Asser International Sports Law Blog

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

This month saw the conflict between FIBA Europe and the Euroleague (more precisely its private club-supported organizing body, Euroleague Commercial Assets or ‘ECA’) becoming further entrenched. This dispute commenced with FIBA creating a rival Basketball Champions League, starting from the 2016-2017 season with the hope to reinstate their hold over the organization of European championships. The ECA, a private body that oversees the Euroleague and Eurocup, not only decided to maintain its competitions but also announced it would reduce them to a closed, franchise-based league following a joint-venture with IMG. In retaliation, FIBA Europe suspended fourteen federations of its competition (with the support of FIBA) due to their support for the Euroleague project. More importantly, this suspension could concern the 2016 Rio Olympics and the Spanish title-holder whose federation backs up the ECA. In February 2016, the ECA announced it had filed a complaint before the European Commission against FIBA and FIBA Europe as a consequence of an alleged abuse of their dominant position in forcing national federations to rescind their participation in the Euroleague competitions. In response, FIBA filed a complaint in April against the ECA before the same European Commission for the same breach of EU competition law provisions. DG Competition is expected to decide on the opening of both cases unless the ongoing negotiations between both parties resolves these issues first.

Sport has placed a lot of emphasis on EU competition law in the past weeks. In a similar situation to basketball, the FEI is fighting the emergence of the successful Longines Global Champions League (‘LGCL’), a private worldwide horse jumping competition. The Belgian competition authority already granted interim measures to the LGCL in a dispute arising when the FEI tried to suspend riders and horses that were participating in the unsanctioned league from its own competitions. While still waiting for the final decision in the case, the FEI recently suspended two of its officials for six months following the first leg of the LGCL in Miami.

On the media selling rights front, the German competition authority has decided to impose the “no single buyer” obligation starting in 2017. This clause was first imposed by the European Commission as a remedy against the risk of monopolization in the Premier League selling media rights case. The rule is designed to ensure that more than one TV broadcaster will win all live broadcasting rights, changing the status quo in Germany which had previously awarded all broadcasting rights to Sky Deutschland. The decision was made in order to ensure that innovation on the Internet-based offering is not at risk.

The Greek government is involved in a bitter struggle with FIFA over its decision to cancel its national cup due to the crowd violence witnessed this season. FIFA provided the Greek authorities with a new deadline to change their decision, otherwise the national federation will face a suspension. An agreement between both parties seems to have been found.

Cases law

The very long awaited Hillsborough stadium disaster decision was delivered on the 26^th of April 2016. The jury in the inquest ruled that 96 persons were unlawfully killed 27 years ago and that the behaviour of Liverpool fans did not contribute to the disaster. The jury also said that the police’s planning for the match and actions on the day did contribute to the tragedy. The prosecutor now has to decide whether criminal charges should be brought against individuals or organizations.

The UK Information Tribunal ordered the London Legacy Development Corporation (‘LLDC’), which managed the London Olympic Stadium, to publish the deal it has with the West Ham football club concerning the use of the stadium. The LLDC was fighting a freedom of information campaign that argued there was not enough transparency concerning this contract. West Ham will move to the Olympic Stadium at the end of the season.

The Paris Court of Appeal decided that it was not necessary to refer for a preliminary ruling to the European Union Court of Justice and rejected the appeal relating to alleged violations of EU law by the now revoked FIFA Regulations on the Status and Transfer of Player concerning the players’ agents profession. This decision is probably the final point of the never-ending Piau case. FIFA first modified its provisions for players’ agents after the European Commission opened a case for an alleged breach of EU competition law. Mr. Piau contested the European Commission’s decision to close the investigation but both of its appeals at the European Court of Justice were rejected (see here and here).

The British Tax and Chancery Chamber of the Upper Tribunal referred a question for a preliminary ruling to the Court of Justice of the European Union relating to tax law. The CJEU will have to tackle the definition of sport in deciding whether bridge is a sport (Case C-90/16).

