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

Olympic Agenda 2020: To bid, or not to bid, that is the question!

This post is an extended version of an article published in August on hostcity.net.

The recent debacle among the candidate cities for the 2022 Winter Games has unveiled the depth of the bidding crisis faced by the Olympic Games. The reform process initiated in the guise of the Olympic Agenda 2020 must take this disenchantment seriously. The Olympic Agenda 2020 took off with a wide public consultation ending in April and is now at the end of the working groups phase. One of the working groups was specifically dedicated to the bidding process and was headed by IOC vice-president John Coates.  More...

The CAS jurisprudence on match-fixing in football: What can we learn from the Turkish cases? - Part 2: The procedural aspects. By Thalia Diathesopoulou

With this blog post, we continue the blog series on Turkish match-fixing cases and our attempt to map the still unchartered waters of the CAS’s match-fixing jurisprudence.

The first blog post addressed two issues related to the substance of match-fixing disputes, namely the legal characterization of the match-fixing related measure of ineligibility under Article 2.08 of the UEL Regulations as administrative or disciplinary measure and the scope of application of Article 2.08. In addition, The Turkish cases have raised procedural and evidentiary issues that need to be dealt with in the framework of match-fixing disputes.

The CAS panels have drawn a clear line between substantial and procedural matters. In this light, the Eskişehirspor panel declared the nature of Article 2.08 UEL Regulations to be administrative and rejected the application of UEFA Disciplinary Regulations to the substance. Nonetheless, it upheld that disciplinary rules and standards still apply to the procedure. This conclusion, however, can be considered puzzling in that disciplinary rules apply to the procedural matters arising by a pure administrative measure. To this extent, and despite the bifurcation of different applicable rules into substantial and procedural matters, the credibility of the qualification of Article 2.08 as administrative seems to be undermined. And here a question arises: How can the application of rules of different nature to substantial and procedural matters in an identical match-fixing dispute be explained?More...

The EU State aid and Sport Saga – A blockade to Florentino Perez’ latest “galactic” ambitions (part 2)

This is the second part of a blog series on the Real Madrid State aid case. In the previous blog on this case, an outline of all the relevant facts was provided and I analysed the first criterion of Article 107(1) TFEU, namely the criterion that an advantage must be conferred upon the recipient for the measure to be considered State aid. Having determined that Real Madrid has indeed benefited from the land transactions, the alleged aid measure has to be scrutinized under the other criteria of Article 107(1): the measure must be granted by a Member State or through State resources; the aid granted must be selective; and it must distorts or threatens to distort competition. In continuation, this blog will also analyze whether the alleged aid measure could be justified and declared compatible with EU law under Article 107(3) TFEU.More...

The CAS jurisprudence on match-fixing in football: What can we learn from the Turkish cases? - Part 1 - By Thalia Diathesopoulou

The editor’s note:

Two weeks ago we received the unpublished CAS award rendered in the Eskişehirspor case and decided to comment on it. In this post Thalia Diathesopoulou (Intern at the ASSER International Sports Law Centre) analyses the legal steps followed and interpretations adopted by CAS panels in this case and in a series of other Turkish match-fixing cases. The first part of the post will deal with the question of the legal nature of the ineligibility decision opposed by UEFA to clubs involved in one way or another into match-fixing and with the personal and material scope of UEFA’s rule on which this ineligibility is based. The second part is dedicated to the procedural rules applied in match-fixing cases.


Introduction

The unpredictability of the outcome is a sine qua non feature of sports. It is this inherent uncertainty that draws the line between sports and entertainment and triggers the interest of spectators, broadcasters and sponsors. Thus, match-fixing by jeopardising the integrity and unpredictability of sporting outcomes has been described, along with doping, as one of the major threats to modern sport.[1] More...


Sport and EU Competition Law: uncharted territories - (I) The Swedish Bodybuilding case. By Ben Van Rompuy

The European Commission’s competition decisions in the area of sport, which set out broad principles regarding the interface between sports-related activities and EU competition law, are widely publicized. As a result of the decentralization of EU competition law enforcement, however, enforcement activity has largely shifted to the national level. Since 2004, national competition authorities (NCAs) and national courts are empowered to fully apply the EU competition rules on anti-competitive agreements (Article 101 TFEU) and abuse of a dominant position (Article 102 TFEU).

Even though NCAs have addressed a series of interesting competition cases (notably dealing with the regulatory aspects of sport) during the last ten years, the academic literature has largely overlooked these developments. This is unfortunate since all stakeholders (sports organisations, clubs, practitioners, etc.) increasingly need to learn from pressing issues arising in national cases and enforcement decisions. In a series of blog posts we will explore these unknown territories of the application of EU competition law to sport.More...

The Legia Warszawa case: The ‘Draconian’ effect of the forfeiture sanction in the light of the proportionality principle. By Thalia Diathesopoulou

The CAS denial of the urgent request for provisional measures filed by the Legia Warszawa SA in the course of its appeal against the UEFA Appeals Body Decision of 13 August 2014 put a premature end to Legia’s participation in the play-offs of the UEFA Champion’s League (CL) 2014/2015. Legia’s fans- and fans of Polish football - will now have to wait at least one more year to watch a Polish team playing in the CL group stage for the first time since 1996. More...

