Editor's note: Panagiotis Roumeliotis holds an LL.B. degree from National and Kapodistrian University of Athens, Greece and an LL.M. degree in European and International Tax Law from University of Luxembourg. He is qualified lawyer in Greece and is presently working as tax advisor with KPMG Luxembourg while pursuing, concomitantly, an LL.M. in International Sports Law at Sheffield Hallam University, England. His interest lies in the realm of tax and sports law. He may be contacted by e-mail at ‘p.roumeliotis@hotmail.com’.

Introduction

The landmark Bosman Ruling triggered the Europeanization of the labour market for football players by banning nationality quotas. In turn, in conjunction with the boom in TV revenues, this led to a flourishing transfer market in which players’ agents or intermediaries play a pivotal role, despite having a controversial reputation.

As a preliminary remark, it is important to touch upon the fiduciary duty of sports agents towards their clients. The principal-agent relationship implies that the former employs the agent so as to secure the best employment and/or commercial opportunities. Conversely, the latter is expected to act in the interest of the player as their relationship should be predicated on trust and confidence, as much was made clear in the English Court of Appeal case of Imageview Management Ltd v. Kelvin Jack. Notably, agents are bound to exercise the utmost degree of good faith, honesty and loyalty towards the players.[1]

At the core of this blog lies a comparative case study of the implementation of the FIFA Regulations on working with intermediaries (hereinafter “FIFA RWI”) in eight European FAs covering most of the transfers during the mercato. I will then critically analyze the issues raised by the implementation of the RWI and, as a conclusion, offer some recommendations.

FIFA RWI

In 2015, FIFA sought a new reform of football agents’ activity and adopted regulations on dealing with intermediaries[2] that are defined as “a natural or legal person who, for a fee or free of charge, represents players and/or clubs in negotiations with a view to concluding an employment contract or represents clubs in negotiations with a view to concluding a transfer agreement”.[3]

As solemnly illustrated in the Preamble, their purported aim is to bolster high ethical standards for the relations between clubs, players and third parties as well as enable proper control and transparency as regards player transfers.[4]  In a nutshell, FIFA devolved its regulatory powers to the national federations whereas it will just monitor the regulations’ proper implementation.[5]

Case studies of the national implementation of the RWI in eight countries

The concrete impact of the new RWI can be duly chartered through an examination of European FAs’ implementation (i.e. Belgium, England, France, Germany, Italy, Netherlands, Portugal, and Spain) as Europe possesses by far the biggest transfer market globally.

Registration

The registration process is a conditio sine qua non for agents. Based on a literal interpretation of the RWI, agents’ registration should occur on a transactional basis[6] and it is conferred upon clubs and players to provide to the respective FA the intermediary declaration and representation contract.[7] As FAs are empowered to go beyond the minimum requirements enshrined in FIFA’s RWI[8] in some instances they have implemented different requirements.

Burdensome character

For purposes of tracking and tracing their activity, agents should, subject to signing and filing the so-called “intermediary declaration”, be registered with the FA where they exercise their profession. Ergo, the plethora of administrative rules simultaneously applied constitute glaring obstacles, as they allegedly impede the provision of services on behalf of agents[9] and, on top of that, the enhanced amount of registration fees[10] is burdensome. The net result seems to be that a “fragmented and multi-tiered system”[11] does not seem compatible with EU law. It is more likely than not that by curtailing the development of agents’ business, EU law (i.e. restraint on competition, free movement of services) is infringed.

Lack of qualification assessment 

Apart from France[12], where candidates must sit a written examination and Spain[13], where a personal interview with the respective FA takes place, in principle, such assessments are not considered. 

The self-certification of impeccable reputation does not guarantee the quality of the services rendered by agents and the possession of the requisite skills thereto. In fact, the EU Sectoral Social Dialogue Committee for Professional Football confirmed a decreased quality of said services. The obligation to undertake a serious examination should, a fortiori, be taken seriously into account and put into practice as it will offer guarantees of objectivity and transparency.

Of course one could contradict that agents derive their value from their extensive network of contacts and market knowledge;[14] instead of their education or license. Nevertheless, qualitative criteria need to be set as a condition for eventual registration, as players should only have the option to gravitate towards agents that can deploy them quality services. This is further fortified by the fact that football has become a sophisticated business, whereby complex contracts plausibly require qualified assistance so as to achieve a better protection of players’ rights.[15]

Remuneration

In theory, agents should be entitled to receive remuneration so long as they have brought about the employment contract/transfer agreement for which they have been engaged. The mere introduction of the parties to a contract, without evidence of contribution to said conclusion, is not sufficient[16] as the entitlement to commission crystalizes upon the provision of services.

Reality bears witness to the fact that the recommended 3% benchmark cap inserted in the FIFA RWI[17], albeit being the apple of discord in recent discussions, has not been interpreted by FAs as a “must”. Only 4/8[18] FAs have transposed such recommendation in their domestic RWI while the others[19] have ignored it.

