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

FIFA's Responsibility for Human Rights Abuses in Qatar – Part II: The Zurich Court's Ruling - By Tomáš Grell

Editor’s note: Tomáš Grell comes from Slovakia and is currently an LL.M. student in Public International Law at Leiden University. He contributes also to the work of the ASSER International Sports Law Centre as a part-time intern.

This is a follow-up contribution to my previous blog on FIFA's responsibility for human rights abuses in Qatar published last week. Whereas the previous part has examined the lawsuit filed with the Commercial Court of the Canton of Zurich ('Court') jointly by the Dutch trade union FNV, the Bangladeshi Free Trade Union Congress, the Bangladesh Building and Wood Workers Federation and the Bangladeshi citizen Nadim Shariful Alam ('Plaintiffs') against FIFA, this second part will focus on the Court's ruling dated 3 January 2017 ('Ruling').[1]  More...



FIFA's Responsibility for Human Rights Abuses in Qatar - Part I: The Claims Against FIFA - By Tomáš Grell

Editor’s note: Tomáš Grell comes from Slovakia and is currently an LL.M. student in Public International Law at Leiden University. He contributes also to the work of the ASSER International Sports Law Centre as a part-time intern.

On 2 December 2010, the FIFA Executive Committee elected Qatar as host of the 2022 FIFA World Cup ('World Cup'), thereby triggering a wave of controversies which underlined, for the most part, the country's modest size, lack of football history, local climate, disproportionate costs or corruption that accompanied the selection procedure. Furthermore, opponents of the decision to award the World Cup to the tiny oil-rich Gulf country also emphasized the country's negative human rights record.

More than six years later, on 3 January 2017, the Commercial Court of the Canton of Zurich ('Court') dismissed the lawsuit filed against FIFA[1] jointly by the Dutch trade union FNV, the Bangladeshi Free Trade Union Congress, the Bangladesh Building and Wood Workers Federation and the Bangladeshi citizen Nadim Shariful Alam ('Plaintiffs').[2] The Plaintiffs requested the Court to find FIFA responsible for alleged human rights violations of migrant workers in connection with the World Cup in Qatar. Had the Plaintiffs' claims been upheld by the Court, such decision would have had far-reaching consequences on the fate of thousands of migrants, mostly from India, Nepal and Bangladesh, who are currently working on the construction of sporting facilities and other infrastructure associated with organization of the World Cup. More...

Doyen vs. Sporting II: The Bitter End of Sporting’s Fight at the Swiss Federal Supreme Court. By Shervine Nafissi

Editor’s Note: Shervine Nafissi (@SNafissi) is a Phd Student in sports law and teaching assistant in corporate law at University of Lausanne (Switzerland), Faculty of Business and Economics (HEC).

 

Introduction

The factual background

The dispute concerns a TPO contract entitled “Economic Rights Participation Agreement” (hereinafter “ERPA”) concluded in 2012 between Sporting Lisbon and the investment fund Doyen Sports. The Argentine player was transferred in 2012 by Spartak Moscow to Sporting Lisbon for a transfer fee of €4 million. Actually, Sporting only paid €1 million of the fee while Doyen Sports financed the remaining €3 million. In return, the investment company became the owner of 75% of the economic rights of the player.[1] Thus, in this specific case, the Portuguese club was interested in recruiting Marcos Rojo but was unable to pay the transfer fee required by Spartak Moscow, so that they required the assistance of Doyen Sports. The latter provided them with the necessary funds to pay part of the transfer fee in exchange of an interest on the economic rights of the player.

Given that the facts and circumstances leading to the dispute, as well as the decision of the CAS, were fully described by Antoine Duval in last week’s blog of Doyen vs. Sporting, this blog will solely focus on the decision of the Swiss Federal Supreme Court (“FSC”) following Sporting’s appeal against the CAS award. As a preliminary point, the role of the FSC in the appeal against CAS awards should be clarified.More...

Doyen vs. Sporting I: Doyen’s Pyrrhic Victory at the CAS

At the end of December 2015, the CAS decided on a very public contractual dispute between Sporting Clube de Portugal Futebol SAD (Sporting) and Doyen Sports Investments Limited (Doyen). The club was claiming that Doyen’s Economic Rights Participation Agreement (ERPA) was invalid and refused to pay Doyen’s due share on the transfer of Marcos Rojo to Manchester United. The dispute made a lot of noise (see the excellent coverage by Tariq Panja from Bloomberg here, here and here) as it was the first TPO case heard by the CAS after FIFA’s ban. Yet, and it has to be clear from the outset, the case does not affect the legality of FIFA’s TPO ban; it concerned only the compatibility of Doyen’s ERPA with Swiss civil law. The hearing took place in June 2015, but the case was put under a new light by the football leaks revelations unveiled at the end of 2015 (see our blog from December 2015). Despite these revelations, the CAS award favoured Doyen, and was luckily for us quickly made available on the old football leaks website. This blog will provide a commentary of the CAS decision. It will be followed in the coming days by a commentary by Shervine Nafissi on the judgment, on appeal, by the Swiss Federal Tribunal. More...