Official Documents and Press Releases

“For the Game. For the World.” FIFA and Human Rights. John G. Ruggie

FCDnipro, InterBaku and Târgu Mureş decisions of Adjudicatory Chamber of UEFA's Club Financial Control Body for breaching FFP

Report of German FA on fees paid by German clubs to intermediaries in 2015

WADA suspends Beijing Laboratory for not meeting required standards

WADA notice on Meldonium

CAS award on the 8-year statute of limitations for re-analysing samples under the previous WADA code

The IOC's anti-doping rules for Rio2016

The UCI bans Femke Van den Driessche for 6 years in motor-doping case

In the news

Football

Josu Alonso - El Sporting ¿puede recibir una sanción de la FIFA?

David Conn, Leicester City and the strange finances behind their rise to the Premier League pinnacle

Owen Gibson, Leaked documents raise the question: just how new is the new FIFA?

Christopher M. Matthews, Aruna Viswanatha and Joe Flint - U.S. Considers Role of Banks, Sponsors in Soccer Bribery Probe

Manuel Veth - Dinamo Moscow and GestiFute – A Deal with the Devil?

Sam Wallace - West Ham got a great deal with the Olympic Stadium, but other clubs have had it even sweeter

AFP - Fifa corruption scandal: US releases three guilty plea transcripts

AP - Uruguay: Former FIFA official ordered to house arrest

Reuters - Dozens of "trapped" players set to request release from Romanian clubs

Formula 1

Alam Baldwin - Force India waiting on 2017 rules in EU complaint

Athletics

Sean Ingle - Caster Semenya’s comeback puts her on course for Rio gold – and controversy

Tennis

Reuters - Tennis-Australian Lindahl avoids jail for match-fixing

Olympics

Stine Alvad - Olympic summer sports introduce new governance self-assessment tool

Robert Livingstone - Swiss Olympic Considers Agenda 2020, Sets Realistic Roadmap For Olympic Bidders

Caroline Stauffer - More Olympic projects under investigation for corruption - prosecutor

Others

Margareta Baddeley - Important piece (in French) on need for (Swiss) court intervention in sport

Gerald Imray and Mutwiri Mutuota - WADA: Kenya has until May 2 or will be non-compliant

Kaypeem Mohan - The meldonium conundrum

Rebecca Ruiz - Swiss City Is ‘the Silicon Valley of Sports’

Michael Shields - Swiss crack down on bribery as 'Lex FIFA' set to take force

Academic materials

Narelle Bedford and Greg Weeks, Doping in Sport: What Role for Administrative Law?

Girish Deepak, Compulsory consent in Sports Arbitration: Essential or Auxiliary

Antoine Duval, The FIFA Regulations on the Status and Transfer of Players: Transnational Law-Making in the Shadow of Bosman

Antoine Duval, Getting to the Games: Olympic Selection Drama(s) at the Court of Arbitration for Sport

Daniel Geey and Jonny Madill, What would Brexit really mean for the Premier League?

Tom Serby, The state of EU sports law: lessons from UEFA’s ‘Financial Fair Play’ regulations

Conor Talbot, The Role of Sport in the Recognition of Transgender and Intersex Rights

Anastasia Tsoukala, Geoff Pearson and Peter Coenen(Eds.), Legal Responses to Football Hooliganism in Europe

Oskar van Maren, EU State Aid Law and Professional Football: A Threat or a Blessing?

Ben Van Rompuy, The Role of EU Competition Law in Tackling Abuse of Regulatory Power by Sports Associations

Upcoming Events May and June

26 May – Asser International Sports Law Lecture: You’ve won before CAS, now how to make sure you get paid? By Fabrice Robert-Tissot. Asser Institute, The Hague, The Netherlands
9 June - Actualiteitencursus Internationaal Sportrecht. De Kempenaer Advocaten, Arnhem, The Netherlands
27 and 28 June - Sport & EU Conference 2016. Institute for European Studies, CEU-San Pablo University, Madrid, Spain

Nearly twenty years after the European Court of Justice declared in the Bosman case that all professional athletes within the EU were given the right to a free transfer at the end of their contracts, the Spanish Tribunal Supremo[1] provided a judgment on 26 March 2014 that will heighten a new debate on the rights of professional athletes once their contract expires.

