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

Report from the first ISLJ Annual International Sports Law Conference - 26-27 October at the T.M.C. Asser Instituut

Close to 100 participants from 37 different countries attended the first ISLJ Annual International Sports Law Conference that took place on 26-27 October 2017 in The Hague. The two-day programme featured panels on the FIFA transfer system, the labour rights and relations in sport, the protection of human rights in sport, EU law and sport, the Court of Arbitration for Sport, and the world anti-doping system. On top of that, a number of keynote speakers presented their views on contemporary topics and challenges in international sports law. This report provides a brief summary of the conference for both those who could not come and those who participated and would like to relive their time spent at the T.M.C. Asser Institute.More...

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

Multi-Club Ownership in European Football – Part II: The Concept of Decisive Influence in the Red Bull Case – By Tomáš Grell

 

Introduction 

The first part of this two-part blog on multi-club ownership in European football outlined the circumstances leading to the adoption of the initial rule(s) aimed at ensuring the integrity of the UEFA club competitions (Original Rule) and retraced the early existence of such rule(s), focusing primarily on the complaints brought before the Court of Arbitration for Sport and the European Commission by the English company ENIC plc. This second part will, in turn, introduce the relevant rule as it is currently enshrined in Article 5 of the UCL Regulations 2015-18 Cycle, 2017/18 Season (Current Rule). It will then explore how the UEFA Club Financial Control Body (CFCB) interpreted and applied the Current Rule in the Red Bull case, before drawing some concluding remarks.  More...

Multi-Club Ownership in European Football – Part I: General Introduction and the ENIC Saga – 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.

 

Introduction

On 13 September 2017, more than 40,000 people witnessed the successful debut of the football club RasenBallsport Leipzig (RB Leipzig) in the UEFA Champions League (UCL) against AS Monaco. In the eyes of many supporters of the German club, the mere fact of being able to participate in the UEFA's flagship club competition was probably more important than the result of the game itself. This is because, on the pitch, RB Leipzig secured their place in the 2017/18 UCL group stage already on 6 May 2017 after an away win against Hertha Berlin. However, it was not until 16 June 2017 that the UEFA Club Financial Control Body (CFCB) officially allowed RB Leipzig to participate in the 2017/18 UCL alongside its sister club, Austrian giants FC Red Bull Salzburg (RB Salzburg).[1] As is well known, both clubs have (had) ownership links to the beverage company Red Bull GmbH (Red Bull), and therefore it came as no surprise that the idea of two commonly owned clubs participating in the same UCL season raised concerns with respect to the competition's integrity. More...


International and European Sports Law – Monthly Report – September 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.

 

The Headlines 

2024 and 2028 Olympic Games to be held in Paris and Los Angeles respectively

On 13 September 2017, the Session of the International Olympic Committee (IOC) held in Lima, Peru, elected Paris and Los Angeles as host cities of the 2024 and 2028 Olympic Games respectively. On this occasion, the IOC President Thomas Bach said that ''this historic double allocation is a 'win-win-win' situation for the city of Paris, the city of Los Angeles and the IOC''. The idea of a tripartite agreement whereby two editions of the Olympic Games would be awarded at the same time was presented by a working group of the IOC Vice-Presidents established in March 2017. Both Paris and Los Angeles have pledged to make the Olympic Games cost-efficient, in particular through the use of a record-breaking number of existing and temporary facilities. In addition to economic aspects, it will be worthwhile to keep an eye on how both cities will address human rights and other similar concerns that may arise in the run-up to the Olympic Games. More...

The limits to multiple representation by football intermediaries under FIFA rules and Swiss Law - By Josep F. Vandellos Alamilla

Editor’s note: Josep F. Vandellos Alamilla is an international sports lawyer and academic based in Valencia (Spain) and a member of the Editorial Board of the publication Football Legal. Since 2017 he is the Director of  the Global Master in Sports Management and Legal Skills FC Barcelona – ISDE.

I think we would all agree that the reputation of players’ agents, nowadays called intermediaries, has never been a good one for plenty of reasons. But the truth is their presence in the football industry is much needed and probably most of the transfers would never take place if these outcast members of the self-proclaimed football family were not there to ensure a fluid and smooth communication between all parties involved.

For us, sports lawyers, intermediaries are also important clients as they often need our advice to structure the deals in which they take part. One of the most recurrent situations faced by intermediaries and agents operating off-the-radar (i.e. not registered in any football association member of FIFA) is the risk of entering in a so-called multiparty or dual representation and the potential risks associated with such a situation.

