Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Statement on the European Commission's ISU Decision by Ben Van Rompuy and Antoine Duval

Editor's note: We (Ben Van Rompuy and Antoine Duval) are at the origin of today's decision by the European Commission finding that the International Skating Union's eligibility rules are contrary to EU competition law. In 2014, we were both struck by the news that ISU threatened lifetime ban against speed skaters wishing to participate in the then projected Icederby competitions and convinced that it was running against the most fundamental principles of EU competition law. We got in touch with Mark and Niels and lodged on their behalf a complaint with the European Commission. Three years after we are pleased to see that the European Commission, and Commissioner Vestager in particular, fully embraced our arguments and we believe this decision will shift the tectonic structure of sports governance in favour of athletes for years to come.


Here is our official statement:

Today is a great day for Mark Tuitert and Niels Kerstholt, but more importantly for all European athletes. The European Commission did not only consider the International Skating Union's eligibility rules contrary to European law, it sent out a strong message to all international sports federations that the interests of those who are at the centre of sports, the athletes, should not be disregarded. This case was always about giving those that dedicate their lives to excelling in a sport a chance to compete and to earn a decent living. The majority of athletes are no superstars and struggle to make ends meet and it is for them that this decision can be a game-changer.

However, we want to stress that this case was never about threatening the International Skating Union’s role in regulating its sport. And we very much welcome the exceptional decision taken by the European Commission to refrain from imposing a fine which could have threatened the financial stability of the International Skating Union. The International Skating Union, and other sports federations, are reminded however that they cannot abuse their legitimate regulatory power to protect their economic interests to the detriment of the athletes.

We urge the International Skating Union to enter into negotiations with representatives of the skaters to devise eligibility rules which are respectful of the interests of both the athletes and their sport.

Since the summer of 2014, it has been our honour to stand alongside Mark and Niels in a 'David versus Goliath' like challenge to what we always perceived as an extreme injustice. In this fight, we were also decisively supported by the team of EU Athletes and its Chance to Compete campaign.

Finally, we wish to extend a special thank you to Commissioner Vestager. This case is a small one for the European Commission, but Commissioner Vestager understood from the beginning that small cases do matter to European citizens and that European competition law is there to provide a level playing for all, and we are extremely grateful for her vision.


Dr. Ben Van Rompuy (Leiden University) and Dr. Antoine Duval (T.M.C. Asser Instituut)

A Good Governance Approach to Stadium Subsidies in North America - By Ryan Gauthier

Editor's Note: Ryan Gauthier is Assistant Professor at Thompson Rivers University in Canada. Ryan’s research addresses the governance of sports organisations, with a particular focus on international sports organisations. His PhD research examined the accountability of the International Olympic Committee for human rights violations caused by the organisation of the Olympic Games.


Publicly Financing a Stadium – Back in the Saddle(dome)

Calgary, Canada, held their municipal elections on October 16, 2017, re-electing Naheed Nenshi for a third term as mayor. What makes this local election an interesting issue for sports, and sports law, is the domination of the early days of the campaign by one issue – public funding for a new arena for the Calgary Flames. The Flames are Calgary’s National Hockey League (NHL) team, and they play in the Scotiabank Saddledome. More...




Illegally obtained evidence in match-fixing cases: The Turkish perspective - By Oytun Azkanar

Editor’s Note: Oytun Azkanar holds an LLB degree from Anadolu University in Turkey and an LLM degree from the University of Melbourne. He is currently studying Sports Management at the Anadolu University.

 

Introduction

On 19 October 2017, the Turkish Professional Football Disciplinary Committee (Disciplinary Committee) rendered an extraordinary decision regarding the fixing of the game between Manisaspor and Şanlıurfaspor played on 14 May 2017. The case concerned an alleged match-fixing agreement between Elyasa Süme (former Gaziantepspor player), İsmail Haktan Odabaşı and Gökhan Sazdağı (Manisaspor players). The Disciplinary Committee acknowledged that the evidence relevant for proving the match-fixing allegations was obtained illegally and therefore inadmissible, and the remaining evidence was not sufficient to establish that the game was fixed. Before discussing the allegations, it is important to note that the decision is not only significant for Turkish football but is also crucial to the distinction between disciplinary and criminal proceedings in sports. More...

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

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

International and European Sports Law – Monthly Report – October 2017. By Tomáš Grell

Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked. More...

