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

The Kristoffersen ruling: the EFTA Court targets athlete endorsement deals - By Sven Demeulemeester and Niels Verborgh

Editor’s note: Sven Demeulemeester and Niels Verborgh are sports lawyers at the Belgium law firm, Altius.



In its 16 November 2018 judgment, the Court of Justice of the European Free Trade Association States (the EFTA Court) delivered its eagerly awaited ruling in the case involving Henrik Kristoffersen and the Norwegian Ski Federation (NSF). 

On 17 October 2016, Kristoffersen had taken the NSF to the Oslo District Court over the latter’s refusal to let the renowned alpine skier enter into a sponsorship with Red Bull. At stake were the commercial markings on his helmet and headgear in races organised under the NSF’s umbrella. The NSF refused this sponsorship because it had already granted the advertising on helmet and headgear to its own main sponsor, Telenor. Kristoffersen claimed before the Oslo District Court, that the NSF should be ordered to permit him to enter into an individual marketing contract with Red Bull. In the alternative, Kristoffersen claimed damages up to a maximum of NOK 15 million. By a letter of 25 September 2017, the Oslo District Court referred several legal questions to the EFTA Court in view of shedding light on the compatibility of the rules that the NSF had invoked with EEA law.

If rules do not relate to the conduct of the sport itself, but concern sponsorship rights and hence an economic activity, these rules are subject to EEA law. The EFTA Court ruling is important in that it sets out the framework for dealing with - ever more frequent - cases in which an individual athlete’s endorsement deals conflict with the interest of the national or international sports governing bodies (SGBs) that he or she represents in international competitions.More...

Season 2 of football leaks: A review of the first episodes

Season 2 of #FootballLeaks is now underway since more than a week and already a significant number of episodes (all the articles published can be found on the European Investigative Collaborations’ website) covering various aspect of the (lack of) transnational regulation of football have been released (a short German documentary sums up pretty much the state of play). For me, as a legal scholar, this new series of revelations is an exciting opportunity to discuss in much more detail than usual various questions related to the operation of the transnational private regulations of football imposed by FIFA and UEFA (as we already did during the initial football leaks with our series of blogs on TPO in 2015/2016). Much of what has been unveiled was known or suspected by many, but the scope and precision of the documents published makes a difference. At last, the general public, as well as academics, can have certainty about the nature of various shady practices in the world of football. One key characteristic that explains the lack of information usually available is that football, like many international sports, is actually governed by private administrations (formally Swiss associations), which are not subject to the similar obligations in terms of transparency than public ones (e.g. access to document rules, systematic publication of decisions, etc.). In other words, it’s a total black box! The football leaks are offering a rare sneak peak into that box.

Based on what I have read so far (this blog was written on Friday 9 November), there are three main aspects I find worthy of discussion:

  • The (lack of) enforcement of UEFA’s Financial Fair Play (FFP) Regulations
  • The European Super League project and EU competition law
  • The (lack of) separation of powers inside FIFA and UEFA More...

Supporters of the ISLJ Annual International Sports Law Conference 2018: Altius

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very happy to finish this series of interviews with Sven Demeulemeester from Altius, a Belgian law firm based in Brussels with a very fine (and academically-minded!) sports law team. 

1. Can you explain to our readers the work of Altius in international sports law? 

Across different sports’ sectors, Altius’ sports law practice advises and assists some of the world’s most high-profile sports governing bodies, clubs and athletes, at both the national and the international level. The team has 6 fully-dedicated sports lawyers and adopts a multi-disciplinary approach, which guarantees a broad range of legal expertise for handling specific cases or wider issues related to the sports industry. We are proud to be independent but, in cross-border matters, are able to tap into a worldwide network.

