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

WISLaw Blog Symposium - Freedom of Expression in Article 10 of the ECHR and Rule 50 of the IOC Charter: Are these polar opposites? - By Nuray Ekşi

Editor's note: Prof. Dr. Ekşi is a full-time lecturer and chair of Department of Private International Law at Özyeğin University Faculty of Law. Prof. Ekşi is the founder and also editor in chief of the Istanbul Journal of Sports Law which has been in publication since 2019.


While Article 10 of the European Convention on Human Rights (‘ECHR’) secures the right to freedom of expression, Rule 50 of the Olympic Charter of 17 July 2020 (‘Olympic Charter’) restricts this freedom. Following the judgments of the European Court of Human Rights (‘ECtHR’) relating to sports, national and international sports federations have incorporated human rights-related provisions into their statutes and regulations. They also emphasized respect for human rights. For example, Article 3 of the Fédération Internationale de Football Association (‘FIFA’) Statutes, September 2020 edition, provides that “FIFA is committed to respecting all internationally recognised human rights and shall strive to promote the protection of these rights”. Likewise, the Fundamental Principles of Olympism which are listed after the Preamble of the of the Olympic Charter 2020 also contains human rights related provisions. Paragraph 4 of Fundamental Principles of Olympism provides that the practice of sport is a human right. Paragraph 6 forbids discrimination of any kind, such as race, colour, sex, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth or other status. In addition, the International Olympic Committee (‘IOC’) inserted human rights obligations in the 2024 and 2028 Host City Contract.[1] The IOC Athletes’ Rights and Responsibilities Declaration even goes further and aspires to promote the ability and opportunity of athletes to practise sport and compete without being subject to discrimination. Fair and equal gender representation, privacy including protection of personal information, freedom of expression, due process including the right to a fair hearing within a reasonable time by an independent and impartial panel, the right to request a public hearing and the right to an effective remedy are the other human rights and principles stated in the IOC Athletes’ Rights and Responsibilities Declaration. Despite sports federations’ clear commitment to the protection of human rights, it is arguable that their statutes and regulations contain restrictions on athletes and sports governing bodies exercising their human rights during competitions or in the field. In this regard, particular attention should be given to the right to freedom of expression on which certain restrictions are imposed by the federations even if it done with good intentions and with the aim of raising awareness.

 

The provisions prohibiting propaganda and political demonstrations are enshrined in the statutes and regulations of international and national federations. For example, International Football Association Board (‘IFAB’) Laws of the Game 2020/2021 states that players must not reveal undergarments that display any political, religious, personal slogans, statements or images, or advertising other than the manufacturer’s logo.[2] As with any offence, the player and/or the team will be sanctioned by the competition organiser, national football association or by FIFA. On the one hand, freedom of expression is listed among the rights of athletes in Paragraph 11 of the IOC Athletes’ Rights and Responsibilities Declaration[3], on the other hand, Rule 50(2) of the Olympic Charter restricts demonstrations or political, religious or racial propaganda, which may adversely affect freedom of expression. The propaganda ban was first introduced by the 1967 Olympic Charter.[4] This ban has been retained in later versions with minor modifications. Under the title of “propaganda advertising, demonstration”, Rule 50(2) of the current version of the Olympic Charter[5] provides that “no kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas”. The aim of Rule 50(2) of the Olympic Charter in prohibiting political statements is to maintain the neutrality of sport.[6] Rule 50(2) is only applicable in Olympic venues, namely on the field of play, in the Olympic Village, during Olympic medal ceremonies or during the opening, closing and other official ceremonies.[7] Displaying any political messaging, including signs or armbands, gestures of a political nature, like a hand gesture or kneeling, and refusal to follow the ceremonies protocol are some examples of what would constitute a protest, as opposed to expressing views non-exhaustingly indicated in Rule 50 Guidelines Developed by the IOC Athletes’ Commission.[8]

 

A disciplinary sanction can be applied against an athlete who has breached Rule 50(2) of the Olympic Charter. This sanction can be reviewed by the ad hoc division of the Court of Arbitration for Sport (‘CAS’) established for the Olympic Games.[9] An arbitral award of CAS can be challenged before the Swiss Federal Court on the grounds listed in Article 190 of the Swiss Private International Law including public policy.[10] Since freedom of expression is among the fundamental human rights guaranteed by Article 10 of the European Convention on Human Rights, the Swiss Federal Tribunal may rule that a CAS arbitral award is incompatible with public policy. The limitations set out in the statutes and regulations of the national and international sports federations pertaining to the freedom of expression are aimed to protect the neutrality of sport and separate it from political, religious or any other type of interference; however, one cannot exclude potential challenges to be filed against Switzerland before the ECtHR. As in the Pechstein and Mutu cases, the sports community, including CAS, anxiously awaited what the ECtHR would decide. The judgements of the ECtHR have been taken into consideration and respect for human rights has been integrated in the statutes of some SGBs, including the IOC Charter.