The EU State aid and Sport Saga – A blockade to Florentino Perez’ latest “galactic” ambitions (part 1)

This is the first part of a blog series involving the Real Madrid State aid case.

Apart from being favoured by many of Spain’s most important politicians, there have always been suspicions surrounding the world’s richest football club regarding possible financial aid by the Madrid City Council. Indeed, in the late 90’s a terrain qualification change by the Madrid City Council proved to be tremendously favourable to the king’s club. The change allowed Real Madrid to sell its old training grounds for a huge sum. Though the exact price for the grounds remains unknown, Real Madrid was suddenly capable of buying players like Figo and Zidane for record fees. However, the European Commission, even though agreeing that an advantage was conferred to the club, simply stated that the new qualification of the terrain in question does not appear to involve any transfer of resources by the State and could therefore not be regarded as State aid within the meaning of article 107 TFEU.

Agreements between the club and the Council have been a regularity for the last 25 years.  A more recent example concerns an agreement signed on 29 July 2011 (Convenio29-07-2011.pdf (8MB). More...

UEFA Financial Fair Play Regulations Put PSG and Manchester City on a Transfer Diet

The main lesson of this year’s transfer window is that UEFA’s Financial Fair Play (FFP) rules have a true bite (no pun intended). Surely, the transfer fees have reached usual highs with Suarez’s move to FC Barcelona and Rodriguez’s transfer from AS Monaco to Real Madrid and overall spending are roughly equal to 2013 (or go beyond as in the UK). But clubs sanctioned under the FFP rules (prominently PSG and Manchester City) have seemingly complied with the settlements reached with UEFA capping their transfer spending and wages. More...

Right to Privacy 1:0 Whereabouts Requirement - A Case Note on a Recent Decision by the Spanish Audiencia Nacional

On the 24th June 2014 the Spanish Audiencia Nacional issued its ruling on a hotly debated sports law topic: The whereabouts requirements imposed to athletes in the fight against doping. This blog aims to go beyond the existing commentaries (here and here) of the case, by putting it in the wider context of a discussion on the legality of the whereabouts requirements. More...

The Rules of the Electoral Game for the FIFA 2015 Presidential Elections

After the success of this year’s World Cup in Brazil, FIFA President Sepp Blatter can start concentrating on his Presidential campaign for next June’s FIFA elections. Even though the 78-year old Swiss is not officially a candidate yet, he is still very popular in large parts of the world, and therefore the favourite to win the race. Nonetheless, even for the highly experienced Mr. Blatter these elections will be different. All candidates will have to respect the newly introduced Electoral Regulations for the FIFA PresidencyMore...

Asser International Sports Law Blog | Gambling advertising regulations: pitfalls for sports sponsorship - By Ben van Rompuy

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

Gambling advertising regulations: pitfalls for sports sponsorship - By Ben van Rompuy

In April 2014, the Swedish Gambling Authority (Lotteriinspektionen) warned the organisers of the Stockholm Marathon that it would impose a fine of SEK 2 million (ca. € 221.000) for its sponsorship agreement with online betting operator Unibet. The Authority found that the sponsorship agreement violates §38 of the Swedish Lotteries Act, which prohibits the promotion of gambling services that are not authorized in Sweden.[1] The organisers, however, refused to withdraw Unibet as its sponsor and prominently displayed the Unibet logo at the event, which took place on 31 May 2014. As a result, the organisers of the Stockholm Marathon now face legal action before the Swedish administrative courts.


Source: ASICS Stockholm Marathon 2014

As this case and many others demonstrate, sports organisers, clubs, and individual athletes are insufficiently aware of the challenges that national gambling advertising regulations create for entering into sponsorship deals with gambling operators. But don’t worry; we've got you covered.


National gambling advertising regulations 

In the EU, 28 divergent regulatory frameworks govern the advertising of gambling services through e.g. sponsorship agreements between sports organisers and gambling operators. 

A first category of Member States strictly prohibits any gambling advertising (Estonia, Latvia, Poland, and Lithuania). Sometimes the regulatory frameworks do include a number of notable exceptions, however. In Estonia and Lithuania, for instance, the advertising ban does not apply if only the name of the operator or its logo is used. This creates a legal loophole for e.g. t-shirt sponsorship deals. 

A second category of Member States only prohibits the advertising and/or promotion of unauthorized gambling services (22 Member States). It follows that at least one gambling operator, in many cases the (state-owned) operator who retains a monopoly position, is allowed to advertise its services. Yet even when authorized operators are legally entitled to advertise their services, national gambling advertising regulations may impose certain qualitative (e.g. advertising cannot encourage excessive or uncontrolled gambling) and quantitative restrictions (e.g. TV watersheds). For the most part these restrictions have little bearing on sponsorship. In France and Germany, however, gambling operators are not allowed to sponsor sports events involving minors. 

A third category of Member States has no rules specific to gambling advertising as a result of outdated gambling legislations (Luxembourg and Ireland). 


