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

The New FIFA Intermediaries Regulations under EU Law Fire in Germany. By Tine Misic

I'm sure that in 1985, plutonium is available in every corner drugstore, but in 1955, it's a little hard to come by.” (Dr. Emmett L. Brown)[1]


Back to the future?

Availing oneself of EU law in the ambit of sports in 1995 must have felt a bit like digging for plutonium, but following the landmark ruling of the European Court of Justice (ECJ) in the Bosman case[2], 20 years later, with all the buzz surrounding several cases where EU law is being used as an efficient ammunition for shelling various sports governing or organising bodies, one may wonder if in 2015 EU law is to be “found in every drug store” and the recent cases (see inter alia Heinz Müller v 1. FSV Mainz 05, Daniel Striani ao v UEFA, Doyen Sports ao v URBSFA, FIFA, UEFA) [3] cannot but invitingly evoke the spirit of 1995.

One of the aforementioned cases that also stands out pertains to the injunction decision[4] issued on 29 April 2015 by the Regional Court (Landesgericht) in Frankfurt am Main (hereinafter: the Court) in the dispute between the intermediary company Firma Rogon Sportmanagement (hereinafter: the claimant) and the German Football Federation (Deutschen Fußball-Bund, DFB), where the claimant challenged the provisions of the newly adopted DFB Regulations on Intermediaries (hereinafter: DFB Regulations)[5] for being incompatible with Articles 101 and 102 TFEU.[6] The Court, by acknowledging the urgency of the matter stemming from the upcoming transfer window and the potential loss of clients, deemed a couple of shells directed at the DFB Regulations to be well-aimed, and granted an injunction due to breach of Article 101 TFEU. More...




Compatibility of fixed-term contracts in football with Directive 1999/70/EC. Part 2: The Heinz Müller case. By Piotr Drabik

Introduction
The first part of the present blog article provided a general introduction to the compatibility of fixed-term contracts in football with Directive 1999/70/EC[1] (Directive). However, as the Member States of the European Union enjoy a considerable discretion in the implementation of a directive, grasping the impact of the Directive on the world of football would not be possible without considering the national context. The recent ruling of the Arbeitsgericht Mainz (the lowest German labour court; hereinafter the Court) in proceedings brought by a German footballer Heinz Müller provides an important example in this regard. This second part of the blog on the legality of fixed-term contract in football is devoted to presenting and assessing the Court’s decision.


I. Facts and Procedure
Heinz Müller, the main protagonist of this case, was a goalkeeper playing for 1.FSV Mainz 05 a club partaking to the German Bundesliga. More...


Compatibility of Fixed-Term Contracts in Football with Directive 1999/70/EC. Part.1: The General Framework. By Piotr Drabik

Introduction
On 25 March 2015, the Labour Court of Mainz issued its decision in proceedings brought by a German footballer, Heinz Müller, against his (now former) club 1. FSV Mainz 05 (Mainz 05). The Court sided with the player and ruled that Müller should have been employed by Mainz 05 for an indefinite period following his 2009 three year contract with the club which was subsequently extended in 2011 to run until mid-2014. The judgment was based on national law implementing Directive 1999/70 on fixed-term work[1] (Directive) with the latter being introduced pursuant to art. 155(2) TFEU (ex art. 139(2) TEC). On the basis of this article, European social partners’ may request a framework agreement which they conclude to be implemented on the European Union (EU, Union) level by a Council decision on a proposal from the Commission. One of the objectives of the framework agreement,[2] and therefore of the Directive, was to establish a system to prevent abuse arising from the use of successive fixed-term employment contracts or relationships[3] which lies at the heart of the discussed problem.[4] More...

UEFA’s FFP out in the open: The Dynamo Moscow Case

Ever since UEFA started imposing disciplinary measures to football clubs for not complying with Financial Fair Play’s break-even requirement in 2014, it remained a mystery how UEFA’s disciplinary bodies were enforcing the Club Licensing and Financial Fair Play (“FFP”) regulations, what measures it was imposing, and what the justifications were for the imposition of these measures. For over a year, the general public could only take note of the 23 settlement agreements between Europe’s footballing body and the clubs. The evidential obstacle for a proper analysis was that the actual settlements remained confidential, as was stressed in several of our previous Blogs.[1] The information provided by the press releases lacked the necessary information to answer the abovementioned questions.

