Introduction: FIFA’s TPO ban and its compatibility with EU competition law.
Day 2: Third-party entitlement to shares of transfer fees: problems and solutions
Day 3: The Impact of the TPO Ban on South American Football.
Day 4: Third Party Investment from a UK Perspective.
Day 5: Why FIFA's TPO ban is justified.

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

INTRODUCTION

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

Although initially we felt that FIFA would focus on strict regulation, FIFA finally tilted the balance towards the idea of an absolute ban. FIFA even put an end to the working parties it had put in place to regulate this issue. After verbal and written notices, La Liga has filed a complaint with the Competition Authorities of the European Union, since the prohibition of TPO violates the EU competition rules. In our view, apart from breaching the Treaty on the Functioning of the European Union, it also violates the rules on competition in place in other countries, such as Argentina and Brazil.

La Liga has raised the following arguments to show the disproportion of the absolute prohibition of TPO:

• FIFA now prohibits undue third-party influence on a team and on players' agents' economic rights.

• The UEFA now regulates the financial aspects of TPO in its Financial Fair Play Regulations.

• Only three professional leagues worldwide have banned TPO.

• The two independent studies commissioned by FIFA do not support the prohibition of TPO.

• The General Assembly of FIFA concluded that TPO is a complex issue that must continue to be studied in detail.

• The FIFA Working Party on TPO held only one meeting before it was banned and adapted no specific recommendations.

• The FIFA Executive Committee agreed to ban TPO with no supporting report or internal proposal.

• FIFA has not consulted governments, authorities or, in particular, the European Commission before adopting the ban.

• The arguments used to ban TPO reveal the lack of proportionality of the measure.

• Independent experts have denounced the lack of proportionality of a TPO ban.

The lack of proportionality of the measure

FIFA’s main argument is that TPO threatens the integrity of sporting competitions. In La Liga’s view, both the integrity of the competition and, where appropriate, footballers' independence could be protected by measures that do not require the full prohibition of TPO. For example, it could limit third-party economic rights to a minority percentage (>50%) together with other measures, such as limiting the number of players from the same club in which a third-party has minority economic rights.[1] Indeed, in its ENIC/UEFA decision, the European Commission took into account that the UEFA rule only prohibits the control of multiple clubs, but not the acquisition of minority stakes in them ("(T)he UEFA rule does not limit the freedom of action of investors that have shares in clubs below the level that gives them control over the club, because clubs with such ownership structure remain free to play in the same UEFA competition”).

Consideration must also be given to the fact that the risk to the integrity of competitions is much greater when two teams controlled by the same investor play against each other compared to when a certain number of players over whom a third party holds economic rights play each other. In the former case, the owner or investor of the clubs may want a team to lose if they can avoid relegation, win the championship or qualify for an international competition. In the latter case, a third-party investor's interest is for players to play as well as possible to increase their economic value, regardless of the result of the match. In fact, there is an increased risk of conflict of interest if a player has been loaned by one club to another and has to play against the club that holds the economic rights. It should be highlighted that neither FIFA nor UEFA have taken steps to regulate loans of players between clubs, despite the fact that loans account for a significant part of player transfer[2] and that independent experts recommend more restrictive regulations for loans.[3] Similarly, we fail to understand why FIFA, prohibits TPO when it is considering deregulating the profession of player agent and accepts that only a few agents represent and share economic interests with star football players.[4]

FIFA further argues that banning TPO will avoid speculation and inflation of transfer costs, preserve economic flows within football clubs, protect players' human dignity, combat economic crime, etc. La Liga is of the opinion that these arguments violate even further the principle of proportionality and are of questionable legitimacy. Therefore, they should be rejected from the outset. 

POLITICAL ASPECTS

As the Association of Spanish Football Clubs, we first and foremost defend a regulation of TPO. Banning it would be denying a fundamental tool for our clubs' funding and competitiveness

Based on the current socio-economic context of the football sector and its practical reality, it seems particularly inappropriate to reject a source of external funding used in every sector of the economy and which, when appropriately regulated, could create greater legal certainty for all concerned.

