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 – May 2016. By Marine Montejo

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

Challenged membership put a lot of emphasis on football federations in May. The Court of Arbitration for Sport (“CAS”) has rendered an award, on 27 April 2016, ordering the FIFA Council to submit the application of the Gibraltar Football Association (GFA) for FIFA membership to the FIFA Congress (the body authorised to admit new members to FIFA). The GFA has sought since 1999 to become a member of UEFA and FIFA. In May 2013, it became a member of the UEFA and went on to seek membership of FIFA. The latter refused to submit the application to its Congress as the conditions for it were (allegedly) not met. The GFA filed an appeal to this decision to CAS which also ordered that the FIFA Congress take all necessary measures to admit the GFA as a full member of FIFA as soon as possible and within the limits of the FIFA Statutes, as it does not have the power to directly award it with FIFA membership. FIFA discussed the matter during its 66th Congress on 12&13 May and finally granted it with  membership, along with Kosovo. Gibraltar had to face an opposition from Spain due to its long-standing dispute over the status of its territory. On another front, following the decision of the UEFA Congress on May 3 to integrate the football federation of Kosovo, the Football Association of Serbia (FSS) has filed an appeal with CAS against the Kosovar membership. UEFA is already looking to integrate Gibraltar and Kosovo to its 2018 World Cup qualification tournament. Kosovo is a self-proclaimed state and not a member of the United Nations. Its national Olympic committee became a full member of the International Olympic Committee in 2014 and is recognized by a number of international sports federations.

The ongoing legal battle between FIBA/FIBA Europe and Euroleague Commercial Assets (“ECA”) is firing around Europe. This time, the Spanish Higher Council for Sports (“Consejo Superior de Deportes” – “CSD”) annulled the agreement between the Spanish basketball league (“ACB”) and the Euroleague because it breaches the rules of the Spanish national basketball federation (“FEB”). Such an agreement is an infringement of the federation jurisdiction to decide on the participation of Spanish basketball clubs to international competitions. The Spanish national team was under the threat of being withdrawing of the 2016 Rio Olympic Games and the 2017 EuroBasket by the international federation (“FIBA”) and the European federation (“FIBA Europe”) because of the participation of Spanish professional basketball clubs to the Euroleague. FIBA is battling with Euroleague to impose its own European competition, the Basketball Champions League (recent update on the ongoing disagreements between the two can be found here).

The Spanish competition authority (“CNMC”) published its report on the audiovisual rights’ selling conditions for the Spanish football first and second leagues (“La Liga” and “Segunda División”) and national cup (“Copa del Rey”) until 2019. In April 2015, joint selling of the national football media rights has been imposed in Spain. The Spanish National League has to seek the advice of the competition authority previous to its tender. The main observations of the CNMC is that the penultimate and ultimate La Liga matches day should be broadcast on free-to-air TV. Also, the possibility for pay-TV broadcasters to buy more Copa del Rey matches could be anti-competitive.


Case law

Michel Platini’s suspension from all football-related activities at both national and international level was lowered by the CAS  from six to four years. The former UEFA President was first sentenced with an eight years ban by the Adjudicatory Chamber of the FIFA Ethics Committee for several breaches of the FIFA Ethics Code. This sanction was later reduced to a six years suspension by the FIFA Appeal Committee. Michel Platini filed his appeal at CAS which rendered its decision on May, 9. CAS concluded that the employment contract between FIFA and Michel Platini was valid, however, the alleged unpaid part of his salary (CHF 2 millions) was not legitimate and, as such, was an undue advantage in breach of Article 20 of the FIFA Code of Ethics. The arbitral panel also concluded on a conflict of interest in breach of article 19 of the same code. However, CAS only retained these two breaches and did not found him guilty of the others, as a consequence, its six-year suspension was reduced to four years. In particular, CAS highlighted the fact that FIFA knew about this payment in 2011 and only started its investigations in 2015. Michel Platini resigned from the UEFA presidency and announced his intention to appeal the award in front of the Swiss Federal Tribunal. 

CAS released its award on the appeal brought by the Croatian international water polo player Niksa Dobud against FINA Doping panel decision which sanctioned him for failure to submit to a doping test. He was previously sanctioned with a four-year period of ineligibility, the disqualification of the results obtained after 21 March 2015, the date of the attempt to test him and the forfeit of any medals, points and prizes achieved from that date. The panel found him guilty of evading a doping test and confirmed FINA decision.


Official Documents and Press Releases 


In the news

Olympics

Football


Academic materials


Books 


Upcoming Events 

27 & 28 June - Sport & EU 11th annual conference, Institute for European Studies, CEU-San Pablo University, Madrid, Spain 

28 June – LawInSport Networking Drinks, London, UK

6 July - Asser International Sports Law Lecture and Book Launch: Antidoping in the wake of the meldonium cases: How to balance scientific complexity and legal fairness. By Marjolaine Viret, Asser Institute, The Hague, The Netherlands

19 – 21 July - Executive Programme in International Sports Law, Sports Law and Policy Centre, Ravello, Italy

2 & 3 September - International Sport Arbitration 6th Conference CAS & SAV, The Court of Arbitration for Sport (CAS), the Swiss Bar Association (SAV / FSA) and the Swiss Arbitration Association (ASA), Lausanne Switzerland

16 September - The future of the ‘legal autonomy’ of sport, Anglia Ruskin University, Cambridge, UK


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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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