On 24 April 2015, the UEFA Club Financial Control Body lifted part of the veil by referring FC Dynamo Moscow to the Adjudicatory Body. Finally, the Adjudicatory Body had the opportunity to decide on a “FFP case. The anxiously-awaited Decision was reached by the Adjudicatory Chamber on 19 June and published not long after. Now that the Decision has been made public, a new stage of the debate regarding UEFA’s FFP policy can start.More...

Policing the (in)dependence of National Federations through the prism of the FIFA Statutes. By Tine Misic

…and everything under the sun is in tune,

but the sun is eclipsed by the moon…[1] 


The issue

Ruffling a few feathers, on 30 May 2015 the FIFA Executive Committee rather unsurprisingly, considering the previous warnings,[2] adopted a decision to suspend with immediate effect the Indonesian Football Federation (PSSI) until such time as PSSI is able to comply with its obligations under Articles 13 and 17 of the FIFA Statutes.[3] Stripping PSSI of its membership rights, the decision results in a prohibition of all Indonesian teams (national or club) from having any international sporting contact. In other words, the decision precludes all Indonesian teams from participating in any competition organised by either FIFA or the Asian Football Confederation (AFC). In addition, the suspension of rights also precludes all PSSI members and officials from benefits of any FIFA or AFC development programme, course or training during the term of suspension. This decision coincides with a very recent award by the Court of Arbitration for Sport (CAS) in this ambit, which shall be discussed further below.[4]More...


The Brussels Court judgment on Financial Fair Play: a futile attempt to pull off a Bosman. By Ben Van Rompuy

On 29 May 2015, the Brussels Court of First Instance delivered its highly anticipated judgment on the challenge brought by football players’ agent Daniel Striani (and others) against UEFA’s Club Licensing and Financial Fair Play Regulations (FFP). In media reports,[1] the judgment was generally portrayed as a significant initial victory for the opponents of FFP. The Brussels Court not only made a reference for a preliminary ruling to the European Court of Justice (CJEU) but also imposed an interim order blocking UEFA from implementing the second phase of the FFP that involves reducing the permitted deficit for clubs.

A careful reading of the judgment, however, challenges the widespread expectation that the CJEU will now pronounce itself on the compatibility of the FFP with EU law. More...

A Bridge Too Far? Bridge Transfers at the Court of Arbitration for Sport. By Antoine Duval and Luis Torres.

FIFA’s freshly adopted TPO ban entered into force on 1 May (see our Blog symposium). Though it is difficult to anticipate to what extent FIFA will be able to enforce the ban, it is likely that many of the third-party investors will try to have recourse to alternative solutions to pursue their commercial involvement in the football transfer market. One potential way to circumvent the FIFA ban is to use the proxy of what has been coined “bridge transfers”. A bridge transfer occurs when a club is used as an intermediary bridge in the transfer of a player from one club to another. The fictitious passage through this club is used to circumscribe, for example, the payment of training compensation or to whitewash a third-party ownership by transforming it into a classical employment relationship. This is a legal construction that has gained currency especially in South American football, but not only. On 5 May 2015, in the Racing Club v. FIFA case, the Court of Arbitration for Sport (CAS) rendered its first award involving directly a bridge transfer. As this practice could become prevalent in the coming years we think that this case deserves a close look. More...

20 Years After Bosman - The New Frontiers of EU Law and Sport - Special Issue of the Maastricht Journal of European and Comparative Law

Editor's note: This is a short introduction written for the special Issue of the Maastricht Journal of European and Comparative Law celebrating the 20 years of the Bosman ruling and dedicated to the new frontiers of EU law and Sport (the articles are available here). For those willing to gain a deeper insight into the content of the Issue we organize (in collaboration with Maastricht University and the Maastricht Journal) a launching event with many of the authors in Brussels tomorrow (More info here).More...

ASSER Exclusive! Interview with Charles “Chuck” Blazer by Piotr Drabik

Editor’s note: Chuck Blazer declined our official interview request but thanks to some trusted sources (the FIFA indictment and Chuck’s testimony) we have reconstructed his likely answers. This is a fictional interview. Any resemblance with real facts is purely coincidental.



