The mercato, or transfer window, is for some the most exciting time in the life of a football fan. During this narrow period each summer and winter (for the Europeans), fantastic football teams are made or taken apart. What is less often known, or grasped is that behind the breaking news of the latest move to or from your favourite club lies a complex web of transnational rules, institutions and practices.

Our new intensive two-day Masterclass aims to provide a comprehensive understanding of the FIFA Regulations on the Status and Transfer of Players (RSTP) to a small group of dedicated legal professionals who have the ambition to advise football clubs, represent players or join football governing bodies. The course combines theoretical insights on FIFA’s regulation of the transfer market with practical know-how of the actual operation of the RSTP distilled by hands-on practitioners.

Download the full Programme and register HERE.

The Team:

• Dr Antoine Duval is a senior researcher at the Asser Institute and the head of the Asser International Sports Law Centre. He has widely published and lectured on transnational sports law, sports arbitration and the interaction between EU law and sport. He is an avid football fan and football player and looks forward to walking you through the intricacies of the FIFA transfer system.
  

• Carol Couse is a Partner in the sports team at Mills & Reeve LLP , with extensive in-house and in private practice experience of dealing with sports regulatory matters, whether contentious or non-contentious.  She has advised on many multi million pound international football transfer agreements, playing contracts and image rights agreements on behalf clubs, players and agents.

• Jacques Blondin is an Italian lawyer, who joined FIFA inundefined 2015, working for the Disciplinary Department. In 2019, he was appointed Head of FIFA TMS (now called FIFA Regulatory Enforcement) where he is responsible, among other things, for ensuring compliance in international transfers within the FIFA Transfer Matching System.

• Oskar van Maren joined FIFA as a Legal Counsel in December 2017, forming part of the Knowledge Management Hub, a department created in September 2020. Previously, he worked for FIFA’s Players' Status Department. Between April 2014 and March 2017, he worked as a Junior Researcher at the T.M.C. Asser Instituut. He holds an LL.M in European law from Leiden University (The Netherlands).
• Rhys Lenarduzzi is currently a research intern at the Asser International Sports Law Centre, where he focuses in particular on the transnational regulation of football. Prior to this, he acquired over 5 years of experience as a sports agent and consultant, at times representing over 50 professional athletes around the world from various sports, though predominantly football.
  

Yesterday, the European Commission stunned the European Sports Law world when it announced unexpectedly that it had signed a “partnership agreement” with UEFA named (creatively): ‘The Arrangement for Cooperation between the European Commission and the Union of European Football Associations (UEFA)’. The press release indicates that this agreement is to “commit the two institutions to working together regularly in a tangible and constructive way on matters of shared interest”. The agreement was negotiated (as far as we know) secretly with UEFA. Despite recent meetings between EU Commissioner for sport Vassiliou and UEFA President Platini, the eventuality of such an outcome was never evoked. It is very unlikely that third-interested-parties (FIFPro, ECA, Supporters Direct etc.) were consulted in the process of drafting this Arrangement. This surprising move by an outgoing Commission will be analysed in a three-ponged approach. First, we will discuss the substance of the Arrangement (I). Thereafter, we will consider its potential legal value under EU law (II). Finally, and maybe more importantly, we will confront the political relevance of the agreement (III).  

Source: http://ec.europa.eu/avservices/photo/photoDetails.cfm?sitelang=en&ref=026448#13

The substance of the “Arrangement” between UEFA and the European Commission

What’s in the Arrangement? In short, a lot of random considerations, very little concrete commitments, and an administrative structure for future dialogue.

