The editor’s note:

Two weeks ago we received the unpublished CAS award rendered in the Eskişehirspor case and decided to comment on it. In this post Thalia Diathesopoulou (Intern at the ASSER International Sports Law Centre) analyses the legal steps followed and interpretations adopted by CAS panels in this case and in a series of other Turkish match-fixing cases. The first part of the post will deal with the question of the legal nature of the ineligibility decision opposed by UEFA to clubs involved in one way or another into match-fixing and with the personal and material scope of UEFA’s rule on which this ineligibility is based. The second part is dedicated to the procedural rules applied in match-fixing cases.

Introduction

The unpredictability of the outcome is a sine qua non feature of sports. It is this inherent uncertainty that draws the line between sports and entertainment and triggers the interest of spectators, broadcasters and sponsors. Thus, match-fixing by jeopardising the integrity and unpredictability of sporting outcomes has been described, along with doping, as one of the major threats to modern sport.[1] 

It does not come as a surprise, therefore, that the fight against match-fixing has been elevated over the past years to a general interest issue, being also included in European Commission’s Agenda on sports as a priority. The urge to protect the integrity of sport, has stimulated the adoption by sports-governing bodies, and especially UEFA and FIFA, of regulations specifically intended to combat match-fixing. The evolution of UEFA Disciplinary Regulations (UEFA DR) in the last 10 years has been remarkable: it follows a path from a broad capture of match-fixing conduct by reference to the general values of loyalty, integrity and sportsmanship[2] in the 2004 version, to the explicit - first ever- reference to the offence of match-fixing in the revised 2013 edition.[3]

In this context, the CAS has been called to implement these rules in a series of match-fixing cases. Especially Turkey’s unprecedented match-fixing scandal in 2011 led to a series of important CAS awards tackling match-fixing. The latest episode of this Turkish series was written on 2 September 2014: following Fenerbahçe and Besiktas, it was Eskişehirspor’s turn to face a CAS ruling on a match-fixing related case.

CAS jurisprudence on match-fixing being in its infancy, the approach of the CAS panels towards procedural, evidentiary and matters of substance in match-fixing disputes is still uncertain. Considering the magnitude of the match-fixing threat and the CAS role as a ‘cartographer’ of the so called lex sportiva, it is worthwhile to monitor the emerging trends of CAS on these integrity-related issues. This blog series will, therefore, use the Turkish cases as a vehicle in order to build a legal roadmap in match-fixing cases and shed light on four issues that have been extensively addressed in recent CAS jurisprudence: the qualification of the legal nature of the measure of ineligibility as a result of a Club’s involvement in match-fixing, the scope of application of this measure, the standard of proof to be applied and, finally, the admissibility of evidence in match-fixing cases

Particularly, two substantial problems that emerged in match-fixing disputes, i.e. the legal qualification of the match-fixing related measure of ineligibility under Article 2.08 of the UEL Regulations as administrative or disciplinary measure (1) and the scope of application of Article 2.08 (2), will constitute the axes of this first blog series. 

The 2011 Turkish match-fixing series in brief

In the summer of 2011, following Turkish’s police investigation into 19 football matches suspected of being fixed, 61 individuals were arrested, including club managers and Turkish national players. Fenerbahçe, Besiktas and Eskişehirspor were connected with match-fixing allegations in domestic tournaments in 2011.

Istanbul giant Fenerbahçe was at the epicentre of this match-fixing scandal, with its Chairman, Aziz Yildirim, being convicted by Istanbul’s 16^th High Criminal Court of establishing and leading a criminal organisation, which rigged four games and offered payments to players or rival clubs to fix three others. Particularly, among other matches, it was found that under the leadership of the then President of Fenerbahçe, match-fixing agreements were made for the matches of Eskişehirspor against Fenerbahçe and Eskişehirspor against Trabzonspor dating from 9 April 2011 and 22 April 2011 respectively. The Eskişehirspor head coach and the player were found guilty for match-fixing in the match with Trabzonspor and were sentenced to imprisonment. Furthermore, the High Criminal Court convicted Besiktas’ Officials of match-fixing activities with regard to the Final Cup played between Besiktas and Istanbul BB on 11 May 2011.