 

Although the IOC is established as an association under the Swiss Association Law, the rules of its Charter may adversely affect the enjoyment of certain human rights. Freedom of expression is enshrined not only in Article 10 of the ECHR but also in other international human rights legislative instruments, including Article 19 of the Universal Declaration of Human Rights of 1948, Article 11 of the EU Charter of Fundamental Rights, Article 17(1) of Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, Article 19 of the International Covenant on Civil and Political Rights. Article 10 of the ECHR covers not only the disclosure of political ideas, but also the freedom to disclose any literary, commercial and other ideas. The freedom of expression protected under Article 10 of the ECHR is not limited to words, written or spoken, but it extends to pictures and images including tv or radio broadcasts, films as well as electronic information etc.[11] The right to freedom of expression can be restricted in certain circumstances provided in the provisions of the human rights instruments. Although these instruments are hard law for the Member States, statutes and regulations of the international or national SGBs contain restrictions as to the right to freedom of expression. International or national SGBs are mostly established as associations.[12] The problem so far has arisen as to how national or international sports federations can restrict the rights and freedoms guaranteed by the national constitutions and international conventions.

 

Article 10 of the ECHR can also be applied in the field of sports because athletes can address a wide public during the competitions and may protest human rights violations or political events in their own country or elsewhere. Human rights violations including the right to freedom of expression may also occur in countries where the Olympic Games are held.[13] Generally, the IOC and its international federations take the necessary measures to ensure that athletes do not make political statements during competition. In fact, in 1967 famous boxer Mohammad Ali refused to fight in Vietnam to protest racial segregation.[14] During the 1968 Mexico City Summer Olympics, after winning the gold and the bronze medal in the 200-meter sprint, American athletes Tommie Smith and John Carlos stepped onto the podium barefoot, shared a pair of black gloves and raised their fists in the air when the national anthem played to protest against black poverty and lynching.[15] The IOC reacted swiftly and harshly to this 1968 black power salute, immediately suspending the athletes.[16] The history of sports has recorded various examples of athletes who were sanctioned or ostracized because they had exercised their freedom of expression. Colin Kaepernick and Eric Reid kneeled or sat on the bench while the national anthem was played as a protest against racial discrimination and police brutality against people of colour in the United States.[17] Both players were not contracted in the NFL in the subsequent season.[18] Czech national gymnast Vera Caslayska’s career ended as she protested against Soviet hegemony in her country during a medal ceremony in Mexico in 1968.[19] John Carlos and Tommie Smith were suspended immediately from the United States Olympic Team as a result of the black power salute.  FIFA fined the England Football Association because its members displayed poppies, a symbol of National Armistice Day, during the World Cup qualifier against Scotland. Likewise, Scottish and Irish clubs were fined for flying the Palestinian flag in stadiums.[20] “During the Sochi Games, the IOC even reprimanded athletes for placing small stickers on their helmets in memory of deceased freestyle skier Sarah Burke, calling the gesture political”.[21]

 

Sometimes an athlete makes futile efforts to obtain permission to protest the situation in their countries. The request by Ukrainian athletes to wear a black headband to remember those who died during the political demonstrations in Kiev was rejected by the IOC as political propaganda. However, protests or demonstrations by athletes may not always contain political content. For example, Cheryl Maas, a Dutch and gay skier, wanted to wear rainbow gloves to protest Russia’s anti-gay legislation, but he was not allowed.  

