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. 

This blog is a follow up to my previous contribution on the validity of Unilateral Extension Options (hereafter UEOs) under national and European law. It focuses on the different approaches taken to UEOs by the FIFA Dispute Resolution Chamber (DRC) and the Court of arbitration for sport (CAS). While in general the DRC has adopted a strict approach towards their validity, the CAS has followed a more liberal trend. Nonetheless, the two judicial bodies share a common conclusion: UEOs are not necessarily invalid. In this second blog I will provide an overview of the similarities and differences of the two judicial bodies in tackling UEOs.

The emergence and function of the Portmann criteria

Since their first appearance in a case widely known as the South American Bosman for the impact it had on the whole system of contracts established by the Uruguayan Football Association, the so-called ‘Portmann’ criteria are often referred to in decisions on the validity of UEOs.^[1] In short, these criteria provide that:

1. the potential maximum duration of the employment relationship must not be excessive;
2. the option has to be exercised within an acceptable deadline before the expiry of the current contract;
3. the original contract has to define the salary raise triggered by the extension;
4. the content of the contract must not result in putting one party at the mercy of the other, and;
5. the option has to be clearly emphasized in the original contract so that the player can have full consciousness of it at the moment of signing.^[2]

These five requirements, proposed by Prof Wolfgang Portmann, were meant to represent the standard UEOs had to meet in order to be considered valid and biding upon the players. More precisely, in order not to constitute an excessive self-commitment that would result in a violation of Swiss ordre public.^[3] They emerged in the course of the South American Bosman as Prof. Portmann’s report was presented by Atlético Peñarol in the (unsuccessful) attempt to uphold the validity of the unilateral option the club had used in its employment contracts. From that moment on, the Portmann criteria became a recurrent theme in decisions by the DRC and the CAS. However, these criteria have been used over the years in a rather incoherent fashion and their importance in the assessment of UEOs is not unequivocal.

Thereafter, in its first decision, the DRC used the criteria to assess the validity of an UEO.^[4] But then it drastically drifted away from them. Actually, in the ensuing decisions the DRC did not refer to the five conditions at all. In some instances it limited itself to recall its established jurisprudence finding the validity of UEOs disputable since they give the stronger party in the employment relationship the power to unilaterally extend or terminate the contract.^[5] In another occasion, the DRC expressly dismissed the binding effect of the Portmann report, underlining that it only constitutes a non-binding recommendation.^[6]

Furthermore, interestingly, in the appeal proceedings of the Atlético Peñarol case the CAS did not mention the Portmann report in its evaluation of the UEO. The Panel only referred to it in the part of the award that assessed the question of the applicable law and noted that Prof Portmann’s starting point was radically different from that of the Panel, as he deemed Uruguayan law applicable to the dispute, while the Panel applied Swiss law/the RSTP.^[7] Having said that, the CAS also seems to have departed from its initial approach, but in a rather different way than the DRC. In an early award of 2007, the CAS refused to give too much weight to the Portmann report and focused its reasoning on other circumstances.^[8] Yet, the ensuing awards did not follow suit on this approach. In its more recent awards, the CAS held that the criteria constitute soft guidelines and often de facto relied on them to reach its conclusion on the validity of an option.^[9] In one occasion, the CAS even added to the list of requirements two criteria, “emanating from recent developments in the FIFA DRC and CAS jurisprudence”, namely (i) the proportionality between the extension and the main contract and (ii) the desirable limitation of the number of extensions to one.^[10]

Regarding the relevance of the Portmann criteria, it seems that the only shared trait between the DRC and the CAS is that both have drifted away from their approach. Though, in quite opposite ways. 

Increase in salary as a sine qua non condition for the validity of UEOs

The question of the increase of the player’s salary is considered central, by both the DRC and the CAS, in deciding the validity of UEOs.

In fact, an improvement of the player’s salary is considered by the DRC as a possible ‘validating’ circumstance since the first published decision on the issue.^[11] The FIFA Chamber placed particular emphasis on the necessity to offset the unequal bargaining power that UEOs give to football clubs. To do that, a significant economic gain for the player must be envisaged in the contract as a result of the extension. In the view of the DRC, this is a necessary but sometimes not sufficient condition for the validity of a UEO, since the specification of the financial terms of the renewal in advance “necessarily cannot take into account, neither by the player nor the club, the possible enhancement of the player’s value, and hence earning power, over a two year period”.^[12]

In its awards on the matter, the CAS contends that the player must derive a clear economic advantage from the exercise of the option.^[13] Thus, the increase in salary is the only requirement that is fully embraced by both the DRC and the CAS. It is interesting to note, however, that in only one occasion did the CAS explicitly mentioned that “[e]ven if the financial terms had to be specified in advance, they necessarily take no account of the possible enhancement of a players value – and hence earning power – over a five year period e.g.: if he becomes an international player during that time”.^[14] It is also worth noting that, at least in one award, the CAS concluded that an increase in salary has to be evaluated only in relation to the previous economic conditions of the player’s contract and not in relation to the salary he could earn somewhere else.^[15]

In light of the above, it is safe to conclude that an UEO coming with a substantial increase in salary for the player has good chances to be deemed valid by the DRC and the CAS. To this end, a few additional observations are relevant. Firstly, how much is enough? Unfortunately, no clear guidelines can be derived from the case law. Secondly, it is practically impossible to predict the increase in value of a football player over a long-term period. Consequently, what can be considered a reasonable increase in salary at the signing of the contract might be deemed insufficient a few years later. Lastly, and probably most importantly, this approach might overlook the fact that an increase in salary is not always the only element a footballer takes into account in his career, as sometimes more personal considerations might push a player to move to a different club in another country. For instance family reasons might play a significant role in such a decision. Furthermore, football players might often consider more convenient for the development of their careers to give up on an increase in salary in order to have the chance to move to a club with more playing opportunities. An increase in salary, even substantial, should not be the altar on which a footballer’s fundamental freedom of movement and, ultimately, of choice is sacrificed.