More specifically, from a political point of view, it is essential to design the regulation of TPO so that La Liga and its clubs maintain or even increase their current competitiveness.

Indeed, there is no doubt about the benefits provided by TPO/TPI since many clubs are in the position to sign players who they otherwise could not afford. Moreover, clubs also profit from the ability to anticipate revenue by selling the rights of the squad players in their team. Thus, in terms of the competitive balance, the use of TPO enables small/medium-sized clubs to maintain their competitiveness against their "bigger" rivals. For example, winning the Spanish league and reaching the Champions League final in the 2013/14 season is an achievement Atlético Madrid would probably not have reached without having recourse to TPO. Furthermore, it makes it possible to increase investment in sports facilities for better training and the development of young players.

The above shows that the private investor also "shares" a risk with the club: when investing in a specific player, the investor also assumes the negative results of the potential investment, which is then shared between the club and the investor, greatly reducing the negative impact on the accounts of the club in question.

And finally, taking into account the economic and financial difficulties currently affecting football clubs, it is necessary to support appropriate financing mechanisms in football to foster investment in the sector, since, at present, most clubs would not be able to survive on their current sources of income.

Should the absolute prohibition of TPO/TPI be maintained, as intended by FIFA and UEFA, it will be very difficult to keep the constellation of star players in our affiliated Clubs. They will most certainly leave their respective clubs for other competitions and clubs that have greater financial resources. It is clear that a large number of Spanish teams will see their competitiveness reduced and, at the same time, the competitiveness of and interest in our competition will plummet. 

In addition, proper regulation of this issue would avoid the risk of compromising the integrity of competitions, since it would provide greater legal certainty for all the involved parties. Instead, the absolute ban imposed by FIFA will lead to the creation of a "black market” that would be out of regulatory control and would therefore endanger the very integrity of the competitions. Thus, it is absolutely necessary to regulate the matter appropriately. 

LEGAL ASPECTS:

In line with the aforementioned political aspects, from a strictly legal perspective, regulating TPO is particularly advisable since:

a. It is a common practice in the football sector and it is a source of funding that promotes the competitiveness of clubs. Moreover, it stimulates competition and allows clubs to attract and retain top-level players.

In recent years, the number of investments in football players has increased. These investments were sought by Spanish clubs in order to finance the registration of the players’ federative rights. Furthermore, the investor’s remuneration is (wholly or partially) calculated depending on the positive economic results that may be obtained through future transfers of the player’s federative rights by the club that received the investment money.

La Liga believes that investments of this nature can constitute a useful alternative source of financing for clubs and investment for funds, especially now that the Spanish financial sector and the Spanish professional football sector are undergoing a profound financial crisis. Accordingly, these investments may foster the competitiveness of Spanish professional football clubs in Spain and outside. Indeed, the signing and retention of players’ federative rights cannot be secured without third-party investments.  

b. TPO requires an adequate regulatory framework to ensure legal certainty and promote the integrity of professional football competitions.

Based on the widespread use of TPO in practice, La Liga considers it appropriate to introduce certain rules and provide legal certainty to both the clubs as well as the investors. This would require imposing reasonable limitations and duties, and providing for the transparency of the TPO transactions, to protect good sportsmanship and the integrity of competitions.

La Liga’s proposal for a regulatory framework is based on the following basic principle:

Compliance with FIFA’s rules on the influence of third parties in clubs, according to which no club may enter into a contract whereby any party to said contract or third party may assume a position that could influence labour issues and transfers in relation to the independence, policies or actions taken by the teams of any club.