 

As there is no judgment of the ECtHR to confirm whether or not Rule 50(2) of the Olympic Charter complies with Article 10 of the ECHR, various arguments have been put forward by academics. Dhonchak thinks the rule set out in Rule 50(2) of the Olympic Charter must be struck down at the earliest.[22] However, Faut puts forward two solutions which could increase compliance with Article 10 of the ECHR. “The first one lies in more transparent and less excessive sanction mechanisms. A second option would be a laxer prohibition on political statements in the Olympic Charter, covering a smaller range of incidents”.[23] Anmol believes that IOC could also re-assess its position and come-up with fresh guidelines that uphold a balanced political speech before the Tokyo Olympics 2021.[24] For example, the IOC could allow the disciplinary body to assess the speech by examining its content and core intentions in accordance with the Fundamental Principles of Olympism set out in the Olympic Charter. Shahlaei states that “perhaps the solution lies somewhere in the middle. To maintain their general political objectivity, sports organizations could continue to prohibit purely domestic political gestures, such as flying a banner in support of a preferred presidential candidate. At the same time, they could allow athletes to express support for human rights, such as racial equality”.[25]

 

However, it should be noted that Rule 50 of the Olympic Charter in no way eliminates freedom of expression. In accordance with the Rule 50 Guidelines developed by the IOC Athletes’ Commission, outside the Olympic venues athletes have the opportunity to express their opinions during press conferences and interviews or at team meetings or on digital or traditional media, or on other platforms. Any protest or demonstration outside Olympic venues must obviously comply with local legislation wherever local law prohibits such actions.[26] Nonetheless, this discussion will surely continue until the ECtHR will shed light on the application of Article 10 of the ECHR to Rule 50(2) of the Olympic Charter.


[1] Although certain steps have been taken on human rights by IOC since Sochi Olympics, they are found by Grell unsatisfactory and creates uncertainty in several ways. For more information see Tomáš GRELL, The International Olympic Committee and Human Rights Reforms: Game Changer or Mere Window Dressing?, 17(2018) International Sports Law Journal, p. 161 et seq.

[2] IFAB Laws of the Game 2020/2021, The Players’ Equipment, p. 60: https://resources.fifa.com/image/upload/ifab-laws-of-the-game-2020-21.pdf?cloudid=d6g1medsi8jrrd3e4imp (accessed 17.5.2021).

[3] https://olympics.com/athlete365/who-we-are/athletes-declaration/(accessed 18.4.2021).

[4] FAUT, 254-255. For the text of the Olympic Charter of 1967 see http://www.olympic.org/Documents/Olympic%20Charter/Olympic_Charter_through_time/1967-Olympic_Charter.pdf. (accessed 20.4.2021).

[5] Olympic Charter in force as from 17 July 2020 © International Olympic Committee, Lausanne, 2020.

[6] Rule 50 Guidelines Developed by the IOC Athletes’ Commission: http://stillmedab.olympic.org/media/Document%20Library/OlympicOrg/News/2020/01/Rule-50-Guidelines-Tokyo-2020.pdf

[7] Rule 50 Guidelines Developed by the IOC Athletes’ Commission.

[8] Rule 50 Guidelines Developed by the IOC Athletes’ Commission: http://stillmedab.olympic.org/media/Document%20Library/OlympicOrg/News/2020/01/Rule-50-Guidelines-Tokyo-2020.pdf (accessed 17.4.2021).

[9] Johan LINDHOLM, From Carlos to Kaepernick and beyond: Athletes’ Right to Freedom of Expression, 17(2017)1-3 International Sports Law Journal, p. 2.

[10] LINDHOLM, 2.

[11] Frédérique FAUT, The Prohibition of Political Statements by Athletes and its Consistency with Article 10 of the European Convention on Human Rights: Speech is Silver, Silence is Gold?, 14(2014) International Sports Law Journal, p. 257; Monica MACOVEI, Freedom of Expression Human Rights Handbooks, No. 2 A guide to the Implementation of Article 10 of the European Convention on Human Rights, 2nd edition, January 2004, p. 7.

[12] For the criticisms about the extraordinary autonomy that sports governing bodies enjoy under Swiss law see Margareta BADDELEY, The Extraordinary Autonomy of Sports Bodies under Swiss Law: Lesson to be Drawn, 20(2020) International Sports Law Journal, p. 3-17.

[13] For the human rights violations occurred in China during Beijing Olympic Games see Bruce KIDD, Human Rights and Olympic Movement after Beijing, 13(2010) Sports in Society, p. 901-909.

[14] Faraz SHAHLAEI, When Sports Stand Against Human Rights: Regulating Restrictions on Athlete Speech in the Global Sports Arena, 38(2017)1 Loyola of Los Angeles Entertainment Law Review, p.100.

[15] ANMOL, 67; SHAHLAEI, 101.

