ). If necessary, and for a more detailed and extensive analysis at certain points, we will make reference to this more extensive article in the ISLJ. More...

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

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

The Headlines

The end of governance reforms at FIFA?

The main sports governance story that surfaced in the press (see here and here) during the last month is related to significant personal changes made by the FIFA Council within the organization’s institutional structure. In particular, the FIFA Council dismissed the heads of the investigatory (Mr Cornel Borbély) and adjudicatory (Mr Hans-Joachim Eckert) chambers of the Independent Ethics Committee, as well as the Head (Mr Miguel Maduro) of the Governance and Review Committee. The decision to remove Mr Maduro was taken arguably in response to his active role in barring Mr Vitaly Mutko, a Deputy Prime Minister of Russia, from sitting on the FIFA Council due to an imminent conflict of interests. These events constitute a major setback to governance reforms initiated by the football’s world governing body in 2015. For a more detailed insight into the governance reforms at FIFA, we invite you to read the recent blog written by our senior researcher Mr Antoine Duval. More...

The Olympic Games and Human Rights – Part II: Human Rights Obligations Added to the Host City Contract: Turning Point or Empty Promise? – By Tomáš Grell


This is a follow-up contribution to my previous blog on human rights implications of the Olympic Games published last week. Together with highlighting some of the most serious Olympic Games-related human rights abuses, the first part has outlined the key elements of the Host City Contract ('HCC') as one of the main legal instruments regulating the execution of the Olympic Games. It has also indicated that, in February 2017, the International Olympic Committee ('IOC') revised the 2024 HCC to include, inter alia, explicit human rights obligations. Without questioning the potential significance of inserting human rights obligations to the 2024 HCC, this second part will refer to a number of outstanding issues requiring clarification in order to ensure that these newly-added human rights obligations are translated from paper to actual practice. More...


The Olympic Games and Human Rights – Part I: Introduction to the Host City Contract – By Tomáš Grell

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


In its press release of 28 February 2017, the International Olympic Committee ('IOC') communicated that, as part of the implementation of Olympic Agenda 2020 ('Agenda 2020'), it is making specific changes to the 2024 Host City Contract with regard to human rights, anti-corruption and sustainable development. On this occasion, IOC President Thomas Bach stated that ''this latest step is another reflection of the IOC's commitment to embedding the fundamental values of Olympism in all aspects of the Olympic Games''. Although the Host City of the 2024 Summer Olympic Games is scheduled to be announced only in September this year, it is now clear that, be it either Los Angeles or Paris (as Budapest has recently withdrawn its bid), it will have to abide by an additional set of human rights obligations.

This two-part blog will take a closer look at the execution of the Olympic Games from a human rights perspective. The first part will address the most serious human rights abuses that reportedly took place in connection with some of the previous editions of the Olympic Games. It will also outline the key characteristics of the Host City Contract ('HCC') as one of the main legal instruments relating to the execution of the Olympic Games. The second part will shed light on the human rights provisions that have been recently added to the 2024 HCC and it will seek to examine how, if at all, these newly-added human rights obligations could be reflected in practice. For the sake of clarity, it should be noted that the present blog will not focus on the provisions concerning anti-corruption that have been introduced to the 2024 HCC together with the abovementioned human rights provisions. More...



Exploring the Validity of Unilateral Extension Options in Football – Part 2: The view of the DRC and the CAS. By Saverio Spera

Editor’s Note: Saverio Spera is an Italian lawyer and LL.M. graduate in International Business Law at King’s College London. He is currently an intern at the ASSER International Sports Law Centre. 

This blog is a follow up to my previous contribution on the validity of Unilateral Extension Options (hereafter UEOs) under national and European law. It focuses on the different approaches taken to UEOs by the FIFA Dispute Resolution Chamber (DRC) and the Court of arbitration for sport (CAS). While in general the DRC has adopted a strict approach towards their validity, the CAS has followed a more liberal trend. Nonetheless, the two judicial bodies share a common conclusion: UEOs are not necessarily invalid. In this second blog I will provide an overview of the similarities and differences of the two judicial bodies in tackling UEOs. More...