The player’s behaviour

The player’s stance has often been evaluated by the DRC in particular as a concurrent element in determining the validity of an UEO. The main argument is that a certain behaviour of the player, such as keeping training and playing official matches with the club, implies a tacit acceptance of the extension. Once again, the DRC and the CAS are not entirely on the same line. The DRC jurisprudence gives more weight to this aspect, while the CAS has mentioned that particular attention has to be paid to “the player’s conduct during the period leading to the negotiation of the alleged extension clause” only in one single case.^[16]

With regards to the circumstance that the player has played in official matches as a consequence of the extension, the DRC showed a swinging trend. In one instance, it deemed it not relevant.^[17] Yet, in a subsequent decision (the only one by the DRC upholding the validity of an UEO to date), the fact that the player had kept taking part in training sessions and playing official matches for the club after the extension had quite a different impact on the reasoning of the Chamber.^[18] More recently, the DRC stated that the fact that the player trained with the club for a month after the alleged renewal does not imply his tacit acceptance of the unilateral extension.^[19]

The applicable law

As seen in the first part of this blog, each national jurisdiction interprets the validity of UEOs differently. Consequently, the choice of applicable law can play a major role in the outcome of a case, although the issue arises mainly when the dispute is brought before the CAS. The matter is complicated by the fact that CAS panels have a certain degree of discretion in deciding the law applicable to a dispute, and by the circumstance that even when they apply the same law they might reach different conclusions. With regard to the latter point, let us take into consideration two cases in which the CAS has established Greek law as the applicable law. In one occasion the Panel deemed “appropriate to mitigate the letter of Greek law by the spirit of general principles”, as its content concerning UEOs was considered inconsistent with “general principles of labour law”^[20] and consequently dismissed the appeal of the club. In another one, instead, the Panel concluded that the dispute had to be decided according to FIFA Regulations and Swiss law on a subsidiary basis, “with the important exception of any issues related to the Contract […] which shall be decided in accordance with Greek law”.^[21] Therefore, given that in Greece unilateral options allowing clubs to automatically extend employment contracts are legal, the Panel upheld the validity of the clause.^[22]

A radically different approach was taken by the CAS in the Atlético Peñarol case discussed above. In the absence of an express choice of law of the parties, the Panel deemed the FIFA Regulations and, subsidiarily, Swiss Law applicable. It is worth recalling the reasoning of the Panel, as it could pave the way to a reasonable solution for the UEOs issue. The arbitrators noted that the application of art. 187 of the Swiss LDIP gives wide freedom of choice to the parties, who can even require the arbitrators to decide ex aequo et bono, i.e. without any reference to specific State laws. This means that art. 187 LDIP allows, a fortiori, to refer to rules that transcend the particular State laws, such as sports regulations. The Panel stressed that sport is a phenomenon that naturally crosses borders, and thus it is necessary to ensure uniform legal standards. Only if the same terms and conditions apply to everyone who participates in organised sport, is the integrity and equal opportunity of sporting competition guaranteed. In practice, the FIFA Statutes and Regulations provide such uniform rules. Additionally, the arbitrators underlined that the application of Uruguayan law would lead to a result incompatible with the minimum standards of protection of employees provided by Swiss labour law. Hence, the CAS concluded that the Uruguayan system of UEOs is not compatible with the FIFA Regulations. Furthermore, the Panel noted that these options effectively bypass the basic principles of the FIFA regulations, which “very particularly protect the interests of training clubs through training compensation and the solidarity contribution […] It is not possible that this protection of the contents of a contract between clubs and players can be bypassed in order to serve only the interests of one party, in this case the club, which does not itself have to make a commitment. So the Panel considers that the unilateral contract renewal system is not compatible, in its very principle, with the legal framework which the new FIFA rules were designed to introduce”.^[23] In other words, the Uruguayan system seemed to reintroduce, through the backdoor, the system that was abolished with the reforms of the FIFA Regulations 1997, 2001 and 2005.^[24]In such a system the player is bound to a contract negotiated at a moment of his career when he did not have a strong bargaining power. Which is to say, the player is left at the mercy of the club. The arbitrators stressed that only the most talented players can escape this mechanism, when the club receives an important transfer offer for their services.^[25]In that occasion, the player will hardly refuse the transfer knowing that, doing otherwise, he will be bound to the club because of the UEO in his contract.

Conclusions: The way forward

We have seen in part 1 of this blog that we lack a coherent regulatory framework for UEOs at the national level. This second part has also shown that things are not much clearer at the DRC and the CAS, as the two bodies, while agreeing on the existence of certain criteria, take different approaches on the assessment of each of them (except for the increase in salary). Furthermore, the outcome of a case can be heavily dependent on the applicable law. Consequently, the future validity of UEOs is uncertain, given that no uniformity can be found in the CAS jurisprudence.

The uncertainties related to the applicable law issue are manifold. Upholding the validity of national law, although granting some advantages in terms of foreseeability, presents two main drawbacks. First of all for the clubs which draft the contracts and cannot predict to what extent this law will be deemed applicable by the CAS and, consequently, are unable to draft the contract with all the necessary information desirable in respect to UEO clauses.^[26]Secondly, and most importantly, this approach overlooks the fact that football is a global phenomenon, and the transfer market a transnational one, which requires uniform rules at the international level.

The conclusion reached by the Panel in the Atlético Peñarol case is a fair starting point in the quest for more certainty in the matter. The undisputable merit of that award was to clearly highlight (i) the unequal nature of a clause that is accepted by the player at the early stages of his career and (ii) the necessity to have a body of regulations that can be understood and predicted by the entire international football family.[27] Let us conclude, therefore, that only the universal application of a set of regulations, such as the FIFA RSTP, would ensure legal rationality, predictability and, significantly, “the equality of treatment between all the addressees of such regulations, independently of the countries from which they are”.^[28] A fortiori, when at stake is the fundamental freedom of movement and choice of footballers, the need to rely on a uniform body of principles and rules, a lex sportiva, universally applicable without discrimination becomes crucial.

However, applying the FIFA Regulations in a standardised way still leaves a problem unsolved. This body of rules is in fact silent on the very issue of UEOs. FIFA could tackle the issue in a variety of ways, for instance by codifying in the RSTP a revisited version of the Portmann criteria. Suggesting precise reforms to FIFA goes beyond the purpose of this blog, but one thing is sure: in the face of the extreme uncertainty that surrounds the validity of these clauses, having one single body of rules expressly targeting the issue and universally applicable would be of great help to all the parties involved.