UEFA’s Financial Fair Play Regulations and the Rise of Football’s 1%

On 12 January 2017 UEFA published its eighth club licensing benchmarking report on European football, concerning the financial year of 2015. In the press release that accompanied the report, UEFA proudly announced that Financial Fair Play (FFP) has had a huge positive impact on European football, creating a more stable financial environment. Important findings included a rise of aggregate operating profits of €1.5bn in the last two years, compared to losses of €700m in the two years immediately prior to the introduction of Financial Fair Play.



Source: UEFA’s eighth club licensing benchmarking report on European football, slide 107.


 Meanwhile the aggregate losses dropped by 81% from €1.7bn in 2011 to just over €300m in 2015.More...




International and European Sports Law – Monthly Report – January 2017. By Saverio Spera.

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

The Diarra ruling of the Tribunal of Charleroi

On 19 January 2017, the Hainaut Commercial Tribunal – Charleroi rendered its decision on the lawsuit filed by the football player Lassana Diarra against FIFA and the Belgian FA (URBSFA) for damages caused by not being able to exercise the status of a professional football player during the entire 2014/2015 season. The lawsuit is linked to the decision, rendered by the FIFA Dispute Resolution Chamber (DRC) on April 2015, to support Lokomotiv’s decision to terminate the player’s contract and to order Diarra to pay Lokomotiv the amount of EUR 10,500,000 for having breached his contract. According to the plaintiff, Diarra’s opportunity to be recruited by Sporting Charleroi was denied due to the club being potentially considered jointly liable for Diarra’s compensation pursuant to Article 17 (2) RSTP. The Belgian court held strongly that “when the contract is terminated by the club, the player must have the possibility to sign a new contract with a new employer, without restrictions to his free movement”. This case highlighted, once again, the need to read the RSTP in the light of EU law. Moreover, the decision is laying further ground for broader challenges to the RSTP on the basis of EU law (for a deeper insight into the Diarra ruling, see the recent blog written by our senior researcher Antoine Duval) More...


Introducing the new legal challenges of E-Sports. By N. Emre Bilginoglu

Editor’s Note: Emre Bilginoglu[1] is an attorney in Istanbul and the co-founder of the Turkish E-Sports Players Association, a non-profit based in Istanbul that aims to provide assistance to professional gamers and to work on the relevant laws affecting them. 


The world is witnessing the rise of a new sport that is growing at an incredible speed: E-Sports. We are only starting to understand its legal implications and challenges.

In recent years, E-Sports has managed to attract thousands of fans to arenas to see a group of people play a video game. These people are literally professional gamers (cyber athletes)[2] who make money by competing in tournaments. Not all video games have tournaments in which professional players compete against each other.

The most played games in E-Sports competitions are League of Legends (LoL), Defense of the Ancients 2 (DotA 2) and Counter-Strike: Global Offensive (CS:GO). LoL and DotA are both Multiplayer online battle arena (MOBA) games, a genre of strategy video games in which the player controls a single character in one of two teams. The goal of the game is to destroy the opponent’s main structure. CS:GO is a first-person shooter (FPS) game, a genre of video games where the player engages combat through a first-person perspective. The main objective in CS:GO is to eliminate the opposing team or to terrorize or counter-terrorize, planting bombs or rescuing hostages. Other games that have (popular) E-Sports competitions include Starcraft II (real time strategy), Hearthstone (collectible card video game), Call of Duty (FPS) and FIFA (football).

The gaming requires cooperation between team players, a high level of concentration, rapid reactions and some seriously fast clicking. E-Sports is a groovy term to describe organized competitive computer gaming. The E-Sports industry is exponentially growing, amounting to values expressed in billions of dollars. According to Newzoo, a website dedicated to the collection of E-Sports data, there are some 250 million occasional viewers of E-Sports with Asia-Pacific accounting for half of the total amount. The growth of the industry is indubitably supported by online streaming media platforms. This article aims to explain what E-Sports is and to give the readers an insight on the key legal questions raised by it. More...


