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

Book Review: Reforming FIFA, or Not

Editor’s note: This short book review will be published in a different format in the International Sports Law Journal, due to its timeliness we decided to reproduce it here. 

Reforming FIFA, or Not

 Antoine Duval

Book Review: Mark Pieth (ed.), Reforming FIFA, Dike Verlag, St. Gallen, 2014, 28.00 CHF, p.178

 


This book looks back at the work of the Independence Governance Committee (IGC). This Committee, constituted in 2011, had as primary objective to drive a reform process of FIFA initiated by its President Sepp Blatter. After ordering from the Swiss anti-corruption expert Mark Pieth, a report on the state of FIFA’s governance, FIFA decided to mandate him with the leadership of a consulting body composed of a mix of independent experts and football insiders, which would be accompanying and supervising the internal reform process of FIFA. The IGC was officially dissolved at the end of 2013, after completing its mandate. The book is composed of eight chapters, written by former members of the IGC, including former chairman Mark Pieth. In addition to the chapters, it includes the different reports (available here, here and here) submitted by the IGC to FIFA across the years. In the words of Pieth, this account is “fascinating because it gives a hands-on, realistic perspective of the concrete efforts, the achievements and the remaining challenges in the struggle for the reform of this organization [FIFA], avoiding the usual glorification or vilification.”[1] This review will first summarize the core of the account of the FIFA reform process provided by the book, before critically engaging with the outcome of the process and outlining the deficiencies that culminated on 29 May 2015 with the re-election of Sepp Blatter as FIFA president.More...



The Spanish TV Rights Distribution System after the Royal Decree: An Introduction. By Luis Torres

On the first of May 2015, the Spanish Government finally signed the Royal Decree allowing the joint selling of the media rights of the Spanish top two football leagues. The Minister for Sport stated that the Decree will allow clubs to “pay their debts with the social security and the tax authorities and will enable the Spanish teams to compete with the biggest European Leagues in terms of revenues from the sale of media rights”.[1]Although the signing of the Royal Decree was supposed to close a very long debate and discussion between the relevant stakeholders, its aftermath shows that the Telenovela is not entirely over. 

This blog post will first provide the background story to the selling of media rights in Spain. It will, thereafter, analyse the main points of the Royal Decree and outline how the system will work in practice. Finally, the blog will shortly address the current frictions between the Spanish League (LFP) and the Spanish football federation (RFEF).More...

Sport and EU Competition Law: New developments and unfinished business. By Ben Van Rompuy

Editor's note: Ben Van Rompuy, Head of the ASSER International Sports Law Centre, was recently interviewed by LexisNexis UK for their in-house adviser service. With kind permission from LexisNexis we reproduce the interview on our blog in its entirety. 

How does competition law affect the sports sector?  

The application of EU competition law to the sports sector is a fairly recent and still unfolding development. It was only in the mid-1990s, due to the growing commercialization of professional sport, that there emerged a need to address competition issues in relation to, for instance, ticketing arrangements or the sale of media rights.  More...



Is FIFA fixing the prices of intermediaries? An EU competition law analysis - By Georgi Antonov (ASSER Institute)

Introduction

On 1 April 2015, the new FIFA Regulations on Working with Intermediaries (hereinafter referred as the Regulations) came into force. These Regulations introduced a number of changes as regards the division of competences between FIFA and its members, the national associations. A particularly interesting issue from an EU competition law perspective is the amended Article 7 of the Regulations. Under paragraph 3, which regulates the rules on payments to intermediaries (also previously referred to as ‘agents’), it is recommended that the total amount of remuneration per transaction due to intermediaries either being engaged to act on a player’s or club’s behalf should not exceed 3% of the player’s basic gross income for the entire duration of the relevant employment contract. In the case of transactions due to intermediaries who have been engaged to act on a club’s behalf in order to conclude a transfer agreement, the total amount of remuneration is recommended to not exceed 3% of the eventual transfer fee paid in relation to the relevant transfer of the player.More...

The Impact of the new FIFA Regulations for Intermediaries: A comparative analysis of Brazil, Spain and England. By Luis Torres

INTRODUCTION

Almost a year after their announcement, the new FIFA Regulations on working with Intermediaries (“FIFA Regulations”) came into force on 1 April 2015. Their purpose is to create a more simple and transparent system of regulation of football agents. It should be noted, however, that the new FIFA rules enable every national football association to regulate their own system on players’ intermediaries, provided they respect the compulsory minimum requirements adopted. In an industry that is already cutthroat, it thus remains to be seen whether FIFA’s “deregulation” indeed creates transparency, or whether it is a Pandora’s Box to future regulatory confusion.