[16] SHAHLAEI, 101.

[17] ANMOL, 66; Brendan SCHWAB, Celebrate Humanity: Reconciling Sport and Human Rights through Athlete Activism, 28(2018)1 Journal of Legal Aspects of Sport, p. 170-171.

[18] SCHWAB, 171 footnote 2.

[19] SCHWAB, 171 footnote 6; ANMOL, 66.

[20] SHAHLAEI, 108.

[21] SHAHLAEI, 108-109.

[22] Dhananjay DHONCHAK, Rule 50 of the Olympic Charter-Protesting Racial Inequality, 04.09.20: https://opiniojuris.org/2020/09/04/rule-50-of-the-olympic-charter-protesting-racial-inequality  (accessed 17.4.2021).

[23] FAUT, 262.

[24] Jain ANMOL, Political Speech in Sports: A Case for Non-Prohibition, 2(2020)1 Journal for Sports Law, Policy and Governance, p. 73.

[25] SHAHLAEI, 116.

[26] Rule 50 Guidelines Developed by the IOC Athletes’ Commission.


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Asser International Sports Law Blog | New Article Published! The Olympic Charter: A Transnational Constitution Without a State?

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

New Article Published! The Olympic Charter: A Transnational Constitution Without a State?

My latest article has just been published online by the Journal of Law and Society. It is available open access here.

The article stems from a conference organised by Jiri Priban from Cardiff University on Gunther Teubner's idea of societal constitutionalism applied to transnational regimes. My role was to test whether his descriptive and normative framework was readily applicable to the lex sportiva, and in particular its overarching "constitutional" text: the Olympic Charter.

As you will see my conclusion is mixed. I find that the Olympic Charter (OC) displays many constitutional features and is even able to regularly defend successfully its autonomy vis-à-vis national states and their laws. However, while I document some inception of limitative constitutional rules, such as the ban on discrimination or the principle of fair play, I also conclude that those have limited impact in practice. While constitutional changes to the OC can be triggered by scandal, resistance and contestation, as illustrated by the emergence of environmental concerns after the Albertville Games and the governance reshuffle of the IOC after the Salt Lake City scandal, I am also sceptical that these were sufficient to tackle the underlying problems, as became obvious with the unmatched environmental damage caused by the Sotchi Games in 2014.

In conclusion, more than sporadic public outrage, I believe that the intervention of national law and, even more, European Union law will be capable and needed to rein the Olympic regime and impose external constitutional constraints on its (at least sometimes) destructive operations.

Here is the abstract of the article: This article examines various aspects of Teubner's theory of societal constitutionalism using the lex sportiva as an empirical terrain. The case study focuses on the operation of the Olympic Charter as a transnational constitution of the Olympic movement. It shows that recourse to a constitutional vocabulary is not out of place in qualifying the function and authority of the Charter inside and outside the Olympic movement. Yet, the findings of the case study also nuance some of Teubner's descriptive claims and question his normative strategy.

Good read! (And do not hesitate to share your feedback)


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Asser International Sports Law Blog | The CAS and Mutu - Episode 4 - Interpreting the FIFA Transfer Regulations with a little help from EU Law

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 CAS and Mutu - Episode 4 - Interpreting the FIFA Transfer Regulations with a little help from EU Law

On 21 January 2015, the Court of arbitration for sport (CAS) rendered its award in the latest avatar of the Mutu case, aka THE sports law case that keeps on giving (this decision might still be appealed to the Swiss Federal tribunal and a complaint by Mutu is still pending in front of the European Court of Human Right). The decision was finally published on the CAS website on Tuesday. Basically, the core question focuses on the interpretation of Article 14. 3 of the FIFA Regulations on the Status and Transfer of Players in its 2001 version. More precisely, whether, in case of a dismissal of a player (Mutu) due to a breach of the contract without just cause by the player, the new club (Juventus and/or Livorno) bears the duty to pay the compensation due by the player to his former club (Chelsea). Despite winning maybe the most high profile case in the history of the CAS, Chelsea has been desperately hunting for its money since the rendering of the award (as far as the US), but it is a daunting task. Thus, the English football club had the idea to turn against Mutu’s first employers after his dismissal in 2005, Juventus and Livorno, with success in front of the FIFA Dispute Resolution Chamber (DRC), but as we will see the CAS decided otherwise[1].