Nudging, not crushing, private orders - Private Ordering in Sports and the Role of States - By Branislav Hock

Editor's note: Branislav Hock (@bran_hock)  is PhD Researcher at the Tilburg Law and Economics Center at Tilburg University. His areas of interests are transnational regulation of corruption, public procurement, extraterritoriality, compliance, law and economics, and private ordering. Author can be contacted via email: b.hock@uvt.nl.


This blog post is based on a paper co-authored with Suren Gomtsian, Annemarie Balvert, and Oguz Kirman.


Game-changers that lead to financial success, political revolutions, or innovation, do not come “out of the blue”; they come from a logical sequence of events supported by well-functioning institutions. Many of these game changers originate from transnational private actors—such as business and sport associations—that produce positive spillover effects on the economy. In a recent paper forthcoming in the Yale Journal of International Law, using the example of FIFA, football’s world-governing body, with co-authors Suren Gomtsian, Annemarie Balvert, and Oguz Kirman, we show that the success of private associations in creating and maintaining private legal order depends on the ability to offer better institutions than their public alternatives do. While financial scandals and other global problems that relate to the functioning of these private member associations may call for public interventions, such interventions, in most cases, should aim to improve private orders rather than replace them. More...



What Pogba's transfer tells us about the (de)regulation of intermediaries in football. By Serhat Yilmaz & Antoine Duval

Editor’s note: Serhat Yilmaz (@serhat_yilmaz) is a lecturer in sports law in Loughborough University. His research focuses on the regulatory framework applicable to intermediaries. Antoine Duval (@Ant1Duval) is the head of the Asser International Sports Law Centre.


Last week, while FIFA was firing the heads of its Ethics and Governance committees, the press was overwhelmed with ‘breaking news’ on the most expensive transfer in history, the come back of Paul Pogba from Juventus F.C. to Manchester United. Indeed, Politiken (a Danish newspaper) and Mediapart (a French website specialized in investigative journalism) had jointly discovered in the seemingly endless footballleaks files that Pogba’s agent, Mino Raiola, was involved (and financially interested) with all three sides (Juventus, Manchester United and Pogba) of the transfer. In fine, Raiola earned a grand total of € 49,000,000 out of the deal, a shocking headline number almost as high as Pogba’s total salary at Manchester, without ever putting a foot on a pitch. This raised eyebrows, especially that an on-going investigation by FIFA into the transfer was mentioned, but in the media the sketching of the legal situation was very often extremely confusing and weak. Is this type of three-way representation legal under current rules? Could Mino Raiola, Manchester United, Juventus or Paul Pogba face any sanctions because of it? What does this say about the effectiveness of FIFA’s Regulations on Working with Intermediaries? All these questions deserve thorough answers in light of the publicity of this case, which we ambition to provide in this blog.More...


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

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

The Reform of FIFA: Plus ça change, moins ça change?

Since yesterday FIFA is back in turmoil (see here and here) after the FIFA Council decided to dismiss the heads of the investigatory (Cornel Borbély) and adjudicatory (Hans-Joachim Eckert) chambers of the Independent Ethics Committee, as well as the Head (Miguel Maduro) of the Governance and Review Committee. It is a disturbing twist to a long reform process (on the early years see our blogs here and here) that was only starting to produce some tangible results. More...

Asser International Sports Law Blog | Report from the first ISLJ Annual International Sports Law Conference - 26-27 October at the T.M.C. Asser Instituut

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

Report from the first ISLJ Annual International Sports Law Conference - 26-27 October at the T.M.C. Asser Instituut

Close to 100 participants from 37 different countries attended the first ISLJ Annual International Sports Law Conference that took place on 26-27 October 2017 in The Hague. The two-day programme featured panels on the FIFA transfer system, the labour rights and relations in sport, the protection of human rights in sport, EU law and sport, the Court of Arbitration for Sport, and the world anti-doping system. On top of that, a number of keynote speakers presented their views on contemporary topics and challenges in international sports law. This report provides a brief summary of the conference for both those who could not come and those who participated and would like to relive their time spent at the T.M.C. Asser Institute.