As a result of this alleged match-fixing involvement Fenerbahçe was banned by the Turkish Football Federation (TFF) from participating in the 2011-2012 CL. Later on, the 25 July 2013, Fenerbahçe was found ineligible by the UEFA Appeals Body (UAB) to participate in the next two UEFA club competitions including the 2013/14 UEFA CL, since it could not comply with the UEFA Champions League (UEL) admission requirements. Similarly, Besiktas and Eskişehirspor, in 2013 and 2014 respectively, were considered by the UAB ineligible to participate in the next UEL season, on the grounds of a breach of the UEL admission criteria and particularly of Article 2.08.

A next round of proceedings was brought before the CAS. On 28 and 30 August 2013, the CAS rejected Fenerbahçe’s and Besictas’ appeals.[4] One year later, on 2 September 2014, Eskişehirspor faced the same fate. Interestingly enough, the Eskişehirspor panel was the first CAS panel to deal with the sanction of a club victim of a match-fixing arrangement.

The outcome of the Turkish cases is not necessarily surprising. The CAS practice has been consistently embracing the UEFA zero tolerance policy against match-fixing. However, the legal reasoning followed by CAS to reach a similar outcome differs significantly fostering legal uncertainty in the match-fixing context. At this point, therefore, this blog post will attempt to map the reasoning of the CAS over the following thorny issues which were particularly raised in the Turkish cases: the legal nature of the measure of ineligibility under Article 2.08 of the UEL Regulations (1) and the scope of application of Article 2.08 (2).   

Qualifying Article 2.08 UEL Regulations: administrative measure or disciplinary sanction?

At a first glance, the question of the legal nature of the ineligibility measure of Article 2.08 is rather theoretical, but it also bears important practical implications. The identification of the legal nature of Article 2.08 as administrative or disciplinary determines ‘how this measure shall be applied and under which legal principles’.[5] In other words, the characterization of the measure of Article 2.08 as a disciplinary one may trigger the application of UEFA Disciplinary regulations, including the strict liability principle and the possibility of issuance of a probationary period. Before proceeding with our analysis, it should be pointed out that the Fenerbahçe case, deals with the legal nature of Article 2.05 UEFA Champions League Regulations (UCLR). However, since the wording of Article 2.05 UCLR and Article 2.08 UELR is exactly the same, the panel’s findings are transposable.

When qualifying the legal nature of the ineligibility measure in match-fixing disputes, the Fenerbahçe,Besiktas and Eskişehirspor panels used as a landmark the well-established distinction between administrative acts and disciplinary measures.[6] This is the common point of reference for the three cases, which thereafter differentiates in the interpretation of the ineligibility measure.

In the first case, the Fenerbahçe panel introduced the idea of a ‘two stage process’ in match-fixing disputes: the first stage encompasses an administrative measure, akin to a preliminary minimum sanction, while the second stage is a disciplinary measure, imposing an additional sanction. Thereafter, in a surprising twist the CAS declared the inherent disciplinary nature of the administrative measure of ineligibility, since the subject matter of Article 2.08 is ‘the imposition of a sanction’. According to this panel, the minimum sanction serves the legitimate interest of UEFA to exclude a club from European competitions with immediate effect, while additional sanctions can be imposed if the circumstances so justify. However, this interpretation creates a paradox in that it blurs the lines between acts of administrative and disciplinary nature, a distinction well entrenched in CAS case law.

The Besiktas case adds to the legal uncertainty with regard to the legal nature of the ineligibility measure. According to this panel and contrary to the assessment in the Fenerbahçe case, Article 2.08 UELR does not have a sanctioning character, even if it excludes a club from UEFA competition. This argument is based on the wording of Article 50 (3) UEFA Statutes which, by referring to the ineligibility measure as a measure imposed ‘without prejudice to any possible disciplinary measures’, implicitly excludes its sanctioning nature.