The representation of the interests of multiple parties in football intermediation can take place for instance when the agent represents the selling club, the buying club and/or the player in the same transfer, or when the agent is remunerated by multiple parties, and in general when the agent incurs the risk of jeopardizing the trust deposited upon him/her by the principal. The situations are multiple and can manifest in different manners.

This article will briefly outline the regulatory framework regarding multiparty representation applicable to registered intermediaries. It will then focus on provisions of Swiss law and the identification of the limits of dual representation in the light of the CAS jurisprudence and some relevant decisions of the Swiss Federal Tribunal.More...



The Evolution of UEFA’s Financial Fair Play Rules – Part 3: Past reforms and uncertain future. By Christopher Flanagan

Part Two of this series looked at the legal challenges FFP has faced in the five years since the controversial ‘break even’ requirements were incorporated. Those challenges to FFP’s legality have been ineffective in defeating the rules altogether; however, there have been iterative changes during FFP’s lifetime. Those changes are marked by greater procedural sophistication, and a move towards the liberalisation of equity input by owners in certain circumstances. In light of recent statements from UEFA President Aleksander Čeferin, it is possible that the financial regulation of European football will be subject to yet further change. More...

The Evolution of UEFA’s Financial Fair Play Rules – Part 2: The Legal Challenges. By Christopher Flanagan

The first part of this series looked at the legal framework in which FFP sits, concluding that FFP occupied a ‘marginal’ legal position – perhaps legal, perhaps not. Given the significant financial interests in European football – UEFA’s figures suggest aggregate revenue of nearly €17 billion as at clubs’ 2015 accounts – and the close correlation between clubs’ spending on wages and their success on the field,[1] a legal challenge to the legality of FFP’s ‘break even’ requirement (the Break Even Requirement), which restricts a particular means of spending, was perhaps inevitable.

And so it followed.

Challenges to the legality of the Break Even Requirement have been brought by football agent Daniel Striani, through various organs of justice of the European Union and through the Belgian courts; and by Galatasaray in the Court of Arbitration for Sport. As an interesting footnote, both Striani and Galatasaray were advised by “avocat superstar” Jean-Louis Dupont, the lawyer who acted in several of sports law’s most famous cases, including the seminal Bosman case. Dupont has been a vocal critic of FFP’s legality since its inception. More...





The Evolution of UEFA’s Financial Fair Play Rules – Part 1: Background and EU Law. By Christopher Flanagan

Editor's Note: Christopher is an editor of the Asser International Sports Law Blog. His research interests cover a spectrum of sports law topics, with a focus on financial regulatory disputes, particularly in professional football, a topic on which he has regularly lectured at the University of the West of England.

 

It is five years since the Union of European Football Associations (UEFA) formally introduced ‘Financial Fair Play’ (FFP) into European football through its Club Licensing and Financial Fair Play Regulations, Edition 2012. With FFP having now been in place for a number of years, we are in a position to analyse its effect, its legality, and how the rules have altered over the last half decade in response to legal challenges and changing policy priorities. This article is split into three parts: The first will look at the background, context and law applicable to FFP; Part Two will look at the legal challenges FFP has faced; and Part Three will look at how FFP has iteratively changed, considering its normative impact, and the future of the rules. More...


International and European Sports Law – Monthly Report – July and August 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.

 

The Headlines

ISLJ Annual Conference on International Sports Law 

On 26 and 27 October 2017, the T.M.C. Asser Institute in The Hague will host the first ever ISLJ Annual International Sports Law Conference. This year's edition will feature panels on the Court of Arbitration for Sport, the world anti-doping system, the FIFA transfer regulations, human rights and sports, the labour rights of athletes, and EU law and sport. We will also welcome the following distinguished keynote speakers:

  • Miguel Maduro, former Advocate General at the European Court of Justice and former head of the FIFA's Governance Committee;
  • Michael Beloff QC, English barrister known as one of the 'Godfathers' of sports law;
  • Stephen Weatherill, Professor at Oxford University and a scholarly authority on EU law and sport;
  • Richard McLaren, CAS Arbitrator, sports law scholar and former head of the World Anti-Doping Agency's investigation into the Russian doping scandal.

You will find all the necessary information related to the conference here. Do not forget to register as soon as possible if you want to secure a place on the international sports law pitch! [Please note that we have a limited amount of seats available, which will be attributed on a 'first come, first served' basis.] More...

Asser International Sports Law Blog | International and European Sports Law – Monthly Report – October 2016. By Kester Mekenkamp.

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 – October 2016. By Kester Mekenkamp.