A glance at current numbers proves that, in spite of the recommended cap, agents’ fees have swelled; as from 2013, UEFA clubs have spent 97.2% (i.e. USD 1.54 billion) of the commissions pocketed by intermediaries globally. Going forward, it is indicative that as per the UEFA Report for the FY 2016, the average commission rate amounted to 13% in Belgium, England, Italy and Portugal, 9% in France, 15% in Germany, 12% in the Netherlands and 8% in Spain. The above figures succinctly demonstrate that FIFA’s recommendation has not led to a de facto limitation of the remuneration paid to agents. This is also confirmed by a report for the EC that outlined the increase in agents’ fees following FIFA’s deregulation.

Benchmark cons

Potential low remuneration cap would, unavoidably, incite agents to breach their fiduciary duty and favour their own interests. Exempli gratia, they would rather clinch deals in FAs that contemplate higher commission fees, even if it is contrary to the best interests of their client’s career. Furthermore, reprehensible practices would definitely take place since agents’ commission and players’ remuneration function inversely (i.e. the more agents receive, the less players earn), while it is also likely that agents would be discouraged to provide high quality services.

In the same vein, it could lead to collision with EU law. As a matter of fact, it has already raised EU competition law concerns as some have considered it a disproportionate encroachment on agents’ economic freedom, thus, infringing Articles 101 and 102 TFEU.

Benchmark pros

 On the flip side, I would like to play devil’s advocate going forward. Should the 3% cap on fees apply, this would ward off “agents” whose sole purpose is to make “quick and dirty” money. Therefore, the 3% cap could work as an indirect assessment of the ones who are worth of being agents.

Conflicts of interests 

From the outset of the eventual transaction, players/clubs should endeavor to assure that no conflicts of interest exist.[20] 6 out of 8 FAs[21] have transposed ad litteram the provision stipulating the right of intermediaries to represent multiple parties to a transaction, so long as they have articulated in advance potential conflicts of interest and received written consent by all parties involved. The CSKA Sofia v. Loic Bensaid case could be considered as a precursor to this provision, in which it was stressed that an agent who represents both player and club does not commit fraud so long as he has made the situation transparent to the parties.[22]

In my view, said provision ostensibly solves potential conflicts of interest but de facto goes against agents’ fiduciary duty and ineluctably leads to such conflicts. By way of comment, should an agent represent both the player and the destination club, he would have to act in a neutral manner, which will adversely affect the player’s interests. In order to maintain healthy relationships with the club so as to facilitate future transactions, it is more likely that he will not seek the maximum salary possible for the player. Conversely, should the agent represent both the player and the club of origin, one can easily understand that a higher transfer fee reduces the player’s salary and vice versa.

In my view, with such provision, unwittingly or not, an own-goal has been inflicted as FAs are not incentivized to crack down on potential conflicts of interest. At least, if the French[23]/Portuguese[24] practice is not followed (i.e. dual representation is prohibited), the English model[25] could be an attractive solution. Notably, the possibility to seek independent legal advice should be construed as a necessary requirement that will safeguard players’ sporting/financial interests from being compromised.

Minors

Almost all FAs outlawed payments when the player is a minor.[26] Portugal[27] seems to have applied a more stringent standard (i.e. representation is totally forbidden), while Italy[28] does not stricto sensu prohibit such remuneration.

One might be tempted to conclude that outlawing payments is commendable but such perception is erroneous as the premise behind it goes against the players’ interests:

• Agents not receiving consideration in exchange for their services would most likely not provide the best advice for their client, as, “good advice comes at a price”[29]
• Agents would have a vested interest to tie up youngsters for many years, which might, in turn, work at their expense, as the former might seek to capitalize their investment in the players as soon as they get 18 years old. As submitted, when it comes to minors, unscrupulous agents can go “forum shopping” and seek to conclude a representation contract in the most favorable jurisdiction,[30] i.e. the one that does not limit the duration of said contract.

The foregoing should be read in conjunction with the fact that in modern football there are lots of talented young players with potential to become a bone of contention for agents. Further to this, due account should be taken of the fact that UEFA’s “home grown player rule” and the UEFA Financial Fair Play Regulations push clubs to invest in youngsters and this renders their circulation in the market more common than in the past.

The statistics provided by FIFA ITMS show that minors are the category of players who have most often used an agent, in 17.6% of the concluded international transfers against 15.2% and 14.5% between 18-25 and 26-32 years old, respectively. Therefore, it borders on the absurd that agents cannot be remunerated when engaged in transactions involving minors.

On top of that, higher thresholds ought to have been imposed i.e. the representation contract should have a limited term and for this, a useful inspiration could be derived from the case of Proactive Sports Management v Wayne Rooney, where it was decided that the eight-year image rights representation agreement[31] constituted an unreasonable restraint of trade.