This contradictory interpretation of the ineligibility measure by the previous panels triggered the concerns of the Eskişehirspor panel, which aimed to put an end to the legal uncertainty surrounding the definition of the legal nature of Article 2.08. Therefore, the CAS proceeded for the first time with an extensive analysis of the legal nature of Article 2.08. First of all, the CAS recognized the existence of a double regulatory regime in match-fixing cases: an administrative measure aiming at preventing match-fixing, laid down in Articles 2.05 UCL or 2.07, 2.08 of UEL Regulations and Article 50.3 of the UEFA Statutes 2008, and a disciplinary measure enshrined in the Disciplinary Regulations, specifically at Art 5.2j of the UEFA Disciplinary Regulations (DR) 2008. While this distinction seems to be inspired by the ‘two stage process’ elaborated in the Fenerbahçe case, this panel went a step further by drawing a clear line between measures of administrative and disciplinary character. After having clarified this distinction between measures of different legal nature and effect, the panel concluded that the measure of ineligibility of Article 2.08 is of a purely administrative nature. This assessment is based on an interpretation of Articles 2.09 UEL Regulations and Article 50.3 of the UEFA Statutes 2008 similar to the one adopted in the Besiktas case: both provisions refer to the automatic administrative application of the measure of ineligibility, leaving the door open for potential additional disciplinary measures ‘if the circumstances so justify’. Furthermore, the CAS noted that the administrative measure of Article 2.08 has a broad scope of application encompassing ‘any activity aimed at arranging or influencing the outcome of the match’, as compared to the disciplinary offence which in line with its sanctioning character is more restrictive.

Thereafter, the panel highlighted the consequences to be drawn from this qualification. As a result of the pure administrative nature of Article 2.08, the legal principles usually applicable to disciplinary measures are considered irrelevant. In practice, this means that the CAS excludes the application of: a) Articles 5.2 .j. and 17.1 of UEFA DR about the evaluation of mitigating circumstances when disciplinary measures are imposed; b) Article 6 of UEFA DR imposing a strict liability system; c) Article 11 of UEFA DR about the elimination of the ineligibility measure or the issuance of a probationary period; and finally, d) the ‘nulla poena sine culpa’ principle recognized in criminal law.

This straightforward position of the CAS in the Eskişehirspor case reflects its intention to put a provisory end to the legal uncertainty with regard to the legal nature of Article 2.08 and the legal consequences it entails. Borrowing elements from the previous Turkish cases, the CAS came up with a more sophisticated and coherent interpretation of the legal nature of the ineligibility measure, an interpretation that may serve as a reliable guideline for subsequent arbitral panels dealing with match-fixing. 

The scope of application of Article 2.08 UEL Regulations

Article 2.08 UEL Regulations does not define precisely the activities of a club that is directly or indirectly involvement in match-fixing. In match-fixing disputes, therefore, the CAS has a decisive role in clarifying the scope of application of the ineligibility measure.

As far as the scope ratione materiae is concerned, the Fenerbahçe and Besiktas panels converged in a broad understanding of the scope of Article 2.08. Indeed, based on the ordinary meaning of Article 2.08 which encompasses ‘any activity aimed at arranging or influencing the outcome of a match at a national or international level’ in conjunction with the ratio legis of this provision, which reflects the zero tolerance policy of UEFA against match-fixing, the CAS considered that Article 2.08 targets not only activities directly intending to fix the outcome of a game, but also activities that may have an unlawful influence on it. In this sense, for instance, the fact that Eskişehirspor accepted a bonus from a third party, i.e. Fenerbahçe, for winning, even though it cannot be qualified as match-fixing, is influencing the outcome of the match and, therefore, falls within the scope of Article 2.08. Furthermore, the Besiktas panel offered a broad interpretation of the wording ‘aimed at’ suggesting that not only the act of match-fixing, but also an attempt falls within the broad scope of Article 2.08. Hence, the Turkish cases establish an important finding with regard to the scope of application of the ineligibility measure in match-fixing disputes: a broad interpretation of Article 2.08 is in line with UEFA’s statutory objectives and, therefore, has to be adopted.

On the other hand, with regard to the scope ratione personae of Article 2.08, the CAS panels have been inconsistent. In order to identify whose actions are attributable to the club, the Besiktas panel applied the strict liability principle enshrined in Article 6 of the 2008 UEFA Disciplinary Regulations (DR). Here, the application of UEFA DR seems to be at odds with the previous characterization of Article 2.08 as an administrative measure. By contrast, in the Eskişehirspor case, where the issue whether the actions of a coach, who is a mere employee, can be attributed to the club is raised. In that case, the panel relying on the pure administrative character of Article 2.08, rejected the application of the strict liability principle. The Eskişehirspor panel, insisting on the qualification of the measure of ineligibility as an administrative measure, suggested an entirely different, but equally broad, interpretation of the ratione personae scope of article 2.08. Indeed, it suggests a broad interpretation of the term ‘official’, an interpretation that would capture ‘every board member ….coach, trainer and any other person responsible for technical, (…) as well as other persons obliged to comply with the UEFA Statutes’. In other words, the coach has to be considered as an official in the sense of Article 2.08 and his actions were, thus, attributable to the club.