This blog post will provide an overview of the new FIFA Regulations on working with intermediaries and especially its minimum requirements. Provided that national associations are encouraged to “draw up regulations that shall incorporate the principles established in these provisions”[1], three different national regulations have been taken as case-studies: the English FA Regulations, the Spanish RFEF Regulations and the Brazilian CBF Regulations. After mapping their main points of convergence and principal differences, the issues that could arise from these regulatory differences shall be analyzed.  More...

Blog Symposium: Why FIFA's TPO ban is justified. By Prof. Dr. Christian Duve

Introduction: FIFA’s TPO ban and its compatibility with EU competition law.
Day 1: FIFA must regulate TPO, not ban it.
Day 2: Third-party entitlement to shares of transfer fees: problems and solutions
Day 3: The Impact of the TPO Ban on South American Football.
Day 4: Third Party Investment from a UK Perspective. 

Editor’s note: Finally, the last blog of our TPO ban Symposium has arrived! Due to unforeseen circumstances, FIFA had to reconsider presenting its own views on the matter. However, FIFA advised us to contact Prof. Dr. Christian Duve to author the eagerly awaited blog on their behalf. Prof. Dr. Christian Duve is a lawyer and partner with Freshfields Bruckhaus Deringer LLP and an honorary professor at the University of Heidelberg. He has been a CAS arbitrator until 2014. Thus, as planned, we will conclude this symposium with a post defending the compatibility of the TPO ban with EU law. Many thanks to Prof. Dr. Duve for having accepted this last-minute challenge! More...






Blog Symposium: Third Party Investment from a UK Perspective. By Daniel Geey

Introduction: FIFA’s TPO ban and its compatibility with EU competition law.
Day 1: FIFA must regulate TPO, not ban it.
Day 2: Third-party entitlement to shares of transfer fees: problems and solutions
Day 3: The Impact of the TPO Ban on South American Football.
Day 5: Why FIFA's TPO ban is justified.

Editor's note: In this fourth part of our blog symposium on FIFA's TPO ban Daniel Geey shares his 'UK perspective' on the ban. The English Premier League being one of the first leagues to have outlawed TPO in 2010, Daniel will outline the regulatory steps taken to do so and critically assess them. Daniel is an associate in Field Fisher Waterhouse LLP's Competition and EU Regulatory Law Group. As well as being a famous 'football law' twitterer, he has also published numerous articles and blogs on the subject.

 

What is Third Party Investment?
In brief Third Party Investment (TPI) in the football industry, is where a football club does not own, or is not entitled to, 100% of the future transfer value of a player that is registered to play for that team. There are numerous models for third party player agreements but the basic premise is that companies, businesses and/or individuals provide football clubs or players with money in return for owning a percentage of a player’s future transfer value. This transfer value is also commonly referred to as a player’s economic rights. There are instances where entities will act as speculators by purchasing a percentage share in a player directly from a club in return for a lump sum that the club can then use as it wishes. More...





Blog Symposium: The Impact of the TPO Ban on South American Football. By Ariel N. Reck

Introduction: FIFA’s TPO ban and its compatibility with EU competition law.
Day 1: FIFA must regulate TPO, not ban it.
Day 2: Third-party entitlement to shares of transfer fees: problems and solutions
Day 4: Third Party Investment from a UK Perspective.
Day 5: Why FIFA's TPO ban is justified.

Editor’s note: Ariel N. Reck is an Argentine lawyer specialized in the football industry. He is a guest professor at ISDE’s Global Executive Master in International Sports Law, at the FIFA CIES Sports law & Management course (Universidad Católica Argentina) and the Universidad Austral Sports Law diploma (Argentina) among other prestigious courses. He is a regular conference speaker and author in the field of sports law.

Being an Argentine lawyer, Ariel will focus on the impact FIFA’s TPO ban will have (and is already having) on South American football.More...





Blog Symposium: Third-party entitlement to shares of transfer fees: problems and solutions - By Dr. Raffaele Poli (Head of CIES Football Observatory)

Introduction: FIFA’s TPO ban and its compatibility with EU competition law.
Day 1: FIFA must regulate TPO, not ban it.
Day 3: The Impact of the TPO Ban on South American Football.
Day 4: Third Party Investment from a UK Perspective.
Day 5: Why FIFA's TPO ban is justified.