2. How is it to be an international sports lawyer? What are the advantages and challenges of the job? 

Sports law goes beyond one specific field of law. The multiplicity of legal angles keeps the work interesting, even after years of practising, and ensures that a sports lawyer rarely has a dull moment. The main downside is that the sports industry is fairly conservative and sometimes ‘political’. While the law is one thing, what happens in practice is often another. Bringing about change is not always easy. 

3. What are the burning issues in international sports law that you would like to see discussed at the conference? 

 The much-anticipated overhaul of the football transfer system is eagerly anticipated and is worth a thorough debate, also in terms of possible, viable alternatives. The impact of EU law - both internal market rules, competition law and fundamental rights – can hardly be underestimated. Also, dispute resolution mechanisms within the realm of sports - and an accessible, transparent, independent and impartial sports arbitration in particular - will remain a ‘hot’ topic in the sector for years to come. Furthermore, ethics and integrity issues should remain top of the agenda, as is being demonstrated by the current money-laundering and match-fixing allegations in Belgium. Finally, in a sector in which the use of data is rife, the newly-adopted GDPR’s impact remains somewhat ‘under the radar’.

4. Why did you decide to support the ISLJ Annual International Sports Law Conference? 

The ISLJ Annual International Sports Law Conference is refreshing, both in terms of its topics and participants. The academic and content-driven approach is a welcome addition to other sports law conferences in which the networking aspect often predominates.

Supporters of the ISLJ Annual International Sports Law Conference 2018: LawInSport

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very happy to continue this series of interviews with LawInSport, a knowledge hub and educational platform for the community of people working in or with an interest in sport and the law  (many thanks to LawInSport's CEO Sean Cottrell for kindly responding to our questions).

1. Can you explain to our readers what LawInSport is about?

LawInSport is a knowledge hub, educational platform and global community of people working in or with an interest in sport and the law.

Our objective is to help people ‘understand the rules of the game™’. What does this mean? It means people in sport having access to information that enables them to have a better understanding the rules and regulations that govern the relationships, behaviours and processes within sports. This in turn creates a foundation based on the principles of the rule of law, protecting the rights of everyone working and participating in sport.  

2. What are the challenges and perks of being an international sports law 'reporter’ ?

I do not consider myself a reporter, but as the head of an organisation that has a responsibility to provide the highest quality information on legal issues in sport,  focusing on what is important and not just what is popular, whilst trying to stay free from conflicts of interests. These two issues, popularism and conflict of interest, are the two of the biggest challenges.

Popularism and the drive to win attention is, in my opinion, causing a lack of discipline when it comes to factual and legal accuracy in coverage of sports law issues, which on their own may seem harmless, but can cause harm to organisations and individuals (athletes, employees, etc).

Conflict of interest will obviously arise in such a small sector, however, there is not a commonly agreed standard in internationally, let alone in sports law. Therefore, one needs to be diligent when consuming information to understand why someone may or may not hold a point of view, if they have paid to get it published or has someone paid them to write it. For this reason it can be hard to get a full picture of what is happening in the sector.

In terms of perks, I get to do something that is both challenging and rewarding on a daily basis, and as  a business owner I have the additional benefit of work with colleagues I enjoy working with. I have the privilege of meeting world leaders in their respective fields (law, sport, business, science, education, etc) and gain insights from them about their work and life experiences which is incredibly enriching.  Getting access to speak to the people who are on the front line, either athletes, coaches, lawyers, scientists, rather than from a third party is great as it gives you an unfiltered insight into what is going on.

On the other side of things, we get the opportunity to help people through either having a better understand of the legal and regulatory issues in sports or to understand how to progress themselves towards their goals academically and professionally is probably the most rewarding part of my work. 

3. What are the burning issues in international sports law that you would like to see discussed at the conference?

  • The long-term implications of human rights law in sport;
  • The importance of meaningful of stakeholder consultation in the creation and drafting of regulations in sport;
  • Effective international safeguarding in sport.