Duration of the Representation Contract

FIFA’s RWI left a normative vacuum by not including a provision on the maximum duration of a representation contract. However, my comparative study shows that 5/8 FAs[32] impose a maximum 2 year term on the representation contract.

Such a limit protects not only the players’ but also the clubs’ interests against potential abuses involved in the engagement of agents for long periods.[33] Furthermore, it avoids conflicts pertaining to restraint of trade as the absence of limits could lead to players being tied to their agent for a disproportionate period of time.

However, since exclusivity (i.e. maximum duration of contract) is not prescribed in FIFA RWI, this could imply that they provide a safe harbor to players not to be contractually bound for a predetermined period of time. As submitted, this grants the players more bargaining power and would, indirectly, force agents to act in the best interests of their clients.[34]

Harmonization at European level

It is crystal clear that multiple national disparities exist in the regulation of agents. Hence, I believe a streamlined uniform regulatory framework is needed at the European level and, as such, could be put in place by UEFA’s FAs.

FAs Partnership

As football’s transfer money and underlying intermediaries’ commission fees are mostly concentrated in Europe, it should be underscored that consolidated RWI at the level of all European FAs would provide a more potent regulatory space and countervail “FIFA’s regulatory relinquishment”.

As FIFA switched the onus to FAs, some of them could come together and become embroiled in enforcing an enhanced monitoring system and stricter conditions of access to the profession. This has also been supported by the EU Sectoral Social Dialogue Committee for Professional Football, which formulated that such harmonized European policy is the desirable next step for a better regulatory oversight of agents. Such partnership could be a laudable response to the calls for a centralized and harmonized mandatory licensing system. It should be done in cooperation with the EFAA, so as to take into account the agents’ perspective and likely facilitate adherence to the regulations.

In this respect, it would be prudent to follow the examples of other Sports Associations. For example, FIBA when formulating effective regulations pertaining to agents promoted harmonization while involving the agents through consultation of AEBA. Pursuant to the latest EC Report, the National Basketball Players Association (“NBPA”) Regulations could also be considered as an example to follow, as they enhance the “professionalization” of agents and are based on a mandatory licensing system while setting accomplished higher education as an indispensable condition. The NFL, on the other side of the Atlantic, is also an interesting example as it requires a university degree or sufficient negotiating experience of minimum 7 years.

As it is generally felt that the agents’ business is “unethical, complex and deceptive”, thus stringent conditions should be imposed to enter the profession. A qualitative selection process is indispensable. Players must be able to rely on agents equipped with the necessary skills and knowledge. FAs should look back at the Piau case where the compulsory licensing system was duly endorsed as legitimate by the then Court of First Instance of the EU, inter alia, on the basis that it was necessary to introduce “professionalism and ethical standards to protect players whose careers are short”.

UEFA

On a separate note, UEFA, as it claims to operate in a spirit of consensus with all its stakeholders, has to be the leading frontrunner of a harmonised regulation. In the framework of Article 165 TFEU and UEFA’s conditional supervised autonomy[35], this could be done in dialogue with the EC that possesses coordination competence with regard to sport, so as to ensure that potential new regulations can resist challenges on grounds of restraint of trade and alleged infringements of EU law. The Arrangement for Cooperation signed by the UEFA and EC earlier in February 2018 could be a good starting point going forward.

Conclusions

It is unequivocal that FIFA’s RWI advent has had as a main repercussion the deregulation of the industry, or better put, the granting of autonomy to the FAs to regulate said industry using the minimum standards as the cornerstone. The case study, though, evidences that important disparities exist between crucial provisions of the various European FAs’ RWI, which leads to compounding practical and ethical problems and to higher risks of forum shopping. 

It is forthwith conspicuous that such disparities create challenges, which could be duly faced, first and foremost, by accepting that agents are inherent to the mercato and, as previously alluded, by taking account of their fiduciary duty. Ergo, it is contingent upon European FAs, in the framework of UEFA, to cooperate so as to adopt a robust unified regime that will bring forward sweeping and streamlined changes to the profession. To do so, agents’ should be consulted and respected, as in the modern era of professional football, “they are the oil that keeps the wheels of international football in motion.”[36]

[1] WALTER T. CHAMPION, “Attorneys Qua Sports Agents: An Ethical Conundrum” (1997) 7 Marquette Sports Law Journal 349, 350.

[2] The term “agent” will be used, as it constitutes the international jargon.

[3] 2015 FIFA RWI, Definition of an intermediary.

[4] 2015 FIFA RWI, Preamble.

[5] 2015 FIFA RWI, Article 10.

[6] JUAN DE DIOS CRESPO and PAOLO TORCHETTI, “Limiting intermediaries’ fees and enhancing fiduciary duty” [2018] World Sports Advocate 11, 12.

[7] 2015 FIFA RWI, Articles 3 and 6(1).