Based on this principle, the following regulatory measures are suggested:

• prohibition of certain transactions based on the player's age;

• maximum percentage of participation in the "economic rights";

• quantitative  limitations  on  the  maximum  number  of  players  per club;

• maximum remuneration for the investor;

• prohibition of certain clauses that may limit the independence and autonomy of the clubs; and

• prohibition of transactions depending on the investor's particular status or business (or participation in the same) such as shareholders, directors and managers of the clubs.

This regulatory framework would provide transparency through duties of information and registration of the investors (including full identification of the real owners) and the financial transactions themselves. 

CONCLUSION

There is no doubt that the use of TPO/TPI needs to be regulated in Spanish professional football. However, it is also necessary to acknowledge that the full prohibition of TPO by FIFA will only trigger a search for "creative" alternatives to fulfil the same purpose, using fraud and/or other contractual fictions. Furthermore, the prohibition of TPO will be very difficult to enforce and it will generate a great deal of conflicts, which is obviously not a desirable outcome. This is also without prejudice to the considerable loss of competitiveness and footballing talent for our clubs and our competitions.

Thus, it is necessary to devise an alternative approach to the issue by means of a specific regulation. Indeed, we consider that third-party investment in football is a legitimate financing vehicle for clubs, based on risk-sharing and productive investments through private funds. However, there are also obvious threats that need to be tackled. Therefore, in the view of La Liga, it is necessary to establish a sustainable, secure and transparent regulatory system that encourages sound investment in the sector and provides for a better control of the investors.

The benefits to be gained from regulating TPO/TPI are more than evident and would be shared by all the stakeholders that make up the ‘football family’. We believe that an adequate regulation in this area would pave the way for a secure, reliable and transparent system, allowing the ‘football family’ to safely enjoy the benefits TPO can provide.

[1] See, for example, alternatives to the total ban proposed by Luís Villas-Boas Pires, "Third Party Ownership- To ban or not to ban?, LawInSport,10.12.2013: http://www.lawinsport.com/articles/regulation-a-governance/item/third-party-ownership-to-ban-or-not-to-ban.

[2] The Economic and Legal Aspects of Transfers of Players”, KEA-CDES, December 2013, p. 193: “These operations involve a large number of transfers in Europe – 21% i.e. 1333 in 2011, according to TMS”.

[3] The Economic and Legal Aspects of Transfers of Players”, KEA-CDES, December 2013, study performed for the European Commission, pp. 253-254: "Proposal 4:Regulate the loan transfer

Abusive loan transfer practices contribute to competitive imbalance and unfairness of the competitions. We suggest regulation to limit or prevent such abusive practices. This could encompass:

-  Limiting the number of loans by the lending clubs

-  Limiting to xx the number of loans to the beneficiary clubs

-  Regulating loan contracts between clubs which pose a risk to the integrity of competition (for instance: a contractual clause that prevents a player from participating in a certain competition or a given match). Main stakeholders: International federations, national federations and leagues.”

[4] The Economic and Legal Aspects of Transfers of Players”, KEA-CDES, December 2013, pp. 128-129:

“The second feature of the upper primary segment is the concentration of superstars in the hands of a few agents (individual or agencies). It is a question of knowing what the actual market power of these agents is and what can be done to regulate their actions. For example, let us note that Gestifute, the Portuguese agency led by Jorge Mendes, has in its portfolio José Mourinho, Cristiano Ronaldo, Nani, Anderson, Pepe, Ricardo Carvalho, Raul Meireles and Miguel Veloso.  This agency has generated €369.85m in transfer rights (Poli, 2012). The role of the major sporting agents should be better known, in order to assess whether they are responsible for an increase in the dualisation of the labour market and, therefore, for a deterioration in competitive balance. Small championships can no longer hang on to their stars and the major championships are competing to attract them, thus contributing to the inflation of speculative bubbles regarding the salaries and transfer fees of these stars.

In the lower primary market, as in the higher primary market, the role of agents is decisive in transactions and we once more find the same recommendations:

An analysis of the concentration of wage

-  bills.

-  An analysis of the concentration of transactions at the agent level.”