4. Why did you decide to support the ISLJ Annual International Sports Law Conference?

We support ISLJ Annual International Sports Law Conference as it is a non-profit conference that’s purpose is to create a space to explore a wide range of legal issues in sport. The conference is an academic conference that does a great job in bringing a diverse range of speakers and delegates. The discussions and debates that take place will benefit the wider sports law community.  Therefore, as LawInSport’s objective is focused on education it was a straight forward decision to support the conferences as it is aligned with our objectives. 

Supporters of the ISLJ Annual International Sports Law Conference 2018: Women in Sports Law

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very proud to start this series of interviews with Women in Sports Law, an association launched in 2016 and which has already done so much to promote and advance the role of women in international sports law (many thanks to Despina Mavromati for kindly responding to our questions on behalf of WISLaw).

1. Can you explain to our readers what WISLaw is about?

Women In Sports Law (WISLaw, is an international association based in Lausanne that unites more than 300 women from 50 countries specializing in sports law. It is a professional network that aims at increasing the visibility of women working in the sector, through a detailed members’ directory and various small-scale talks and events held in different countries around the world. These small-scale events give the opportunity to include everyone in the discussion and enhance the members’ network. Men from the sector and numerous arbitral institutions, conference organizers and universities have come to actively support our initiative.

2. What are the challenges and opportunities for women getting involved in international sports law?

Women used to be invisible in this sector. All-male panels were typical at conferences and nobody seemed to notice this flagrant lack of diversity. WISLaw created this much-needed platform to increase visibility through the members’ directory and through a series of small-scale events where all members, independent of their status or seniority, can attend and be speakers.

Another difficulty is that European football (soccer) is traditionally considered to be a “male-dominated” sport, despite the fact that there are so many great female football teams around the world. The same misperception applies to sports lawyers!

Last, there is a huge number of women lawyers working as in-house counsel and as sports administrators. There is a glass ceiling for many of those women, and the WISLaw annual evaluation of the participation of women in those positions attempts to target their issues and shed more light into this specific problem.

3. What are the burning issues in international sports law that you would like to see discussed at the conference?

The ISLJ Annual Conference has already set up a great lineup of topics combining academic and more practical discussions in the most recent issues in international sports law. 

4. Why did you decide to support the ISLJ Annual International Sports Law Conference?

The Asser International Sports Law Centre has promoted and supported WISLaw since the very beginning. The ISLJ Annual International Sports Law Conference was the first big conference to officially include a WISLaw lunch talk in its program, allowing thus the conference attendees to be part of a wider informal discussion on a specific topical issue and raise their questions with respect to WISLaw. Another important reason why WISLaw supports this conference is because the conference organizers are making sincere efforts to have increased diversity in the panels : this year’s ISLJ Annual International Sports Law Conference is probably the first sports law conference to come close to a full gender balance in its panels, with 40% of the speakers being women !

The proportionality test under Art. 101 (1) TFEU and the legitimacy of UEFA Financial fair-play regulations: From the Meca Medina and Majcen ruling of the European Court of Justice to the Galatasaray and AC Milan awards of the Court of Arbitration for Sport – By Stefano Bastianon

Editor’s note: Stefano Bastianon is Associate Professor in EU Law and EU sports law at the University of Bergamo and lawyer admitted to the Busto Arsizio bar. He is also member of the IVth Division of the High Court of Sport Justice (Collegio di Garanzia dello sport) at the National Olympic Committee.


1. On the 20th July 2018, the Court of Arbitration for Sport (hereinafter referred to as “CAS”) issued its decision in the arbitration procedure between AC Milan and UEFA. The subject matter of this arbitration procedure was the appeal filed by AC Milan against the decision of the Adjudicatory Chamber of the UEFA Financial Control Body dated 19th June 2018 (hereinafter referred to as “the contested decision”). As many likely know, the CAS has acknowledged that, although AC Milan was in breach of the break-even requirement, the related exclusion of the club from the UEFA Europe League was not proportionate. To date, it is the first time the CAS clearly ruled that the sanction of exclusion from UEFA club competitions for a breach of the break-even requirement was not proportionate. For this reason the CAS award represents a good opportunity to reflect on the proportionality test under Art. 101 TFEU and the relationship between the landmark ruling of the European Court of Justice (hereinafter referred to as “ECJ”) in the Meca Medina and Majcen affair and the very recent case-law of the CAS. More...