      I.         Facts and Procedure of the Mutu Case

The Mutu saga is probably one of the most well known sagas in the sports law world (with the unavoidable Bosman case and the up and coming Pechstein one). It cumulates the glamour drama of a star’s downfall due to a positive cocaine test and many important legal developments.

The saga started in July 2004 with a private drug test conducted by Chelsea on Mutu that turned out to be positive to cocaine. The club issued a fine and a warning. But, in October 2004, Mutu was again tested positive to cocaine, this time by the English FA. Upon this finding, and Mutu’s admission of having ingested cocaine, Chelsea decided to terminate his contract on 28 October 2004. On 29 January 2005 the player was registered at Livorno, before being transferred two days later to Juventus. Juventus had reached its quota of non-EU players it could recruit from outside Italy and used this strategy to circumvent the Italian rules applicable at that time.

Meanwhile, Mutu had challenged in front of the FA’s Appeals Committee (FAPLAC) the decision of Chelsea to terminate his employment contract. In April 2005, the FAPLAC decided that Mutu had committed a breach of his employment contract without just cause. Mutu appealed this decision to the CAS without success (CAS 2005/A/876). In May 2006, Chelsea launched a complaint before the DRC to obtain compensation against the player on the basis of the contractual breach without just cause. The DRC in its decision from 26 October 2006 (available here) held that it could not pronounce itself on the matter and that Chelsea had to turn to FAPLAC. Chelsea appealed the decision to the CAS, which enjoined the DRC to decide on the matter (CAS 2006/A/1192). Consequently, the DRC decided on 7 May 2008 to award €17, 173 990 in damages to Chelsea. Unsurprisingly, Mutu decided to appeal the decision to the CAS, he was especially contesting the amount of compensation awarded, which on 31 July 2009 endorsed the decision of the DRC (CAS 2008/A/1644). It even held that the damage claims of Chelsea were higher, but decided it could not go ultra petita and award a higher sum to the club. Mutu, which had unsuccessfully challenged the independence and impartiality of one of the arbitrators due to his previous participation in the first Mutu case (CAS 2005/A/876), went on to contest the validity of the award in front of the Swiss Federal Tribunal (SFT) mainly on this basis. In its decision (4A_458/2009), the SFT rejected Mutu’s claims regarding the lack of independence of the arbitrator, a decision that has attracted widespread criticisms in the literature.[2] Moreover, it also held that the amount of compensation awarded was not a restriction to free movement in the sense of the Bosman ruling and could not amount to an infringement of Mutu’s personality rights. Thereafter, Mutu decided to continue his fight in yet another forum: the European Court of Human Rights (40575/10).

Chelsea had the final award giving it the right to damages, but still needed to get hold on the money. To do so, it even asked (and obtained) for the recognition and the enforcement of the award in the US (see here), where Mutu was expected to have some property. Nevertheless, Mutu went on to play for smaller and smaller teams, thus earning less and less, and Chelsea’s hope of getting paid in full faded away. However, on 15 July 2010, five years after Mutu’s move to Italy’s Serie A in the first place, Chelsea decided to submit a petition to the FIFA DRC against Juventus and Livorno, asking the DRC to find them jointly liable for the awarded compensation. The claim was based on Article 14.3. of the RSTP 2001, stating that: "If a player is registered for a new club and has not paid a sum of compensation within the one month time limit referred to above, the new club shall be deemed jointly responsible for payment of the amount of compensation." The DRC, in an unpublished decision dated 25 April 2013 (see here and here), followed the interpretation of Article 14.3. RSTP suggested by Chelsea and found that “under the clear wording of Article 14.3, the Player's New Club was automatically jointly responsible for the payment of the Awarded Compensation due by the Player, should the latter fail to fulfil his obligations within a month of notification of the relevant decision”.[3] This provision would make “no distinction between the termination of the contract by a player without just cause and the termination of a contract by a club with just cause”.[4] It also held that "the registrations of the player with both [Appellants] were so closely connected that, given the exceptional circumstances of this specific matter, both Juventus and Livorno should be considered the player's new club in the sense of art. 14 of the Application Regulations”.[5]

Both Juventus and Livorno decided to appeal this decision to the CAS, which in its award decided to reject the DRC’s reasoning.


    II.         The Meaning of Article 14.3 FIFA RSTP

The whole case focuses on the interpretation of the wording of Article 14.3 of the RSTP 2001. Does it mean that every club, whatever the circumstances, must pay compensation when it hires a player that bears the responsibility of the breach of his contract? Or, does it restrict this duty to the cases where the breach can be reasonably imputed to the will of the player to leave his former club?

