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

Why the European Commission will not star in the Spanish TV rights Telenovela. By Ben Van Rompuy and Oskar van Maren

The selling of media rights is currently a hot topic in European football. Last week, the English Premier League cashed in around 7 billion Euros for the sale of its live domestic media rights (2016 to 2019) – once again a 70 percent increase in comparison to the previous tender. This means that even the bottom club in the Premier League will receive approximately €130 million while the champions can expect well over €200 million per season.

The Premier League’s new deal has already led the President of the Spanish National Professional Football League (LNFP), Javier Tebas, to express his concerns that this could see La Liga lose its position as one of Europe’s leading leagues. He reiterated that establishing a centralised sales model in Spain is of utmost importance, if not long overdue.

Concrete plans to reintroduce a system of joint selling for the media rights of the Primera División, Segunda División A, and la Copa del Rey by means of a Royal Decree were already announced two years ago. The road has surely been long and bumpy. The draft Decree is finally on the table, but now it misses political approval. All the parties involved are blaming each other for the current failure: the LNFP blames the Sport Governmental Council for Sport (CSD) for not taking the lead; the Spanish Football Federation (RFEF) is arguing that the Federation and non-professional football entities should receive more money and that it should have a stronger say in the matter in accordance with the FIFA Statutes;  and there are widespread rumours that the two big earners, Real Madrid and FC Barcelona, are actively lobbying to prevent the Royal Decree of actually being adopted.

To keep the soap opera drama flowing,  on 30 December 2014, FASFE (an organisation consisting of groups of fans, club members, and minority shareholders of several Spanish professional football clubs) and the International Soccer Centre (a movement that aims to obtain more balanced and transparent football and basketball competitions in Spain) filed an antitrust complaint with the European Commission against the LNFP. They argue that the current system of individual selling of LNFP media rights, with unequal shares of revenue widening the gap between clubs, violates EU competition law.


Source:http://www.gopixpic.com/600/buscar%C3%A1n-el-amor-verdadero-nueva-novela-de-televisa/http:%7C%7Cassets*zocalo*com*mx%7Cuploads%7Carticles%7C5%7C134666912427*jpg/

More...



The 2014 Dortmund judgment: what potential for a follow-on class action? By Zygimantas Juska

Class actions are among the most powerful legal tools available in the US to enforce competition rules. With more than 75 years of experience, the American system offers valuable lessons about the benefits and drawbacks of class actions for private enforcement in competition law. Once believed of as only a US phenomenon, class actions are slowly becoming reality in the EU. After the adoption of the Directive on damages actions in November 2014, the legislative initiative in collective redress (which could prescribe a form of class actions) is expected in 2017.[1] Some pro-active Member States have already taken steps to introduce class actions in some fashion, like, for example, Germany.

What is a class action? It is a lawsuit that allows many similar legal claims with a common interest to be bundled into a single court action. Class actions facilitate access to justice for potential claimants, strengthen the negotiating power and contribute to the efficient administration of justice. This legal mechanism ensures a possibility to claim cessation of illegal behavior (injunctive relief) or to claim compensation for damage suffered (compensatory relief).  More...

The Pechstein ruling of the OLG München - A Rough Translation

The Pechstein decision of the Oberlandesgericht of Munich is “ground-breaking”, “earth-shaking”, “revolutionary”, name it. It was the outmost duty of a “German-reading” sports lawyer to translate it as fast as possible in order to make it available for the sports law community at large (Disclaimer: This is not an official translation and I am no certified legal translator). Below you will find the rough translation of the ruling (the full German text is available here), it is omitting solely the parts, which are of no direct interest to international sports law.

The future of CAS is in the balance and this ruling should trigger some serious rethinking of the institutional set-up that underpins it. As you will see, the ruling is not destructive, the Court is rather favourable to the function of CAS in the sporting context, but it requires a fundamental institutional reshuffling. It also offers a fruitful legal strategy to challenge CAS awards that could be used in front of any national court of the EU as it is based on reasoning analogically applicable to article 102 TFEU (on abuse of a dominant position), which is valid across the EU’s territory.

Enjoy the read! 

Antoine

PS: The translation can also be downloaded at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2561297

 More...




From Veerpalu to Lalluka: ‘one step forward, two steps back’ for CAS in dealing with Human Growth Hormone tests (by Thalia Diathesopoulou)

In autumn 2011, the Finnish cross-country skier Juha Lalluka, known as a “lone-wolf” because of his training habit, showed an adverse analytical finding with regard to human growth hormone (hGH). The timing was ideal. As the FINADA Supervisory Body in view of the A and B positive samples initiated disciplinary proceedings against Lalluka for violation of anti-doping rules, the Veerpalu case was pending before the CAS. At the athlete’s request, the Supervisory Board postponed the proceedings until the CAS rendered the award in the Veerpalu case. Indeed, on 25 March 2013, the CAS shook the anti-doping order: it cleared Andrus Veerpalu of an anti-doping rule violation for recombinant hGH (rhGH) on the grounds that the decision limits set by WADA to define the ratio beyond which the laboratories should report the presence of rhGH had not proven scientifically reliable.

