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

RFC Seraing at the Court of Arbitration for Sport: How FIFA’s TPO ban Survived (Again) EU Law Scrutiny

Doyen (aka Doyen Sports Investment Limited) is nothing short of heroic in its fight against FIFA’s TPO ban. It has (sometimes indirectly through RFC Seraing) attacked the ban in front of the French courts, the Belgium courts, the European Commission and the Court of Arbitration for Sport. This costly, and until now fruitless, legal battle has been chronicled in numerous of our blogs (here and here). It is coordinated by Jean-Louis Dupont, a lawyer who is, to say the least, not afraid of fighting the windmills of sport’s private regulators. Yet, this time around he might have hit the limits of his stubbornness and legal ‘maestria’. As illustrated by the most recent decision of the saga, rendered in March by the Court of Arbitration for Sport (CAS) in a case opposing the Belgium club RFC Seraing (or Seraing) to FIFA. The arguments in favour of the ban might override those against it. At least this is the view espoused by the CAS, and until tested in front of another court (preferably the CJEU) it will remain an influential one. The French text of the CAS award has just been published and I will take the opportunity of having for once an award in my native language to offer a first assessment of the CAS’s reasoning in the case, especially with regard to its application of EU law. More...

The Validity of Unilateral Extension Options in Football – Part 1: A European Legal Mess. 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.

                 

In the football world the use of unilateral extension options (hereafter UEOs) in favour of the clubs is common practice. Clubs in Europe and, especially, South America make extensive use of this type of contractual clauses, since it gives them the exclusive possibility to prolong the employment relationship with players whose contracts are about to come to an end. This option gives to a club the right to extend the duration of a player’s contract for a certain agreed period after its initial expiry, provided that some previously negotiated conditions are met. In particular, these clauses allow clubs to sign young promising players for short-term contracts, in order to ascertain their potential, and then extend the length of their contracts.[1] Here lies the great value of UEOs for clubs: they can let the player go if he is not performing as expected, or unilaterally retain him if he is deemed valuable. Although an indisputably beneficial contractual tool for any football club, these clauses are especially useful to clubs specialized in the development of young players.[2] After the Bosman case, clubs have increasingly used these clauses in order to prevent players from leaving their clubs for free at the end of their contracts.[3] The FIFA Regulations do not contain any provisions regulating this practice, consequently the duty of clarifying the scope and validity of the options lied with the national courts, the FIFA Dispute Resolution Chamber (DRC) and the CAS. This two-part blog will attempt to provide the first general overview on the issue.[4] My first blog will be dedicated to the validity of UEOs clauses in light of national laws and of the jurisprudence of numerous European jurisdictions. In a second blog, I will review the jurisprudence of the DRC and the CAS on this matter. More...

Call for papers: ISLJ Annual Conference on International Sports Law - 26-27 October 2017

The editorial board of the International Sports Law Journal (ISLJ) is very pleased to invite you to submit abstracts for its first Annual Conference on International Sports Law. The ISLJ, published by Springer in collaboration with ASSER Press, is the leading publication in the field of international sports law. Its readership includes both academics and many practitioners active in the field. On 26-27 October 2017, the International Sports Law Centre of the T.M.C. Asser Instituut and the editorial board of the International Sports Law Journal will host in The Hague the first ever ISLJ Annual Conference on International Sports Law. The conference will feature panels on the Court of Arbitration for Sport, the world anti-doping system, the global governance of sports, the FIFA transfer regulations, comparative sports law, and much more.

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International and European Sports Law – Monthly Report – March 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.

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The legality of surety undertakings in relation to minor football players: the Lokilo case. By Adriaan Wijckmans

Editor's note: Adriaan Wijckmans is an associate specialized in sports law at the Belgium law firm Altius.

In a recent judgment, the Brussels Court of First Instance confirmed the legality of a so-called surety undertaking, i.e. an agreement in which the parents of a minor playing football guarantee that their child will sign a professional contract with a football club as soon as the child reaches the legal age of majority.

This long-awaited ruling was hailed, on the one hand, by clubs as a much needed and eagerly anticipated confirmation of a long-standing practice in Belgian football[1] and, on the other hand, criticised by FIFPro, the international player’s trade union, in a scathing press release. More...



Kosovo at the Court of Arbitration for Sport – Constructing Statehood Through Sport? By Ryan Gauthier (Thompson Rivers University)

Editor's Note: Ryan is Assistant Professor at Thompson Rivers University, he defended his PhD at Erasmus University Rotterdam in December 2015. His dissertation examined human rights violations caused by international sporting events, and how international sporting organisations may be held accountable for these violations. 