Mr Blazer, thank you for agreeing to this interview, especially considering the circumstances. How are you doing?

I am facing ten charges concerning, among others, conspiracy to corrupt and money laundering. But apart from that, I am doing great (laughs)!

 

It is good to know that you have not lost your spirit. And since you’ve been involved in football, or as you call it soccer, for years could you please first tell us what was your career at FIFA and its affiliates like?

Let me see… Starting from the 1990s I was employed by and associated with FIFA and one of its constituent confederations, namely the Confederation of North, Central American and Caribbean Association Football (CONCACAF). At various times, I also served as a member of several FIFA standing committees, including the marketing and television committee. As CONCACAF’s general secretary, a position I proudly held for 21 years, I was responsible, among many other things, for negotiations concerning media and sponsorship rights. From 1997 to 2013 I also served at FIFA’s executive committee where I participated in the selection process of the host countries for the World Cup tournaments. Those years at the helm of world soccer were truly amazing years of travel and hard work mainly for the good of the beautiful game. I might add that I even managed to document some of my voyages on my blog. I initially called it “Travels with Chuck Blazer” but Vladimir (Putin) convinced me to change the name to “Travels with Chuck Blazer and his Friends”. You should check it out.

 More...



Financial Fair Play: Lessons from the 2014 and 2015 settlement practice of UEFA. By Luis Torres

UEFA announced on 8 May that it had entered into Financial Fair Play settlement agreements with 10 European football clubs. Together with the four other agreements made in February 2015, this brings the total to 14 FFP settlements for 2015 and 23 since UEFA adopted modifications in its Procedural rules and allowed settlements agreements to be made between the Clubs and the Chief Investigator of the UEFA Club Financial Control Body (CFCB).[1] 

In the two years during which UEFA’s FFP regulations have been truly up and running we have witnessed the centrality taken by the settlement procedure in their enforcement. It is extremely rare for a club to be referred to the FFP adjudication chamber. In fact, only the case regarding Dynamo Moscow has been referred to the adjudication chamber. Thus, having a close look at the settlement practice of UEFA is crucial to gaining a good understanding of the functioning of FFP. Hence, this blog offers a detailed analysis of this year’s settlement agreements and compares them with last year’s settlements. More...

Asser International Sports Law Blog | Human Rights as Selection Criteria in Bidding Regulations for Mega-Sporting Events – Part I: IOC and UEFA – By Tomáš Grell

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

Human Rights as Selection Criteria in Bidding Regulations for Mega-Sporting Events – Part I: IOC and UEFA – By Tomáš Grell

Editor’s note: Tomáš Grell holds an LL.M. in Public International Law from Leiden University. He contributes to the work of the ASSER International Sports Law Centre as a research intern.


It has been more than seven years since the FIFA Executive Committee awarded the 2022 World Cup to Qatar. And yet only in November 2017 did the Qatari government finally agree to dismantle the controversial kafala system, described by many as modern-day slavery. Meanwhile, hundreds of World Cup-related migrant workers have reportedly been exposed to a wide range of abusive practices such as false promises about the pay, passport confiscation, or appalling working and living conditions.[1] On top of that, some workers have paid the highest price – their life. To a certain extent, all this could have been avoided if human rights had been taken into account when evaluating the Qatari bid to host the tournament. In such a case, Qatar would not have won the bidding contest without providing a convincing explanation of how it intends to ensure that the country's poor human rights record will not affect individuals, including migrant workers, contributing to the delivery of the World Cup. An explicit commitment to abolish the kafala system could have formed an integral part of the bid.

Urged by Professor John Ruggie and his authoritative recommendations,[2] in October 2017 FIFA decided to include human rights within the criteria for evaluating bids to host the 2026 World Cup, following similar steps taken earlier this year by the International Olympic Committee (IOC) and UEFA in the context of the Olympic Winter Games 2026 and the Euro 2024 respectively. This two-part blog critically examines the role human rights play in the new bidding regulations adopted by the IOC, UEFA, and FIFA. The first part sheds light on the IOC and UEFA. The second part then takes a closer look at FIFA and aims to use a comparative analysis to determine whether the new bidding regulations are robust enough to ensure that selected candidates abide by international human rights standards.