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

 

Introduction 

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

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

Editor’s note: Tomáš Grell holds an LL.M. in Public International Law from Leiden University. He contributes to the work of the ASSER International Sports Law Centre as a research intern.

 

Introduction

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


International and European Sports Law – Monthly Report – September 2017. By Tomáš Grell

Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

 

The Headlines 

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

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

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

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

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

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

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

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



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

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

Asser International Sports Law Blog | Resolution of Disputes Arising From Football Contracts in Turkey. By N. Emre Bilginoglu

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Resolution of Disputes Arising From Football Contracts in Turkey. By N. Emre Bilginoglu

Editor’s note: N. Emre Bilginoglu[1] is a lawyer based in Istanbul. His book entitled “Arbitration on Football Contracts” was published in 2015.


Introduction

With a total market value of approximately 911 million EUR, the Turkish Super League ranks as one of the prominent football leagues in Europe. Five of the eighteen teams that make up half of the total market value are based in Istanbul, a busy megalopolis that hosts a population of fifteen million inhabitants.[2] As might be expected, the elevated market value brings forth a myriad of disputes, mainly between the clubs and the players. However, other crucial actors such as coaches and agents are also involved in some of the disputes. These actors of the football industry are of all countries, coming from various countries with different legal systems.

One corollary of rapid globalisation is the development of transnational law, which is quite visible in the lex sportiva.[3] Like foreign investors, foreign actors of the sports industry look for some legal security before signing a contract. FIFA does protect these foreign actors in some way, providing players and coaches legal remedies for employment-related disputes of an international dimension. But what if the legal system of the FIFA member association does not provide a reasonable legal remedy for its national actors?[4]

That is why lawyers who are involved in sports related disputes have to guide their law-makers in improving their legal systems after thoroughly examining the dispute resolution mechanisms of other countries. Arbitration is indeed growing exponentially as a method of dispute resolution.[5] The renowned alternative dispute resolution is especially preferred in disputes arising from sports contracts, where both a rapid and a confidential resolution is of the essence.[6]  However, some legal systems oblige the parties of a sports related dispute to resolution by arbitration whereas some legal systems do not. This article gives the reader an insight about resolution of disputes arising from football contracts in Turkey. 


Turkish Method of Dispute Resolution

In August 2015, the Turkish Football Federation made certain changes in its Statute and guidelines. Since those changes, disputes arising from contracts between football clubs, players, coaches and agents are resolved within the Turkish Football Federation Dispute Resolution Board (“UCK”).[7] Therefore, applying to State courts for these disputes (the previous way of resolving disputes) is now impossible, which is a substantial legal issue.

Article 59 of the Turkish Constitution states that disputes related to sports administration and disciplinary matters should be resolved by mandatory arbitration.[8] Decisions of these kinds cannot be appealed to any court of the judiciary. The scope of this article does not include employment related disputes. Article 9 of the Constitution declares that judicial power shall be exercised by independent courts. However, courts do not have jurisdiction to hear disputes arising from football contracts because of the regulations of the Turkish Football Federation. Kelsen’s hierarchy of laws is indeed upside down, alas, the current practice without a proper legal basis is the actual practice. It does not seem like a change is scheduled in the near future, given that many are grateful for the rapid resolution of disputes.

The UCK consists of a “Board of Presidents” and arbitrators. It carries out a simple arbitration process and it involves two arbitrators and a UCK official. The applicant is responsible for the application fee (3% of the disputed amount) and paying the arbitrators' fees, which are decided by UCK (between about 450 and 1500 Euros per arbitrator). The UCK decides within four months (they have the right to extend the time limit for a month based on justified grounds). The decision of the UCK may be appealed to the Turkish Football Federation Appeals Board. However, this appeal does not obstruct the enforcement of the award. Although the statute of the Turkish Football Federation recognizes the competence of CAS, it also declares that the decisions rendered by the Appeals Board cannot be reviewed by CAS.[9]

Decisions of the UCK are not published. Decisions of the Arbitral Tribunal are published without reasoning. Hence, it is impossible to know both the facts of the case and how the arbitral tribunal reached a verdict. This negatively impacts the predictability of the UCK and the Arbitral Tribunal.