Day 1

Opening Keynote by Miguel Maduro

The audience did not have to wait long for one of the highlights of the conference as Miguel Maduro, a former Chair of the FIFA Governance Committee, took the floor immediately after Johan Lindholm, an Editor-in-Chief of the International Sports Law Journal, and Antoine Duval, the Head of the Asser International Sports Centre, had delivered their opening speeches. Drawing on his experience as a Chair of the FIFA Governance Committee, Miguel identified the resistance to public scrutiny, accountability and transparency as root causes of the governance crisis currently faced by FIFA. He suggested that an independent international agency be established to supervise the governance of international sports governing bodies. According to him, only the European Union is capable of taking such an initiative.

 

Panel Sessions

The first panel, chaired by Johan Lindholm, revolved around the FIFA transfer system. Jakub Laskowski from Legia Warszawa explained why we might need a different approach to solidarity in professional football. Eleanor Drywood from the University of Liverpool then examined the FIFA's ban on the international transfer of minors, suggesting that international sports governing bodies in general, and FIFA in particular, should take account of the United Nations Convention on the Rights of the Child in order to enhance the protection of minors in sport. Finally, William McAuliffe, a sports lawyer practising in Switzerland, spoke about buy-out clauses and the club's consent to transfer under the FIFA Regulations on the Status and Transfer of Players.

The afternoon session started with a panel on the labour rights and relations in sport chaired by Professor Richard Parrish from Edge Hill University. Jack Withaar from Tilburg University focused on employment contracts in professional sport, concluding with the question whether international sports federations should take into consideration labour standards elaborated by the International Labour Organization. Thereafter, Matthew Graham from the World Players Association shared his insights on the functioning of international players' unions. Finally, Andrea Cattaneo from Edge Hill University encouraged a greater use of social dialogue to regulate professional football.

The last panel of the day, chaired by Professor Mark James from Manchester Metropolitan University, tackled a relatively new topic in international sports law – the protection of human rights. Whereas our research intern Tomáš Grell and Daniela Heerdt from Tilburg University discussed how human rights could be affected by the organisation of a mega-sporting event, Brendan Schwab from the World Players Association shed light on the more specific human rights risks faced by professional athletes. Both Tomáš Grell and Daniela Heerdt agreed that international sports governing bodies need to translate their human rights commitments from bidding and hosting agreements to actual practice. Brendan Schwab, for his part, emphasised that sportspeople are human first and athletes second, and introduced the World Player Rights Policy adopted by the World Players Association in July 2017.

Keynote Discussion between Michael Beloff QC and Sean Cottrell

Throughout his more than 50-years-long career in sports law, Michael Beloff QC, also known as one of the 'godfathers of sports law', has witnessed first-hand the professionalization of sport. This and many more aspects of his truly exceptional career as a sports lawyer featured in his keynote discussion with Sean Cottrell from LawInSport (a trusted media partner of the conference). Michael also touched upon some of the contemporary sports law themes, among which the lack of gender equality in the composition of international sports governing bodies, the role of athletes in good governance of sport, inaccuracies in sporting regulations or transparency at the Court of Arbitration for Sport.   



Day 2

Keynote Lecture by Stephen Weatherill

The second day also kicked off with a keynote lecture, this time delivered by Professor Stephen Weatherill from Oxford University, who examined the conditional autonomy enjoyed by international sports governing bodies under EU law. Against the background of UEFA's Financial Fair Play rules or the FIFA's ban on third-party ownership, he explained how sporting rules that would otherwise be incompatible with EU law could nevertheless be justified on account of the specific nature of sport, what he called the 'sporting margin of appreciation'. However; he also criticised the pyramidal structure of international sport for not allowing those at the bottom end (athletes and clubs) to participate in decision-making processes of international sports governing bodies.