[1] The case concerned the contracts of two Uruguayan players, Carlos Heber Bueno Suárez and Christian Gabriel Rodríguez Barotti with the Uruguayan football club Atlético Peñarol. Pursuant to their contracts, the professional services of Bueno and Rodríguez could be extended unilaterally by the club for two years, provided that their salary would increase in accordance with the National Consumer Price Index. At the end of the season, and after being suspended and deprived of the possibility of playing for four months, the players signed for the French club Paris Saint Germain, and refused the club’s unilateral extension. See TAS 2005/A/983 & 984, Club Atlético Peñarol v. Carlos Heber Buen Suárez, Christian Gabriel Rodríguez Barotti & Paris Saint Germain, award of 12 July 2006. In fact, the framework has slightly changed over the last few years in South America. In Argentina, for instance, the 2009 Collective Bargaining Agreement (CBA) n. 557/09, signed by the Association de Futbol Argentino (AFA) and the Union of Amateur and Professional Football Player provides the current guidelines. In this context, contracts of athletes who have reached the age of 21 can be extended once for one year only, provided that a salary increase of 20% is guaranteed as a consequence of the extension. Extension options for players older than 21 shall be considered null and void, even in the circumstance that AFA has registered the contract, and consequently the player is to be declared a free agent and thus free to sign a contract with another club (see Colucci, Hendricks, Regulating Employment Relationships in Professional Football, A Comparative Analysis, European Sports Law and Policy Bulletin 1/2014, 26). See also Juan de Dios Crespo Pérez’s commentary of the case in A. Wild (ed.) CAS and Football: Landmark Cases (2011), 118. 

[2] F. de Weger, The Jurisprudence of the FIFA Dispute Resolution Chamber, 169.

[3] Prof Portmann considered South American law the law applicable to the substance of the matter. Nevertheless, according to the author, in order to be considered valid, the option not only had to be consistent with local employment law, Collective Bargaining Agreements and regulations of the relevant national association, but it also had to respect mandatory rules of Swiss law and Swiss ordre public. Although he considered the principle of parity of termination rights not part of ordre public per se (and, therefore, the circumvention of that right that these clauses entail not problematic in itself), he stressed that an excessive self-commitment of one of the parties to a contract could indeed result in an infringement of Swiss and international ordre public.

[4] In the unpublished decision 12 January 2007 (see F. de Weger, The Jurisprudence of the FIFA Dispute Resolution Chamber, 169), the DRC made reference to the five elements of the Portmann report to conclude that the option was not valid because, among other considerations, the notice period was too short.

[5] See decision 30 November 2007 n. 117707 and decision 7 May 2008 n. 58860.

[6] See decision18 March 2010 n. 310607, where the DRC interestingly pointed out that the inequality derives from the fact that the player, given the circumstances of contractual inferiority existing at the time he signs his first contract, either accepts the contract with the UEO or gives up on playing football with that team.

[7] TAS 2005/A/983 & 984, Club Atlético Peñarol v. Carlos Heber Buen Suárez, Christian Gabriel Rodríguez Barotti & Paris Saint Germain, award of 12 July 2006, para. 66.

[8] CAS 2006/A/1157, Club Atlético Boca Juniors v. Genoa Cricket and Football Club S.p.A., Award of 31 January 2007, para. 16. The Panel had “great difficulty in following Dr Portmann’s reasoning, and in accepting the validity and enforceability of a unilateral option”. The arbitrators deemed more important, instead, to put emphasis on the general assumption that a person, and a fortiori a minor who had just moved with his family to another country, cannot be required to perform a contract for personal services against his or her will.

[9] The CAS held recently that “these criteria may be taken into consideration and are important, but […] they are not absolute rules, the failure of which would determine the absolute invalidity of the option clause”, in CAS 2014/A/3852, Ascoli Calcio 1898 S.p.A. v. Papa Waigo N’diaye & Al Wahda Sprts and Cultural Club, award of 11 January 2016, para. 86.

[10] More precisely, a Panel held “the need to not accord too much weight and value to the Portmann criteria at the expense of the very important specifics and circumstances behind each individual dispute” CAS 2013/A/3260, Grêmio Foot-ball Porto Alegrense v. Maximiliano Gastón López, Award of 4 March 2014, para. 76, see also para. 68-69.

[11] In Decision 22 July 2004, the DRC noted that because the player’s economic conditions remained substantially unaltered in the renewal, the option was invalid.

[12] See Decision 23 March 2006, para 14. In this case, the DRC deemed that a monthly increase of less than € 1.000 of the player’s salary could not be seen as a significant economic gain for the player.

[13] See CAS 2004/A/678, Apollon Kalamarias F.C. v. Oliveira Morais, award of 20 May 2005, para. 21 and TAS 2005/A/983 & 984, Club Atlético Peñarol v. Carlos Heber Buen Suárez, Christian Gabriel Rodríguez Barotti & Paris Saint Germain, award of 12 July 2006, para. 93. See also CAS 2005/A/973, Panathinaikos Football Club v. Sotirios Kyrgiakos, Award of 10 October 2006 and CAS 2013/A/3260, Grêmio Foot-ball Porto Alegrense v. Maximiliano Gastón López, Award of 4 March 2014, para. 77.

[14] CAS 2004/A/678, Apollon Kalamarias F.C. v. Oliveira Morais, award of 20 May 2005, para 21.

[15] See CAS 2005/A/973, Panathinaikos Football Club v. Sotirios Kyrgiakos, Award of 10 October 2006, para. 23. In which the Panel considered inappropriate to compare between the salary of the extended contract from the Greek club and the salary the footballer would have received at a club in the Scottish league (the Rangers FC) since “it is well known that football clubs operating in richer markets are able to offer a higher income to players”.

[16] CAS 2013/A/3260, Grêmio Foot-ball Porto Alegrense v. Maximiliano Gastón López, Award of 4 March 2014, para. 70.

