Asser International Sports Law Blog

Editor's note: Conor Talbot is a Solicitor at LK Shields Solicitors in Dublin and an Associate Researcher at Trinity College Dublin. He can be contacted at ctalbot@tcd.ie, you can follow him on Twitter at @ConorTalbot and his research is available at www.ssrn.com/author=1369709. This piece was first published on the humanrights.ie blog.

Sport is an integral part of the culture of almost every nation and its ability to shape perceptions and influence public opinion should not be underestimated. The United Nations has highlighted the potential for using sport in reducing discrimination and inequality, specifically by empowering girls and women. Research indicates that the benefits of sport include enhancing health and well-being, fostering empowerment, facilitating social inclusion and challenging gender norms.

In spite of the possible benefits, the successful implementation of sport-related initiatives aimed at gender equity involves many challenges and obstacles. Chief amongst these is the way that existing social constructs of masculinity and femininity — or socially accepted ways of expressing what it means to be a man or woman in a particular socio-cultural context — play a key role in determining access, levels of participation, and benefits from sport. This contribution explores recent developments in the interaction between transgender and intersex rights and the multi-billion dollar industry that the modern Olympic Games has become. Recent reports show that transgender people continue to suffer from the glacial pace of change in social attitudes and, while there has been progress as part of a long and difficult journey to afford transgender people full legal recognition through the courts, it seems clear that sport could play an increasingly important role in helping change or better inform social attitudes.More...

Footballleaks is now operating since nearly half a year and has already provided an incredible wealth of legal documents both on TPO (and in particular Doyen’s contractual arrangements) and on the operation of the transfer system in football (mainly transfer agreements, player contracts and agents contracts). This constant stream of information is extremely valuable for academic research to get a better grip on the functioning of the transfer market. It is also extremely relevant for the shaping of public debates and political decisions on the regulation of this market. As pointed out on the footballleaks website, it has triggered a series of press investigations in major European news outlets.

In this blog, I want to come to a closure on our reporting on Doyen’s TPO deals. In the past months, we have already dealt with the specific cases of FC Twente and Sporting Lisbon, reviewed Doyen’s TPO deals with Spanish clubs, as well as discussed the compatibility of the TPO ban with EU law. In the Sporting Lisbon case, Doyen has since earned an important legal victory in front of the CAS (the ensuing award was just published by Footballleaks). This victory should not be overstated, however, it was not unexpected due to the liberal understanding of the freedom of contract under Swiss law. As such it does not support the necessity of TPO as an investment practice and does not threaten the legality (especially under EU law) of FIFA’s ban.

In our previous blogs on Doyen’s TPO deals we decided to focus only on specific deals, Twente and Sporting Lisbon, or a specific country (Spain). However, nearly six months after the whole footballleaks project started, we can now provide a more comprehensive analysis of the TPO deals signed by Doyen. Though, it is still possible that other, yet unknown, deals would be revealed, I believe that few of Doyen’s TPO agreements are still hidden. Thanks to footballleaks, we now know how Doyen operates, we have a precise idea of its turnover, its return on investments and the pool of clubs with which it signed a TPO agreement. Moreover, we have a good understanding of the contractual structure used by Doyen in those deals. This blog will offer a brief synthesis and analysis of this data.More...

Update: On 14 April footballleaks released a series of documents concerning Sporting de Gijón. Therefore, I have updated this blog on 19 April to take into account the new information provided.

Doyen Sports’ TPO (or TPI) model has been touted as a “viable alternative source of finance much needed by the large majority of football clubs in Europe". These are the words of Doyen’s CEO, Nélio Lucas, during a debate on (the prohibition of) TPO held at the European Parliament in Brussels last January. During that same debate, La Liga’s president, Javier Tebas, contended that professional football clubs, as private undertakings, should have the right to obtain funding by private investors to, among other reasons, “pay off the club’s debts or to compete better”. Indeed, defendants of the TPO model continuously argue that third party investors, such as Doyen, only have the clubs’ best interests in mind, being the only ones capable and willing to prevent professional football clubs from going bankrupt. This claim constitutes an important argument for the defendants of the TPO model, such as La Liga and La Liga Portuguesa, who have jointly submitted a complaint in front of the European Commission against FIFA’s ban of the practice.[1]

The eruption of footballleaks provided the essential material necessary to test this claim. It allows us to better analyse and understand the functioning of third party investment and the consequences for clubs who use these services. The leaked contracts between Doyen and, for example, FC Twente, showed that the club’s short term financial boost came at the expense of its long-term financial stability. If a club is incapable of transferring players for at least the minimum price set in Doyen’s contracts, it will find itself in a financially more precarious situation than before signing the Economic Rights Participation Agreement (ERPA). TPO might have made FC Twente more competitive in the short run, in the long run it pushed the club (very) close to bankruptcy.