The “Victory” of the Court of Arbitration for Sport at the European Court of Human Rights: The End of the Beginning for the CAS

My favourite speed skater (Full disclosure: I have a thing for speed skaters bothering the ISU), Claudia Pechstein, is back in the news! And not from the place I expected. While all my attention was absorbed by the Bundesverfassungsgericht in Karlsruhe (BVerfG or German Constitutional Court), I should have looked to the European Court of Human Rights in Strasbourg (ECtHR). The Pechstein and Mutu joint cases were pending for a long time (since 2010) and I did not anticipate that the ECtHR would render its decision before the BVerfG. The decision released last week (only available in French at this stage) looked at first like a renewed vindication of the CAS (similar to the Bundesgerichtshof (BGH) ruling in the Pechstein case), and is being presented like that by the CAS, but after careful reading of the judgment I believe this is rather a pyrrhic victory for the status quo at the CAS. As I will show, this ruling puts to rest an important debate surrounding CAS arbitration since 20 years: CAS arbitration is (at least in its much-used appeal format in disciplinary cases) forced arbitration. Furthermore, stemming from this important acknowledgment is the recognition that CAS proceedings must comply with Article 6 § 1 of the European Convention of Human Rights (ECHR), in particular hearings must in principle be held in public and decisions freely available to all. Finally, I will criticise the Court’s finding that CAS complies with the requirements of independence and impartiality imposed by Article 6 § 1 ECHR. I will not rehash the  well-known facts of both cases, in order to focus on the core findings of the decision. More...

ISLJ International Sports Law Conference 2018 - Asser Institute - 25-26 October - Register Now!

Dear all,

Last year we decided to launch the 'ISLJ Annual International Sports Law Conference' in order to give a public platform to the academic discussions on international sports law featured in the ISLJ. The first edition of the conference was a great success (don't take my word for it, just check out #ISLJConf17 on twitter), featuring outstanding speakers and lively discussions with the room. We were very happy to see people from some many different parts of the world congregating at the Institute to discuss the burning issues of their field of practice and research.

This year, on 25 and 26 October, we are hosting the second edition and we are again welcoming well-known academics and practitioners in the field. The discussions will turn around the notion of lex sportiva, the role of Swiss law in international sports law, the latest ISU decision of the European Commission, the Mutu/Pechstein ruling of the European Court of Human Rights, or the reform proposal of the FIFA Regulations on the Transfer and Status of Players. It should be, it will be, an exciting two days!

You will find below the final programme of the conference, please feel free to circulate it within your networks. We have still some seats left, so don't hesitate to register (here) and to join us.

Looking forward to seeing you and meeting you there!


Football Intermediaries: Would a European centralized licensing system be a sustainable solution? - By Panagiotis Roumeliotis

Editor's note: Panagiotis Roumeliotis holds an LL.B. degree from National and Kapodistrian University of Athens, Greece and an LL.M. degree in European and International Tax Law from University of Luxembourg. He is qualified lawyer in Greece and is presently working as tax advisor with KPMG Luxembourg while pursuing, concomitantly, an LL.M. in International Sports Law at Sheffield Hallam University, England. His interest lies in the realm of tax and sports law. He may be contacted by e-mail at ‘’.


The landmark Bosman Ruling triggered the Europeanization of the labour market for football players by banning nationality quotas. In turn, in conjunction with the boom in TV revenues, this led to a flourishing transfer market in which players’ agents or intermediaries play a pivotal role, despite having a controversial reputation.