[8] 2015 FIFA RWI, Preamble.

[9] JUAN DE DIOS CRESPO and PAOLO TORCHETTI, “FIFA’s new Regulations on Working with Intermediaries” [2015] Football Legal 36.

[10] Annex 11 to the URBSFA Regulations, Article 4 [1.3]; The FA website, Intermediaries Registration [online]. Available at: http://www.thefa.com/football-rules-governance/policies/intermediaries/intermediaries-registration [accessed on 1 May 2018]; Code du Sport, Article L.222-7; FIGC, Regolamento per i Servizi di Procuratore Sportivo, Art. 4(1), 4(3) and 5; KNVB Regulations, Article 2(6); PFF Regulations, Article 7(2); RFEF Regulations, Article 7.

[11] JUAN DE DIOS CRESPO and PAOLO TORCHETTI, “FIFA’s new Regulations on Working with Intermediaries” [2015] Football Legal 37; ORNELLA DESIREE BELLIA “FIFA Regulations on Working with Intermediaries: Analysis from the perspective of the clubs” in MICHELE COLUCCI (ed) The FIFA Regulations on Working with Intermediaries, Implementation at National Level (2^nd ed., International Sports Law and Policy Bulletin 1/2016) 57-66, 59.

[12] Code du Sport, Article L.222-7.

[13] RFEF Regulations, Article 4.

[14] IAN LYNAM and JONATHAN ELLIS, “Players’ Agents”, in ADAM LEWIS QC and JONATHAN TAYLOR (eds), Sports: Law and Practice (3rd edition, BLOOMSBURY 2016), 1418 – 1478, 1420.

[15] SALEH ALOBEILDI, “FIFA’s RWI – Historical overview” [2015] Football Legal 30.

[16] CAS 2006/A//1019 G. v. O., award of 5 December 2006 (anonymized) [11].

[17] 2015 FIFA RWI, Article 7(3).

[18] Annex 11 to the URBSFA Regulations, Article 8 [3]; FA Regulations, Rule C (11); FIGC, Regolamento per i Servizi di Procuratore Sportivo, Art. 6; KNVB Regulations, Article 8(6).

[19] Code du Sport, Article L. 222-17 ; DFB Regulations, Section 7.1-7.2; PFF Regulations, Article 11 ; In Spain no remuneration cap has been prescribed.

[20] 2015 FIFA RWI, Article 2(2).

[21] Annex 11 to the URBSFA Regulations, Article 9 [3]; FA Regulations, Rule E (2) a-c; DFB Regulations, Article 8; FIGC, Regolamento per i Servizi di Procuratore Sportivo, Art. 7; KNBV Regulations, Article 4; RFEF Regulations, Article 12.

[22] CAS 2012/A/2988, PFC CSKA Sofia v. Loic Bensaid (award of 14 June 2013) paras 74, 82 and 101.

[23] Code du Sport, Article L.222-17.

[24] PFF Regulations, Article 5(3).

[25] FA Regulations, Rule E (2) d.

[26] Annex 11 to the URBSFA Regulations, Article 8 [8]; FA Regulations, Art. C (10) ; Code du Sport, Article L.222-5; DFB Regulations, Art. 7.7; KNVB Regulations, Article 8(7); RFEF Regulations, Article 10.

[27] PFF Regulations, Article 5(4); The Physical Activity and Sports Basic Law (“PASBL”) or Law no. 5/2007, Article 37(2).

[28] SALVATORE CIVALE and MICHELE COLUCCI, “The FIGC Regulations on Intermediaries” in MICHELE COLUCCI (ed) The FIFA Regulations on Working with Intermediaries, Implementation at National Level (2^nd ed., International Sports Law and Policy Bulletin 1/2016) 329-338, 335.

[29] JEAN-MICHEL MARMAYOU, “EU Law and Principles applied to FIFA Regulations” in MICHELE COLUCCI (ed) The FIFA Regulations on Working with Intermediaries, Implementation at National Level (2^nd ed., International Sports Law and Policy Bulletin 1/2016) 75-112, 91.

[30] ROBERTO BRANCO MARTINS, “FIFA’s RWI – Agents’ perspective” [2015] Football Legal 50.

[31] The judge supported his argumentation by making reference to the obsolete FIFA Regulations, which stipulated that representation contracts were limited to a maximum two-year term, attaching to said agreement a unique character.

[32] FA Regulations, Art. B (10); FIGC, Regolamento per i Servizi di Procuratore Sportivo, Art. 5; PFF Regulations, Article 9(2) §c; RFEF Regulations, Article 8(4).

[33] CAS 2008/A/1665, J. v. Udinese Calcio S.p.A, (award of 19 May 2009) para 54.

[34] WIL VAN MEGEN, “The FIFA Regulations on Intermediaries: The players’ point of view” in MICHELE COLUCCI (ed) The FIFA Regulations on Working with Intermediaries, Implementation at National Level (2^nd ed., International Sports Law and Policy Bulletin 1/2016) 67-74, 74.