A. Contractual or statutory interpretation?

In order to determine the interpretative tools to be used to identify the meaning of article 14.3 RSTP, the Panel must first clarify the nature of Article 14.3 under Swiss law.[6] Basically, is the provision of a contractual or quasi-statutory nature? The Panel “does not consider that there is a contractual relationship between the Appellants and Chelsea”.[7] Indeed, “[i]f there is no contractual relationship between an indirect member (i.e. any of the Parties) and a sport federation (i.e. FIFA), the conclusion should be the same as regards the relationship between two indirect members of the same federation”.[8] Furthermore, the “[a]cceptance of general rules (such as FIFA Regulations) does not necessarily entail subjection to specific obligations when their scope must be determinable on the basis of minimum criteria”.[9] Thus, the question raised implies only the interpretation of the bylaw of a Swiss legal entity, FIFA.

The Panel highlights four methods of interpretation under Swiss law:

-  the literal interpretation ("interprétation littérale");

-  the systematic interpretation ("interprétation systématique");

-  the principle of purposive interpretation ("interprétation téléologique");

-  the principle of so-called "compliant interpretation" ("interprétation conforme").[10]

The “starting point” [11] is always the wording of the text. The Swiss Federal Tribunal recognizes that “[t]here is no reason to depart from the plain text, unless there are objective reasons to think that it does not reflect the core meaning of the provision under review”.[12] Moreover, when asked to interpret a law, the SFT “adopts a pragmatic approach and follows a plurality of methods, without assigning any priority to the various means of interpretation”.[13] However, the question is whether those interpretative methods should also apply to the (private) bylaws of a private association. The Panel notes that “[a]s regards the statutes of larger entities, it may be more appropriate to have recourse to the method of interpretation applicable to the law, whereas in the presence of smaller enterprises, the statutes may more legitimately be interpreted by reference to good faith”.[14] It finds that “FIFA's regulations have effects which are felt worldwide, and should therefore be subject to the more objective interpretation principles” applicable to Swiss laws.[15]

In short, the Panel is of the opinion that FIFA regulations, bylaws of an association under Swiss law, are to be interpreted analogously to national laws.

B. EU law as THE decisive contextual element to interpret the RSTP

The Panel first tries to interpret Article 14.3 on the basis of its wording. However, it is of the opinion that the wording is ambiguous and therefore “it is necessary to look beyond the wording of this provision”[16] and adopts what it calls a “contextual approach”.

In short, “the context surrounding the implementation of the RSTP 2001 is of crucial importance in interpreting Article 14.3”.[17] In the view of the Panel (and the appellants), this context is constituted by the application of EU law to sport and especially the Bosman case of the Court of Justice of the EU. Indeed, it is “[a]s part of the reform of the FIFA and UEFA rules following the Bosman decision, [that] FIFA adopted the RSTP 2001”.[18] Thus, the requirements set by the CJEU’s jurisprudence in sports matters are decisive to define the reach of the provisions included in the RSTP. Moreover, the rejection decision of the Commission regarding the complaint submitted against FIFA’s transfer regulations is also important.[19] Specifically, the Panel deduces from the Commission’s decision that it recognizes the need to sanction unilateral termination of contracts.[20]

In the present case, it is precisely the “contractual stability [that] is at the centre of the debate”.[21] In a nutshell, does the paramount objective of contractual stability justify that Juventus and Livorno be considered jointly liable for the breach of contract of Mutu leading to the termination by Chelsea of his contract?

In this regard, Chelsea considers that Article 14.3 “is designed to protect contractual stability by means of a deterrent, namely by ensuring that the parties who benefit from the player's breach – the player himself and his New Club – are not allowed to enjoy that benefit without paying compensation to the player's former club”.[22] While, Juventus and Livorno consider that “Article 14.3 – and FIFA regulations in general – are not meant to protect a club's bad investment”.[23] Which one of this two interpretations is EU law supporting? That is the question.