Time for Transparency at the Court of Arbitration for Sport. By Saverio Spera

Editor’s Note: Saverio Spera is an Italian lawyer and LL.M. graduate in International Business Law from King’s College London. He is currently an intern at the ASSER International Sports Law Centre.


The time is ripe to take a closer look at the CAS and its transparency, as this is one of the ways to ensure its public accountability and its legitimacy. From 1986 to 2013, the number of arbitrations submitted to the CAS has grown from 2 to more than 400 a year. More specifically, the number of appeals submitted almost doubled in less than ten years (from 175 in 2006, to 349 in 2013[1]). Therefore, the Court can be considered the judicial apex of an emerging transnational sports law (or lex sportiva).[2] In turn, the increased authority and power of this institution calls for increased transparency, in order to ensure its legitimacy.[3]

More...


UEFA’s betting fraud detection system: How does the CAS regard this monitoring tool? By Emilio García.

Editor’s note: Emilio García (emilio.garcia@uefa.ch)  is a doctor in law and head of disciplinary and integrity at UEFA. Before joining UEFA, he was the Spanish Football Federation’s legal director (2004–12) and an arbitrator at the CAS (2012–13).In this blog, Emilio García provides a brief review of a recent case before the Court of Arbitration for Sport (CAS): Klubi Sportiv Skënderbeu v UEFA (CAS 2016/A/4650)[1], in which he acted as main counsel for UEFA. 


Sport and match-fixing – A quick overview

Match-fixing is now legally defined as “an intentional arrangement, act or omission aimed at an improper alteration of the result or the course of a sports competition in order to remove all or part of the unpredictable nature of the aforementioned sports competition with a view to obtaining an undue advantage for oneself or for others”.[2] It has been said that there has always been match-fixing in sport.[3] From the ancient Olympic Games to the most important global sports competitions of today, manipulation of results has always been an all-too-frequent occurrence.

We have seen a number of very prominent instances of this kind of issue over the years. One of the most remarkable examples, which was even the subject of a film,[4] was the match-fixing episode during the 1919 World Series, where several players from the Chicago White Sox were found guilty of accepting bribes and deliberately losing matches against the Cincinnati Reds.[5]

The situation has changed considerably since then. In particular, the globalisation of the sports betting industry has had a massive impact, with recent studies estimating that between €200bn and €500bn is betted on sport every year.[6] Match-fixing does not just affect football either;[7] it is also affecting other sports, most notably tennis.[8] More...


Asser International Sports Law Blog | Stepping Outside the New York Convention - Practical Lessons on the Indirect Enforcement of CAS-Awards in Football Matters - By Etienne Gard

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

Stepping Outside the New York Convention - Practical Lessons on the Indirect Enforcement of CAS-Awards in Football Matters - By Etienne Gard

Editor’s Note: Etienne Gard graduated from the University of Zurich and from King's College London. He currently manages a project in the field of digitalization with Bratschi Ltd., a major Swiss law firm where he did his traineeship with a focus in international commercial arbitration.

1. Prelude

On the 10th of June, 1958, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, widely known as the “New York Convention”, was signed in New York by 10 countries.[1] This rather shy figure progressively grew over the decades to now reach 157 signatory countries, turning the New York Convention into the global recognition and enforcement instrument it is today. As V.V. Veeder’s puts it, “One English law lord is said to have said, extra judicially, that the New York Convention is both the Best Thing since sliced bread and also whatever was the Best Thing before sliced bread replaced it as the Best Thing.”[2]

However, among the overall appraisal regarding the New York Convention, some criticisms have been expressed. For instance, some states use their public policy rather as a pretext not to enforce an award than an actual ground for refusal.[3]  A further issue is the recurring bias in favor of local companies.[4] Additionally, recognition and enforcement procedures in application of the New York Convention take place in front of State authorities, for the most part in front of courts of law, according to national proceeding rules. This usually leads to the retaining of a local law firm, the translation of several documents, written submissions and one, if not several hearings. Hence, the efficiency of the New York Convention as a recognition and enforcement mechanism comes to the expense of both money and time of both parties of the arbitral procedure.

In contrast with the field of commercial arbitration, where the New York Convention is often considered the only viable option in order to enforce an award, international football organizations, together with the Court of Arbitration for Sport (“CAS”), offer an effective enforcement alternative. This article aims at outlining the main features of the indirect enforcement of CAS awards in football matters in light of a recent case.

2.  Facts of the Case

The dispute at hand involved a football club affiliated with the United Arab Emirates Football Association (“UAEFA”) and a player’s agent. The club at hand owed a commission to the agent following the completion of a player’s transfer. The agent ultimately won the case before the CAS and the latter awarded him monetary compensation against the football club.