[35] BORJA GARCIA, “Sport governance after the White Paper: the demise of the European model?” (2009) 1:3 International Journal of Sport Policy 267; It was firstly stated in the Meca-Medina case [47]: “restrictions imposed by sports federations must be limited to what is necessary to ensure the proper conduct of competitive sport”.

[36] ROBERTO BRANCO MARTINS and GREGOR REITER, “Players’ Agents: Past, Present … Future?” (2010) 1-2 The International Sports Law Journal 7.

…and everything under the sun is in tune,

but the sun is eclipsed by the moon…[1] 

The issue

Ruffling a few feathers, on 30 May 2015 the FIFA Executive Committee rather unsurprisingly, considering the previous warnings,[2] adopted a decision to suspend with immediate effect the Indonesian Football Federation (PSSI) until such time as PSSI is able to comply with its obligations under Articles 13 and 17 of the FIFA Statutes.[3] Stripping PSSI of its membership rights, the decision results in a prohibition of all Indonesian teams (national or club) from having any international sporting contact. In other words, the decision precludes all Indonesian teams from participating in any competition organised by either FIFA or the Asian Football Confederation (AFC). In addition, the suspension of rights also precludes all PSSI members and officials from benefits of any FIFA or AFC development programme, course or training during the term of suspension. This decision coincides with a very recent award by the Court of Arbitration for Sport (CAS) in this ambit, which shall be discussed further below.[4]

The former decision, substantiated upon the alleged governmental infringement of the independence of PSSI, is the latest in a line of similar decisions adopted by FIFA in recent years. It succeeds inter alia the suspension of the Nigerian Football Federation and subsequent non-recognition of its General Assembly decisions,[5] and the suspensions of the Cameroonian Football Association[6], the Football Federation of Belize,[7] the Kenya Football Federation,[8] and the Islamic Republic of Iran Football Federation.[9]

The common denominator of all these decisions is the alleged impediment of third parties, usually governments or their related bodies, in the affairs of national football associations. In the Indonesian case, the trigger was the imposition of additional licensing criteria for football clubs by BOPI, an agency of the Indonesian Ministry of Youth and Sports, which resulted in two clubs (Arema and Persebaya) being precluded from competing in the Indonesian Super League (ISL) and subsequent measures adopted by the ministry aimed at relieving PSSI of all of its responsibilities.[10] While in the Nigerian case, an initial High Court injunction prevented the elected Executive Committee from taking office, and a later intervention from the Nigerian Department of State Security Service (SSS), resulted in the suspension of the Nigerian Football Federation[11] and subsequently in the non-recognition of its General Assembly decisions,[12] the other cited cases include violations in the form of, among others, “blatant government interference”,[13] non-provision of security services from government forces,[14] and violation of the independence of the decision-making process of the national football governing body.[15] 

Grounds for intervention by FIFA

The normative basis for the aforementioned interventions lies primarily within Articles 13, 14 and 17 of the FIFA Statutes.[16] The Members’ obligation of an independent management of their affairs is embedded in Article 13(1)(i), which states that: ”Members have the following obligations... to manage their affairs independently and ensure that their own affairs are not influenced by any third parties...” Strengthening that notion, Article 17(1) provides that: “Each Member shall manage its affairs independently and with no influence from third parties.” Furthermore, the second paragraph of Article 17 explicitly points out that all the bodies need to be elected or appointed within each respective Member, which prima facie appears even more stringent than Article 7 bis of the UEFA Statutes, that constitutes:”...their executive body is freely elected and that their other bodies are elected or appointed in a completely independent way.”[17]

Enjoying full discretion that stems from its Statutes, FIFA acts upon information received about the alleged violations, usually from the Members themselves. Prior to the adoption of a decision, a “prevention” phase takes place, during which FIFA, through means of correspondence with respective Members or/and third parties involved, addresses the alleged infringements and usually allows for a deference period for compliance with specific conditions. Members and/or third parties are warned that non-compliance may result in possible sanctions. Article 13(2) of the Statutes expressly provides that: “Violation of the above-mentioned obligations by any Member may lead to sanctions provided for in these Statutes.”

One of the most daunting repercussions FIFA may avail itself of is the suspension of a Member. In accordance with Article 14(1) of the Statutes, the primary responsibility for suspending a Member lies with the Congress. However, and as seen in the cases cited above, when violations are deemed to be so serious to require prompt attention, the Executive Committee or even the Emergency Committee may step in and adopt the relevant decision.[18] If not lifted beforehand, such a decision must be confirmed by a three-quarter majority at the next Congress, otherwise it is automatically lifted. A suspension leads to a loss of all membership rights, which effectively prevents other Members from entertaining any sporting contact with the suspended Member. Moreover, the suspension does not preclude the Disciplinary Committee from imposing further sanctions (e.g. fines, return of awards, deduction of points, etc.).[19]

Another measure for addressing an eventual non-compliance with the obligation of independent management of affairs is the non-recognition of wrongfully elected bodies or decisions passed by such bodies in accordance with Article 17(2) of the Statutes. In other words, FIFA has the authority not to recognize an election of a body of one of its Members, if such an election lacks uncompromised independence vis-à-vis third parties, as was the case with the Nigerian Football Federation.