For the Panel “the Player was the author of his misfortune, but the Club was not required to terminate his employment if they still valued his services and preferred to hold him to his contract”. Indeed, “[t]he Club was entitled, not obliged, to dismiss him” and it “makes all the difference in terms of assessing the position of his subsequent employer(s) under the FIFA regulations, read in light of their object and purpose”.[24] As “Chelsea put an end to the Player's Employment Contract, no issue of contract stability, whose purpose was to safeguard the functioning and regularity of sporting competition, was at stake”.[25] Thus, “it strains logic for the club now to contend that the Appellants somehow enriched themselves by acquiring an asset (the player) which it chose to discard”.[26] Moreover, “the Panel finds it hard to understand how, in the name of contract stability, Chelsea's claim of € 17,173,990 against the Player is to be borne jointly and severally by the New Club, which has never expressed a specific agreement in this regard, had nothing to do with the Player's contractual breach, and was not even called to participate in the proceedings, which established the Awarded Compensation”.[27] Additionally, it seems “incongruous for Chelsea to try to seek an advantage from the fact that the New Club benefits from the Player’s services, whereas Chelsea was no longer interested in his service”.[28] Hence, “Chelsea's conduct appears to have had no other purpose than to increase its chances for greater financial compensation” and the Panel “does not see the connection between the damage being claimed and the interest of protecting legitimate contractual expectations”.[29] In other words, the interpretation of Article 14.3 RSTP supported by Chelsea does not fit the fundamental objective of this provision, as highlighted by its legislative context (mainly the Lethonen case of the CJEU and the Commission’s rejection decision in the competition law complaint against the FIFA transfer system) and cannot be followed.

Interestingly, the Panel also recognized that “[t]here must be a balance between the players’ fundamental right to free movement and the principle of stability of contracts, as supported by the legitimate objective of safeguarding the integrity of the sport and the stability of championships”.[30] In the present case, “[i]f the New Club had to pay compensation even if it is established that it bears no responsibility whatsoever in the breach of the Employment Contract, the player would be hindered from finding a new employer”.[31] Indeed, “it is not difficult to perceive that no New Club would be prepared to pay a multi-million compensation (or transfer fee), in particular for a player who was fired for gross misconduct, was banned for several months, and suffered drug problems”.[32] In short, “Chelsea's interpretation of Article 14.3 would bring the matter back into pre-Bosman times, when transfer fees obstructed the players' freedom of movement”.[33] This is unacceptable for the Panel. Had Chelsea’s interpretation been tolerated “the balance sought by the 2001 RSTP between the players' rights and an efficient transfer system, which responds to the specific needs of football and preserves the regularity and proper functioning of sporting competition would be upset”.[34] Consequently, this interpretation is deemed “incompatible with the fundamental principle of freedom to exercise a professional activity and is disproportionate to the protection of the old club's legitimate interests”.[35] Thus, the Panel concludes “that Article 14.3 does not apply in cases where it was the employer's decision to dismiss with immediate effect a player who, in turn, had no intention to leave the club in order to sign with another club and where the New Club has not committed any fault and/or was not involved in the termination of the employment relationship between the old club and the Player”.[36]

Conclusion

This award is of great interest, not so much for its solution - it is difficult to understand how the FIFA DRC could construct Article 14.3 RSTP as imposing a joint liability on Juventus and Livorno - as for the method used to reach it. The CAS had already in the past based its interpretation of the RSTP on its legislative history and especially on it being the result of a negotiation with the EU Commission in the aftermath of the Bosman ruling.[37] It is the first time, however, that it does so in such length and depth. This contextual reading of Article 14.3 tipped decisively the balance in favor of the appellants. Furthermore, it is a timely reminder for other CAS Panels that FIFA’s RSTP must be interpreted in conformity with EU law and especially the case law of the CJEU on the free movement of workers. If not, CAS awards will face problems at the enforcement stage, as highlighted by the recent SV Wilhelmshaven ruling of the OLG Bremen (see our comment here on the EU law dimension)[38]. This implies that the restrictions it imposes on the free movement of players must be justified by a legitimate objective recognized by the CJEU and be proportionate to attain this objective. In the present case, the interpretation of 14.3 promoted by the DRC runs counter to this requirement as it is not truly aimed at an acceptable legitimate objective and certainly not a proportionate mean to attain contractual stability. Nonetheless, this reasoning could also put into question previous interpretations of the FIFA RSTP. This is especially true for the case-law on the implementation of Article 17 RSTP. The Panel, conscious of the potential implication of the analysis used, is adamant that this case-law is compatible with an EU law conform interpretation. Yet, EU law scholars strongly oppose this view and it can be reasonably argued that the way damages are calculated in case of a breach of a contract under Article 17 is not compatible with the letter and spirit of EU law as applied to the transfer system in Bosman and after[39].