“Serious sport…is war minus the shooting.” – George Orwell

 

In May 2016, the Union of European Football Associations (UEFA) admitted the Football Federation of Kosovo (Kosovo) as a member. The voting was close, with 28 member federations in favour, 24 opposed, and 2 whose votes were declared invalid. The practical outcome of this decision is that Kosovo would be able participate in the UEFA Euro championship, and that Kosovo teams could qualify for the UEFA Champions’ League or Europa League. More...


International and European Sports Law – Monthly Report – February 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...

FIFA's Responsibility for Human Rights Abuses in Qatar – Part II: The Zurich Court's Ruling - By Tomáš Grell

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

This is a follow-up contribution to my previous blog on FIFA's responsibility for human rights abuses in Qatar published last week. Whereas the previous part has examined the lawsuit filed with the Commercial Court of the Canton of Zurich ('Court') jointly by the Dutch trade union FNV, the Bangladeshi Free Trade Union Congress, the Bangladesh Building and Wood Workers Federation and the Bangladeshi citizen Nadim Shariful Alam ('Plaintiffs') against FIFA, this second part will focus on the Court's ruling dated 3 January 2017 ('Ruling').[1]  More...



FIFA's Responsibility for Human Rights Abuses in Qatar - Part I: The Claims Against FIFA - By Tomáš Grell

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

On 2 December 2010, the FIFA Executive Committee elected Qatar as host of the 2022 FIFA World Cup ('World Cup'), thereby triggering a wave of controversies which underlined, for the most part, the country's modest size, lack of football history, local climate, disproportionate costs or corruption that accompanied the selection procedure. Furthermore, opponents of the decision to award the World Cup to the tiny oil-rich Gulf country also emphasized the country's negative human rights record.

More than six years later, on 3 January 2017, the Commercial Court of the Canton of Zurich ('Court') dismissed the lawsuit filed against FIFA[1] jointly by the Dutch trade union FNV, the Bangladeshi Free Trade Union Congress, the Bangladesh Building and Wood Workers Federation and the Bangladeshi citizen Nadim Shariful Alam ('Plaintiffs').[2] The Plaintiffs requested the Court to find FIFA responsible for alleged human rights violations of migrant workers in connection with the World Cup in Qatar. Had the Plaintiffs' claims been upheld by the Court, such decision would have had far-reaching consequences on the fate of thousands of migrants, mostly from India, Nepal and Bangladesh, who are currently working on the construction of sporting facilities and other infrastructure associated with organization of the World Cup. More...

Asser International Sports Law Blog | In Egypt, Broadcasting Football is a Question of Sovereignty … for Now! By Tarek Badawy, Inji Fathalla, and Nadim Magdy

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

In Egypt, Broadcasting Football is a Question of Sovereignty … for Now! By Tarek Badawy, Inji Fathalla, and Nadim Magdy

On 15 April 2014, the Cairo Economic Court (the “Court") issued a seminal judgment declaring the broadcasting of a football match a sovereign act of State.[1]


Background

In Al-Jazeera v. the Minister of Culture, Minister of Information, and the Chairman of the Board of Directors of the Radio and Television Union, a case registered under 819/5JY, the Al-Jazeera TV Network (the “Plaintiff” or “Al-Jazeera”) sued the Egyptian Radio and Television Union (“ERTU” or the “Union”) et al. (collectively, the “Respondents”) seeking compensation for material and moral damages amounting to three (3) million USD, in addition to interest, for their alleged breach of the Plaintiff’s exclusive right to broadcast a World Cup-qualification match in Egypt.  Al-Jazeera obtained such exclusive right through an agreement it signed with Sportfive, a sports marketing company that had acquired the right to broadcast Confederation of African Football (“CAF”) World Cup-qualification matches.

ERTU reportedly broadcasted the much-anticipated match between Egypt and Ghana live on 15 October 2013 without obtaining Al-Jazeera’s written approval, in violation of the Plaintiff’s intellectual property rights.


Arguments of the Parties

Plaintiff’s Position

The Plaintiff explained that its right was protected by various provisions of Law No. 82/2002 on the Protection of Intellectual Property Rights (the “IP Law”). Most notably, the Plaintiff referred to Article 139, which provides for copyright protection for both Egyptians and citizens of World Trade Organization member States, and Article 149, which grants copyright owners the right to transfer, in writing, all or some of their rights in the copyrighted content to third parties.

In addition, the Plaintiff stated that Articles 157, 158 and 159 of the IP Law gave it exclusive economic rights in the content it owned or acquired, which precludes the exploitation of broadcasting the match in any manner (including its reproduction and communication to the public) by a third party without its prior written authorization.