[17] See Decision 13 May 2005. Here the DRC also pointed out the non-decisiveness of the acceptance by the player of a payment of €1,950 after the extension as a result of the new contract.

[18] See Decision 21 February 2006, in which the DRC noted that: (i) the player had waited almost five months after the beginning of the extension to bring the case before the FIFA.

[19] See Decision 31 July 2013.

[20] CAS 2004/A/678, Apollon Kalamarias F.C. v. Oliveira Morais, award of 20 May 2005, para 24. The Panel dismissed the appeal of the club even though its contract with the player seemed to be drafted in conformity with Greek Sports Law, which – pursuant to Law 2725/99 – allows for the unilateral renewal of the contract provided that (i) the overall duration of the contract, including the extensions, does not exceed five years and that (ii) the financial terms are agreed at the signing of the initial contract.

[21] CAS 2005/A/973, Panathinaikos Football Club v. Sotirios Kyrgiakos, Award of 10 October 2006, para.10.

[22] The Panel, which considered “inappropriate to apply substantive Swiss law to the contract as it has no connection whatsoever with Switzerland (para. 8), made reference to the same Law 2725/99.

[23] TAS 2005/A/983 & 984, Club Atlético Peñarol v. Carlos Heber Buen Suárez, Christian Gabriel Rodríguez Barotti & Paris Saint Germain, award of 12 July 2006, paras. 81-83 (the translation is of the author).

[24] Ibid., para. 80.

[25] Ibid., para. 79.

[26] Ibid.

[27] J-S Leuba, R Fox, J de Dios Crespo Pérez, G L Acosta Perez and F m de Weger, ‘Contractual Stability: Unilateral Options’, in A. Wild (ed.) CAS and Football: Landmark Cases (2011), 119.

[28] Ibid.

Day 1: The impact of the revised World Anti-Doping Code on the work of National Anti-Doping Agencies
Day 2: The “Athlete Patient” and the 2015 World Anti-Doping Code: Competing Under Medical Treatment
Day 3: Proof of intent (or lack thereof) under the 2015 World Anti-Doping Code
Day 4: Ensuring proportionate sanctions under the 2015 World Anti-Doping Code

On 1 January, a new version of the World Anti-Doping Code (WADC or Code) entered into force. This blog symposium aims at taking stock of this development and at offering a preliminary analysis of the key legal changes introduced. The present blog will put the WADC into a more general historical and political context. It aims to briefly retrace the emergence of the World Anti-Doping Agency (WADA) and its Code. It will also reconstruct the legislative process that led to the adoption of the WADC 2015 and introduce the various contributions to the blog symposium.

I.              The WADA and its Code: A Short history

The WADA is a public-private hybrid governance body.[1] It is formally a Swiss foundation, but its executive bodies are composed equally of representatives of public authorities and Sports Governing Bodies (SGBs). The current president of WADA, Sir Craig Reedie, is also vice-president of the International Olympic Committee (IOC). The WADA was created as a response to the massive doping scandal that marred the Tour de France in 1998. Its original aim was to “set unified standards for anti-doping work and coordinate the efforts of sports organizations and public authorities”. The idea of a specific global organization was submitted at a World Conference on Doping in Sport in Lausanne, in February 1999. A few months later, on 10 November 1999, the WADA was established.

WADA’s key task was, and still is, to devise the global set of uniform rules applicable to the anti-doping fight: the WADC. The first version of the WADC was finalized in 2003. After amendments were tabled, a second version of the Code entered into force in 2009. As the WADA does not dispose of any public (or private for that matter) authority to implement the Code, it must be transposed by the SGBs and governments at the national and international level to gain some teeth (a list of the current signatories can be accessed here). Compliance with the Code is compulsory for the whole Olympic Movement as provided by article 43 of the Olympic Charter. WADA’s main responsibility is to monitor and report on the compliance of various federations and States. The Code was first endorsed by States in the Copenhagen Declaration on Anti-Doping in Sport in 2003, and later supported by the adoption of the UNESCO International Convention against Doping in Sport in October 2005. The Convention is one of the most ratified UNESCO Conventions to date with 182 signatories.

The WADC 2015 is a long document of more than 150 pages, composed of 25 articles complemented with comprehensive comments. It defines the anti-doping rule violations[2], the burden of proof applicable to doping cases[3] and the functioning of the prohibited list.[4] The Code indicates also the technical procedure applicable to doping tests[5] and the procedural rights of suspected athletes.[6] Most importantly, it provides for the sanctions regime applicable in case of a violation.[7] The Code likewise regulates the potential appeal procedures.[8] The WADC is complemented by a set of five International Standards, which are mandatory for the signatories. Finally, the implementation of the Code is also supported by a set of Model Rules, Guidelines and Protocols.

As illustrated by the recent doping scandal involving the Russian Athletics Federation, the question of compliance with the Code is a prodigious challenge for WADA. The organisation’s raison d’être is threatened by the well-known gap between law in the books and law in action. This discrepancy between a global uniform code and its many local realities, has led to recent calls for WADA to be tasked with the implementation of the Code and to take charge of the testing process. The true impact of the Code 2015 will partially depend on the clarification of the competences and responsibilities of WADA in this regard.

II.            Making the Code 2015: The legislative process

The WADC 2015 is the result of a peculiar legislative process. WADA claims, since its early days, that the Code is a living document, subjected to a productive feedback chain. The revision of the WADC started at the end of 2011 and covered three different phases of consultation over a two-year period. Approximately 2000 proposals for amendments were submitted to the drafting team. In the end, the Code was approved on 15 November 2013 at the World Conference on Doping in Sport in Johannesburg.

A specific team managed the consultation process and each of the three consultation phases included a review and the approval from the WADA Executive Committee. The first phase started on 28 November 2011 whereby a call for comments was communicated to stakeholders (WADA does not indicate how it defines the reach of this category), and feedback was received from 90 stakeholders. The comments led to the drafting of the Draft Version 1.0 of the 2015 Code, which was approved by the WADA Executive Committee in May 2012. On 1 June 2012, the second phase of consultation was initiated with a new call for comments issued to all the “stakeholders”. Over a period of four months, WADA received feedback from more than 100 stakeholders, which was incorporated in the second Draft of the 2015 Code. Eventually, a third consultation phase took place from 3 December 2012 until 1 March 2013, which led to the Executive Committee adopting a third draft of the Code. The final mould of the Code was submitted to the World Conference on Doping in Sport, hosted in Johannesburg in November 2013.[9]  The WADA Foundation Board adopted the final version of the Code at the Conference.