To conclude, it seems that whatever the interpretative road chosen, the scope of application rationae personae and materiae of article 2.08 will be understood broadly. Nevertheless, it would be more coherent to have such a broad interpretation rely on a stabilized legal practice and the Eskişehirspor award provides an interesting first step in this direction.

The series of Turkish cases has provided the CAS with the opportunity to frame a consistent approach in substantive matters linked to match-fixing cases. In the Eskişehirspor case, the CAS attempts to clarify its approach to match-fixing in football. Two important conclusions can be drawn: the ineligibility measure imposed by Article 2.08 UELR has a broad scope of application and, secondly, it should be qualified as having an administrative nature. As a result, disciplinary rules do not apply to match-fixing disputes involving the eligibility of a club to European competitions. Regarding certain procedural matters, however, disciplinary standards and rules do apply. This is the real Achilles’ heel of the CAS approach in match-fixing cases: how can the application of rules of different nature to substantial and procedural matters in an identical match-fixing dispute be explained? 

(To be continued)

[1] Match-fixing in sport-A mapping of criminal law provisions in EU 27,  (http://ec.europa.eu/sport/library/studies/study-sports-fraud-final-version_en.pdf), 14.

[2] CAS 2009/A/1920 FK Pobeda, Aleksandar Zabrcanec, Nikolce Zdraveski v/ UEFA, para 78.

[3] UEFA Disciplinary Regulations 2013, Article 12 ‘Integrity of matches and competitions and match-fixing’ (http://www.ecaeurope.com/Legal/UEFA%20Documents/2013_0241_Disciplinary%20Regulations%202013.pdf)

[4] CAS 2013/A/3256 Fenerbahçe Spor Kubülü v UEFA & CAS 2013/A/3258 Besiktas Jimnastik Kulübü v. UEFA

[5] CAS 2014/A/3628 Eskişehirspor Kulübü v UEFA, para 98.

[6] CAS 2007/A/1381 & CAS 2008/A/1583

Due to the legitimate excitement over the recent Pechstein ruling, many have overlooked a previous German decision rendered in the Wilhelmshaven SV case (the German press did report on the decision here and here). The few academic commentaries (see here and here) focused on the fact that the German Court had not recognized the res judicata effect of a CAS award. Thus, it placed Germany at the spearhead of a mounting rebellion against the legitimacy of the CAS and the validity of its awards. None of the commentators weighed in on the substance of the decision, however. Contrary to the Court in Pechstein, the judges decided to evaluate the compatibility of the FIFA rules on training compensations with the EU free movement rights. To properly report on the decision and assess the threat it may constitute for the FIFA training compensation system, we will first summarize the facts of the case (I), briefly explicate the mode of functioning of the FIFA training compensation system (II), and finally reconstruct the reasoning of the Court on the compatibility of the FIFA rules with EU law (III).

I.               The complex facts of the case 

In a nutshell, the case concerns the move of an Argentinean player, with an Italian passport (as probably two-third of Argentina), to SV Wilhelmshaven and the training compensation due to its former youth clubs back in Argentina. The player, born in 1987, was an amateur player with an Argentinean club called Excursionistas from 20 March 1998 to 7 March 2005 and with River Plate from 8 March 2005 until 7 February 2007. From 8 February 2007 to 30 June 2007 he signed a fixed-term professional contract with SV Wilhelmshaven, which was later extended for one more season. 

In 2007 SV Wilhelmshaven was playing in the Regional League Nord (fourth tier of German football) and was therefore considered as a club of category 3 for the purpose of the FIFA Regulations for the Status and Transfer of Players (RSTP). In June 2007, Excursionistas and River Plate initiated proceedings with the FIFA Dispute Resolution Chamber (hereafter DRC) claiming €100,000 and €60,000 respectively in training compensation. These demands were partially granted  by the DRC (River Plate obtained “only” €57,500) in two concomitant decisions (available here and here) on 5 December 2008. 