This case originates in a dispute between the Spanish Association of Professional Cycling Teams (Asociación de Equipos de Ciclismo Profesional) and the Spanish Association for Professional Cyclists (Asociación de Ciclistas Profesionales). The two parties had concluded a collective agreement for professional cycling in 2010. Even though it is common practice that cyclists would never sign employment contracts for an indefinite period of time, nor would cycling teams compensate their cyclists merely for contract expiration, article 15(2) of the agreement established that, at the end of the contract, the team is obliged to compensate the cyclist with the amount that is due to him based on the employment contract[2].

On 14 May 2012 the Association of Professional Cycling Teams, as applicant, requested from the Spanish Audiencia Nacional to pronounce itself on the correct interpretation of article 15.2 of the collective agreement, taking into account the Real Decreto 1006/1985 on the special employment relationship of professional athletes and article 49.1.c) of the Workers Statute (Disposición Transitoria Decimotercera del Estatuto de los Trabajadores). According to article 49.1.c) of the Workers Statute, after expiration of the contract, a worker shall have the right to receive a compensation of an amount equal to 12 days of salary for every year of service. One of the goals of this article was to promote indefinite contracts.

The applicant argued that, due to the nature of contracts of professional athletes, for which the duration is never indefinite, article 49.1.c) is not applicable to professional athletes. By contrast, article 6 of Real Decreto 1006/1985, which states that the duration of sporting contracts are always fix-term contracts, should be used for the interpretation of the collective agreement between the two cyclist associations.

In its judgment of 16 July 2012, the Social Chamber of la Audiencia Nacional[3] confirmed that professional athletes are not to be treated differently than regular employees, and should therefore be compensated at the end of their contract. However, the Audiencia Nacional recognized the specific nature of the employment contracts of professional athletes, whose employment conditions are specifically regulated in Real Decreto 1006/1985. Hence, it declared article 49.1.c) of the Workers Statute inapplicable to professional athletes.

The decision of the Audiencia Nacional being appealed, the Spanish Supreme Court was in turn confronted with the question whether a professional athlete is entitled to the compensation as stipulated in Article 49.1.c of the Workers Statute after expiration of the employment contract. In other words, are the general labour rules regarding the end of the employment contracts also applicable to professional athletes?

The Court answered this question affirmatively, seeing no reason whatsoever for the Workers Statute, including article 49.1.c) not to be equally applicable to professional athletes. Moreover, by applying the Workers Statute, the compensation will become an instrument for the promotion of contract extensions, thereby improving the employment stability of athletes. Lastly, and referring to point 6 of the preamble of Council Directive 1999/70/EC concerning the framework agreement on fixed-term work, the Court argued that indefinite contracts contribute to the quality of life of the affected workers[4], and is therefore in line with the original goals of article 49.1.c) of Workers Statute.

The consequences of this judgment are simple enough: A professional athlete who had a five year contract with a specific club or team for 100,000 Euros a year will, at the end of his contract, receive a compensation of approximately 16,438.36 Euros (100,000 / 365 x 12 x 5), or 16.4% of his yearly salary.

This ruling is an important step forward on the long and tangled road towards the full recognition of professional athletes as true workers deserving the same rights and duties as their peers.

[1] El Tribunal Supremo is the highest court in Spain for all matters not relating to the Spanish Constitution

[2] Article 15(2) …Al finalizar la relación laboral se liquidará el finiquito que contendrá todos los conceptos económicos que regule la legislación vigente.