 

IOC: Olympic Winter Games 2026

About the host selection process

Compared to the past, cities bidding to host the 2026 Games could expect lower costs, simplified procedures, and more assistance provided by the IOC.[3] All interested cities[4] might enter a Dialogue Stage[5] and engage with the IOC to learn more about the benefits and responsibilities associated with the hosting and staging of the Games. Although the Dialogue Stage is non-committal, cities that join are supposed to present their consolidated Games concepts,[6] outlining their vision, long-term plan alignment, or initial financial strategy, as well as providing information with regard to a potential referendum.[7] These consolidated concepts, together with the IOC's own research, will serve as a basis for a preliminary report exploring the capacity of interested cities to deliver successful Games.[8] The IOC Executive Board will review this report and recommend to the IOC Session which cities should be invited to the Candidature Stage.[9] The IOC Session will designate Candidate Cities in October 2018 during its meeting in Buenos Aires.[10]

Candidate Cities will then have until 11 January 2019 to prepare and submit their Candidature Files together with an initial set of core guarantees.[11] In their Candidature Files, Candidate Cities shall provide answers to a variety of questions as set out in the Candidature Questionnaire, covering areas such as sustainability and legacy, transport, accommodation, safety and security, finance, or marketing. Thereafter, Candidate Cities will be visited by the IOC Evaluation Commission that is tasked with conducting an in-depth assessment of each bid and producing a report to help the IOC Session elect the most suitable candidate. The Host City of the 2026 Games will be elected in September 2019.[12]

Human rights as selection criteria

Little attention is paid to human rights in the Candidature Questionnaire. Candidate Cities are only required to provide a guarantee whereby the national government and relevant local authorities undertake to respect and protect human rights and ensure that any violation of human rights is remedied ''in a manner consistent with international agreements, laws and regulations applicable in the Host Country and in a manner consistent with all internationally-recognised human rights standards and principles, including the United Nations Guiding Principles on Business and Human Rights, applicable in the Host Country''.[13] This language is somewhat ambiguous because when defining human rights that should be respected and protected in connection with the hosting and staging of the Games, the guarantee first refers to human rights applicable in the Host Country and only then to the United Nations Guiding Principles on Business and Human Rights (UN Guiding Principles).[14] The latter make clear that the responsibility of business enterprises to respect human rights extends to specific international treaties and other instruments.[15] However, some of these treaties could be inapplicable in the Host Country if not ratified. This would make the guarantee to some extent self-contradictory. Apart from the guarantee, the IOC does not ask for any other human rights-related information from Candidate Cities. In the absence of such information, it is difficult to see how the Evaluation Commission[16] will assess the Candidate Cities' capacity to respect and protect human rights.

 

UEFA: Euro 2024

About the host selection process

While the Euro 2020 will be a bit of an experiment with games scheduled to take place in 12 different cities across the continent, the Euro 2024 returns to its classic format as only one member association will host the tournament. In March 2017, UEFA confirmed that it would be either Germany or Turkey. The next step for both member associations is to submit their Bid Dossiers to UEFA by no later than 27 April 2018.[17] In principle, the bidders must demonstrate in their Bid Dossiers that they meet all Tournament Requirements. Importantly, UEFA reserves the right to appoint independent consultants when evaluating bids.[18] A written evaluation report on each bid will be circulated in September 2018 before the UEFA Executive Committee finally decides which member association will host the Euro 2024.[19]

Human rights as selection criteria

UEFA requires that the bidders and then the Host Association respect, protect, and fulfil human rights and fundamental freedoms, including the rights of workers and children, in line with international treaties and other instruments such as the Universal Declaration of Human Rights, the ILO Declaration on Fundamental Principles and Rights at Work, the Convention on the Elimination of All Forms of Discrimination against Women, or the Convention on the Rights of the Child.[20] In order to meet this obligation, the bidders should in particular seek to culturally embed human rights, proactively address human rights risks, engage with relevant stakeholders, and implement means of reporting and accountability.[21] The bidders' capacity to respect, protect, and fulfil human rights will be evaluated based on their human rights strategy that must be included in their Bid Dossiers.[22] As part of this strategy, the member associations bidding to host the Euro 2024 should explain how they are going to integrate the UN Guiding Principles in their activities related to the organisation of the tournament.[23] While no further details are given about the required content of this strategy, UEFA suggests that a successful bid should not fail to: (i) outline proposed measures aimed at preventing human rights abuses, in particular child labour in supply chains and violations of workers' rights; (ii) provide evidence of meaningful consultation with vulnerable groups; or (iii) describe grievance mechanisms that will be available for victims of human rights abuses.[24]