More than four months after its launch, footballleaks continues to publish documents from the football world, most notably Doyen’s ERPAs involving Spanish clubs.More...

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.

Marine Montejo is a graduate from the College of Europe in Bruges and is currently an Intern at the ASSER International Sports Law Centre.

The Headlines

The Belgian Court of Appeal released its judgment this month regarding Doyen’s legal battle against the FIFA TPO ban. The Appeal Court confirmed the first instance decision and ruled out any provisional measures to block the ban’s implementation (for an in depth review, see our blog post). More importantly, the Court reaffirmed that Swiss based sport federations are liable in front of EU Members’ States courts when EU competition law is involved. That means the next important step for this legal battle is whether or not the European Commission is going to open a formal proceeding (Doyen already lodged a complaint) to assess the compatibility, and more importantly, the proportionality of the TPO ban with EU law. Only a preliminary ruling by the CJEU could hasten the decision if one of the European national courts, hearing a case brought by Doyen (France or Belgium), decided to refer a preliminary question.More...

Since last year, Doyen Sports, represented by Jean-Louis Dupont, embarked on a legal crusade against FIFA’s TPO ban. It has lodged a competition law complaint with the EU Commission and started court proceedings in France and Belgium. In a first decision on Doyen’s request for provisory measures, the Brussels Court of First Instance rejected the demands raised by Doyen and already refused to send a preliminary reference to the CJEU. Doyen, supported by the Belgium club Seraing, decided to appeal this decision to the Brussels Appeal Court, which rendered its final ruling on the question on 10 March 2016.[1] The decision (on file with us) is rather unspectacular and in line with the first instance judgment. This blog post will rehash the three interesting aspects of the case.

· The jurisdiction of the Belgian courts

· The admissibility of Doyen’s action

· The conditions for awarding provisory measures More...

The Headlines

The eagerly awaited FIFA Presidential elections of 26 February provided for a “new face” at the pinnacle of international football for the first time since 1998. One could argue whether Infantino is the man capable of bringing about the reform FIFA so desperately needs or whether he is simply a younger version of his predecessor Blatter. More...

Editor’s note: Professor Mitten is the Director of the National Sports Law Institute and the LL.M. in Sports Law program for foreign lawyers at Marquette University Law School in Milwaukee, Wisconsin. He currently teaches courses in Amateur Sports Law, Professional Sports Law, Sports Sponsorship Legal and Business Issues Workshop, and Torts. Professor Mitten is a member of the Court of Arbitration for Sport (CAS), and has served on the ad hoc Division for the XXI Winter Olympic Games in Sochi, Russia.

This Book Review is published at 26 Marquette Sports Law Review 247 (2015).

This comprehensive treatise of more than 700 pages on the Code of the Court of Arbitration for Sport (CAS) (the Code) is an excellent resource that is useful to a wide audience, including attorneys representing parties before the CAS, CAS arbitrators, and sports law professors and scholars, as well as international arbitration counsel, arbitrators, and scholars. It also should be of interest to national court judges and their law clerks because it facilitates their understanding of the CAS arbitration process for resolving Olympic and international sports disputes and demonstrates that the Code provides procedural fairness and substantive justice to the parties, thereby justifying judicial recognition and enforcement of its awards.[1] Because the Code has been in existence for more than twenty years—since November 22, 1994—and has been revised four times, this book provides an important and much needed historical perspective and overview that identifies and explains well-established principles of CAS case law and consistent practices of CAS arbitrators and the CAS Court Office. Both authors formerly served as Counsel to the CAS and now serve as Head of Research and Mediation at CAS and CAS Secretary General, respectively, giving them the collective expertise and experience that makes them eminently well-qualified to research and write this book.More...

Editor’s note: Our first innovation for the year 2016 will be a monthly report compiling 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

The world of professional sport has been making headlines for the wrong reasons in January. Football’s governing body FIFA is in such a complete governance and corruption mess that one wonders whether a new President (chosen on 26 February[1]) will solve anything. More recently, however, it is the turn of the athletics governing body, IAAF, to undergo “the walk of shame”. On 14 January the WADA Independent Commission released its second report into doping in international athletics. More...

This post offers a basic literature review on publications on international and European sports law in 2015. It does not have the pretence of being complete (our readers are encouraged to add references and links in the comments under this blog), but aims at covering a relatively vast sample of the 2015 academic publications in the field (we have used the comprehensive catalogue of the Peace Palace Library as a baseline for this compilation). When possible we have added hyperlinks to the source.^{^[1]}

Have a good read. More...

2015 was a good year for international sports law. It started early in January with the Pechstein ruling, THE defining sports law case of the year (and probably in years to come) and ended in an apotheosis with the decisions rendered by the FIFA Ethics Committee against Blatter and Platini. This blog will walk you through the important sports law developments of the year and make sure that you did not miss any. More...