SV Wilhelmshaven decided to appeal the DRC’s decisions to the Court of Arbitration for Sport (CAS). A hearing in front of a sole arbitrator was held on 26 August 2009 and the award rendered on 5 October 2009. The arbitrator confirmed the decision of the DRC awarding the claimed compensations to both Argentinean clubs and rejected all the objections raised by SV Wilhelsmshaven.

The club, however, continued stubbornly to refuse to pay the training compensations. On 13 September 2011, FIFA’s disciplinary Committee sanctioned SV Wilhelmshaven with additional fines and imposed a payment deadline of 30 days. If the club would not respect the deadline, its first team would face a six-point penalty. In light of non-compliance with this decision, FIFA called on the DFB (German FA) to enforce the sanction and secure the payment of the fines. The DFB dutifully implemented the order: six points were deducted and the club’s financial account with the DFB was debited from the requested €21,150. However, SV Wilhelmshaven is a tough nut to crack. Despite the confirmation of the sanctions by the DFB’s internal tribunal it kept on refusing to pay the training compensations awarded by the DRC and CAS. On 15 August 2012, the FIFA asked the DFB to deduct six more points. Given that, in the meantime, the club had been relegated to a lower league, the Norddeutscher Fussball Verband was competent to implement the latest sanction instead of the DFB. It did so on 23 August 2012 and the internal tribunal of the association later confirmed the validity of this decision. In May 2013, the club decided to challenge the point deduction in front of the German courts. Meanwhile, on 5 October 2012, a new decision of FIFA’s Disciplinary Committee imposed the relegation of the club. The SV Wilhelmshaven appealed the decision to the CAS, which confirmed FIFA’s disciplinary decision on 24 October 2013 (unfortunately the relevant CAS award has not been published). Hence, FIFA asked the DFB to implement this decision. The forced relegation was definitely ratified by the board of the Norddeutscher Fussball Verband on 7 December 2013 and validated by the internal tribunal on 20 February 2014. 

The club was challenging both the six-point deduction and the forced relegation in front of the regional Court of Bremen. In first instance, the tribunal simply rejected the claims of the club and considered that the CAS award, not challenged by the club in front of the Swiss Federal tribunal, was a valid legal basis for the sanctions. The club appealed the decision to the Highest Regional Court, which in its ruling of 30 December 2014 overruled the first instance Court. Indeed, it held that the CAS award was contrary to EU law and, therefore, could not be relied upon by the Norddeutscher Fussball Verband to sanction the club (more on this arbitration dimension of the case here and here). Combined with the Pechstein ruling, this case constitutes a powerful challenge to the CAS, but it is also a challenge to FIFA’s training compensation mechanisms. It is on this latter aspect that we will focus in this blog.

II.             The FIFA RSTP’s Training Compensation System 

Let us first take a close look at FIFA’s training compensation regime enshrined in Article 20 of the latest FIFA Regulations on the Status and Transfer of Players (RSTP). It must be highlighted that the FIFA Regulations were adopted after nearly two years of negotiations between the European Commission, UEFA, FIFA and FIFPro.[1] The negotiations ended with the adoption of a set of principles as a basis for the new FIFA transfer regulation. Concerning the training compensations, the principles stipulated that “in the case of players aged under 23, a system of training compensation should be in place to encourage and reward the training effort of clubs, in particular small clubs”. 

Article 20 of the FIFA RSTP transposing this principle reads as follows:

“Training compensation shall be paid to a player’s training club(s): (1) when a player signs his first contract as a professional, and (2) each time a professional is transferred until the end of the season of his 23rd birthday. The obligation to pay training compensation arises whether the transfer takes place during or at the end of the player’s contract. The provisions concerning training compensation are set out in Annexe 4 of these regulations.”

Hence, Article 20 establishes two situations giving rise to a right to obtain a training compensation: the signing of a first professional contract and each transfer until the end of the season of the player’s 23rd birthday. The key to understanding how this duty to pay a training compensation operates in practice can only be found in the Annex 4 of the RSTP. Article 1 paragraph 1 of Annex 4 qualifies the scope of the obligation to pay a training compensation. It states that: 

“A player’s training and education takes place between the ages of 12 and 23. Training compensation shall be payable, as a general rule, up to the age of 23 for training incurred up to the age of 21, unless it is evident that a player has already terminated his training period before the age of 21. In the latter case, training compensation shall be payable until the end of the season in which the player reaches the age of 23, but the calculation of the amount payable shall be based on the years between the age of 12 and the age when it is established that the player actually completed his training.”