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
We are looking for an International Sports Law Intern (with a particular interest in the CAS)! More information can be found here.


The (terrible) State of the World Anti-Doping System

The fight against doping is still on top of the agenda after the Russian doping scandal. The national anti-doping organizations (NADOs) have reiterated their call for an in depth reform of the World Anti-Doping Agency at a special summit in Bonn, Germany. These reforms are deemed urgent and necessary to “restore confidence of clean athletes and those who value the integrity of sport” and secure “the public’s desire for a fair and level playing field”. The NADOs propose, amongst others things, to separate the investigatory, testing and results management functions from sports organizations, and to remove sports administrators from crucial anti-doping executive functions. They insist that “no decision maker within an anti-doping organization should hold a board, officer, or other policy-making position within a sport or event organizer”. WADA welcomed the reform proposals and pledged to discuss them at the upcoming meeting of the foundation board. The necessity of such a reform, or at least of improving the effectiveness of the anti-doping system, has been highlighted (again!) by the release of WADA’s Report of the Independent Observers concerning the 2016 Rio Olympic Games. The reports point out that “the logistical arrangements made by Rio 2016 to support the sample collection process at official venues during the Games suffered from a number of serious failings”. These “foreseeable and entirely avoidable” logistical issues resulted in a strained sample collection process. On the way forward to reform WADA you can read some ASSER proposals in a recent policy brief by our Senior Researcher Antoine Duval. 


The Sharapova CAS award

Everything related to Maria Sharapova is necessarily making a lot of noise. Unsurprisingly, the CAS award on her positive doping test to Meldonium has attracted a lot of media attention. The decision in the dispute between Maria Sharapova and the International Tennis Federation (ITF) reduced the period of her suspension by nine months. The Russian tennis star had, during the Australian Open in January 2016, tested positive for the presence of Meldonium. A substance which had, for the first time, been put on WADA’s prohibited list in 2016. Subsequently, Sharapova announced she had been taking Mildronate tablets that had been prescribed by her doctor for many years. As her medical team “had failed to notice” that Meldonium was included on the list of prohibited substances, Sharapova claimed to be unaware that she committed a violation of an anti-doping rule. The CAS Panel shortened the period of ineligibility from the initial period of two years (imposed by the ITF’s judicial body) to fifteen months. It emphasized that the case turned on “the degree of fault that can be imputed to the player for her failure to make sure that the substance contained in a product that she had been taking over a long period remained in compliance with the anti-doping rules”. Given that her ban started on 26 January 2016, Sharapova will already be back in action late spring 2017. This ASSER International Sports Law blog by Marjolaine Viret, triggered by the Sharapova case, tackles the specific questions of the athletes (ir)responsibilities when taking medication. To what extent should they consult experts before taking a medication and to what extent can we assume that they are sufficiently qualified to assess the doping consequences of a specific product. .


The Bundesgerichtshof’s ruling in the SV Wilhelmshaven case

The ruling by Germany’s Highest Civil Court in the SV Wilhelmshaven case challenging FIFA’s training compensation system has been released. The BGH sided with the club but declined to pronounce itself on the compatibility of the FIFA regulations with EU law and on the validity of the original CAS award. The Asser International Sports Law Centre together with the Dutch Federation of Professional Football Clubs (FBO) organized a high-level conference on the case. You can read the conference report here.


New developments regarding State aid in sport

Real Madrid claim to have returned the State aid of €20.3 million it illegally received from the municipality of Madrid through various land transactions. However, the Spanish giants have also underlined that it is seeking annulment of the Commission’s decision at the Court of Justice of the EU, meaning that the saga continues despite the repayment.

The “Real Madrid appeal” has not yet been registered officially with the CJEU, contrary to the appeals launched by Athletic Club de Bilbao and Valencia CF respectively. Bilbao’s appeal concerns the Commission’s conclusion that Spain’s corporate tax system was selectively favourable for the clubs Athletic Club Bilbao, Osasuna, FC Barcelona and Real Madrid CF in comparison to the other clubs in Spain. At this moment it is still unknown whether the other clubs will join the appeal. More information on this State aid decision can be found in the blog written by Oskar van Maren.

In addition to its action for annulment, Valencia CF also launched proceedings for interim measures which aim to suspend the repayment of the aid until the General Court decides in the main proceedings. In parallel, the Spanish public authority responsible for ordering the return of the State aid from Valencia CF, i.e. the government of the autonomous region of Valencia, has asked the Commission to prolong the deadline for the return of the aid. These two requests need to be read in light of Valencia CF’s current financial situation. Its obligation to repay more than €23 million could well mean the bankruptcy of the Champions League finalist of 2000 and 2001.