Rumours are swirling around the decision (available in French here) of the Court of Appeal of Brussels in the case opposing RFC Seraing United to FIFA (as well as UEFA and the Belgian Football Federation, URSBFA) over the latter’s ban on third-party ownership. The headlines in various media are quite dramatic (see here and here), references are made to a new Bosman, or to a shaken sport’s legal system. Yet, after swiftly reading the decision for the first time on 29th August, I did not have, unlike with the Pechstein ruling of the Oberlandesgericht München, the immediate impression that this would be a major game-changer for the Court of Arbitration for Sport (CAS) and the role of arbitration in sports in general. After careful re-reading, I understand how certain parts of the ruling can be misunderstood or over-interpreted. I believe that much of the press coverage failed to accurately reflect the reasoning of the court and to capture the real impact of the decision. In order to explain why, I decided to write a short Q&A (including the (not water-proof) English translations of some of the key paragraphs of the decision).

1. What is the case about?

RFC Seraing United (hereinafter Seraing) has, since the adoption of FIFA’s ban on third-party ownership, been at the forefront of a legal crusade against the ban (as I have explained on this blog I personally believe the ban is legitimate and compatible with EU law). The club has fought the ban tooth and nail at the CAS (the award is here) and later at the Swiss Federal Tribunal (the translation of the ruling is available here), in both instances unsuccessfully. It is now challenging before the Belgian courts the sanctions that were imposed by FIFA, confirmed by the CAS award, and enforced by the URSBFA. For this protracted and expensive legal campaign, RFC Seraing enjoys the backing of Doyen, the infamous investment firm at the centre of the football leaks scandal. The 29th August decision is the last episode in this saga and the first that has been widely portrayed as a big win for RFC Seraing.

2. What are the findings of the decision?

So, why is it widely reported as a win for Seraing? This is because the Court of Appeal considered itself competent to hear the case and disregarded the objections (in particular the claim that a valid CAS arbitration clause existed) raised by FIFA, UEFA and the URSBFA regarding its jurisdiction. However, the Court also refused to send a request for a preliminary ruling to the Court of Justice of the European Union, a long-standing demand of Seraing’s lawyers.

3. Why did the Belgium court find that the CAS arbitration clause invoked by FIFA & Co is invalid?

The core of the reasoning (found at §13 to §15 of the decision) on the validity of the CAS arbitration clause included in FIFA’s statutes turns on whether it aims at a « defined legal relationship », a prerequisite for the validity of arbitration clauses under Belgium law and the New York Convention. In laymen terms: if the clause is too general and does not provide a clear definition of the scope of disputes it covers, then it is invalid. Unlike reported in many outlets, the focus is not directly on the free consent to CAS arbitration, and the Court of Appeal does not declare the clause contrary to EU law or the ECHR on this basis, but on the vague nature of the CAS arbitration clause enshrined in the FIFA Statutes and its incompatibility with Belgian law.

In the case of Seraing, the clause invoked by FIFA was by reference, meaning that the reference of Seraing’s statutes to its compliance with the statutes of FIFA (at the time of initiating the proceedings the 2015 FIFA Statutes), which include an arbitration clause, was supposed to constitute a valid agreement to arbitrate the present dispute. Yet, as the Court of Appeal points out, the FIFA statutes are rather vague with regard to the nature of the disputes that are to be arbitrated. In fact, article 66.1 FIFA Statutes (2015 edition) provides simply that « FIFA recognises the independent Court of Arbitration for Sport (CAS) with headquarters in Lausanne (Switzerland) to resolve disputes between FIFA, Members, Confederations, Leagues, Clubs, Players, Officials, intermediaries and licensed match agents ». Moreover, the Court of Appeal also refers to article 59.1 and 2 FIFA Statutes (presumably this time 2018 edition) that does not allow recourse to national courts unless provided by FIFA rules. It concludes that based on these provisions, « the submission to arbitration is provided in general for all disputes between certain parties, including FIFA, UEFA, URBSFA and football clubs (including RFC Seraing), but without any precisions or indications with regard to the legal relationship affected ». Hence, « the intention of the drafters of this clause is clearly to capture all types of disputes between the designated parties, turning it into a general clause, which cannot be found applicable as it does not constitute an arbitration clause recognised under Belgian law ».

FIFA submitted that the type of disputes governed by the arbitration clause were necessarily limited to the social objective of FIFA and that the CAS’s competence was limited to « sporting » disputes. But the Court of Appeal countered that the former limit remains too vague to find that the clause targets a « defined legal relationship ». It further deemed that the restriction to « sporting » disputes was not included in the clause and that the CAS could independently decide to amend the scope of the disputes that fall under its competences. It also rejected the view of the URBFSA that the clause was limited to disputes concerning « the statutes, regulations, directives and decisions of the URBFSA, FIFA and UEFA ». And, it refused to consider that the article 38.2. of Seraing’s statutes, providing that « [E]very arbitral dispute with a foreign dimension, susceptible of being subjected to the international bodies of FIFA and concerning the statutes, regulations, directives of FIFA, will be submitted to its internal arbitral bodies », constitutes a valid CAS arbitration clause as it refers to FIFA’s internal arbitral bodies (even though no such arbitral bodies exist in practice).