The Veerpalu precedent has become a rallying flag for athletes suspected of use of hGH and confirmed some concerns raised about the application of the hGH test. Not surprisingly, Sinkewitz and Lallukka followed the road that Veerpalu paved and sought to overturn their doping ban by alleging the scientific unreliability of the hGH decisions limits. Without success, however. With the full text of the CAS award on the Lallukka case released a few weeks ago[1] and the new rules of the 2015 WADA Code coming into force, we grasp the opportunity to outline the ambiguous approach of CAS on the validity of the hGH test. In short: Should the Veerpalu case and its claim that doping sanctions should rely on scientifically well founded assessments be considered as a fundamental precedent or as a mere exception? More...

State Aid and Sport: does anyone really care about rugby? By Beverley Williamson

There has been a lot of Commission interest in potential state aid to professional football clubs in various Member States.  The huge sums of money involved are arguably an important factor in this interest and conversely, is perhaps the reason why state aid in rugby union is not such a concern. But whilst the sums of money may pale into comparison to those of professional football, the implications for the sport are potentially no less serious.

At the end of the 2012/2013 season, Biarritz Olympique (Biarritz) were relegated from the elite of French Rugby Union, the Top 14 to the Pro D2.  By the skin of their teeth, and as a result of an injection of cash from the local council (which amounted to 400,000€), they were spared administrative relegation to the amateur league below, the Fédérale 1, which would have occurred as a result of the financial state of the club.More...

State aid in Croatia and the Dinamo Zagreb case

Introduction

The year 2015 promises to be crucial, and possibly revolutionary, for State aid in football. The European Commission is taking its time in concluding its formal investigations into alleged State aid granted to five Dutch clubs and several Spanish clubs, including Valencia CF and Real Madrid, but the final decisions are due for 2015.

A few months ago, the Commission also received a set of fresh State aid complaints originating from the EU’s newest Member State Croatia. The complaints were launched by a group of minority shareholders of the Croatian football club Hajduk Split, who call themselves Naš Hajduk. According to Naš Hajduk, Hajduk Split’s eternal rival, GNK Dinamo Zagreb, has received more than 30 million Euros in unlawful aid by the city of Zagreb since 2006.More...

“The Odds of Match Fixing – Facts & Figures on the integrity risk of certain sports bets”. By Ben Van Rompuy

Media reports and interested stakeholders often suggest that certain types of sports bets would significantly increase the risks of match fixing occurring. These concerns also surface in policy discussions at both the national and European level. Frequently calls are made to prohibit the supply of “risky” sports bets as a means to preserve the integrity of sports competitions.

Questions about the appropriateness of imposing such limitations on the regulated sports betting, however, still linger. The lack of access to systematic empirical evidence on betting-related match fixing has so far limited the capacity of academic research to make a proper risk assessment of certain types of sports bets. 

The ASSER International Sports Law Centre has conducted the first-ever study that assesses the integrity risks of certain sports bets on the basis of quantitative empirical evidence. 

We uniquely obtained access to key statistics from Sportradar’s Fraud Detection System (FDS). A five-year dataset of football matches worldwide, which the FDS identified as likely to have been targeted by match fixers, enabled us to observe patterns and correlations with certain types of sports bets. In addition, representative samples of football bets placed with sports betting operator Betfair were collected and analysed. 

The results presented in this report, which challenge several claims about the alleged risks generated by certain types of sports bets, hope to inform policy makers about the cost-effectiveness of imposing limits on the regulated sports betting offer.More...

The Pechstein ruling of the Oberlandesgericht München - Time for a new reform of CAS?

Editor's note (13 July 2015): We (Ben Van Rompuy and I) have just published on SSRN an article on the Pechstein ruling of the OLG. It is available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2621983. Feel free to download it and to share any feedback with us!


On 15 January 2015, the earth must have been shaking under the offices of the Court of Arbitration for Sport (CAS) in Lausanne when the Oberlandesgericht München announced its decision in the Pechstein case. If not entirely unpredictable, the decision went very far (further than the first instance) in eroding the legal foundations on which sports arbitration rests. It is improbable (though not impossible) that the highest German civil court, the Bundesgerichtshof (BGH), which will most likely be called to pronounce itself in the matter, will entirely dismiss the reasoning of the Oberlandesgericht. This blogpost is a first examination of the legal arguments used (Disclaimer: it is based only on the official press release, the full text of the ruling will be published in the coming months).More...



In blood we trust? The Kreuziger Biological Passport Case. By Thalia Diathesopoulou

Over the last twenty years, professional cycling has developed the reputation of one of the “most drug soaked sports in the world”.[1] This should not come as a surprise. The sport’s integrity has plummeted down due to an unprecedented succession of doping scandals. La crème de la crème of professional cyclists has been involved in doping incidents including Tyler Hamilton, Floyd Landis, Alejandro Valverde and Lance Armstrong. The once prestigious Tour de France has been stigmatized as a race of “pharmacological feat, not a physical one”.[2]

In view of these overwhelming shadows, in 2008, the International Cycling Union (UCI), in cooperation with the World Anti-Doping Agency (WADA) took a leap in the fight against doping. It became the first International Sports Federation to implement a radical new anti-doping program known as the Athlete Biological Passport (ABP).[3] More...