By broadcasting the match live on Egyptian channels without obtaining the Al-Jazeera’s prior written authorization, ERTU - the Plaintiff argued - breached the Plaintiff’s intellectual property rights that are protected under Egyptian and international law.  

Respondents’ Position

The Respondents emphasized the political nature of the decision to broadcast the match. They argued that Egypt’s executive branch of government was entitled to take decisions respecting the broadcasting of the match in the interest of Egypt, and its peace and security, without incurring any penalty or enduring judicial scrutiny.  The Respondents added that broadcasting the match was an activity that took place entirely within Egypt pursuant to an executive decision and, as such, was an act of State that was immune to judicial scrutiny. Accordingly, broadcasting the match did not violate any laws or agreements. 


Judgment on Jurisdiction

The Court began its assessment of the case by examining its jurisdiction in accordance with Article 109 of the Code of Civil and Commercial Procedures, which grants courts the power to rule on their own jurisdiction in any case before them.  Then, it consulted Law No. 13 /1979 relating to the Egyptian Radio and Television Union, as amended (the “ERTU Law”), which provided for the establishment of a national authority under the name of “Egyptian Radio and Television Union”.  Among other things, the ERTU Law states that the Union is (i) deemed a national authority that assumes all the functions and duties associated with audio-visual media and broadcasting services in Egypt; (ii) shall have a separate juridical personality; and (iii) shall be subordinated to the Minister of Information.

The Court established that the decision to broadcast this match was issued by ERTU, a national authority entitled to broadcast audio-visual media in Egypt for the purpose of achieving national interests and services, and ensuring collective interest in all aspects including sports.

Against this background, the Court concluded that the Union’s decision to broadcast the match fell within the Union’s mandate, which was to be exercised on Egyptian territory and without interfering with the sovereignty or law of another state.  Therefore, the decision to broadcast the game was, in the opinion of the Court, an act of sovereignty that may not be the subject of litigation; and the executive authority was permitted to take all necessary measures in Egypt’s interests, while enjoying immunity against court supervision.  

Finding that it lacked jurisdiction, the Court did not address the Plaintiff’s claims relating to its intellectual property rights.


Lessons Learned and Next Steps

The judgment raises several questions regarding the scope of sovereign powers that can be exercised by a State.  Most importantly, it provides a novel interpretation of what constitutes an act of State. Furthermore, the decision will likely push companies entering into broadcasting agreements with the Union to take various precautions, such as  subjecting potential disputes to international arbitration, as opposed to the supervision of local courts. 

The judgment comes as another blow to Al-Jazeera in Egypt, which saw three of its journalists sentenced by an Egyptian court to prison terms ranging from seven (7) to ten (10) years for charges that included spreading false news. One of the journalists, Peter Greste, has already been deported to his native Australia pursuant to a decree law that allows the deportation of foreigners to their home countries to stand trial or serve the remainder of their sentence.  The other journalists have been released on bail and are currently awaiting their retrial after the Court of Cassation, Egypt’s highest court, quashed their sentence.

On 11 June 2014, Al-Jazeera appealed the Court’s decision to the Court of Cassation, explaining that a sovereign act of State can be easily distinguished from regular administrative activities such as the ones typically performed by the Union.  According to Al-Jazeera, an act of State covers high political considerations, such as the protection of national interests, upholding the terms and principles of the Constitution, and overseeing Egypt’s relations with other States to ensure domestic and international peace and security. A football match does not meet any of these criteria.

It is likely that the Court of Cassation will overturn the Court’s judgment in light of Egypt’s IP Law and the fact that broadcasting and licensing agreements are a regular business activity.  It is also important to observe how the Court of Cassation will address the lower Court’s novel interpretation of the act of State doctrine. While soccer is the most popular sport in Egypt, it is unclear how broadcasting a match can be linked to a State’s higher political interests.

Equally unclear is how Al-Jazeera will react should the Court of Cassation uphold the judgment, and whether it will consider resorting to international arbitration given that Egypt and Qatar signed a bilateral investment treaty in 1999 that protects investors’ intellectual property rights, among other things.



[1] Tarek Badawy (tarek.badawy@shahidlaw.com), Inji Fathalla (inji.fathalla@shahidlaw.com), and Nadim Magdy (nadim.magdy@shahidlaw.com) are Attorneys-at-Law at Sarwat A. Shahid Law Firm (“Shahid Law”) in Cairo, Egypt.  The views expressed in this articles are those of the authors and do not constitute legal advice. 

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