Lastly, it is also worth mentioning that sanctions may be imposed regardless of the grounds and fault for interference of third parties since Article 13(3) of the Statutes, by going beyond the actual interference, provides that: “Violations of par. 1(i) may also lead to sanctions even if the third-party influence was not the fault of the Member concerned.” This basically means that FIFA shall not entertain explanations of third party interventions that may possibly even be justified under the provisions of national law. 

To comply, or not to comply – the CAS escape route

Since a suspension decision virtually ostracises and isolates a Member, a valid point to raise is, whether apart from yielding and fulfilling the imposed conditions, other means remain available to the disgraced Member to challenge such a decision. The same could be said for the situation pertaining to the non-recognition of elected bodies of particular Members.

In accordance with Article 66 of the Statutes any dispute arising between FIFA and its Members shall be resolved by CAS applying the relevant FIFA regulations and subsidiarily Swiss law. The exclusive jurisdiction of CAS is further strengthened in Article 67 of the Statutes which also outlines the procedural requirements for an appeal against a final decision passed by one of the FIFA bodies. Moreover, the Members explicitly agree not to avail themselves of recourse to ordinary courts of law, which significantly narrows their options down.[20]

Given that jurisprudence in named cases is relatively scarce, it is worth having a closer look at the above mentioned award rendered by CAS in the joined cases brought before it by the Nigerian Football Federation.[21] Notwithstanding the previous FIFA decision to suspend the appellant, which was later lifted, the form of relief sought with the appeal was the annulment of two decisions in the form of letters, addressed at the appellant by FIFA. Considering the Court’s conclusion, stemming from the relevant CAS jurisprudence,[22] to dismiss the appeal against the second letter because it did not constitute an appealable decision since it did not contain a ruling affecting the rights of the appellant, hence lacking the animus decidendi,[23] the onus of the award was on the first challenged letter.

In its preliminary remarks the Panel narrowed down the subjective and the objective scope of the review saying that it:”...may only assess de novo, putting itself in FIFA’s place, whether FIFA had sufficient factual and legal grounds, in terms of Article 17 of its Statutes, to adopt the decisions allegedly set forth in the letters challenged by the Appellant.”[24] By abstaining from assessing the eventual legality of the third party infringement, and despite harbouring some doubts about the (non)compliance of the elections with the national law, it further stated that:”...this Panel may not assess the validity of the various NFF elections on the basis of the NFF rules or of Nigerian law, because such appraisal falls outside the scope of FIFA’s authority under Article 17 of its Statutes and, thus, falls outside of the Panel’s scope of review.”[25]

By observing that none of the parties challenged the Court’s jurisdiction, applying the FIFA regulations and additionally Swiss law pursuant to Article R58 of the CAS Code, and by dismissing the Respondent’s arguments pertaining to the admissibility and the Appellant’s active standing, the Panel addressed the legitimacy of FIFA’s non-recognition of the elections pursuant to Article 17 of the Statutes in the merits of the award.[26]

As per the legal grounds of the decision, the Panel stressed that: “The purpose of Article 17 is to grant FIFA the power to not recognize an election where the member association’s electoral process does not guarantee the complete independence of the election.”[27] It went further saying: “...the Panel is of the view that the requirement of “complete independence” found in para. 2 must be understood in the light of para. 1 of Article 17, forbidding “influence from third parties”. Accordingly, an electoral process does not guarantee such complete independence where the election is not managed in a totally independent manner and, in particular, where it is influenced by third parties of any kind (e.g. government officials or bodies).”[28]

Having established FIFA’s authority, the Panel subsequently assessed the relevant evidence submitted by the parties. After determining the relevant factual circumstances, the Panel noted that the intervention from the State Security Services (SSS) influenced the unfolding of the election and consequently of the General Assembly itself, constituting a manifest insufficiency of the independence of the election from the influence of third parties pursuant to Article 17 of the Statutes.[29] The appeal was thus duly dismissed on merits as well.

By dismissing the appeal, and in spite of recognizing the connection of the dispute with “a longstanding struggle occurring in Nigerian football between different personalities and factions fighting for leadership within the NFF”,[30] the Court, by setting a precedent to a certain extent, distanced itself from assessing the compliance of the interference with national law, hence virtually affirming FIFA’s discretion in the evaluation of the circumstances leading to its intervention, which appears to leave an eventual appeal by the Indonesian Football Federation with very slim chances of success. 