WADA is adamant (and proud of the fact) that the Code was drafted in an inclusive and participative process. Although it is undeniably positive that many stakeholders had the opportunity to access and discuss the drafts of the Code, the specific reasons leading to the policy choices made remain largely undisclosed. It is extremely difficult to know why a proposed amendment made it into the new Code, and why another did not. Moreover, the scope of the notion of a stakeholder is key to define who gets to contribute. If, for example (as I suspect), the SGBs and NADOs are massively overrepresented amongst the stakeholders consulted, it gives them a disproportionate voice in the legislative process of the new Code. The transparency of the process is also lagging, as is illustrated by the fact that the comments are nowhere to be found on WADA’s new website.[10] This lack of transparency is worrying for an institution partially founded and managed by public authorities. In any event, improving the transparency and the inclusiveness of the adoption process of the WADC is a must to ensure that WADA fulfils the good governance standards it is aspiring to.  

III.         The Blog Symposium on the WADA Code 2015

This blog symposium includes four contributions from very different perspectives, by specialized academics, practitioners and an anti-doping administrator. They deal primarily with the various practical changes to the anti-doping fight induced by the new Code. The objective is to show how the Code has already changed the way the “anti-doping world” is operating, and the transformations it might still trigger in the future. The symposium is organized with the help of both Marjolaine Viret and Emily Wisnosky.

The first contribution by Herman Ram, the Head of the Dutch Doping Autoriteit, covers the impact of the WADC 2015 on the work of national anti-doping agencies. Ram highlights the various ways in which the Code has (or may) profoundly changed the operations of the Dutch NADA. In particular through its focus on a smarter anti-doping fight. He anticipates the stumbling blocks ahead and identifies the key trends already under way.

The second contribution by Marjolaine Viret (@MarjolaineViret) and Emily Wisnosky (@Ewisnosky), the two researchers involved in the cutting edge WADC-Commentary project alongside Prof. Antonio Rigozzi (@AntonioRigozzi), focus on the new Code’s influence on Athletes under medical treatment. They study closely the new legal regime applicable to obtain a Therapeutic Use Exemption and the potential sanctions faced by athletes under medical treatment who have not obtained a TUE before a positive anti-doping test.

The third contribution by Mike Morgan (@MSL_Mike), a lawyer specialized in anti-doping disputes, examines the new sanctions regime stemming out of the Code 2015. As pointed out in various recent academic contributions,[11] this is probably the most fundamental change introduced in the Code. It is in any case the most visible, since it will most vividly affect the athletes failing an anti-doping test. As Morgan shows, the new Code vows to introduce a degree of flexibility in the sanctions regime and to provide smarter, tailor-made, sanctions. Whether this aim will be achieve is still very much an open question.

Finally, Howard Jacobs (@athleteslawyer), also a lawyer specialized in anti-doping disputes, analyses the function of the notion of intent in the new Code. Indeed, one of the main innovations of the Code is the introduction of specific sanctions based on the intentional or non-intentional nature of the doping violation. This raises many legal questions linked especially with the burden of proof. Jacobs goes in great lengths to provide a clear analytical map of the problems ahead regarding the need to demonstrate the (non-)intentional nature of an anti-doping violation. He poses fundamental questions that will likely pop up in front of anti-doping tribunals and the CAS, and offers some preliminary answers. 

[1] Its atypical public-private institutional structure has stirred the attention of scholars of the Global Administrative Law movement. See L. Casini, ‘Global Hybrid Public-Private Bodies: The World Anti-Doping Agency (WADA)’ accessible at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1520751

[2] Article 2 WADC 2015

[3] Article 3 WADC 2015

[4] Article 4 WADC 2015

[5] Article 5,6,7 WADC 2015

[6] Article 8 WADC 2015

[7] Article 9,10, 11, 12 WADC 2015

[8] Article 13 WADC 2015

[9]Unfortunately, it is impossible to review the presentations and interventions made at the conference, as its website has been desactivated.

[10] Though they were online on the older version of the website.

[11] See, for example, A. Rigozzi,  U. Haas, E. Wisnosky and Marjolaine Viret, ‘Breaking down the process for determining a basic sanction under the 2015 World Anti-Doping Code’, The International Sports Law Journal, June 2015, Volume 15, Issue 1, pp 3-48 (available at http://link.springer.com/article/10.1007/s40318-015-0068-6?wt_mc=alerts.TOCjournals)

Introduction
On 25 March 2015, the Labour Court of Mainz issued its decision in proceedings brought by a German footballer, Heinz Müller, against his (now former) club 1. FSV Mainz 05 (Mainz 05). The Court sided with the player and ruled that Müller should have been employed by Mainz 05 for an indefinite period following his 2009 three year contract with the club which was subsequently extended in 2011 to run until mid-2014. The judgment was based on national law implementing Directive 1999/70 on fixed-term work[1] (Directive) with the latter being introduced pursuant to art. 155(2) TFEU (ex art. 139(2) TEC). On the basis of this article, European social partners’ may request a framework agreement which they conclude to be implemented on the European Union (EU, Union) level by a Council decision on a proposal from the Commission. One of the objectives of the framework agreement,[2] and therefore of the Directive, was to establish a system to prevent abuse arising from the use of successive fixed-term employment contracts or relationships[3] which lies at the heart of the discussed problem.[4] Two clauses enshrined in the framework agreement are of particular relevance to the issue of fixed-term contracts in football, namely, clause 2 which governs the Directive’s scope of application, and clause 5 which concerns measures to prevent abuse. The main questions in this regard are therefore whether fixed-term contracts in football may escape the application of the Directive based on clause 2, or be compatible with it pursuant to clause 5. The present blog post presenting the general European framework for fixed-term contract, will be followed by an in depth case note on the decision in the Müller case.