Morning Session

The first panel of the day, chaired by Ben Van Rompuy from Leiden University, offered some interesting perspectives on the application of EU law to sport. Stefania Marassi from The Hague University of Applied Sciences explored the policies adopted by the European Union with a view to contributing to the promotion of sporting issues in line with Article 165 of the Treaty on the Functioning of the European Union. Christopher Flanagan, a lawyer practising in England, discussed why attempts to regulate the financial aspects of professional football are met with challenges under EU law. Employing FIFA's private order as a case study, Branislav Hock from the University of Portsmouth argued in his presentation that successful private modes of governance continuously emerge from public interventions, provided that the public acts as a reversed civil society. It is worthwhile to note that Branislav won the award for the best paper presented at the conference.

Thanks to Women in Sports Law, an association that unites women from more than 40 countries who specialise in sports law, the conference also continued over lunch. Lindsay Brandon, a sports lawyer practising in the United States, and Despina Mavromati, a Co-Founder of Women in Sports Law and a former Managing Counsel at the Court of Arbitration for Sport, talked about the current state of whereabouts requirements in the world anti-doping system. They were joined in the discussion by Professor Richard McLaren.

Keynote Lecture by Richard McLaren

After lunch, Professor Richard McLaren from Western University in Ontario, the former head of WADA's investigation into the Russian doping scandal, spoke about broader challenges to the operation of the world anti-doping system. Among other things, he stressed that athletes have a crucial role in uncovering doping practices, as they know much more about these practices than anybody else. Having insisted that whistleblowers are of utmost importance, he also criticised the International Olympic Committee for its treatment of the Russian athlete Yuliya Stepanova who was eventually blocked from competing at the Rio Olympics despite her exceptional contribution to the fight against doping. In more general terms, Richard asserted that the integrity of sport is threatened not only by doping but also by archaic governance, corruption or match-fixing.



Afternoon Session

After the lecture given by Richard McLaren, the conference continued with a panel on international sports arbitration chaired by Despina Mavromati. Howard Jacobs, an American sports lawyer, together with Lindsay Brandon from his office, discussed the proposal to create a permanent anti-doping division at the Court of Arbitration for Sport. Professor Jernej Letnar Černič from the Graduate School of Government and European Studies in Ljubljana then looked at how the guarantee of a fair trial could be strengthened in proceedings before the Court of Arbitration for Sport. Finally, Kazushige Ogawa from Rikkyo University in Tokyo shared his insights on the functioning of the Japan Sports Arbitration Agency.

The last panel of the conference, chaired by Antoine Duval, addressed one of the most pressing issues in the world of sport – the fight against doping. Kelsey Erickson from Leeds Beckett University examined a range of psychological factors influencing athletes who intend to blow the whistle on doping. Jan Exner from the Czech Olympic Committee focused on the sanctions for anti-doping rule violations, suggesting that a four-year period of ineligibility might be disproportionate. Finally, our last speaker Louise Reilly, an Irish barrister and a former counsel at the Court of Arbitration for Sport, provided a precise overview of jurisprudence dealing with intentional anti-doping rule violations under the 2015 World Anti-Doping Code.


A thank you note

We would like to take this opportunity to thank all the speakers and participants not only for joining but also for actively contributing to the very rich discussions that followed after each session. We hope that this is only the beginning and that the ISLJ Annual International Sports Law Conference will become a tradition in the coming years. For those who did not have the chance to attend, the ISLJ will publish a special issue including the papers of the conference, so stay tuned!

 

Looking forward to seeing you next year,

 

The team of the Asser International Sports Law Centre

 

PS: Feel free to leave us comments with your feedback/suggestions, so that we can work on improving the conference.


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