Our in-house State aid and sport expert, Oskar van Maren, will dissect all the decisions of this year in a special lecture (State aid in Football: The year of the European Commission) on 24 November. 


Just Published! The Yearbook of International Sports Arbitration

Senior Researcher and head of ASSER International Sports Law Centre, Antoine Duval, has just published with CAS expert (and lawyer) Antonio Rigozzi a new Yearbook of International Sports Arbitration (the 2015 edition is available here). This is the first ever academic publication aiming to offer comprehensive coverage, on a yearly basis, of the most recent and salient developments regarding international sports arbitration, through a combination of general articles and case notes.


Case law

CAS

CAS 2016/A/4643 Maria Sharapova v. International Tennis Federation

CAS 2016/O/4684 The Russian Olympic Committee (“ROC”), [Russian Athletes] v. The International Association of Athletics Federations (IAAF)


EU

EU Commission State Aid SA.44439 (2016/N) – Sporting Arena Cork – Ireland


IOC

IOC Disciplinary Commission decision regarding Anna Chicherova

IOC Disciplinary Commission decision regarding Tatyana Lysenko


Wilhelmshaven ruling

Bundesgerichtshof Urteil vom 20. September 2016 - II ZR 25/15 - OLG Bremen LG Bremen


Other

Doyen’s Appeal to FIFA’s TPO ban before Paris court 


Official documents and Press releases

CAS list of hearing November and December

CAS The Court of Arbitration for Sport Reduces the ban of Maria Sharapova to fifteen months

CAS Essendon Case: The appeal filed by 34 players is not entertained by the Swiss Federal Tribunal

CAS The Court of Arbitration for Sport issues decisions in the case of five Russian racewalkers

CAS IAAF appeal upheld – Rita Jeptoo suspended for four years by the Court of Arbitration for Sport

CIES Football Observatory Monthly Report n°18 - October 2016, “Recruitment strategies throughout Europe”

Commentary by the Spanish anti-doping agency AEPSAD on the whereabouts High Court decision (in Spanish)

European Parliament Committee on Culture and Education on an integrated approach to Sport Policy: good governance, accessibility and integrity (2016/2143(INI))

FIFA Several football associations sanctioned after discriminatory and unsporting conduct of fans

FIFA President Infantino provides update on steps taken to improve governance and compliance as well as football development efforts

Spanish FA sanctioned for international transfers of minors

IAAF Ethics Board Statement on preliminary investigations into ‘brown envelope’ rumours surrounding bid for 2017 World Championships

IOC Declaration of the 5th Olympic Summit Protecting clean athletes is an absolute priority for the entire Olympic Movement

NADA-Statement zum 5. Olympic Summit

UK Parliament Culture, Media and Sport Committee, The Governance of Football inquiry

WADA Statement regarding Maria Sharapova CAS decision

WADA statement regarding Olympic Summit

WADA Compliance Review Committee Update

WADA Statement by Richard H. McLaren, Independent Person, Concerning Release of his Investigation Report, Part II

WADA Report of the Independent Observers, Games of the XXXI Olympiad, Rio de Janeiro 2016

WADA statement regarding renewed NADO anti-doping reform proposals 


In the news

Doping

AP, New WADA director general Olivier Niggli anticipates more state-sponsored doping

Nick Butler, Exclusive: IOC Medical Commission chair calls for more Government funding for WADA

Nick Butler, WADA report is microcosm of everything wrong with Rio 2016 and IOC

Causa Sport, „Fall Scharapowa“: Unachtsamkeit schützt vor (Doping-)Strafe

George Georgakopoulos, Greece lags in doping tests and would need assistance

David Millar, How to Get Away With Doping

Michael Pavitt, New testing authority within WADA proposed at Olympic Summit

Sport Leaks and Doping Leaks

Luis Torres Montero, Claves de la reducción de la sanción a Sharapova: análisis del reciente laudo del TAS

Jonathan Sachse and Daniel Drepper, Wie VfB Stuttgart und SC Freiburg Doping organisierten

Thorhild Widvey, WADA Must Be Reinforced and Publicly Supported 


Football

Vivek Chaudhary, FIFA's Gianni Infantino may face Ethics Committee investigation

Willem Feenstra, FIFA charged with complicity in human rights violations Qatar

Keir Radnedge, Infantino talks a good game about Fifa reform, but can he deliver?