 

Conclusion

Unlike UEFA, the IOC has attracted widespread criticism for being involved with negative human rights impacts.[25] Nevertheless, it is the former who gives more weight to human rights in its new bidding regulations. This is even more surprising given that the IOC introduced its bidding regulations later than UEFA. It seems that the IOC deliberately avoids including human rights within the criteria for evaluating bids to host the Olympic Games, hoping that this would encourage more cities to participate in the host selection process. Further reflections on human rights as selection criteria in bidding regulations for mega-sporting events will be presented in the second part of this blog that will focus on FIFA and provide some comparative perspectives.


[1]    Amnesty International, The Ugly Side of the Beautiful Game: Exploitation of Migrant Workers on a Qatar 2022 World Cup Site, 30 March 2016. See also Human Rights Watch, Qatar: Take Urgent Action to Protect Construction Workers, 27 September 2017.

[2]    John G. Ruggie, For the Game. For the World. FIFA and Human Rights, p. 32.

[3]    IOC, IOC Approves New Candidature Process for Olympic Winter Games 2026, 11 July 2017.

[4]    To the best of my knowledge, Calgary (Canada), Salt Lake City (United States), Sapporo (Japan), Sion (Switzerland), and Telemark (Norway) consider bidding.

[5]    The Dialogue Stage runs from September 2017 to October 2018. Interested cities can join until 31 March 2018. See IOC, Candidature Process for the Olympic Winter Games 2026, pp. 11-17.

[6]    Ibid.

[7]    On 15 October 2017, a referendum was held in the Austrian province of Tirol. A negative outcome prevented the city of Innsbruck from launching a bid to host the 2026 Games.

[8]    This report is to be drawn up by the Olympic Winter Games 2026 Working Group overseen by an IOC member and consisting of individuals representing the International Paralympic Committee, the IOC's Athletes Commission, International Winter Sports Federations, and National Olympic Committees. See Candidature Process for the Olympic Winter Games 2026, p. 16.

[9]    Ibid.

[10]   The capital of Argentina will host the 2018 Youth Olympic Games.

[11]   IOC, Candidature Process for the Olympic Winter Games 2026, p. 18.

[12]   Ibid. p. 22.

[13]   IOC, Candidature Questionnaire for the Olympic Winter Games 2026, pp. 86, 88.

[14]   Ibid.

[15]   These include, at a minimum, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the principles concerning fundamental rights in the eight ILO core conventions as set out in the Declaration on Fundamental Principles and Rights at Work. See UN Guiding Principles, Principle 12.

[16]   The Evaluation Commission may be assisted by experts. See IOC, Olympic Charter, Bye-Law to Rule 33.

[17]   UEFA, Bid Regulations for the UEFA Euro 2024, Article 5.05.

[18]   Ibid. Article 14.

[19]   Ibid. Articles 6.02 and 6.04.

[20]   UEFA, Tournament Requirements for the UEFA Euro 2024, Sector 03 – Political, Social and Environmental Aspects, p. 5.

[21]   Ibid. pp. 5-6.

[22]   UEFA, Bid Dossier Template for the UEFA Euro 2024, Sector 03 – Political, Social and Environmental Aspects, p. 5.

[23]   Ibid.

[24]   UEFA, Tournament Requirements for the UEFA Euro 2024, Sector 03 – Political, Social and Environmental Aspects, p. 6.

[25]   Jonathan Watts, Rio Olympics linked to widespread human rights violations, report reveals, 8 December 2015. See also Human Rights Watch, Race to the Bottom: Exploitation of Migrant Workers Ahead of Russia's 2014 Winter Olympic Games in Sochi, 6 February 2013. See also Human Rights Watch, 'One Year of My Blood': Exploitation of Migrant Construction Workers in Beijing, 11 March 2008. 

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