What are the pitfalls? 

The lack of awareness of sports organisers, clubs, and individual athletes about national gambling advertising regulations can be attributed, at least in part, to the fact that liability pitfalls are often hidden. 

First, the provisions on advertising in the national gambling regulatory frameworks are frequently too vague or ambiguous for practical purposes. More often than not, the regulations make no specific reference to (sports) sponsorship. Consequently, the applicability of the restrictions to sponsorship can only be derived from a broad interpretation of the definition of “advertising”. 

Second, only a few national advertising regulations clarify the extent to which both parties to a sponsorship agreement, i.e. the sponsored party and the gambling operator, can be found liable for breaching the regulations. Only in Denmark and the UK, the relevant rules make it explicit that responsibility also falls on the sponsored parties. 

Third, inconsistencies in the enforcement of the advertising regulations make it even more difficult to anticipate the costs of non-compliance. In many instances, the competences are spread over various authorities (gambling regulators, advertising authorities, consumer protection authorities, police, etc.), which diffuses their responsibilities. Moreover, Member States frequently point to the fact that it is difficult to tackle advertising by foreign, unauthorized online betting operators. 

Yet, as the Swedish case illustrates, there are good reasons not to underestimate the risks. 

Typically an infringement of the prohibition to advertise unauthorized gambling services is considered an administrative offence and will therefore be sanctioned with a fine (which can be substantial, up to € 100.000 or even € 1 million). In various Member States, the sponsored party may even risk criminal prosecution (e.g. in Belgium, Denmark, Finland, Cyprus, Greece, Italy, Malta, and the UK).


International sports events versus patchwork of national regulations 

The potential for conflicting national rules causes even more difficulties for clubs or individual athletes participating in cross-border sports events. By way of illustration, in 2007, the Bavarian authorities (Germany) imposed a fine of € 100.000 on AC Milan for wearing shirts with the name of an authorized operator (Bwin) in a Champions League game against Bayern München. The obvious anomaly is that German sports fans are able to watch home matches of AC Milan and Serie A on television and would therefore already be accustomed to watch the team play with its normal shirt sponsor. 

As EU law currently stands, however, gambling operators and sponsored parties are necessarily confronted with the regulatory burden to comply with 28 different legal requirements. The European Court of Justice has repeatedly held that gambling legislation is one of the areas in which significant moral, religious, and cultural differences exist between Member States. In the absence of harmonization in this field, it is therefore for each Member State to determine the objectives of their policy on gambling and to define, in accordance with its own scale and values, what is required to protect the interests in question.[2] The fact that one Member State applies stricter rules, such as a general prohibition of gambling advertising, than others does not in itself affect that assessment.[3] 

The problem is exacerbated by the fact that gambling operators are increasingly sponsoring international sports events. For instance, according to the regulations of the European Handball Federation (EHF), every delegation participating in the EHF Champions League must comply with the exclusive sponsorship arrangements of the sports organiser.[4] For many years the online gambling operator, Bet-at-home, has been one of the main sponsors of the EHF Champions League. The sponsorship deal allows the operator to advertise in all handball arenas in which Champions League games are held. When hosting qualification matches during the 2010-2011 Champions League season, the Polish Handball club Vive Kielce faced a serious dilemma. It had to choose whether to have the advertisements removed, which would mean elimination from the tournament,[5] or to commit an offence sanctioned by the Polish Gaming Law. The club decided to adhere to the regulations of the EHF and was subsequently sanctioned.[6] 

Further attention should therefore be paid to the use of technological tools that may offer pragmatic solutions in these cases (e.g. the use of virtual advertising). In any event, if a sports organiser induces participants in their events to infringe national gambling advertising rules, they should arguably be found liable and not the participant that is caught in a catch-22 situation. 

For a detailed overview of the national gambling advertising regulations and their relationship to sports sponsorship, check out our latest EC Study on Sports Organisers’ Rights in the EU, available at http://ec.europa.eu/sport/news/2014/study-on-sport-organisers-rights_en.htm.


[1] http://www.lotteriinspektionen.se/sv/Press/Pressmeddelanden/Stockholm-Marathons-sponsorsavtal-kan-bryta-mot-svensk-lagstiftning/

[2] See e.g. C-34/79 Henn and Darby (1979) ECR 3795, para. 15; C-275/92 Schindler (1994) ECR I-1039, para. 32; C- 268/99 Jany and others (2001) ECR I-8615, para. 56, 90.

[3] EU law, however, precludes national advertising regulations according to which unauthorized gambling services organised in that Member State would be treated differently than unauthorized gambling services organised abroad. See e.g. Joined Cases C-447/08 and 448/08, Criminal proceedings against Otto Sjöberg and Anders Gerdin (2010) ECR I-6921.

[4] European Handball Federation, EURO Regulations applicable as from November 1, 2010, Article 22.

[5] European Handball Federation, Legal Regulations, Article 14.

[6]http://pilka-reczna.przegladsportowy.pl/Pilka-reczna-Vive-kontra-Izba-Celna-Poszlo-o-reklamy,artykul,117769,1,284.html

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