As a preliminary remark, it is important to touch upon the fiduciary duty of sports agents towards their clients. The principal-agent relationship implies that the former employs the agent so as to secure the best employment and/or commercial opportunities. Conversely, the latter is expected to act in the interest of the player as their relationship should be predicated on trust and confidence, as much was made clear in the English Court of Appeal case of Imageview Management Ltd v. Kelvin Jack. Notably, agents are bound to exercise the utmost degree of good faith, honesty and loyalty towards the players.[1]

At the core of this blog lies a comparative case study of the implementation of the FIFA Regulations on working with intermediaries (hereinafter “FIFA RWI”) in eight European FAs covering most of the transfers during the mercato. I will then critically analyze the issues raised by the implementation of the RWI and, as a conclusion, offer some recommendations. More...

Seraing vs. FIFA: Why the rumours of CAS’s death have been greatly exaggerated

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).


Asser International Sports Law Blog | The 2006 World Cup Tax Evasion Affair in Germany: A short guide. By Gesa Kuebek

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

The 2006 World Cup Tax Evasion Affair in Germany: A short guide. By Gesa Kuebek

Editor's note:

Gesa Kuebek holds an LLM and graduated from the University of Bologna, Gent and Hamburg as part of the Erasmus Mundus Master Programme in Law and Economics and now work as an intern for the Asser Instituut.

On Monday, 9 November, the German Football Association (DFB) announced in a Press Release the resignation of its head, Wolfgang Niersbach, over the 2006 World Cup Affair. In his statement, Niersbach argued that he had “no knowledge whatsoever” about any “payments flows” and is now being confronted with proceedings in which he was “never involved”. However, he is now forced to draw the “political consequences” from the situation. His resignation occurred against the backdrop of last week’s raid of the DFB’s Frankfurt headquarters and the private homes Niersbach, his predecessor Theo Zwanziger and long-standing DFB general secretary Horst R. Schmidt. The public prosecutor’s office investigates a particularly severe act of tax evasion linked to awarding the 2006 World Cup. The 2006 German “summer fairy-tale” came under pressure in mid-October 2015, after the German magazine “Der Spiegel” shocked Fußballdeutschland by claiming that it had seen concrete evidence proving that a €6.7 million loan, designated by the FIFA for a “cultural programme”, ended up on the account of Adidas CEO Robert-Louis Dreyfuß. The magazine further argued that the money was in fact a secret loan that was paid back to Dreyfuß. Allegedly, the loan was kept off the books intentionally in order to be used as bribes to win the 2006 World Cup bid. The public prosecutor now suspects the DFB of failing to register the payment in tax returns. German FA officials admit that the DFB made a “mistake” but deny all allegations of vote buying. However, the current investigations show that the issues at stakes remain far from clear, leaving many questions regarding the awarding of the 2006 World Cup unanswered.

The present blog post aims to shed a light on the matter by synthetizing what we do know about the 2006 World Cup Affair and by highlighting the legal grounds on which the German authorities investigate the tax evasion.

What’s the 2006 World Cup Affair all about?

The scandal centres on the payment of €6.7 million, which was, according to Der Spiegel, secretly loaned to the DFB by the private investor Louis Dreyfuß, at the time CEO of Adidas, prior to the Word Cup decision on 6 July 2000. Accordingly, the money was never recorded in either the balance sheets of the Bid Committee or, later, in the balance sheets of the German Organisation Committee of the World Cup. Der Spiegel argued that the money was used to buy the four votes of the Asian representatives of the 24-membered FIFA Executive Committee. The four Asians voted together with the European representatives at the elections in July 2000 in favour of Germany becoming the host of the 2006 World Cup. Due to the fact the New Zealand’s representative Charles Dempsey surprisingly refrained from voting in the last ballot, Germany won with 12:11 votes in favour. In a later article, Der Spiegel stated that Zwanziger and Schmidt discussed in a recorded telephone conversation to whom the Dreyfuß millions were transferred and mentioned the name of Mohamed Bin Hammam in this context. It is worth remembering that the Qatari Bin Hammam, a former member of the FIFA Executive Committee from 1996 to 2011, was charged with offering bribes for votes and banned for life from all football activities by FIFA on two occasions in 2011 and 2012. The DFB, however, denies all allegations of vote-rigging.