A flurry of other less convincing arguments raised by the defendants were also dismissed by the Court, which came to the conclusion that the clause invoked did not aim at a defined legal relationship and could therefore not be considered an arbitration clause in the sense of articles 1681 and 1682, §1 of the Judicial Code. There is, however, no indication that the Court of Appeal fundamentally objects to FIFA, UEFA or the URSBFA imposing that certain disputes be dealt with by the CAS. Crucially, the emphasis is on certain: what the Belgian court criticized is the general all-inclusive wording of the current FIFA Statutes.

4. What are the immediate consequences of this invalidity for FIFA and the CAS?

For Seraing, the consequences are vital, any other finding would have put an abrupt end to its case before the Belgian court. Now, it will have the right to argue its case in front of the Court of Appeal in October, and this is a victory in itself. Yet, beyond Seraing, the systemic effects are in my view far less far-reaching than highlighted in the media. FIFA was never immune from challenges by clubs (and other football stakeholders). It was, for example, repeatedly attacked in front of the European Commission on competition law grounds. Moreover, clubs, such as the SV Wilhelmshaven, were already challenging the implementation of CAS awards confirming FIFA sanctions in national courts. In this regard, there is nothing new under the sun. Finally, the Court of Appeal has not excluded that it would accept a reformulated CAS arbitration clause with a better-defined scope (such as one that would narrow it down only to disputes arising out of the regulations and decisions of FIFA).

In practice, not much should change with the Seraing ruling. FIFA will continue to hand out its decisions sanctioning clubs circumventing its rules. The Swiss courts, which are under the Lugano Convention primarily competent to hear challenges to the decisions of a Swiss association, will continue to enforce the CAS arbitration clauses by reference as they have always done, and clubs will, therefore, continue to have to go through CAS arbitration (or they will have to wait to be sanctioned by their national associations to initiate proceedings in front of national courts). Furthermore, from a strategic point of view, few clubs (unless they are desperate like SV Wilhelmshaven and/or backed by an external funder such as Seraing) will be interested in starting a multi-year litigation odyssey in national courts to challenge FIFA (or any other sports governing body, SGB). The same is true for athletes (let’s remind that Claudia Pechstein is bankrupt and still far from having won her case). Doing otherwise would mean being ostracized from professional football for many years, something very few clubs (and athletes) can afford. Thus, while the Seraing judgment confirms that going to national courts is an option that is available to clubs challenging FIFA, it does not affect the general governance context of global football (and sports in general) that remains extremely unfavorable to litigation in national courts. Challenging FIFA in national courts was never out of question, it was (and remains) just very costly and very unlikely to succeed, and Seraing has changed this state of affairs only at the margin.

5. Why do I think Pechstein is more important than Seraing?

As pointed out, the Seraing case might encourage a re-writing of FIFA’s statutes and reminded us that CAS arbitration clauses cannot cover any and every dispute that can arise between SGBs and clubs (or athletes), but it stops there and does not challenge the institutional structure of the CAS, nor its centrality in the global governance of sport. The Pechstein ruling of the OLG München was more interesting in this regard, as it was addressing the core institutional problems of the CAS. These are not related to the voluntary nature of CAS arbitration (I personally think there are good reasons to bind athletes and clubs to CAS arbitration even against their will). Instead, the critical focus should be on CAS’s structure as a judicial institution that is not legitimated like any other arbitral tribunal by autonomous free consent, but by public interests (e.g. the neutral governance of global sports, the worldwide fight against doping or the regulation of the transnational labour market in football). Thus, CAS’s function and legitimacy must lie primarily in its role as an independent counter-power to the transnational private authority exercised by SGBs. It is, therefore, crucial that its independence from the SGBs be submitted to more stringent control than it currently is (see our paper with Ben Van Rompuy on this question). The OLG München recognized it in its Pechstein ruling, but the BGH failed to appreciate this profoundly constitutional question and the importance of at the same time saving forced CAS arbitration and challenging the current set-up of the CAS. The Pechstein case is now pending at the German Constitutional Court and should be decided relatively soon (but the German press recently reported that there is still no date for a hearing). The fact that the Constitutional Court has accepted to take the case on its docket is already a sign of its skepticism towards the BGH’s decision. If we want to see a ground-breaking, earth-shattering, revolutionizing new Bosman we better turn our heads towards Karlsruhe, the winds of change in sport justice might come from there...

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