Editor’s note: Our first innovation for the
year 2016 will be a monthly report compiling 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
The world of professional sport has been making
headlines for the wrong reasons in January. Football’s governing body FIFA is
in such a complete governance and corruption mess that one wonders whether a
new President (chosen on 26 February[1])
will solve anything. More recently, however, it is the turn of the athletics
governing body, IAAF, to undergo “the walk of shame”. On 14 January the WADA
Independent Commission released its second report into doping in international
athletics. Where the first report (released on 9 November 2015)
primarily focussed on the widespread use of doping by Russian athletes, the
second report demonstrated a much wider scope of corruption and manipulation,
including illegal sponsorship deals, marketing agreements and bidding
processes. Guardian sport correspondents Owen Gibson and Sean Ingle have
written excellent pieces here and here.
Incidentally, on that same 14 January, FIFA announced that it
sanctioned Real Madrid and Atlético Madrid for breaching the FIFA
Regulation on the international transfer of minors. Both clubs will not be
allowed to register any new players for the next two transfer windows, i.e.
summer 2016 and January 2017. The sanction is identical to the one FC Barcelona
received by FIFA for its failure to comply with the FIFA Regulation on the
international transfer of minors. Real Madrid and Atlético Madrid have appealed
the sanction to the FIFA Appeal Committee. On 30 January, the appeals were
granted suspensive effect by the chairman of the FIFA
Appeal Committee until the Appeal Committee has taken and notified its decision
on the merits of the appeals.
One can indeed say that January was not the best month
for Spanish giants Real Madrid. In addition to the FIFA sanction, the club
became a new victim of football’s own version of WikiLeaks namely “footballleaks”. The publication of the transfer agreement between Real Madrid and
Tottenham Hotspur concerning Gareth Bale brought to light the actual transfer
sum of the Welsh player. Real Madrid had always claimed that it paid a “mere”
€91 million. Yet the leaked agreement shows that the club actually paid €101
million, thereby making Bale the most expensive player of all time. Further
claims that this transfer agreement was financed by banking institutions
previously bailed out by the EU can be read in Sam Wallace’s piece (The
Telegraph) here. The leaked documents by
“footballleaks” led to widespread outrage. Bale’s agent, Jonathan Barnett, stated that “(t)here should be an
independent investigation because it’s outrageous. I think it is disgraceful
that people can get hold of this stuff. It shows complete disregard for both
clubs and the player”. FIFA, on the other hand, is backing “footballleaks”, stating that the leaks are useful and
admitting that it now uses the site as an information source. Furthermore, it
forms an important source of information necessary to understand the
functioning of Third Party Ownership and whether FIFA’s ban of the practice can
be justified. The Asser International Sports Law Blog has already covered the
leaked Economic Rights of Players Agreements (ERPA’s) concerning FC Twente and Sporting Lisbon, but more analysis will
follow.
Meanwhile, on 23 January the European Parliament
organised a debate on TPO and FIFA’s ban. The debate included some rather
emotional calls by Doyen’s CEO Nélio Lucas and La Liga’s President Javier Tebas
in defence of TPO. They empathically argued that a prohibition was in breach of
EU competition Law. UEFA’s Julien Zylberstein, FIFA’s Omar Ongaro and FIFPro’s
Jonas Baer-Hoffmann all defended the banning of the practice. The European
Commission, who was not present at the debate, and is yet to decide
whether it will launch a formal investigation.
Last but not least, tennis fans around the world were
shocked by reports of widespread betting related
match-fixing. To the surprise of some, however, all of the players allegedly
involved in match-fixing were allowed to continue playing by the Tennis
Integrity Unit. On 24 January tennis officials announced that an Independent Review
Panel will investigate the sport, its anticorruption programme and even the
Tennis Integrity unit itself. In order to get a better understanding of the
reasons behind players getting involved in match-fixing, we would recommend the
piece by Jon Wertheim published in
Sports Illustrated on 20 January. Tennis’ vulnerability to match fixing, as he lays
out pretty well, lies in the inequalities between the earnings of the top players
and the players further down the ranking.
Case law
The Court of Arbitration for Sport (CAS) published its
long awaited decision concerning the alleged doping
violation of the thirty-four current and former players of Essendon Football
Club. Even though the CAS had already announced its decision in May 2015 (as is
extensively discussed on our Blog), it is definitely worthwhile
reading the award to grasp the reasoning behind the decision.
On a different note, the High Court of Justice Queen's
Bench Division Manchester District Registry Mercantile Court published a very
interesting judgment in the field of international sports arbitration on 19
January.[2]
The case concerned a CAS award from August 2014 by which the Italian football
club Palermo was ordered based on a penalty clause included in the contract to pay
€9.4 million to the English firm Pencil Hill Limited. Thus, the legal question posed
to the English Court was whether enforcing this CAS award based on a penalty
clause would be contrary to public policy. In a nutshell, the judge held that
“the public policy of upholding international arbitral awards…outweighs the
public policy of refusing to enforce penalty clauses”.
Official
Documents and Press Releases of the SGBs
In the news
Tennis
Athletics
Footballleaks and TPO
FIFA Presidential Elections
Other
Case law (CAS,
others)
Academic
materials
Upcoming events
February-March
[1] For more information see Sam Borden, “In Race for FIFA President, Two
Front-Runners and Many Possibilities”, New York Times 26 January
2015.
[2] Pencil Hill Limited v US Citta Di Palermo
S.p.A, 2016 WL 212897. The judgment can be accessed via Westlaw.co.uk.