The “basis” for the cooperation between UEFA and the European Commission is a mixed bag of shared concerns and common views. Both institutions are keen on strengthening their dialogue “in the interests of the long-term development and societal role of sport in general and football in particular” (Article 2.1. of the Arrangement), especially in the light of the societal value of sport (Article 2.2.) and the many challenges and risks it is facing (Article 2.3.). Therefore, they “endeavour to strengthen policies designed to encourage the local training and education of athletes” (Article 2.4.). The parties share the view that “appropriate solutions are to be found in order to ensure that athletes are available to play for their national teams” (Article 2.5.), but also that “redistribution mechanisms concerning, for example, audiovisual media revenues and training compensation fees should be recommended” (Article 2.6.). Furthermore, they acknowledge that “[F]inancial stability, transparency and better governance within sport can be pursued through responsible self-regulation”. For example, “measures to encourage greater rationality and discipline in club finances with a focus on the long-term as opposed to the short-term, such as Financial Fair Play initiative, contribute to the sustainable development and healthy growth of sport in Europe” (Article 2.7.).  

The parties also agree that the “health and human dignity of athletes must be protected from abusive and unethical practices”. In this regard, “[I]t is important that […] so-called third-party ownership of the “economic rights” of player, do not threaten the integrity of sporting competition or undermine the relationship of trust and mutual respect that should exist in any relationship of employment” (Article 2.8.). More broadly, the parties recognise the need for social dialogue, protecting fundamental rights, promoting gender equality and to fight all forms of racism, xenophobia, homophobia and discrimination (Article 2.9.). It is recognized that “[t]o improve good governance standards, UEFA can also play a prominent role in seeking appropriate solutions on issues pertaining to players’ transfers and agents at European level” (Article 2.10.). Concerning match-fixing, the parties acknowledge that close cooperation is needed (2.11). 

The Arrangement calls for an “effective protection of intellectual property rights”, as their exploitation “represents an important source of income for professional football” (Article 2.12.). It also favours “the reinforcement of the Council of Europe convention on spectator violence” (Article 2.13.). In a very important holding, arbitration is recognised as “an important voluntary tool for settling disputes in sport and ensuring that sporting rules are applied, interpreted and enforced in an effective and uniform manner, while also ensuring respect of the applicable legal norms and procedural safeguards within and outside of the EU” (Article 2.14.). Finally, “the European Commission and UEFA will collaborate in the context of the planned European Week of Sport, using football to promote healthy physical activity” (Article 2.15).

This collection of, more or less, random thoughts collated in the Arrangement lead to two broad objectives: “to promote cooperation and strengthen relations between the European Commission and UEFA in the interests of the sustainable development of football” (Article 3.1.1.) and “to exchange information, knowledge and good-practice on matters of common interest” (Article 3.1.2). These objectives are to be implemented through a “policy dialogue” between the Secretary General of UEFA and the Director General responsible for Sport in the EC (Article 4.1, 4.2, 4.4, & 4,5). The implementation will also involve “Regular and ad hoc meetings […] between officials of the Sides […]” (Article 4.3.).

The Arrangement will start on the date of the signature [14 October 2014] and is to last until 31 December 2017 (Article 5.1.). The Sides to the Arrangement are free to amend it (Article 5.2). While, each side “can, at any time discontinue the application of this Arrangement, but should endeavour to provide a three-month notice of such discontinuation to the other Side” (Article 5.3.). Finally, both sides acknowledge that the “Arrangement does not create rights or obligations under international, EU or domestic law” (Article 5.4.).   

The legal value of the “Arrangement” under EU law

This is not a memorandum of understanding, a gentleman’s agreement between UEFA and the Commission, or a simple political declaration; this Arrangement is formally approved by a binding decision of the European Commission, to which it is attached. This decision could not be based on Article 165 paragraph 4 of the TFEU (the sports legal basis), as it does not confer to the European Commission the power to adopt such a decision. Hence, the Commission needed to rely on its general competence derived from Article 17 TEU.[1] Already, this is cause for legal concern; for example one could question the legitimacy of the circumvention of the limits set expressively in Article 165 TFEU and the recourse to Article 17 TEU to stretch the Commission’s competences. Ultimately, it could lead to a legal challenge against the decision, based on the European Commission’s lack of competence to adopt it. In any way, this is unlikely to happen, as it would require an EU Institution (the Council or the European Parliament), or a Member State to do so. 