[3] The Audiencia Nacional is a special and exceptional high court in Spain

[4] Sentencia del Tribunal Supremo de 26 de Marzo de 2014 (CASACION 61/2013), part 7, §1

This year the race for UEFA Europa League places in Serie A was thrilling. In the final minutes of the last game of the season, Alessio Cerci, Torino FC striker, had the opportunity to score a penalty that would have qualified his team to the 2014-2015 edition of the UEFA Europa League. However, he missed and Parma FC qualified instead.

One would think all was decided after the referee’s final whistle. However, on 19 May, the Italian Football Federation’s Second Instance Commission for UEFA Licences confirmed the decision of the First Instance and denied Parma FC its UEFA Licence for the 2014-2015 season. Indeed, Parma did not comply with the provisions included in the UEFA Licensing Manual, in particular paragraph 14.7 – F04 of the Italian Version regarding overdue payable to tax authorities for salaries. In this context, the Commission considered that Parma had not paid €300,000 of taxes related to payments made in October/November 2013 to 10 players on loan by the 31 March 2014 deadline imposed for overdue payments to players or tax authorities.

Parma appealed this decision in front of the Italian High Court of Justice for Sport. Arguing that the payments made to the 10 Players were salary advances requiring a payment of taxes at the end of the season (i.e. 30 June 2014). However, the two Commissions and the Court considered these payments as a salary anticipation that required the payment of taxes within 30 days after the disbursement. This position was also reinforced by the qualification of the payments made by Parma’s tax advisors.

Nonetheless, the facts of the case are quite murky. In fact, on 31 March, Parma had not received any notification from the Italian tax authorities regarding its non-compliance with tax obligations. The club received a first communication on 30 April, which was after the deadline set to obtain the UEFA Licence. Hence, Parma also claimed that it would have complied with its tax duties within the deadline, if only it had received a notification from the authorities before 31 March. This situation is even more absurd if one takes in account that had Parma raised objections to the tax authorities’ assessment it would have triggered the suspension of the legal delay and, therefore, would have gotten the UEFA Licence.

In a decision dating from 22 May, the Italian High Court, even though it denied the Licence to Parma FC, sympathized with the club’s fate and acknowledged that in this concrete case the strict implementation of the UEFA Manual led to an unfair outcome. Nevertheless, the High Court considered that the UEFA manual was solely applicable and could not be put aside in this specific instance. Moreover, the High Court stated that as an ad hoc regulation, only UEFA itself had the power of suspending or adapting these rules. Thus Parma was sanctioned on the basis of a strict liability reasoning leaving little room to the judiciary to adapt the sanction to the circumstances of the case.

On 3 June the CEO of Parma, Mr. Leonardi, declared that the club is considering to appeal the decision in front of CAS. It is however likely that the CAS will dismiss the appeal and declare itself incompetent since there is no arbitral clause in favour of CAS included in the Statute of the Italian Football Federation (FIGC). This is not a similar configuration as in cases CAS 2013/A/3067 Málaga CF SAD v. UEFA and CAS 2013/A/3233 PAE Giannina 1966 v. UEFA in which the UEFA License was denied by the UEFA disciplinary bodies. Moreover, an analogous situation arose in the case CAS 2013/A/3199 Rayo Vallecano de Madrid SAD. v. RFEF leading to the CAS denying any competence to re-consider the refusal by the Spanish Football Federation to confer a UEFA license to Rayo Vallecano.

Parma could also appeal the decision in front of the Italian Administrative Courts, according to the law 17 October 2003, n.280. Article 3 of the law gives exclusive jurisdiction to the Regional Administrative Tribunal of Lazio, with seat in Rome, for appeals against decisions of the Italian Sports Justice. The jurisdiction of this Court is, however, limited to acts of the Italian Olympic Committee or Sports Federations that do not fall under the exclusive competence of Sports Justice Bodies according to article 2 of this law. Hypothetically, in this case the Administrative Court could quash the decision of the High Court and, also, issue a provisional measure suspending the effect of the decision. However, in my opinion, this is very unlikely to happen for reasons linked to the good administration of justice, rather Parma might be able to obtain a compensation.