Editor’s note: Raffaele Poli is a human geographer. Since 2002, he has studied the labour and transfer markets of football players. Within the context of his PhD thesis on the transfer networks of African footballers, he set up the CIES Football Observatory based at the International Centre for Sports Studies (CIES) located in Neuchâtel, Switzerland. Since 2005, this research group develops original research in the area of football from a multidisciplinary perspective combining quantitative and qualitative methods. Raffaele was also involved in a recent study on TPO providing FIFA with more background information on its functioning and regulation (the executive summary is available here).

This is the third blog of our Symposium on FIFA’s TPO ban, it is meant to provide an interdisciplinary view on the question. Therefore, it will venture beyond the purely legal aspects of the ban to introduce its social, political and economical context and the related challenges it faces. More...






Blog Symposium: FIFA must regulate TPO, not ban it. The point of view of La Liga.

Introduction: FIFA’s TPO ban and its compatibility with EU competition law.
Day 2: Third-party entitlement to shares of transfer fees: problems and solutions
Day 3: The Impact of the TPO Ban on South American Football.
Day 4: Third Party Investment from a UK Perspective.
Day 5: Why FIFA's TPO ban is justified.

Editor's note: This is the first blog of our symposium on FIFA's TPO ban, it features the position of La Liga regarding the ban and especially highlights some alternative regulatory measures it would favour. La Liga has launched a complaint in front of the European Commission challenging the compatibility of the ban with EU law, its ability to show that realistic less restrictive alternatives were available is key to winning this challenge. We wish to thank La Liga for sharing its legal (and political) analysis of FIFA's TPO ban with us.

INTRODUCTION

The Spanish Football League (La Liga) has argued for months that the funding of clubs through the conveyance of part of players' economic rights (TPO) is a useful practice for clubs. However, it also recognized that the practice must be strictly regulated. In July 2014, it approved a provisional regulation that was sent to many of the relevant stakeholders, including FIFA’s Legal Affairs Department. More...






Asser International Sports Law Blog | International transfers of minors: The sword of Damocles over FC Barcelona’s head? by Giandonato Marino and Oskar van Maren

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 transfers of minors: The sword of Damocles over FC Barcelona’s head? by Giandonato Marino and Oskar van Maren

In the same week that saw Europe’s best eight teams compete in the Champions League quarter finals, one of its competitors received such a severe disciplinary sanction by FIFA that it could see its status as one of the world’s top teams jeopardized. FC Barcelona, a club that owes its success both at a national and international level for a large part to its outstanding youth academy, La Masia, got to FIFA’s attention for breaching FIFA Regulations on international transfers of minors.  Unfortunately, at the moment FIFA has not published the decision of the Disciplinary Committee on this case, therefore our analysis is mainly based on the two official statements of FIFA and FC Barcelona.

When FC Barcelona signed the 13 years-old South Korean Lee Sung Woo, in 2011, they thought they found the “new Lionel Messi”. Little did they know that this under-aged Korean football player was to be one of the sources of the legal trouble they are in now. On 5 february, 2013, the Club received the request from FIFA via the Spanish Football Federation (RFEF) to provide information concerning the registration of Lee. Over the course of 2013, FIFA further asked FC Barcelona for additional information on other players. By December 2013, FC Barcelona provided FIFA information on a total of 37 minors.

According to FIFA’s official statement FC Barcelona has been found to be in breach of art.19 of the Regulations on the Status and Transfer of Players (hereinafter “the Regulations”). In this regard, special attention was focused on ten minors signed between the years 2009 and 2013, including the abovementioned Lee. According to article 19 of the Regulations, international transfers of players are only permitted if the player is over the age of 18, or 16 if the player is transferred within the territory of the European Union[1]. Also according to FIFA, the RFEF has been found to have breached the same article 19 of the Regulations in the context of the transfer and registration of certain minor players. Indeed, the Regulations oblige the National Federations to enforce these provisions on national football clubs.