Quis custodiet ipsos custodes?[31]

When it comes to independence and third party influence issue, the Members are subject to instant scrutiny from FIFA and are swiftly held accountable, even when they hold no responsibility for a third party intervention, as may be seen in the above cited cases. The same cannot be said when the situation is reversed. FIFA is often not submitted to the same levels of accountability checks as those who are affected by its decisions.[32]

While in some instances FIFA’s prompt intervention appears well-grounded, since interference from a third party is manifestly ill-founded, as may be seen in the case of the Nigerian Football Federation (interventions from State Security Forces and unidentified armed individuals seem to go way beyond the borders of necessity, and can hence hardly be justified), other cases, namely the latest suspension of the PSSI, show that FIFA may have been slightly too quick when pulling the trigger. All the more so, given the circumstantial background of the case (e.g. pressing issues related inter alia to financial, tax and ownership issues of the clubs participating in national leagues which the PSSI, despite previous warnings, was unable or unwilling to cope with, and which in some extreme cases resulted in players losing their lives due to lack of medical care owed to arrears of health care contributions by the clubs), and the government’s intervention could arguably to a certain extent be seen as necessary.[33]

However, as seen above, under the existing rules FIFA is not inclined to look beyond the mere interference of third parties and verify whether such actions might be justified, thus possibly breaching the principle of proportionality which is recognized as a general principle by CAS.[34] Since such discretion seems to have been condoned by the latest CAS decision,[35] one may wonder whether there is actually any room for a more thorough and systematic factual assessment of the background of such interferences in the light of a possible justification, which inevitably raises questions of the eventual (over)restrictive nature of the relevant Statutes provisions themselves. Furthermore, the fact that any government intervention, regardless of the eventual acceptability and consideration of local specificities of each respective Member, is to be seen as a punishable infringement, puts the issue within the frame of the perpetual conundrum of the legitimate boundaries of the lex sportiva.

Since FIFA is virtually accountable to no-one from the hierarchical point of view, and given that governments, with the exception of the Swiss government, have no supervisory powers over it (some would argue that FIFA may itself be seen as a government),[36] the only plausible route for the assessment of the proportionality of the Statutes would seem to be through the legal accountability channel, using EU law, especially its provisions on competition and internal market.[37] In fact, given the precedents (e.g. Charleroi)[38] and the recent legal challenge of FIFA’s decision to ban Third-Party Ownership,[39] these rules appear to have become an increasingly important tool to hold the organization accountable, regardless of the latest developments regarding the prosecution of its officials.[40] A further analysis as to whether such a route remains available to potential appellants from outside of the European Union would, however, go beyond the scope of this paper. 

Conclusion

As presented throughout this brief overview, FIFA has seemingly developed a zero-tolerance policy for any governmental interference regarding the affairs of its Members, thus arguably safeguarding their independence. It has consistently availed itself of one of the most stringent corrective measures for alleged violations envisaged by its Statutes, suspending the non-compliant Members, hence often provoking strong emotional response within the pertinent countries.[41] Whereby such sanctions might be deemed necessary in certain cases, non-consideration of factual background and eventual justifications in others has led to accusations of double standards,[42] and raised questions of proportionality of the relevant Statutes provisions and the borders of the rules governing “purely sporting issues”.

The outcome of the deadlock in the latest case of PSSI remains to be seen, with the government’s intention to thoroughly reform the Indonesian football suggesting that a swift solution might not quite lie around the corner.[43] Given that compliance with the imposed conditions appears to be the route that will be taken in this case, and as long as provisions of the Statutes are not submitted to scrutiny of a competent judicial body, arguably in the form of the European Court of Justice, any future third party interferences shall most likely continue to be dealt with strictly by FIFA and the non-compliant Members will keep finding themselves “on the dark side of the moon”.[44]

[1] Pink Floyd, Eclipse (Dark Side of the Moon, EMI, 1973).

[2] Letter of FIFA to the Republic of Indonesia Minister of Youth and Sports, written in Zurich and sent on 10 April 2015.

[3] Decision of the FIFA Executive Committee: Suspension of the Indonesian Football Federation (PSSI), adopted in Zurich on 30 May 2015.

[4] Joined cases CAS 2014/A/3744 and CAS 2014/A/3766 Nigerian Football Federation v. FIFA, award of 18 May 2015.

[5] Decision of the FIFA Emergency Committee: Suspension of the Nigerian Football Federation (NFF), adopted in Zurich on 9 July 2014.

[6] Decision of the FIFA Emergency Committee: Suspension of the Cameroonian Football Association, adopted in Zurich on 4 July 2013 (FIFA Circular no. 1367, Zurich, 4 July 2013).

[7] Decision of the FIFA Emergency Committee: Suspension of the Football Federation of Belize, adopted in Zurich on 17 June 2011.