The Parma case highlights the sometimes “Kafkaesque” absurdity of the UEFA Licensing regulations: A club is denied the right to play in one of the most prestigious European competition on the ground of a wrongdoing it is not entirely responsible of! Supporters are deprived of their right to travel Europe to cheer for their team and the club is deprived of the opportunity to increase its revenues and financial sustainability. Again, this reminds us of the necessity to embed a legal mechanism enabling a contextual evaluation and adaptation of the sanctions in UEFA’s licensing regulations.

The Headlines

For the world of Sport, the elsewhere known “sleepy month” of August turned out to be the total opposite. Having only just recuperated from this year’s Tour de France, including a spectacular uphill sprint on bicycle shoes by later ‘Yellow Jersey’ winner Chris Froome, August brought another feast of marvellous sport (and subsequent legal drama): The 2016 Olympic Games in Rio de Janeiro.

The Olympic Games

Amongst those athletes that stood out in Rio were, of course, the “most decorated Olympian of all time” Michael Phelps and the “fastest man on earth” Usain Bolt. However, standing out can also happen for the wrong reasons. One sad example of this is the downfall of former “Lord of the Rings”, gymnast Yuri van Gelder. The Dutchman reached the Olympic finals for the rings, but was sent home by the Dutch National Olympic Committee after a night out in Rio de Janeiro. He subsequently unsuccessfully launched legal proceedings before a Dutch court in an attempt to reclaim his place in the finals. For an in depth legal analysis of the case see the blog by Guido Hahn.

Yet, the Van Gelder case is certainly not THE legal highlight of the Rio Games. In this regard, the CAS ad hoc Division (for a good overview of the procedure at the division, click here) was the court to watch in Rio. The CAS Ad Hoc Division was installed to resolve legal disputes arising during the Olympic Games. These disputes can relate to, for instance, matters of qualification, disciplinary sanctions or doping (on appeal). During the three weeks of the Games, it dealt with a caseload of 26 cases, 16 of which were linked with the Russian doping scandal. For the first time, a CAS anti-doping division was also active in Rio (with a caseload of 8 cases). The CAS Anti-doping Division, was aimed specifically at resolving doping cases. Through this office, the CAS handles (potential) doping cases in first instance. It can organize hearings of the parties concerned and impose provisional suspensions pending the conclusion of the procedure. The final decisions could be appealed before the CAS ad hoc Division or the CAS in Lausanne after the Olympic Games have ended. The links to all the published Rio awards can be found below under case law.

Much controversy arose during the Games regarding the debate over the divide between male and female athletes. In the centre of attention stood South African runner Caster Semenya and Indian track-and-field athlete Dutee Chand. Both are at the centre of an on-going medical, ethical and legal discussion about the policies regulating hyperandrogenism in sport. Our blog hosted two posts on the matter one by Marjolaine Viret and Emily Wisnosky on “Regulating the human body in sports: Lessons learned from the Dutee Chand case” and a more personal point of view by Marjolaine Viret, “Why we should stop focusing on Caster Semenya”.

Finally, this Olympic summer of legal disputes would not be complete without a brief discussion of the Paralympics ban of the Russian Paralympic Committee (RPC). Indeed, this week marked the kick-off of the Paralympic Games, which will take place from 7 to 18 September. Exactly a month before the start of the games, on 7 August, the International Paralympic Committee (IPC) Governing Board decided unanimously to suspend the RPC with immediate effect. In a statement on its website the IPC explained that it regarded the RPC unable to “fulfil its IPC membership responsibilities and obligations”, in particular those under the IPC and WADA doping rules. On 30 August the CAS delivered a much-expected award in which it dismissed the appeal by the RPC and confirmed the decision rendered by the Governing Board of the IPC. In particular, the CAS Panel found that the ban did not violate procedural rules and amounted to a proportionate measures considering the circumstances.

Case law

Olympics

Dutch court

Rechtbank Gelderland, Van Gelder, 12 August 2016, C/05/306681 / KG ZA 16-347

CAS awards of the CAS ad hoc Division