Pursuant to article 2 paragraph 2 of Annex 4, a training compensation is not due when “the former club terminates the player’s contract without just cause (without prejudice to the rights of the previous clubs) “, or “the player is transferred to a category 4 club”, or “a professional reacquires amateur status on being transferred”. 

To calculate the amount of training compensation due, every association member of FIFA is “to divide their clubs into a maximum of four categories in accordance with the clubs’ financial investment in training players”.[2] For each category the training costs are equivalent “to the amount needed to train one player for one year multiplied by an average “player factor”, which is the ratio of players who need to be trained to produce one professional player”.[3] The current training costs as defined by each football association for 2014 are available here. The training compensation is meant to cover “the costs that would have been incurred by the new club if it had trained the player itself”.[4] Thus it is calculated “by taking the training costs of the new club multiplied by the number of years of training, in principle from the season of the player’s 12th birthday to the season of his 21st birthday”.[5] The training costs for players for the seasons between their 12^th and 15^th birthdays, however, are always based “on the training and education costs of category 4 clubs”.[6]

Following the negotiations with the European Commission, FIFA carved out a specific provision for players moving from one association to another inside the territory of the EU (including also the EEA). This provision stipulates that “[i]f the player moves from a lower to a higher category club, the calculation shall be based on the average training costs of the two clubs”.[7] If the player moves from a higher to a lower category, “the calculation shall be based on the training costs of the lower category club”.[8] Moreover, “the final season of training [in the sense of article 1 paragraph 1 Annex 4] may occur before the season of the player’s 21st birthday if it is established that the player completed his training before that time” .[9] Finally, and maybe most importantly, “[i]f the former club does not offer the player a contract, no training compensation is payable unless the former club can justify that it is entitled
to such compensation”.[10] 

The FIFA framework applicable to training compensations is not easy to navigate and many of its provisions have been refined by the jurisprudence of the CAS and the DRC (see this blog for a synthetic assessment).[11] The compatibility of this complex regulatory construction with EU law has never been tested in front of courts (be it national or European). This makes this lawsuit so decisive. 

III.           The SV Wilhelmshaven case and the compatibility of FIFA’s training compensation system with EU law

In its Bosman ruling, the Court of Justice (hereafter CJ) held that the aim of “encouraging the recruitment and training of young players must be accepted as legitimate”.[12] It added “that the prospect of receiving transfer, development or training fees is indeed likely to encourage football clubs to seek new talent and train young players” .[13] Nevertheless, it concluded that “because it is impossible to predict the sporting future of young players with any certainty and because only a limited number of such players go on to play professionally, those fees are by nature contingent and uncertain and are in any event unrelated to the actual cost borne by clubs of training both future professional players and those who will never play professionally”.[14] Hence, receiving such fees could not be “a decisive factor in encouraging recruitment and training of young players or an adequate means of financing such activities, particularly in the case of smaller clubs”.[15] As a final nail into the coffin of training compensations, at least it was thought at that time, the Court followed its Advocate General in holding that “the same aims can be achieved at least as efficiently by other means which do not impede freedom of movement for workers”.[16] 

The FIFA training compensation system as it stands nowadays is a rebuttal to the Bosman ruling. Indeed, it pretends to do the impossible in the eyes of the Court: calculating realistically the costs of training a player in a specific club in order to offer an objective benchmark for the training compensations. Moreover, FIFA simply disregarded the proposals made by Advocate General Lenz, who suggested potential alternative financing mechanisms to support the training of players.[17] FIFA’s rules, endorsed by the EU Commission, have never been tested in front of the CJ, though it came close to it in the relatively recent Olympique Lyonnais case. Here, the Court reaffirmed that “the objective of encouraging the recruitment and training of young players must be accepted as legitimate”.[18] It also recognized that “the clubs which provided the training could be discouraged from investing in the training of young players if they could not obtain reimbursement of the amounts spent for that purpose where, at the end of his training, a player enters into a professional contract with another club”.[19] Thus, it held “that a scheme providing for the payment of compensation for training where a young player, at the end of his training, signs a professional contract with a club other than the one which trained him can, in principle, be justified by the objective of encouraging the recruitment and training of young players”.[20] However, to be proportionate, the scheme must be “taking due account of the costs borne by the clubs in training both future professional players and those who will never play professionally” .[21] In the Olympique Lyonnais case, the French system in place at the time of the dispute, and since then replaced, was deemed incompatible with EU law as the amount of the compensation was not directly correlated with the costs of training the player. Nonetheless, UEFA and FIFA were prompt to see in this judgment a “significant step forward” [22] for the compatibility of the FIFA system with EU law. The present SV Wilhelmshaven case is a good opportunity to test this assumption.