This case will set a resounding precedent for future CAS awards. Lawyers dealing with disputes involving the FIFA RSTP in front of the FIFA DRC and the CAS should take note of this development and introduce wider references to EU law in their briefs.


[1] For this article I have much profited from the outstanding research assistance of Thalia Diathesopoulou.

[2]G. Von Segesser, ‘Equality of Information and Impartiality of Arbitrators’, in P. Wautelet, T. Kruger, G. Coppens (eds), The Practice of Arbitration: Essays in Honour of Hans van Houtte

Hart, 2012, pp.45-51 and L. Beffa, ‘Challenge of International Arbitration Awards in Switzerland for Lack of Independence and/or Impartiality of an Arbitrator – Is it Time to Change the Approach?’ (2011) ASA Bulletin 598 et seq.

[3] CAS 2013/A/3365 & 3366, para 39.

[4] Ibid.

[5] Ibid

[6]Ibid, para. 121-136

[7] Ibid, para. 131

[8] Ibid, para. 131

[9] Ibid, para. 131

[10] Ibid, para.137

[11] Ibid, para.138

[12] Ibid, para.139

[13]Ibid,  para.139

[14]Ibid, para.139

[15]Ibid, para.140

[16]Ibid, para.148

[17]Ibid, para.149

[18]Ibid, para.151

[19]Ibid, para.156

[20]Ibid, para.157

[21]Ibid, para.158

[22]Ibid, para.159

[23]Ibid, para.160

[24]Ibid, para. 161

[25]Ibid, para. 163

[26]Ibid, para. 163

[27]Ibid, para. 165

[28]Ibid, para. 166

[29]Ibid, para. 168

[30]Ibid, para. 169

[31]Ibid, para. 172

[32] Ibid

[33] Ibid, para.174

[34]Ibid, para.174

[35]Ibid, para.174

[36]Ibid,  para.177

[37] ‘It must be remembered that the FIFA Regulations have been issued to regulate the legal and economic aspects of the transfer of players in accordance with the principle of free movement of workers as established by the EC treaty and substantiated by the European Court of Justice in its ruling of 15 December 1995 (case C-415/93), thereby taking the specific needs of professional football into account. In this context, any provisions in the FIFA regulations affecting the player’s freedom of movement should be interpreted narrowly.’ CAS 2004/A/691 FC Barcelona SAD v. Manchester United FC, para. 38; ‘However, the principle behind Art. 5 para. 5 of the Application Regulations is clear: the free movement of workers within the EU/EEA must not be restricted by the imposition of a requirement for the payment of sums by way of compensation for training and education in respect of a player to whom the training club does not offer a contract. In such a case, the failure to offer a contract is an important factor in the assessment of compensation. The compensation payable should not be of such an amount as would impede the player’s ability to move to a new club.’ CAS 2006/A/1125 Hertha BSC Berlin v. Stade Lavallois Mayenne FC, award of 1 December 2006, para. 25; ‘Finally, because of the potentially high amounts of compensation involved, giving clubs a regulatory right to the market value of players and allowing lost profits to be claimed in such manner would in effect bring the system partially back to the pre-Bosman days when players’ freedom of movement was unduly hindered by transfer fees and their careers and well-being could be seriously affected by them becoming pawns in the hands of their clubs and a vector through which clubs could reap considerable benefits without sharing the profit or taking corresponding risks. In view of the text and the history of article 17 par. 1 of the FIFA Status Regulations, allowing any form of compensation that could have such an effect would clearly be anachronistic and legally unsound.’ CAS 2007/A/1298 Wigan Athletic FC v/ Heart of Midlothian & CAS 2007/A/1299 Heart of Midlothian v/ Webster & Wigan Athletic FC & CAS 2007/A/1300 Webster v/ Heart of Midlothian, para. 81.

[38] A. Duval, ‘The Court of Arbitration for Sport  and EU law: Chronicle of an Encounter’, Maastricht Journal of European and Comparative Law, forthcoming.

[39] See, R. Parrish, ‘Article 17 of the FIFA Regulations on the Status and Transfer of Players: Compatibility with EU Law ‘Maastricht Journal of European and Comparative Law, forthcoming. See also, Pearson, G. (2015), Sporting Justifications under EU Free Movement and Competition Law: The Case of the Football ‘Transfer System’. European Law Journal, 21: 220–238.

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