I. Employment contracts in football and the scope of application of the Directive (clause 2)
The second paragraph of clause 2 names specific types of employment relationships which the Member States, after consultation with social partners, and/or social partners may exclude from the scope of application of the Directive. Clause 2(2) does not contain any explicit provisions which would allow for the possibility of football players’ contracts to be excluded from the scope of the Directive. Also, the wording of the provision indicates that the list of the employment relationships covered by the exception is exhaustive,[5] which in turn precludes the possibility of interpreting the clause in a manner which would accommodate contracts between football clubs and their players.

Clause 2(1), on the other hand, provides that the Directive ‘applies to fixed-term workers who have an employment contract or employment relationship as defined in law, collective agreements or practice in each Member State’. As a result, the definition of ‘worker’ for the purpose of the Directive has no autonomous meaning, but is subject to the national laws of the Member States.[6] Therefore, the manner in which the framework agreement has been drafted opens the possibility for the Member States to exclude some categories of workers from the scope of application of the Directive. It follows, that based on the pure wording of clause 2(1) national authorities could theoretically deprive, inter alia, football players of the protection granted under the Directive by merely classifying them as e.g. service providers.

Despite the autonomy granted to national authorities in this regard, clause 2(1) may not be understood as providing the Member States with unlimited discretion. Recital 17 of the Directive’s preamble clearly states that the Member States are to define some of the terms included in the framework agreement ‘provided that the definitions in question respect [its content].’ Moreover, art. 2 of the Directive stipulates that ‘the Member states are […] required to take any necessary measures to enable them […] to guarantee the results imposed by [the] Directive.’[7] The flexibility granted to national authorities is further limited by the need to ensure the effective implementation of EU-derived rights. The Court of Justice of the European Union’s (CJEU, Court) rulings set the limits to the Member States’ discretion in the implementation of clause 2(1). In this regard, the CJEU ruled in Del Cerro[8] that the Directive is applicable to ‘all workers providing remunerated services in the context of a fixed-term employment relationship linking them to their employer.’[9] The Court also stated that ‘in reserving to Member States the ability to remove at will certain categories of persons from the protection offered by [the Directive] and the [framework agreement], the effectiveness of those Community instruments would be in jeopardy as would their uniform application in the Member States.’[10] Also, in the opinion of Advocate General (AG) Maduro the concept of ‘worker’ for the purpose of the Directive must be interpreted in a way which complies with its objectives.[11]  According to the AG, the Member States should not be allowed to rely on the ‘formal’ or ‘special’ nature of the rules applicable to certain employment relationships in order to exclude them from the scope of application of the Directive.[12] Consequently, excluding a specific group from the benefit of protection afforded by the Directive can only be accepted if the competent national court decides that the nature of the employment relationship concerned is ‘substantially different from that between employees falling, according to national law, within the category of workers’.[13]

A similar reasoning to the one used in Del Cerro has been applied in Sibilio[14] where the Court, relying on recital 17 and the need to preserve the Directive’s effectiveness, ruled that in the light of the objectives pursued by the framework agreement the formal classification by the national legislature cannot rule out that a person must be recognized as a ‘worker’ if such a formality is merely notional, and thus conceals the real employment relationship.[15] Therefore, in determining what constitutes an employment contract or employment relationship under national law or practice, and thus when determining the scope of application of the Directive, the definition of these concepts may not result in an arbitrary exclusion of a category of persons from the protection offered by the Directive.[16] The CJEU leaves it for the national courts to conclude whether a person falls within the definition of a ‘worker’ based on the characteristics of the work conducted and the circumstances in which it is carried out.[17] Moreover, in Fiamingo[18] and Mascolo[19] the CJEU later confirmed that no particular sector is excluded from the scope of application of the Directive.[20]

Even though the issue of who is to be considered as a ‘worker’ pursuant to the Directive does not fall within the competence of the EU, and thus, the definition established for the purpose of the internal market provisions may not be directly applied in the context of the Directive, the autonomous Union concept of ‘worker’ and the case-law of the CJEU provide guidelines and support for the national courts of the Member State. In this regard, the CJEU stated in Lawrie-Blum[21] that ‘the essential feature of an employment relationship […] is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration.’[22] The Court elaborated on the matter in Trojani[23] where it ruled that ‘any person who pursues activities which are real and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a worker’.[24] It cannot be denied that footballers meet the criteria set out in the case-law. The activity they pursue is genuine, they conduct their work under supervision of others, namely clubs and coaches, and receive, often hefty, remuneration.[25] It is also important to add here that already in Bosman[26] the CJEU provided, first, that the existence of, or the intention to create, an employment relationship is the only requirement necessary for the purposes of the application of EU provisions concerning the free movement of workers, and second, that football players could be regarded as workers for the purpose of (now) art. 45 TFEU.[27] This particular finding has been directly confirmed in Olympique Lyonnais.[28] It is not precluded that such considerations should influence national courts in their findings concerning ‘characteristics’ and ‘circumstances’ of the activity exercised by football players should a question in this regard arise. As a result, it seems unlikely that contracts between footballers and their clubs could fall outside the scope of the Directive.

II. Employment contracts in football and measures to prevent abuse (clause 5)
Due to the fact that the social partners considered that contracts for an indefinite period are the general form of employment,[29] the Directive sets out specific measures which serve to secure one of the Directive’s main goals, i.e. prevention of abuse arising from the use of successive fixed-term employment contracts. In this regard, and pursuant to clause 5, the Member States after consultation with social partners, and/or the social partners, are obliged to establish at least one of the measures provided, i.e., i) objective reasons justifying renewal of fixed-term contracts or relationships; ii) the maximum total duration of successive fixed-term employment contracts or relationships; iii) the number of renewals of such contracts or relationships. This particular obligation exists when there are no equivalent legal measures already in place in the national legal orders. Moreover, in establishing the measures the national authorities are to take into account the needs of specific sectors and/or categories of workers. Since the objective reasons justification is the only measure which could facilitate the maintenance of the current status quo relating to fixed-term contracts in football, it is necessary to focus on this particular provisions.