SV Wilhelmshaven had argued in front of the CAS that the FIFA RSTP was contrary to the right to free movement of workers under EU law. However, the single arbitrator rejected the applicability of EU law. Instead, relying on previous CAS awards, it held that “such argument would have been available to the individual Player, not to the Appellant”.[23] This interpretation contradicts the well-established case law of the CJ[24], as noted by the Bremen Court.[25] Moreover, the CAS also declined to recognize the applicability to the case at hand of Article 6 of the Annex 4 to the FIFA RSTP. It considered that “[t]he title of this provision clearly suggests that its scope is narrowly circumscribed within a limited geographic area, i.e. the EU/EEA territory”.[26] Furthermore, “it appears that article 6 of Annex 4 to the FIFA Regulations is nothing more than the codification of the system agreed upon by the European authorities and put into place to govern the transfer of a player moving from one association to another inside the territory of the EU/EEA”.[27] Thus, the panel sees “no reason to depart from the unambiguous wording of article 6 of Annex 4 to the FIFA Regulations, which is obviously not applicable in the case of a player moving from a country outside the EU/EEA to a country within the EU/EEA”.[28] On this exact point, the Bremen Court begged to differ. 

The Bremen Court was not convinced by the distinction between intra-EU and extra-EU transfers made in article 6 Annex 4. The right to free movement of workers extends also to EU citizens moving from a non-EU country to an EU Member state. Therefore, not only could the club legitimately invoke the right to free movement of its player, but it was also right to consider that article 6 annex 4 should have been applicable to an EU citizen moving from Argentina to Germany. Consequently, the German judges considered that the non-application of article 6 and the imposition of the calculation method foreseen in article 4 and 5 of the Annex 4 were contrary to the player’s free movement rights under EU law.[29] Nonetheless, it also acknowledged that the FIFA training compensation rules were supporting “the objective of encouraging the recruitment and training of young players”.[30] Furthermore, Article 6 of the Annex 4 is deemed suitable to attain this objective and compatible with EU law.[31] The key point being for training compensations to cover only the real costs endured to train the player[32], this is what the CAS and the DRC have failed to take in account in the SV Wilhelmshaven case.[33]

Conclusion 

The SV Wilhelmshaven case has potentially damaging consequences for the Court of Arbitration for sport. It intrudes into the system of private enforcement of the CAS awards by forcing the sporting association to consider whether the awards are compatible with German public policy, and especially with EU law before enforcing disciplinary measures based on them. We have deliberately ignored this aspect of the case, as it will be the object of a future blog post. Instead, we decided to focus on FIFA’s training compensation system and its compatibility with EU law.

The Bremen Court’s ruling highlighted the substantial shortcomings of the CAS in dealing with EU law. A long-standing CAS jurisprudence was shown fundamentally flawed and overtly contradictory to the CJ’s interpretation of EU law. Moreover, the FIFA training compensation system as it stands was considered incompatible with EU law in the context of a transfer of an EU citizen from Argentina to an EU Member state. This is not a remote scenario especially when South-American players are involved. However, there is also some good news for FIFA, as the Court found that the FIFA intra-EU training compensation rule is in line with EU law. The case is now at the Bundesgerichtshof (BGH), the highest German civil Court. With this case and the Pechstein case on its plate, the BGH will fundamentally shape the future of sport’s private dispute resolution mechanisms and governance structure. If it is asked to do so or ex officio if it feels the need, the BGH could refer a preliminary question to Luxembourg on the compatibility of the FIFA training compensation system with EU free movement rights. This would be the best way to finally settle a question which has been left wide open since the Bosman ruling, now 20 years ago.

[1] See B. Garcia, ‘The 2001 informal agreement on the international transfer system’, European Sports Law and Policy Bulletin, I-2011, pp.17-29.