[8] Decision of the FIFA Emergency Committee: Suspension of the Kenya Football Federation, adopted in Zurich on 2 June 2004.

[9] Decision of the FIFA Emergency Committee: Suspension of the Islamic Republic of Iran Football Federation (IRIFF), adopted in Zurich on 23 November 2006.

[10] FIFA Decision of 30 May 2015, cited supra note 3.

[11] FIFA Decision of 9 July 2014, cited supra note 5.

[12] Letter of FIFA to Nigerian Football Federation (NFF), written in Zurich and sent on 29 August 2014.

[13] FIFA Decision of 2 June 2004, cited supra note 8.

[14] FIFA Decision of 17 June 2011, cited supra note 7.

[15] FIFA Decision of 23 November 2006, cited supra note 9.

[16] FIFA Statutes (Regulations Governing the Application of the Statutes, Standing Orders of the Congress), adopted in São Paulo on 11 June 2014.

[17] UEFA Statutes (Rules of Procedure of the UEFA, Congress Regulations governing the Implementation of the UEFA Statutes), adopted in Astana on 24 March 2014.

[18] FIFA Statutes, cited supra note 16, Art. 33.

[19] Ibid., Arts. 63, 65.

[20] Ibid., Art. 68.

[21] Nigerian Football Federation v. FIFA, cited supra note 4.

[22] Case CAS 2005/A/899 FC Aris Thessaloniki v. FIFA & New Panionios N.F.C., award of 15 July 2005, para. 12; Case CAS 2004/A/659 Galatasaray SK v. Fédération Internationale de Football Association (FIFA) & Club Regatas Vasco da Gama & F. J., award of 17 March 2005, paras. 23-25.

[23] Nigerian Football Federation v. FIFA, cited supra note 4, paras. 192,196.

[24] Ibid., para. 160.

[25] Ibid., para 160.

[26] Ibid., paras. 160-182.

[27] Ibid., para. 200.

[28] Ibid., para. 200.

[29] Ibid., paras. 203-211.

[30] Ibid., para. 213.

[31] “Who guards the guardians?” (translation mine); Juvenal, Satires, (Book II, Satire VI, 1st and early 2nd centuries AD), lines 347–8.

[32] R. Pielke Jr., How can FIFA be held accountable? (Sport Management Review, Issue 16, 2013), pp. 258.

[33] FIFPro, Death of Mendieta must be the turning point for Indonesia, http://www.fifpro.org/en/news/death-of-mendieta-must-be-turning-point-for-indonesia (last visited 28 June 2015).

[34] See inter alia Cases CAS Arbitration CAS 2005/A/830 S. v. FINA, award of 15 July 2005, CAS 2009/A/2012 Doping Authority Netherlands v. N., award of 11 June 2010, CAS 2012/A/2740 Marcelo Carracedo v. Fédération Internationale de Football Association (FIFA), award of 18 April 2013.

[35] Nigerian Football Fedration v. FIFA, cited supra note 4.

[36]S. Bradley, FIFA reforms face resistance – and huge support (swissinfo.ch, 5 December 2012), http://www.swissinfo.ch/eng/football-scandals_fifa-reforms-face-resistance---and-huge-support/34067104 (last visited 28 June 2015).

[37] R. Pielke, cited supra note 32, pp. 259-262.

[38] Case A/05/03843, SA Sporting du Pays de Charleroi ao v FIFA, Tribunal de Commerce de Charleroi, 15 May 2006 (Case was referred to the European Court of Justice, but did not reach a judgment since the parties reached a settlement out of court),

[39] A. Duff, Portugal, Spain Said to Complain to EU on Soccer Finance Rules (BloombergBusiness, 4 February 2015), http://www.bloomberg.com/news/articles/2015-02-04/portugal-spain-said-to-complain-to-eu-on-soccer-finance-ban (last visited 28 June 2015).

[40] BBC News, Fifa corruption inquiries: Officials arrested in Zurich (bbc.com, 27 May 2015), http://www.bbc.com/news/world-europe-32895048 (last visited 28 June 2015).

[41] ESPN, Iranian Federation suspended by FIFA (espn.com, 23 November 2006), http://www.espnfc.com/story/393454/iranian-federation-suspended-by-fifa (last visited 28 June 2015).

[42] M. Zandi, Is FIFA's Decision in the Best Interest of Football (Association Internationale De La Presse Sportive),http://www.aipsmedia.com/index.php?cod=551&page=news&tp=n#.VZAhwRuqqko (last visited 28 June 2015).

[43] Reuters, Indonesia government takes responsibility for ban (uk.reuters.com, 31 May 2015), http://uk.reuters.com/article/2015/05/31/uk-soccer-fifa-indonesia-idUKKBN0OG03920150531 (last visited 28 June 2015).

[44] Pink Floyd, Brain Damage (Dark Side of the Moon, EMI, 1973).