The current investigations of the public prosecutor focus on the supposed repayment of the €6.7 million loan in April 2005. The Organisation Committee officially declared the money as the German contribution to a “cultural programme” during the 2006 World Cup. As such, the German money went to a FIFA account in Geneva, Switzerland. However, the FIFA cultural programme never happened. Instead, FIFA allegedly transferred the money immediately to an account of Louis Dreyfuß in Zurich. Up to now, there are neither bills nor a receipt of payments at FIFA for the ominous €6.7 million. Furthermore, it remains unclear through which channels the DFB’s money was transferred back to Louis Dreyfuß.

How does the DFB react?

Initially, the DFB acknowledged in a Press Release of 16 October that evidence came to light “that a payment of the Organisation Committee in April 2005 amounting to €6.7 million attributed to FIFA may not have been used according to the indicated purpose”. On that same day, Der Spiegel published its article. The DFB promptly reacted in another Press Release, denying the existence of slush funds. It refuted the allegations of Der Spiegel as “completely untenable” and denied any accusations of vote-rigging. Niersbach added that the DFB “will refute Der Spiegel’s claims and take legal action against them”. In a similar manner, German football legend Franz Beckenbauer, who acted as the head of the Head of the 2006 World Cup Organisation Committee, repudiated the article’s claims publicly.

By contrast, on 23 October, Zwanziger described Niersbach, his well-known enemy and successor as DFB president, as a liar in a Spiegel interview, acknowledging for the first time the existence of slush-funds “during the German World Cup application”. He argued that it is, “similarly clear that the current DFB president has not just been aware of the matter for a few weeks, as he states, but at least since 2005”.

Shortly thereafter, Franz Beckenbauer admitted for the first time that “mistakes” had been made, but still denied vote buying. According to the DFB, the €6.7 million were indeed disguised under the false pretences of the “cultural programme” and used to repay the loan to Louis Dreyfuß. However, the DFB claims that the original payment to the German Organisation Committee led by Franz Beckenbauer was made in 2002, thus after Germany had already won the 2006 World Cup bid. According to the DFB, the money was used to fulfil a particular demand of FIFA: FIFA president Blatter requested an advanced payment of €6.7 million to guarantee a €170 million loan.[1] Beckenbauer acknowledged that the Organisation Committee should not have agreed to the proposal of the FIFA Finance Committee. Blatter, however, denies this version.[2]

By this time, the DFB had contracted the law firm ‘Freshfields Bruckhaus Deringer’ to investigate the matter. On 27 October, the law firm stated that the proceedings will probably take a long time.

Why is the German public prosecutor’s office investigating tax evasion?

On 19 October, the German Prosecutor’s office stated that they were in the process of verifying an initial suspicion before launching a preliminary investigation. Possible criminal wrongdoings involved deception, fraud and corruption. However, in a later Press Release, the public prosecutor’s office in Frankfurt stated that there would be no further investigation into the alleged crimes due to the expiration of the limitation period of proceedings. Instead, a preliminary investigation involving a particularly severe case of tax fraud was initiated.

By indicating the €6.7 million transfer as a contribution to the “FIFA cultural programme” on the DFB’s tax return, the transaction was classified as an “operating expense” under German tax law and was as such tax deductible. The public prosecutor’s office, however, thinks that the payment had in fact a different purpose. As a result of this requalification, the payment cannot be declared as a deducible operating expense anymore. Therefore, the suspects are accused of declaring wrongful tax returns within the limit of their prior responsibilities in the Organisations Committee, thereby evading corporate and commercial taxes as well as solidarity surcharges[3] for the year 2006 to a substantially high extent.