Shortly thereafter, means of enforcement against the club were sought.

It is widely recognized that the awards rendered by the CAS do qualify as awards under the New York Convention and may thus be subject to the classic enforcement provided therein.[5]

Whilst this is to be welcomed because it offers alternatives to the prevailing party seeking recognition and enforcement of the arbitral award, the following will show that another route exists, which may prove just as effective whilst saving both time and money.

Indeed, though the United Arab Emirates did ratify the New York Convention, the general critics mentioned above also applied in the case at hand. This meant that going down the route of direct enforcement against the UAE-based football club would have had several drawbacks. First, the translation workload in order to comply with the local procedural rules was significant. Second, since the recognition procedure was due to take place in front of national courts, a local law firm would have had to be retained. Finally, there was no clear timeline as to when exactly the due compensation would effectively be paid.

3. The Indirect Enforcement

Luckily, the world of football organizations provides for an alternative path, which proved to be highly effective at hand. Indeed, as a result of the deep-rooted integration of CAS and of its decisions in effectively all organizational layers of national and international football, the New York Convention is not the only global enforcement mechanism available to a prevailing party in that field. Although it requires to take steps outside that Convention and, as a result, of the entire ‘state-supported’ enforcement system, the indirect enforcement described below nonetheless proves to be a viable alternative for parties involved in football-related arbitration.

3.1 The Statutory Basis of Indirect Enforcement

It all starts with art. 15 para. 1 let. f of the FIFA Statutes which stipulates that the statutes of the member associations shall ensure that, inter alia, all relevant stakeholders must agree to recognize the jurisdiction and authority of CAS.[6] Art. 23 para. 1 let. f provides for a similar obligation with regard to the confederations’ statutes.[7]

Pursuant to art. 61 para. 1 of the Statutes of the Asian Football Confederation (“AFC”), to which the UAEFA is a member, the AFC recognizes the CAS to resolve disputes between, inter alia, clubs and intermediaries.[8] Further, according to art. 62 para. 1 of said Statutes, the member associations, among which the UAEFA, shall agree to recognize CAS as an independent judicial authority and to ensure that their members and clubs comply with the decisions passed by CAS. Any violation of these provisions will trigger a sanction on the breaching party, according to art. 62 para. 3 of the AFC Statutes.

Finally, art. 19 para. 4 of the UAEFA Statutes provides that each club, upon application for affiliation, shall provide a declaration whereas it undertakes to accept and implement the decisions rendered by the CAS.[9]

In light of the above, the rules of football organizations put in place a terraced indirect enforcement mechanism regarding CAS awards, whereas each club undertakes to comply with such awards vis-à-vis its home association, each such association being in turn similarly obligated vis-à-vis FIFA and its own Confederation. The latter finally has the duty to ensure that its affiliated associations recognize the authority of CAS, thereby closing the loop.

The broad sanction mechanism at every stage leaves considerable discretionary powers to the competent bodies in order to appropriately pressure the breaching stakeholder, on whichever link in the chain the latter may be, into complying with CAS decisions.

3.2 The Indirect Enforcement Procedure

The FIFA Statutes do not provide for any particular body directly tasked with the enforcement of CAS awards against FIFA’s affiliates and their stakeholders. Nor is there any particular procedure enshrined in the FIFA Statues as to how the indirect enforcement of CAS awards shall take place. In particular, art. 64 FIFA Disciplinary Code only applies to CAS decisions in appeal arbitration proceedings regarding the decisions of FIFA and not to CAS decisions rendered in an ordinary arbitration procedure.[10]

However, art. 45 of the FIFA Statutes does provide that the Member Associations Committee shall deal with relations between FIFA and its member associations as well as the member associations’ compliance with the FIFA Statutes. The same is true at the level of the AFC, whereas art. 54 of its Statutes provide that the Associations Committee shall be responsible for relations between the AFC and its Member Associations as well as Member Association’s compliance with FIFA and AFC Statutes and Regulations.

In other words, both at FIFA and AFC level, a standing committee is responsible for ensuring that the Members comply with the applicable statutes and thus, inter alia, with awards rendered by CAS.

Based on the above, we concluded that in order for the competent FIFA and AFC standing committees to examine the case of a club not complying with a CAS award, they needed to be first convinced that (i) a final and binding CAS award had been rendered against a club affiliated with a member association and that (ii) such club refused to comply with said award. Second, the above-mentioned committees would need to be shown that the national football association has been notified of such occurrence and been asked to take appropriate actions against the club according to its own statutes.