A. Interpretation of ‘objective reasons’ justification in the CJEU’s case-law
The CJEU has had a chance to rule on the interpretation of clause 5 ‘objective reasons’ on a number of occasions. Consequently, for the purpose of relying on the justification the employer not only needs to be eligible to invoke ‘objective reasons’ defence as provided for under national law, but also the national implementing measure needs to comply with the conditions established in the Court’s case-law. In this regard, the CJEU ruled in Adeneler[30] that the concept of ‘objective reasons’ refers to ‘precise and concrete circumstances characterising a given activity, which are therefore capable in that particular context of justifying the use of successive fixed-term employment contracts.’[31] The Court further elaborated on the matter by providing that ‘[those] circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks […].’[32] As a result, national provisions may not be of a purely formal nature, but must justify recourse to successive fixed-term contracts ‘by the presence of objective factors relating to the particular features of the activity concerned and to the conditions under which it is carried out […].’[33] Thus, ‘a national provision which merely authorises recourse to successive fixed-term employment contracts in a general and abstract manner […]’[34] does not fulfil the criteria. In this regard, the Court added that ‘recourse to fixed-term employment contracts solely on the basis of a general provision of statute or secondary legislation, unlinked to what the activity in question specifically comprises, does not permit objective and transparent criteria to be identified in order to verify whether the renewal of such contracts actually responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose’.[35] Moreover, the CJEU also indicated that national laws which allow for the use of successive fixed-term contracts in the context of employers’ needs which are not of a limited duration, and thus temporary, but de facto ‘fixed and permanent’ will not be compatible with the Directive.[36] The above-mentioned findings of the Court have been confirmed in a number of judgments such as Angelidaki[37]. This case concerned individuals who claimed that their fixed-term contracts with the local authorities, which the latter decided not to extended or renew upon their expiry, should have been recognized as contracts of indefinite period as the work performed was of a ‘fixed and permanent’ nature. Reliance on the criteria provided by the CJEU in Adeneler is also evident in Mascolo in which the Court addressed the issue of compatibility with the Directive of Italian national law on the basis of which teachers recruited in schools administered by public authorities and working as temporary replacement staff were employed under successive fixed-term contracts. A similar issue to the one in Mascolo emerged in Kücük[38] which concerned a clerk in the court office who was employed on a number of successive fixed-term contracts as a replacement for several permanent employees due to temporary leave having been granted to the clerks employed for an indefinite duration. Here again the CJEU referred to the established case-law and clarified that temporary needs of employers also cover the need for replacing employees on leave even in situations where the tasks assigned to fixed-term worker are part of the undertaking’s usual activities.[39] This was the result of the need for replacement staff being of a temporary nature.[40] As the social partners themselves indicated that ‘fixed-term contracts are a feature of employment in certain sectors, occupations and activities which can suit both employers and workers’[41] it is thus necessary to evaluate whether objective reasons for the justification of fixed-term contracts in football might be identified.

B. Existence of ‘objective reasons’ justifying fixed-term contracts in football
With regard to the above, it can be argued that the specific circumstances inherent to the exercise of football as a profession are susceptible to justify the successive use of fixed-term employment contracts. In that respect, uncertainty as to players’ performance has always been an inseparable element of not only football but sports in general. No matter what level of performance a player displays over a particular span of time, it can never be excluded, rather it can be expected with certainty, that a (significant) drop in performance will take place. This concerns especially ‘older’ players, i.e. those in their thirties. It is common knowledge that after reaching a certain age athletes’ physical condition deteriorates, thus making it impossible for them to maintain a steady level of performance, and thus, to contribute to the combined efforts of the team they represent. Furthermore, FIFA transfer rules limit players’ possibility of terminating contracts. Art. 14 of the 2015 Regulations on the Status and Transfer of Players allows for termination to take place where a just cause exists. In this respect, introduction of contracts for indefinite period could open the possibility for players to rely on statutory termination periods in order to dissolve contracts, and thus, to become free agents. Consequently, football clubs, and especially those which focus on youth development, could be deprived of a substantial part of their income from transfer fees. This in turn could, first, limit the incentives for training young players, and second, would make it even easier for the richer clubs to acquire talents with negative consequences on competitive balance in football. Moreover, provision 43.02 of the Regulations of the UEFA Champions League 2015-18 Cycle provides that clubs may only register 25 players for the purpose of playing in the competition. Forcing clubs to sign players on indefinite contracts, combined with a limit placed on the amount of footballers that can be registered, will make it even more challenging for youngsters to enter the first team. Furthermore, as it is usually more difficult for the employer to terminate a contract, football clubs could be (indirectly) forced to keep those footballers who no longer fit the team’s tactics or club’s policy (e.g. focus on youth). In this respect, establishing contracts for an indefinite period as the industry’s standard could again negatively influence the chances of young players signing a contract. Furthermore, clubs need to be able to adjust their squads and establish stable teams in order to effectively compete on both national and international levels, and to retain, attract and satisfy their supporters. In our view, fixed-term contracts, by their very nature, are therefore better suited to address the specific characteristics of football as a sport, and as an industry.

C. Possible obstacles to the application of ‘objective reasons’ justification to contracts in football
Nevertheless, even if it is accepted that successive fixed-term contracts between footballers and their clubs may be justified based on objective reasons, it still remains that the justification does not necessarily apply. First, the Member States are free to choose between the clause 5 measures. Consequently, the very possibility of relying on objective reasons depends on the manner in which the Directive has been implemented by the Member States.[42] Second, national implementing measures must comply with the requirements established by the CJEU. Therefore, the Member States that chose to make use of the objective reasons justification are obliged to establish objective factors on the basis of which the application of the justification will be assessed. A general provision of a purely formal nature which does not provide for such objective factors will not be deemed compatible with EU law. In this regard, the criteria or factors established under national law must be capable of being applied to contracts in football. Consequently, national law implementing clause 5 objective reasons needs to be drafted in a manner which allows football contracts to be considered for the purpose of applying the justification, which might be problematic given the fact that the issue has been largely neglected. Third, it has also been established by the CJEU that national laws which allow for the use of successive fixed-term contracts in the context of employers’ needs which are ‘fixed and permanent’ will not be compatible with the Directive. It would go contrary to the objectives pursued by clause 5, i.e. prevention of abuse arising out of successive fixed-term contracts, to allow renewal of such contracts to cover ‘fixed and permanent’ needs of employers.[43] Therefore, if the ‘needs’ of football clubs are considered to be of such a ‘fixed and permanent’ character, and it may be argued that they are, then reliance on the justification would also be endangered.