What does the fact that the Arrangement is enshrined in a European Commission decision mean in legal terms? As specified in Article 288 TFEU: “A decision shall be binding in its entirety”. This is a legally binding document, in theory reviewable by Courts and potentially capable of generating rights and legitimate expectations for a third party (most probably UEFA). The Commission was apparently very weary of dodging this possibility. Therefore, it kept the wording of its commitments relatively vague and introduced many references to the primacy of EU Competition law and the EU acquis in the text. Moreover, article 5.4 of the Arrangement stipulates that it “does not create rights or obligations under international, EU or domestic law”. This makes it very difficult to envisage a possibility for UEFA to claim that it has concrete legitimate expectations arising from this Arrangement.[2] Consequently, in practice, this Arrangement is very much a soft legal instrument in the guise of hard law administrative decision. Nevertheless, the law is not always only about the law and such soft legal documents might have hard political and legal consequences. 

The hard political (and legal) reality of a soft legal “Arrangement”

The legal theoretical debate over the nature and function of soft law instruments has been on-going for more than 20 years now.[3] But, one thing seems to be more or less certain, soft legal mechanisms matter.[4] They matter politically, as they shape the perception of public opinion and play a role in public discourse. Sometimes they might also matter legally, especially when legal standards based on the substantial balancing of values (or risks) are used, as for example the proportionality principle. Therefore, the European Commission should be very weary of using such soft instruments in a blunt fashion. 

In our view, this Arrangement between UEFA and the European Commission is a misguided soft law instrument. Indeed, despite its willingness not to get into an agreement creating legal rights for UEFA, the European Commission will be haunted (politically and legally) by it for the years to come. For example, it will be very difficult for the European Commission to consider that UEFA’s Financial Fair Play regulations are disproportionate in the sense of the Meca-Medina test, after recognizing that it contributes to “the sustainable development and healthy growth of sport in Europe”. The Commission also adds that this recognition is “subject to compliance with competition law”. Thus, it remains in theory possible for the DG Competition to consider FFP incompatible with EU Competition law. However, one need not be a political wizard to understand the difficulty to do so after having enshrined such a statement in an official decision (UEFA is already claiming that the Commission “fully supports” the “implementation of Financial Fair Play”). UEFA would easily point at the obvious contradiction and the European public would rightly blame the European Commission for its inconsistency.                                                                                            

Unfortunately, this Arrangement is not only about UEFA’s FFP regulations; instead, the European Commission is signing on a set of very controversial statements. Indeed, by qualifying sporting Arbitration as “an important voluntary tool for settling disputes in sport” and “ensuring respect of the applicable legal norms and procedural safeguards within and outside of the EU” it indirectly recognizes the legitimacy of the Court of Arbitration for Sport. This is notwithstanding the very acute doubts about the “voluntary” nature of this arbitration[5], as well as potential concerns related to its independence. In this context, one can only be perplexed by the willingness of the European Commission to throw caution to the wind. The CAS might be a useful tool for sports governing bodies trying to evade the purview of national courts; it might even be necessary to avoid the fragmentation of the global anti-doping regime or to offer a quick and clean dispute resolution mechanisms in certain disciplinary or commercial cases. However, its legitimacy and its capacity to safeguard the fundamental rights of athletes is not a given and the European Commission would have been well advised to show considerable restraint in weighing in on this question. This lack of caution is generally true for other very complex socio-economic issues tackled en passant in the Arrangement, and in which UEFA had a keen (economic) interest to defend: the release of players for the national teams, the intellectual property rights over football and the regulation of the transfer system. 

Finally, UEFA will now enjoy privileged access to the highest level of the EU’s executive branch. This is akin to an ‘all you can eat’ lobbying ticket to defend its interests and views. UEFA may have a central function in the organization of European football, but, it is not the UN, States have no say in its policies, nor have the people which are directly affected by them.[6] There is no good reason to confer a special political status to UEFA, especially taking into account that, as a private government, it refuses to give a real institutional voice to some of its most prominent “citizens”: the players, the clubs or the fans. By doing so, the Commission risks cutting itself from the other legitimate voices of football and losing sights of its duty to defend the European general interest as a whole. 