According to an article of the “Süddeutsche Zeitung”, the falsified tax return were signed by Niersbach himself. Niersbach denies “any involvement whatsoever” in the affair.

What are the legal grounds under German Law?

The legal basis for prosecution of tax evasion is the eighth chapter (§§ 369-412) of the Abgabenordnung (Fiscal Code; abbr. AO). Here, tax offences are distinguished into tax crimes (Steuerstraftaten) and misdemeanours (Steuerordnungswidrigkeiten). Whilst the former is characterised as a deliberate act, the latter offence is triggered in case of gross negligence. Only tax crimes are punishable by penalties and imprisonment.[4] The core offence within the category of tax crimes is tax evasion (Steuerhinterziehung) which is regulated under § 370 AO. A natural or legal person commits tax evasion by (i) misrepresenting or concealing relevant information regarding taxation to tax authorities; (ii) neglecting tax disclosure duties; or (iii) refraining from the compulsory use of tax stamps (§ 370 AO Abs. 1). As stated above, the act of tax evasion must be committed deliberately. In accordance with § 78 Strafgesetzbuch (Criminal Law Code; abbr. StGB), the statutory limitation period for prosecution of tax crimes is five years. However, the limitation period for tax repayment duties amounts to ten years; moreover, for tax repayment duties 6% interest per year is added. The potential sentence for tax evasion under German Law ranges from a financial penalty to a prison sentence of up to five years. In particularly serious cases of tax evasion in conjunction with abuse of an evader’s official authority or with fraudulent counterfeit the possible sentence ranges from minimally six month to maximally ten years of imprisonment (§ 370 AO Abs. 3 S. 1-5). If tax evasion is committed on a professional basis or as part of an organized crime (Gewerbs-/ Bandenmaessige Steuerhinterziehung) as stipulated in § 370a AO, the possible sentence ranges from one up to ten years of imprisonment.[5]

The search (Durchsuchungen) of private homes and business premises are primarily regulated in §§ 102 ff. Strafprozessordnung (Code of Criminal Procedure; abbr. StPO). Confiscation, or Beschlagnahmung, is regulated in §§ 98 ff. StPO. A search is conducted during preliminary investigations, and has to be based on “sufficient factual implications” (§ 152 Abs. 2 StPO). The preliminary investigation procedure can have three possible outcomes: First, one can decide to close the proceedings (§§386, 389 AO); second one can indorse a penalty order (Strafbefehl §§400; 407 StPO); and third, if enough evidence has been collected, the prosecutor can go to court and charge the defendant for tax evasion (§170 StPO).[6]

Against whom does the German prosecutor investigates?

The prosecutor’s investigation does not target the DFB as such. As stated in the introduction, suspects are the recently resigned DFB president Wolfgang Niersbach, who was the vice-president of the German Organisation Committee of the 2006 World Cup, his predecessor Theo Zwanziger, who acted as the treasurer of the Organisations Committee and Horst R. Schmidt, who was the managing Vice-President of the Organisations Committee and until 2007 General Secretary of the DFB. If Niersbach actually signed the falsified tax return papers, his role in the affair will most likely be difficult to deny.

The exact role of the other two officials in the putative tax evasion scheme remains unclear. Especially the role of Zwanziger raises questions. Not only did he publicly reveal Niersbach’s knowledge of the affair, he also gave evidence in front of ‘Freshfields Bruckhaus Deringer’ on 28 October. Although contracted by the DFB, the members of the law firm are supposed to act as external investigators. Zwanziger stated that he had “submitted all his documents [and] presented his annotations and assessments”. Six days later, the public prosecutor’s office initiated the preliminary investigation on tax evasion and searched the aforementioned premises. At this point in time, a linkage between Zwanziger’s testimony and the start of the preliminary investigations remains purely speculative.