Concluding remarks
The ruling of the Mainz court questioned, at least in Germany, the current arrangements whereby contracts for a definite period have been established as the industry’s worldwide standard.[44] Consequently, it cannot be excluded that the judgment will once again feed the never-ending discussion on the impact of European law on sport, the debate on the notion of specificity of sport, and more generally, the boundaries between the European Union’s intervention in sport and the autonomy of sports governing bodies. It is safe to assume that considerable controversies will arise in case the decision of the court in Mainz is upheld at higher instances. This, however, will not be the making of the courts, but to a large extent the result of the issue being neglected for years. After all, the Directive was adopted already sixteen years ago and contains no provisions allowing sport to be exempted from its scope. It follows that based on its wording it must also apply to contracts concluded between footballers and clubs. Even though it is possible to justify the successive use of fixed-term contracts on the basis of objective reasons, this depends on the national implementing measures, which do not necessarily provide for such a possibility or are fit to accommodate football contracts.

[1] Council Directive 1999/70/EC concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP [1999] OJ L 175/43 (Directive)

[2] Annex to the Directive, ETUC-UNICE-CEEP Framework Agreement on Fixed-Term Work (Framework Agreement)

[3] Framework Agreement, recital 14 and clause 1

[4] Clause 1 of the Framework Agreement also mentions a second goal, namely, the improvement of quality of fixed-term work by ensuring the application of the principle of non-discrimination. In this regard, Recital 9 of the Framework Agreement adds that the instrument is to contribute to the improvement of equality of opportunities between men and women

[5] Philippa Watson, EU Social and Employment Law (2^nd edn, Oxford University Press 2014) p 241; see also case C-212/04 Konstantinos Adeneler en anderen tegen Ellinikos Organismos Galaktos (ELOG) [2006] ECR I-6057 (Adeneler), para 57

[6] However, the definition of what constitutes a fixed-term employment has an EU definition. See Directive, clause 3(1)

[7] See also art. 288 TFEU; Adeneler, para 68

[8] Case C-307/05 Yolanda Del Cerro Alonso v Osakidetza-Servicio Vasco de Salud [2007] ECR I-7109 (Del Cerro)

[9] Ibidem, para 28

[10] Ibidem, para 29

[11] Del Cerro, Opinion of AG Maduro, para 14

[12] Ibidem, para 15

[13] Ibidem; see also case C-393/10 Dermod Patrick O’Brien v Ministry of Justice [2012] published in the electronic Reports of cases (O’Brien), para 51

[14] Case C-157/11 Giuseppe Sibilio v Comune di Afragola [2012] published in the electronic Reports of cases (Sibilio)

[15] Ibidem, para 49

[16] Ibidem, para 51; see also O’Brien, para 51

[17] Sibilio, para 52

[18] Joined cases C-362/13 REC, C-363/13 REC and C-407/13 REC Maurizio Fiamingo, Leonardo Zappalà and Francesco Rotondo and Others v Rete Ferroviaria Italiana SpA [2014] not yet published (Fiamingo)

[19] Joined cases C-22/13, C-61/13 to C-63/13 and C-418/13 Raffaella Mascolo, Alba Forni and Immacolata Racca v Ministero dell'Istruzione, dell'Università e della Ricerca, Fortuna Russo v Comune di Napoli and Carla Napolitano and Others v Ministero dell’Istruzione, dell’Università e della Ricerca [2014] not yet published (Mascolo)

[20] Fiamingo, para 38; Mascolo, para 69

[21] Case C-66/85 Deborah Lawrie-Blum v Land Baden-Württemberg [1986] ECR 2121

[22] Ibidem, para 17

[23] Case C-456/02 Michel Trojani v Centre public d'aide sociale de Bruxelles (CPAS) [2004] ECR I-7573

[24] Ibidem, para 15

[25] For a more detailed discussion see Stefaan Van den Bogaert, Practical Regulation of the Mobility of Sportsmen in the EU Post Bosman (Kluwer Law International, The Hague 2005) pp 57-59

[26] Case C-415/93 Union royale belge des sociétés de football association ASBL v Jean-Marc Bosman, Royal club liégeois SA v Jean-Marc Bosman and others and Union des associations européennes de football (UEFA) v Jean-Marc Bosman [1995] ECR I-4921

[27] Ibidem, paras 74, 87, 90

[28] Case C-325/08 Olympique Lyonnais SASP v Olivier Bernard and Newcastle UFC [2010] ECR I-2177 (Olympique Lyonnais), para 29; Olympique Lyonnais, Opinion of AG Sharpston, para 38

[29] Framework Agreement, recital 6; see also Adeneler, para 61

[30] See supra note 5

[31] Ibidem, para 69

[32] Ibidem, para 70

[33] Ibidem, para 72

[34] Ibidem, para 71

[35] Ibidem, para 74

[36] Ibidem, para 88

[37] Joined cases C-378/07 to C-380/07 Kiriaki Angelidaki and Others v Organismos Nomarchiakis Autodioikisis Rethymnis, Charikleia Giannoudi v Dimos Geropotamou and Georgios Karabousanos and Sofoklis Michopoulos v Dimos Geropotamou [2009] ECR I-3071 (Angelidaki)

[38] Case C-586/10 Bianca Kücük v Land Nordrhein-Westfalen [2012] published in the electronic Reports of cases

[39] Ibidem, para 38

[40] Ibidem

[41] Framework Agreement, recital 8

[42] See e.g. Fiamingo, para 61

[43] See e.g. Angelidaki, para 103; Angelidaki, Opinion of AG Kokott, paras 106-107;

[44] In this regard art. 18(2) of 2015 FIFA’s Regulations on the Status and Transfer of Players stipulates that ‘[t]he minimum length of a contract shall be from its effective date until the end of the season, while the maximum length of a contract shall be five years. Contracts of any other length shall only be permitted if consistent with national laws’