Did the outgoing European Commission rush to cash-in on a visual accolade from Michel Platini? One is left to wonder. For all these substantial political concessions, the European Commission won only the meagre promise that “UEFA will collaborate in the context of the planned European Week of Sport, using football to promote healthy physical activity”. Such an Arrangement could have potentially made sense, if the European Commission would have imposed in return certain governance standards on UEFA (real stakeholders participation, transparency requirements etc…), or conditioned its signature to the full implementation of the recently agreed (and not even mentioned in the Arrangement) European social dialogue agreement for professional football players. 

In short, with this Arrangement the European Commission capitulated politically in front of UEFA. Such a capitulation need not take a legally binding form; its political meaning is enough. It is a sad day for European Sports Law and for those keen on democratizing the governance of football and on subjecting it to the rule of law. One can only hope that, as it has done in the past, the Court of Justice will be willing to supplant the Commission in defending the European general interest and the rights of athletes.

[1] Article 17(1) TEU reads as follows: “The Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union. It shall execute the budget and manage programmes. It shall exercise coordinating, executive and management functions, as laid down in the Treaties. With the exception of the common foreign and security policy, and other cases provided for in the Treaties, it shall ensure the Union's external representation. It shall initiate the Union's annual and multiannual programming with a view to achieving interinstitutional agreements.”

[2] On the scope of the notion of « Legitimate expectations » in EU administrative Law, see P. Craig, EU Administrative Law, OUP, 2012, pp. 567-570

[3] For an early discussion of soft law in the framework of EU law see : F. Snyder, ‘The effectiveness of European Community Law : Institutions, Processes, Tools and Techniques’, Modern Law Review, vol.56, 1993, 19-56, p.32-35

[4] L. Senden, Soft law in European Community Law, Hart Publishing, 2004 ; O. Stefan, Soft Law in Court : Competition Law, State Aid and the Court of Justice of the EU, Kluwer, 2013.

[5] The recent Pechstein decision by the Landgericht München highlighted this lack of consent from the part of the athlete. See the decision at www.openjur.de/u/678775.html

[6] On the need to distinguish between its factual capacity to create legal rules and its legitimacy to do so, see A. Duval, ‘Lex Sportiva : A playground for transnational law’ available at http://ssrn.com/abstract=2317826

Graph 1: Number of Cases submitted to CAS (CAS Satistics)

The Court of Arbitration for Sport (CAS) is a fairly recent construct. It was created in 1984 under the patronage of IOC’s former president Juan Antonio Samarranch. However, as is evident from Graph 1, it gained prominence only at the turn of the century and reached the symbolic 100 cases/year bar only in 2003. This recent boom of the CAS docket is mainly due to the adoption of the WADA code and the introduction thereafter of binding arbitration clauses in the statutes and regulations of Sports Governing Bodies. Nowadays, CAS is dealing with a caseload of more than 350 cases/year, which is still growing constantly. From 2008 onwards CAS started even to experience pending cases, as it was not able anymore to process all the cases submitted in one calendar year (Graph 2). The steep fall of “other decisions” (Graph 3), a proxy for decisions (mostly on procedural matters) not involving an award, might indicate that the litigants and their lawyers have become more proficient in CAS procedure. Finally, the number of cases withdrawn (Graph 4) has been varying a lot, without it being possible to pin down any definitive cause explaining those variations. It is, however, notable that more than 2/3 of the cases give way to an award.

Graph 2: Percentage of the cases resulting in an Award/Opinion vs. Percentage of pending cases (Data CAS Statistics)

Graph 3: Percentage of Procedures terminated by a CAS decision other than an award (Data CAS statistics)

Graph 4: Percentage of Cases withdrawn before a decision by the CAS (Data CAS statistics)