It is further unclear why the investigators refrain from targeting Franz Beckenbauer, who acted as the president of the Organisations Committee. The prosecutor argued that Beckenbauer had “nothing to do” with the tax evasion. By contrast, the German journal “Handelsblatt” suggested that “the most likely explanation” is that Beckenbauer lives in Austria and is thus outside the jurisdictional reach of the investigators.

What potential charges are the accused facing?

As the topic of the missing €6.7 million arose prior to any of the statements of the FIFA officials and – as to my knowledge - no retroactive payments have been made, the accused will not be exempted from charges under § 371 AO. If enough evidence can be found and if the accused are proven guilty in front of a Court, the accused six months to ten years imprisonment in case of a severe tax evasion scheme (§ 370 AO Abs. 3).

Why does the combination of “tax evasion” “Germany” and “Louis Dreyfuß” rings a bell?

It is not the first time that Louis Dreyfuß has been involved in a “German football scandal”. In 2000, Dreyfuß provided a loan to Bayern Munich’s Uli Hoeneß of 5 million Deutschmark (around €2.56 million) as “play money” to speculate primarily on shares and current exchange rates, which was deposited in a Zurich financial institution. Subsequently, the bank reportedly granted Hoeneß a loan amounting to 15 million marks, for which Louis Dreyfus also acted as guarantor. Hoeneß refrained from declaring the proceeds of his gambling to the tax authorities. For this and other tax evasion offences, Hoeneß was sentenced to a total of three years and six month of imprisonment in 2014.

What’s next in the investigation on the 2006 World Cup Affair?

With regard to the tax evasion charges, it is likely that the case will either be closed (§§ 386, 389 AO) or – if enough evidence is collected against one or all three of the officials – the offenders will be charged for tax evasion in front of a court (§170 StPO). The outcome will depend on the evidence that comes to light during the preliminary investigation. As the FIFA “cultural programme” never took place, it is very obvious that the money was indeed used for a different purpose than indicated on the tax return and as such, the transaction should not have been deducible as an operating expense. Hence, proving tax evasion will most likely not be the public prosecutor’s office primary problem. Instead, the investigators have to find evidence tying Niersbach, Zwanziger and/or Schmidt to the crime. If the Sueddeutsche Zeitung is correct in stating that Niersbach signed the illegal tax return, it will be difficult for him to avoid prosecution.

In any case, it is to be expected that the 2006 World Cup Affair will occupy Fußballdeutschland for a while. The results of the investigation which the DFB confided to the law firm ‘Freshfields Bruckhaus Deringer are not expected tomorrow. Moreover, the independence of the investigation is questioned after a personal connection between a Niersbach employee and a lawyer from the aforementioned firm became public. FIFA, too, has several external lawyers investigating the claims. In addition, the Sportausschuss (sport committee) of the German Bundestag started to look into the matter. However, the impartiality of the sport committee may also be questioned as one of the Bundestag’s members also acts as the treasurer of the DFB and is tipped to become the successor of Niersbach. As a result, the final word regarding the use, whereabouts and purpose of the €6.7 million is not to be expected soon.

[1] Frankfurter Allgemeine Zeitung:” Das Schweigen des Wolfgang Niersbach“, 04.11.2015,

[2] Idem 1

[3] To finance the reunification of Germany a surcharge is levied from all taxpayers on their PAYE, income, withholding and corporation tax. The solidarity surcharge is currently 5.5 % of the relevant assessment basis.

[4] However, misdemeanours can be fined with up to €50 000

[5] See also L.P. Feld, A.J.Schmidt & F, Schneider: “Tax Evasion, Black Activities and Deterrence in Germany: An Institutional and Empirical Perspective”, Annual Congress of the International Institute of Public Finance, Warwick, 2007.

[6] See also Christoph Bräuning: „Durchsuchung und Beschlagnahme durch die Steuerfahndung“, ROSE & PARTNER LLP, 2012,

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