For a normal international transfer procedure, the Regulations impose to clubs and Federations the use of the web-based Transfer Matching System (hereinafter “the TMS”) since 2009.  The TMS ensures that all international transfers are conducted in line with the FIFA rules, thereby controlling the integrity of both clubs and Federations involved. In other words, the club willing to register a new player informs its National Federation of the transfer, who in turn informs TMS, in order for the new player to be registered in his new Federation. As regards the case at hands, the exact details of the used procedure are unknown. However, one could suspect that FC Barcelona deviated from the “usual” procedure and decided to register the minors with the Catalan Federation instead. This means that, at a certain point, the Catalan Federation had to inform the National one. According to the RFEF Secretary General, the Spanish National Federation actually refused to register the concerned minors, but the Catalan Federation proceeded anyway. This alternative registering procedure is by no means contrary to TMS, but does increase the risk for “bureaucratic mistakes”. This case highlights the difficulty in identifying a responsible party. Despite the fact that FC Barcelona, RFEF and the Catalan Federation have a shared responsibility in the administrative mess-up leading to this procedure, FIFA only sanctioned the first two.

FIFA has been clear regarding the disciplinary sanctions: in accordance with article 23 of FIFA Disciplinary Code, FC Barcelona is imposed a ban to register new players for two complete and consecutive transfer periods (summer 2014 and January 2015). Moreover, the Club received a fine of CHF 450,000 and a deadline of 90 days in which to regularise the position of all minors concerned. The RFEF, for its part, received a fine of CHF 500,000 plus a deadline of one year in order to regularise their regulatory framework on this issue. With a turnover of more than 400 million Euro per year, it is unlikely that the Club is seriously worried about the fine. However, the transfer ban places the FC Barcelona in a very unpleasant situation. The first team is in need of certain important replacements, such as a new goalkeeper and a central defender, after both Víctor Valdés and Carles Puyol announced their departure this upcoming summer. Furthermore, it remains unclear what will happen with the promised signings of the German goalkeeper Marc-André Ter Stegen and the Croatian talent Alen Halilović.

FC Barcelona announced in its aforementioned official statement, that it will be appealing to the FIFA Appeal Committee and, if necessary, further appeal to CAS. Furthermore, the Club will demand for provisional measures in order to register new players during the next transfer window at least. Meanwhile, the RFEF is yet to give a detailed statement on its future legal strategy.

The fact that FIFA sanctions one of the biggest and renowned football clubs in the world in an unprecedented way demonstrates that they take this issue seriously, no matter how big the club in question is. The rules on minors is made to protect the best interest of the child. FIFA argues that the interest in protecting the appropriate and healthy development of a minor as a whole must prevail over purely sporting interests. This position is also supported by the International Federation of Professional Footballers (FIFPro), who fears that without the proper controls the development of a minor is not adequately protected against exploitation.

Undoubtedly, FC Barcelona will refer to the letter its former President, Sandro Rosell, sent to FIFA in March 2013. In this letter, Rosell argued that to fully safeguard the protection of minors, clubs must ensure the players can benefit from any good opportunity on their reach. In this regard, Rosell asked FIFA to consider a further exception on article 19 in favour of the clubs that have developed excellent Youth Academies. This would mean that certain clubs should be allowed to register minors regardless of their origin as long as the clubs compromise to take care of the minor until his 18th birthday.

This could be a valid argument but would require FIFA Regulations to be modified. With regard to provisional measures, the Club’s demand is very unlikely to be accepted by the FIFA Appeal Committee, since article 124 of the FIFA Disciplinary Code only permits a suspension of the economical sanction. At CAS, on the other hand, the Club should demonstrate the existence of an irreparable harm, the likelihood of success on the merits of the claim, and whether the interests of the FC Barcelona outweigh those of FIFA[2]. In this regard, FC Barcelona can refer to the Mexès case where CAS temporarily lifted the ban imposed on the Italian football club A.S. Roma[3]. Furthermore, it can also rely on a more recent precedent in this field: the Kakuta case.

Considering the potential impact of the imposed disciplinary sanctions, this legal dispute will be one of the most difficult and challenging games in FC Barcelona’s long history. But make no mistake, this is just the beginning of an exciting legal game…




[1] Article 19 stipulates a few exceptions that provide International transfers of minors to be allowed. In each case, FIFA’s Player’s Status Committee has exclusive competence to review the circumstances and permit the exception.

[2] R37 Provisional and Conservatory Measures – CAS Procedural Rules

[3] Arbitrage TAS 2005/A/916 AS Roma c. Fédération Internationale de Football Association (FIFA), §39-40

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