Mike Ticher, Human error is part of football and video refereeing will solve nothing  


Ice Skating

Ernst Bouwes, De internationale sportweek van S&S: EU geeft schaatsers gelijk in 'Ice-derby'-zaak

Causa Sport, Kartellverfahren gegen den internationalen Eislaufverband ISU: Das „Ein-Platz-Prinzip“ vor dem Aus? 


Other

Brittany Bronson, Politicians Place a Bet on a Stadium, and Vegas Pays for It

Juliet Macur, Long Before Kaepernick, There Was Navratilova

Rebecca Ruiz, Russia Sports Minister Promoted to Deputy Prime Minister 


Academic materials

Antoine Duval, Tackling Doping Seriously - Reforming the World Anti-Doping System after the Russian Scandal

Despina Mavromati, Application of the 2015 WADA Code through the Example of a recent CAS Award (Sharapova v. ITF)

Despina Mavromati, The Role of the Swiss Federal Tribunal and Its Impact on the Court of Arbitration for Sport (CAS)

Mordehai Mironi, The promise of mediation in sport-related disputes

Michal Radvan and Jan Neckář, Taxation of Professional Team Sport Athletes in the Czech Republic


Books

Antoine Duval and Antonio Rigozzi, Yearbook of International Sports Arbitration 2015 


Blogs

Richard Bush, Best practice for Sports Governing Bodies when dealing with individual complainants: Part 1 - Internal procedure and Part 2 - Guidelines for legal teams

Sean Cottrell and Mark Hovell, Life as a CAS arbitrator at the Rio Olympic Games

Sean Cottrell, Protecting the integrity of the Rugby World Cup - Ben Rutherford, Senior Legal Counsel and Integrity Unit Manager at World Rugby

Sean Cottrell, Nick De Marco, Nick Tsatsas and Richard Berry, How does the transfer market influence the integrity of football?

Nick De Marco, “Football for Sale” - What is the problem, and what are the solutions?

Antoine Duval and Kester Mekenkamp, De- or Re-regulating the middlemen? The DFB’s regulation of intermediaries under EU law scrutiny at the OLG Frankfurt

Jon Elphick, How athletes will be affected by the UK’s changes to “non-dom” tax rules

Alex Haffner and Krish Mistry, The law on banning athletes from competing in rival sports leagues

Philip Hutchinson, Who shoulders the blame? An analysis of vicarious liability in the sports industry

Interpol Integrity in Sport Bi-Weekly Bulletin - 3-16 October 2016 and 17-31 October 2016

Christian Keidel and Alexander Engelhard, How the Bundesliga’s new “no single buyer” rule has increased the broadcasting revenue for German football

Saurabh Mishra, Important lessons for athletes on doping sabotage: A review of WADA v. Narsingh Yadav

Laura McCallum, An overview of key case law relating to negligent liability for sports injuries (Part 1) and (Part 2)

Alice McDonald, Footballers facing tax fines: who is responsible for inaccurate tax returns?

Marine Montejo, Case note: TAS 2016/A/4474 Michel Platini c. Fédération Internationale de Football Association

Michael Rueda, What is next for NCAA student-athletes? From O'Bannon onto Jenkins

Ralph Russo, Although NCAA loses its appeal, future still hazy

Luke Sayer, Possible ways the Therapeutic Use Exemptions system can be improved to prevent abuse

Zane Shihab and Nick Bitel, What effects have FIFA’s Intermediaries Regulations had on player representation and commission levels?

The Swiss Ramble, Arsenal - New Sensation

The Swiss Ramble, Borussia Dortmund - The Sound Of The Crowd

The Swiss Ramble, Manchester City - My Aim Is True

The Swiss Ramble, Stoke City - But I'm Different Now

Oskar van Maren, Case note: State aid Decision on the preferential corporate tax treatment of Real Madrid, Athletic Bilbao, Osasuna and FC Barcelona

Ben Van Rompuy, What can EU competition law do for speed skaters?

Marjolaine Viret , Taking the Blue Pill or the Red Pill: Should Athletes Really Check their Medications against the Prohibited List Personally? 


Upcoming events

18 November - Football Law Conference and Sportspersons’ Dinner, St John’s Buildings Barristers’ Chambers and the Centre for Sports Law Research at Edge Hill University, Stretford, UK

24 November – Sports Law Lecture “State aid in Football: The year of the European Commission”, T.M.C. Asser Instituut, The Hague, the Netherlands

8 December - Actualiteitencursus Internationaal Sportrecht, De Kempenaer Advocaten, Arnhem, the Netherlands


 


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