The proper composition of the UCK is an important condition for fair and equitable proceedings.[10] Arbitrators are nominated by the Foundation of the Clubs, the Association of Football Players and the Association of Coaches. These three institutions may nominate up to 25 arbitrators each. However, the Turkish Football Federation board of directors appoints the arbitrators from the list of nominees, thus casting a shadow on the independence and the impartiality of the arbitral tribunal, which are crucially important for the right to a fair trial.[11] There are numerous links between the UCK, the Arbitral Tribunal and the Turkish Football Federation. The Federation finances the UCK and the Arbitral Tribunal, can modify the Statutes of the UCK and the Arbitral Tribunal and it appoints the arbitrators of the UCK and the members of the Arbitral Tribunal. The current formation of the UCK resembles CAS before Gundel reforms.

Sporting sanctions and training compensations are also within the scope of the UCK.[12] Decisions of the UCK may only be appealed to Arbitral Tribunal of the Turkish Football Federation. The lack of a judicial review for these decisions is disconcerting. I believe the involvement of the Swiss Federal Tribunal in the CAS process could serve as a good model. CAS decisions may be appealed to the Swiss Federal Tribunal but there is no court in Turkey to appeal to once the Arbitral Tribunal decides on the matter. A general court or the Turkish Court of Cassation must review the decisions of the Arbitral Tribunal regarding disputes on football contracts. Decisions of the Arbitral Tribunal related to sports administration and disciplinary matters are accurately not appealable, as stated by Article 59 of the Constitution. However, Article 59 of the Constitution does not include personal actions. Article 9 of the constitution declares that the judicial power shall be exercised by independent courts. The right to access to courts that is granted by the Constitution cannot be breached by an amendment of the Turkish Football Federation. Therefore, courts are wrong for denying jurisdiction for disputes arising from football contracts. 


Players

The rights and obligations between clubs and players are determined by an employment agreement.[13] In Turkey, labour courts have jurisdiction on disputes arising from employment agreements. However, the Turkish Labour Code does not apply to players, thus surprisingly excluding the jurisdiction of labour courts for disputes regarding them. Article 4 of the Labour Code states that the Code does not apply to athletes. The reason behind this exclusion is not to grant certain rights and benefits to athletes, such as severance payments. Before the amendments of August 2015 came into force, disputes regarding players were resolved in general courts, not labour courts. The debate whether general courts or labour courts have jurisdiction is now obsolete, as the players have to apply to the UCK for the disputes arising from football contracts.

The FIFA DRC adjudicates on cases regarding employment related disputes between a club and a player of an international dimension, therefore foreign players do not have to apply to the UCK. In a case of dual citizenship (the player was British/ Turkish), CAS awarded that someone who benefits from Turkish citizenship should also accept its possible burdens, thus refusing jurisdiction.[14]

Arbitration is indubitably more preferable compared to courts for players. The UCK decides within four months and the decision is enforced by the Turkish Football Federation right away. This promptitude surely provides an advantage for players. Nevertheless, arbitrators’ fees are a hefty burden for destitute amateur players or pro players of the third league. On the contrary, application fees that are three percent of the disputed amount is a supernumerary amount for high earning players. High arbitration cost is a concern, as it is strictly related to right of access to courts. Costs should not victimize the plaintiff. 


Coaches

The FIFA PSC adjudicates on disputes between a club and a coach of an international dimension. Turkish coaches working in Turkey do not have that option. Before the implementation of the mandatory arbitration, labour courts had jurisdiction over the disputes arising from employment agreements of coaches. As of August 2015, coaches may only apply to the UCK for disputes arising from their contracts.

The Turkish Super League clubs do not prefer stability with regard to their coaches, as only one team in the league started the 2016-2017 season with the same coach for the third consecutive year. Coaches seem content with the rapid resolution of their contractual disputes and the confidentiality provided by arbitration, however, arbitrators within UCK are seldom appointed by them.


Agents

The FIFA Regulations on the Status and Transfer of Players state that the PSC has no jurisdiction to hear any contractual dispute involving intermediaries. Agents, foreign or not, have to apply to the UCK for disputes arising from their contracts. This is overall problematic for agents, because they do not have any say on the appointment of arbitrators. Therefore, the independence and the impartiality of the UCK is suspicious, especially for agents. It is highly recommended for foreign agents to work with Turkish lawyers doing business in Turkey. If not, they will have to hire one at some point.  