From this point in time onwards, the FIFA and AFC standing committees will have been notified that a member’s association has been asked to remedy a matter of non-compliance of an affiliated club with a CAS award and thus such association is now under a statutory obligation to ensure compliance from the club, as described above, or else may itself be found to have breached the FIFA and/or AFC Statutes and sanctioned accordingly.

4. Epilogue and Conclusion

Shifting the focus back to the case that prompted the idea of this blog, once the route leading to indirect enforcement was mapped, we proceeded with gathering the evidence needed, i.e. that the CAS award was final and binding upon the football club.

Section 193 of the Swiss Private International Law Act – which applies to international CAS proceedings – enables the parties to request an enforceability certificate from the competent state court regarding an award rendered by an international arbitral tribunal with its seat in Switzerland. This document certifies that the award in question is final and that no appeal can be filed against it. In the case of the CAS, the state court competent for the issuance of an enforceability certificate is the Tribunal cantonal, in Lausanne.

Once this certificate was obtained, we filed it together with a copy of the award to the competent national association, the UAEFA, urging the latter in writing to request from the club that it complied with the CAS award, or else the club would be sanctioned. Both the competent standing committees of the FIFA and of the AFC received a copy of that letter.

From this moment onwards, the machinery of the indirect enforcement mechanism was switched on and we knew that leverage existed at every level, up until FIFA, to ensure that each stakeholder, be it the UAEFA or the AFC, pressures its affiliated bodies, and, ultimately, the club, into complying with the CAS award.

In the case at hand, this method proved to be successful. Indeed, as a result of the aforementioned steps, the AFC promptly contacted the UAEFA, requesting this matter to be solved and the football agent received the awarded compensation from the club within a few weeks after the UAEFA, the AFC and the FIFA were notified as described above.

This case shows how operating outside the New York Convention can prove both cost- and time-effective. When used properly, the indirect sanction mechanism put in place by football organizations proves to be a proper alternative to classic enforcement proceedings and shall in any event be considered as a viable option under similar circumstances.


[1] Flannery/Merkin, Arbitration Act 1996, 5th Ed., Oxon, 2014, p. 356.

[2] V.V. Veeder, Is There a Need to Revise the New York Convention - Key note speech, in: ‘The Review of International Arbitration Awards – IAI Forum’, International Arbitration Institute, 2008, p. 183 et sqq., p. 186.

[3] V.V. Veeder, p. 191.

[4] Gaillard, ‘The Urgency of Not Revising the New York Convention’, in: The New York Convention at 50, 2008, p. 689 et seqq., p. 690.

[5] Nafziger/Ross, Handbook on International Sports Law, Edward Elgar 2011, p. 40; Rubno-Sammartano, International Arbitration Law and Practice, 3rd Ed., JurisNet, 2014, p.1709; Nolon, Arbitration and the Olympic Athlete, in: McCann, ‘The Oxford Handbook of American Sports Law’, OUP 2017, p. 444.

[6]Art. 15 para. 1 let. f of the FIFA statutes reads as follows: “Member associations’ statutes must comply with the principles of good governance, and shall in particular contain, at a minimum, provisions relating to the following matters: […] all relevant stakeholders must agree to recognise the jurisdiction and authority of CAS and give priority to arbitration as a means of dispute resolution […].

[7] Art. 23 para. 1 let. f of the FIFA statutes reads as follows: “The confederations’ statutes must comply with the principles of good

governance, and shall in particular contain, at a minimum, provisions relating to the following matters

[8] Art. 61 para 1 of the Asian Football Confederation Statutes reads as follows: “The AFC recognises the independent Court of Arbitration for Sport (CAS) with headquarters in Lausanne (Switzerland) to resolve disputes between the AFC and the other Confederations, Member Associations, Leagues, Clubs, Players, Officials, Intermediaries and licensed match agents.”

[9] Art 19 para 4 of the UAEFA Statutes reads as follows (tentative translation): “Each applicant should provide the following documents: […] A declaration that it will to accept and implement the resolutions and decisions issued by the Court of Arbitration for sport in Lausanne (CAS).”

[10] Art. 64  para 1 of the FIFA Disciplinary Code  reads as follows (emphasis added): “Anyone who fails to pay another person (such as a player, a coach or a club) or FIFA a sum of money in full or part, even though instructed to do so by a body, a committee or an instance of FIFA or a subsequent CAS appeal decision (financial decision), or anyone who fails to comply with another decision (nonfinancial decision) passed by a body, a committee or an instance of FIFA, or by CAS (subsequent appeal decision): […].”

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