The breakdown of the way cases were submitted to CAS (Graph 5) highlights very well the paramount role played by the 1994 reform process triggered by the Gundel ruling of the Swiss Federal Tribunal in 1993. Indeed, it is this reform process which enabled the final recognition of CAS as an independent tribunal by the Swiss Federal Tribunal, a move necessary to ensure the legitimacy of its awards. But, it is also the process through which the appeal procedure of CAS got solidified and became highly valuable in the eyes of Sports Governing Bodies. In light of the Bosman case and the perceived need for a global anti-doping Court, CAS became both a recourse to protect the sporting autonomy and a mean to ensure a harmonized anti-doping playing field. Thus it is not surprising that with the entry into force of the first World Anti-Doping Code in 2004 a huge jump in the number of CAS cases under the appeal procedure can be observed (Graph 5), passing from 46 in 2003 to 252 in 2004 and growing to 301 in 2012. In the meantime, the ordinary procedure cases have been stable with 61 cases in 2003 and 62 in 2012. CAS’s success is largely the success of the appeal procedure, but this appeal procedure seems potentially threatened after the recent Pechstein decision of the Landesgericht München. Furthermore, since 1996 ad hoc CAS proceedings have been introduced. At first only for Olympic games (every two-year) and more recently for other international competitions. However, the caseload of the ad-hoc tribunals remains modest, the peak was reached at the Sydney Olympic in 2000 with 15 cases, since then Ad-hoc tribunals have been in the shadow of the prominent place taken by the Appeal Procedure.

Graph 5: Types of procedure (Ordinary Procedure, Appeal Procedure, Consultation Procedure and Ad-Hoc Procedure) under which cases were submitted to CAS since 1995. (Data CAS statistics)

Finally, our last Graph 6 shows that the boom of the number of CAS awards has quite logically triggered a steep rise in the number of appeals against those awards submitted to the Swiss Federal Tribunal. Indeed, starting from one or two decisions per year in the early 2000s, the Swiss Federal Tribunal is now adopting more than 15 rulings per year on appeal of CAS awards. However, very few of these decisions have overruled CAS awards, moreover once an award is overruled it is usually sent back to CAS to decide de novo on the case, thus giving it the opportunity to correct any procedural mistake leading to the annulment of the first award. This appeal procedure is therefore rather a mock procedure; an appellant has very little chances to succeed. In fact, it is only recently that in a case concerning a CAS award (the Matuzalem case), the Swiss Federal Tribunal considered, for the first time, an arbitral award as contradicting Swiss material public policy. The route to the Swiss Federal Tribunal might be the most obvious to any athlete wishing to contest a CAS award, but it is definitely a very difficult (and costly) one, leaving very few reasons to hope for a final twist.

Graph 6: Number of Decisions of the Swiss Federal Court in Appeal against CAS awards. (Data ASSER)

This report on the Court of Arbitration for Sport was aimed at fleshing out the intuition of sports lawyers on the importance taken by CAS in contemporary sports law practice with some “hard” data illustrating both the temporal and quantitative shifts of the CAS relevance. The rise of the CAS needed to be statistically deconstructed and analysed in order to fully grasp the role it plays in the governance of sports. Furthermore, its interaction with state courts, and in particular with the Swiss Federal Tribunal, deserves close scrutiny. In many instances the Swiss Federal Tribunal is the sole forum of review for CAS awards. This is particularly true for athletes, which have usually been forced, in one way or another, to submit to arbitration. Thus, the debates around the legitimacy and role of CAS in sports governance can only gain from an enhanced knowledge of the empirical reality underlying the Court of Arbitration for sport.

Indicative Bibliography on CAS:

A. Rigozzi, Arbitrage International en matière de sport

A. Rigozzi, Challenging Awards of the Court of Arbitration for Sport

G. Kaufmann-Kohler Arbitration at the Olympics – Issues of Fast-Track Dispute Resolution and Sports Law

M. Maisonneuve, Arbitrage des litiges sportifs

I.S. Blackshaw, J. Soek, R. Siekmann  (Eds.), The Court of Arbitration for Sport 1984–2004

R. H. McLaren, Twenty-Five Years of the Court of Arbitration for Sport: A Look in the Rear-View Mirror

D. Yi, Turning Medals into Metal: Evaluating the Court of Arbitration for Sport as an International Tribunal

The CAS Database of awards

The CAS Bulletin

The Swiss Federal tribunal database (French and German)