Conclusion

Arbitration does truly offer a structure that is football-oriented and more aware of the realities of modern football, as stated in the preamble of FIFA NDRC Standard Regulations. “National” arbitration of football related disputes is evolving. The fact that this is genuinely a developing method of dispute resolution should encourage practitioners to improve their national legal systems. Practitioners and those who are in the football business may quite easily benefit from such improvement because it would only influence the business positively. In the Turkish context I would advise the following:

First, decisions not regarding disputes related to sports administration and disciplinary matters of the Arbitral Tribunal should be appealable. This would provide the right to access to courts, as granted by the Constitution.

Second, the independence and the impartiality of the UCK is still a problematic issue that needs to be tackled. The UCK should not be within the structure of the Turkish Football Federation. The process of the appointment of arbitrators should be revised. Clubs, players, coaches and agents must have an equal say on the matter.

The current Turkish system is preferable compared to everlasting court process. Four months to receive an award and the assurance of the enforcement of the award by the Turkish Football Federation is quite encouraging. Mandatory arbitration of UCK is very recent and hopefully the novel system will evolve to fulfil the criteria of FIFA.



[1] Nurettin Emre Bilginoglu, LLM, Attorney-at-law

 Istanbul, Turkey

 e-mail: emre@caglayanyalcin.com

[2] http://www.transfermarkt.com/super-lig/startseite/wettbewerb/TR1

[3] Duval (2013) Lex Sportiva: a playground for transnational law. Eur Law J 19:822-842.

[4] Preamble of the FIFA National Dispute Resolution Chamber Standard Regulations points at this issue:

 “Currently, only a limited number of member associations have a national dispute resolution chamber or a body structured along similar lines that fulfils the criteria of article 22 paragraph b) of the Regulations on the Status and Transfer of Players. This means that the vast majority of international employment-related disputes fall within the jurisdiction of the FIFA Dispute Resolution Chamber and that the majority of “national” cases may not find appropriate solutions.”

[5] See Ashford (2014) Handbook on International Commercial Arbitration. JurisNet LLC, New York and Karton (2013) The Culture of International Arbitration and the Evolution of Contract Law. Oxford University Press, Oxford.

[6] See Rigozzi (2005) L’arbitrage international en matière de sport. Helbing & Lichtenhahn, Basel.

[7] See Eksi N (2015) Spor Tahkim Hukuku. Beta, Istanbul and Bilginoglu N (2015) Resolution of Disputes Arising From Football Contracts. Beta, Istanbul.

[8] Artıcle 59- The State shall take measures to develop the physical and mental health of Turkish citizens of all ages, and encourage the spread of sports among the masses. The State shall protect successful athletes. (Paragraph added on March 17, 2011; Act No. 6214) The decisions of sport federations relating to administration and discipline of sportive activities may be challenged only through compulsory arbitration. The decisions of Board of Arbitration are final and shall not be appealed to any judicial authority.

[9] “…the TFF Statutes and the Turkish Football Law expressly exclude any appeal against national arbitral tribunals’ decisions, i.e. against such a decision like the Appealed Decision which is the object of the present case. The particular trumps the general. Therefore the argument of the Player that he has an express right of appeal to the CAS under the TFF Statutes must be rejected.” See CAS 2010/A/1996 Omer Riza v. Trabzonspor Kulübü Dernegi & Turkish Football Federation (TFF).

[10] CAS 2015/A/4172 Association of Unions of Football Players and Coaches v. Football Union of Russia.

[11] Although the formation of the arbitral tribunal was different, see CAS 2006/O/1055 Del Bosque, Grande, Miñano Espín & Jiménez v/ Besiktas. For European Court of Human Rights decisions, see Terra Woningen B.V. v. Netherlands, Application N:     20641/92, Date: 17/12/1996; Tsfayo v. UK, Application N: 60860/00, Date: 14/11/2006.

[12] See de Weger (2016) The Jurisprudence of the FIFA Dispute Resolution Chamber, T.M.C. Asser Press for extensive information on sporting sanctions and training compensations.

[13] De Weger (2016) p. 132; For the German practise, see Frodl C (2016) Neuer, Hummels, Muller, Gotze & Co: the legal framework governing industrial relations in German professional football, Int Sports Law J (2016) 16:3–21.

[14] CAS 2010/A/1996 Omer Riza v. Trabzonspor Kulübü Dernegi & Turkish Football Federation (TFF). 

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