[2] Article 4 paragraph 1 of Annex 4.

[3] Article 4 paragraph 1 of Annex 4

[4] Article 5 paragraph 1 of Annex 4

[5] Article 5 paragraph 2 of Annex 4

[6] Article 5 paragraph 3 of Annex 4

[7] Article 6 paragraph 1 a) of Annex 4

[8] Article 6 paragraph 1 b) of Annex 4

[9] Article 6 paragraph 2 of Annex 4

[10] Article 6 paragraph 3 of Annex 4

[11] See F. de Weger, The jurisprudence of the FIFA Dispute Resolution Chamber, ASSER press, 2008, pp. 117-133.

[12]Case C-415/93 Union Royale Belge des Sociétés de Football Association and Others v Bosman and Others [1995] ECR I-4921, paragraph 106.

[13] Ibid, paragraph 108.

[14] Ibid, paragraph 109.

[15] Ibid.

[16] Ibid, paragraph 110.

[17] AG Lenz in Case C-415/93 Union Royale Belge des Sociétés de Football Association and Others v Bosman and Others, [1995] ECR I-4921, paragraph 239

[18] C-325/08 Olympique Lyonnais SASP v Olivier Bernard [2010], paragraph 39.

[19] Ibid, paragraph 44.

[20] Ibid, paragraph 45.

[21] Ibid.

[22] J. Zylberstein, ‘The Olivier Bernard Judgment : A Significant step forward for the training of players’, in M. Colucci, European Sports Law and Policy Bulletin 1/2010

[23] CAS 2009/A/1810 & 1811 SV Wilhelmshaven v. Club Atlético Excursionistas & Club Atlético River Plate, award of 5 October 2009, paragraph.42. Referring to CAS 2004/A/794 and CAS 2006/A/1027.

[24] « Whilst the rights deriving from Article 48 of the Treaty are undoubtedly enjoyed by those directly referred to - namely, workers - there is nothing in the wording of that article to indicate that they may not be relied upon by others, in particular employers. » C-350/96 Clean Car Autoservice Gmbh v Landeshauptmann von Wien [1998] ECR I-2521, paragraph 19.

[25] OLG Bremen, 30.12.2014, 2 U 67/14

[26] CAS 2009/A/1810 & 1811 SV Wilhelmshaven v. Club Atlético Excursionistas & Club Atlético River Plate, award of 5 October 2009, paragraph 46.

[27] Ibid, paragraph 49

[28] Ibid.

[29] OLG Bremen, 30.12.2014, 2 U 67/14, p.22-25.

[30] „Daraus folgt, dass eine Regelung wie im vorliegenden Fall, die eine Ausbildungsentschädigung für den Fall vorsieht, dass ein Nachwuchsspieler nach Abschluss seiner Ausbildung einen Vertrag als Berufsspieler mit einem anderen Verein als dem abschließt, der ihn ausgebildet hat, grundsätzlich durch den Zweck gerechtfertigt werden kann, die Anwerbung und Ausbildung von Nachwuchsspielern zu fördern“. Ibid, p.22.

[31] „Soweit in Art.6 Ziff. 1.b) bei einem Wechsel des Spielers von einem Verein der höheren in eine niedrigere Kategorie die Entschädigung gemäss den Trainingskosten des Vereins der tieferen Kategorie bemessen wird, handelt es sich um eine Regelung, die zu einer Erleichterung des Vereinswechsels führt, also gegenüber der an sich erforderlichen Orientierung an den Kosten des ausbildenden Vereins im Hinblick auf Art.45 AEUV eine Besserstellung des Spielers enthält und daher insoweit unbedenklich ist.“ Ibid, p.25.

[32] « Transferentschädigungen erfüllen mithin die Funktion des Ersatzes von Ausbildungskosten nur dann, wenn sie sich an den tatsächlichen angefallenen Ausbildungskosten orientieren und nicht am Marktwert des fertigen Spielers ». Ibid, p.23.

[33] « Die hier vorgenommene Entschädigung orientiert sich somit nicht an den für die Ausbildung bei den argentinischen Vereinen angefallenen Kosten, sondern nimmt einen Ausgleich in Höhe des pauschal eingeschätzten Aufwands vor, der dem übernehmenden Verein im Hinblick auf diesen Spieler erspart worden ist. » Ibid, p.24.