A Question of (dis)Proportion: The CAS Award in the Luis Suarez Biting Saga

The summer saga surrounding Luis Suarez’s vampire instincts is long forgotten, even though it might still play a role in his surprisingly muted football debut in FC Barcelona’s magic triangle. However, the full text of the CAS award in the Suarez case has recently be made available on CAS’s website and we want to grasp this opportunity to offer a close reading of its holdings. In this regard, one has to keep in mind that “the object of the appeal is not to request the complete annulment of the sanction imposed on the Player” (par.33). Instead, Suarez and Barcelona were seeking to reduce the sanction imposed by FIFA. In their eyes, the four-month ban handed out by FIFA extending to all football-related activities and to the access to football stadiums was excessive and disproportionate. Accordingly, the case offered a great opportunity for CAS to discuss and analyse the proportionality of disciplinary sanctions based on the FIFA Disciplinary Code (FIFA DC).  More...

Asser International Sports Law Blog | The Diarra Ruling of the Tribunal of Charleroi: The New Pechstein, Bosman or Mutu?

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 Diarra Ruling of the Tribunal of Charleroi: The New Pechstein, Bosman or Mutu?

Yesterday the sports law world was buzzing due to the Diarra decision of the Tribunal de Commerce du Hainaut (the Tribunal) based in Charleroi, Belgium. Newspapers were lining up (here, here and here) to spread the carefully crafted announcement of the new triumph of Jean-Louis Dupont over his favourite nemesis: the transfer system. Furthermore, I was lucky enough to receive on this same night a copy of the French text of the judgment. My first reaction while reading quickly through the ruling, was ‘OMG he did it again’! “He” meaning Belgian lawyer Jean-Louis Dupont, who after a string of defeats in his long shot challenge against FIFA’s TPO ban or UEFA’s FFP (see here and here), had [at least I believed after rushing carelessly through the judgment] manufactured a new “it”: a Bosman. Yet, after carefully re-reading the judgment, it became quickly clear to me that this was rather a new Mutu (in the sense of the latest CAS award in the ‘Mutu saga’, which I have extensively analysed on this blog and in a recent commentary for the new Yearbook of International Sports Arbitration) coupled with some reflections reminding a bit (but not really as will be explicated below) the Pechstein case.

In this blog, I will retrace briefly the story behind the case and then analyse the decision of the Belgium court. In doing so, I will focus on its reasoning regarding its jurisdiction and the compatibility of article 17(2) RSTP with EU law.

 

I.              The facts of the case

On 20 August 2013, the French footballer Lassana Diarra and the Russian top-tier club FC Lokomotiv Moscow (Lokomotiv) agreed on a four-year contract (Contract). Article 8 (3) of the Contract provided that in case Lokomotiv terminates the Contract for disciplinary reasons, Mr. Diarra would be liable for compensation amounting to EUR 20,000,000 (Compensation).  One year later, on 22 August 2014, Lokomotiv terminated the Contract due to Diarra's recurring failures to perform his obligations arising thereof. Lokomotiv relied on Article 8 (3) of the Contract and claimed the Compensation.

Less than a month later, Lokomotiv lodged a request for compensation with the FIFA Dispute Resolution Chamber (DRC) against Diarra. Diarra subsequently filed his counterclaim in which he asked for the payment of bonuses and wage arrears as well as the compensation amounting to the remuneration which would still have to be paid between August 2014 and 30 June 2017, the term provided for in the Contract. On 10 April 2015, the DRC rendered its decision ruling that Lokomotiv’s decision to terminate the Contract was justified (DRC Decision). Regarding the compensation due by Diarra, the DRC noted that Article 8 (3) of the Contract provided for the Compensation (amounting to EUR 20,000,000) claimed from Diarra. On the other hand, in case a compensation was due by Lokomotiv, Article 8 (5) of the Contract set a limit to three months of Diarra’s salary (approximately EUR 1,500,000). Taking into account the discrepancy, the DRC noted that the respective rights of the parties were completely disproportionate and the Contract should be disregarded. The DRC nevertheless decided that the consequences of the Contract's termination had to be assessed in light of Article 17 (1) of the FIFA Regulation for the Status and Transfer of Players (RSTP). In line with the said provision, the DRC decided that Diarra had to pay Lokomotiv the amount of EUR 10,500,000 for having repeatedly breached the Contract. Although this issue was not directly related to the case, the DRC pointed out that, following the termination of the Contract, Diarra did not immediately manage to find a new club so that Article 17 (2) RSTP (making a professional player and his new club jointly and severally liable for a compensation owed to a previous club) was in principle not applicable to the case. Furthermore, the DRC ruled that, having regard to the date of the Contract's termination and the time elapsed between that date and the issuance of the DRC Decision, Article 17 (2) would not apply in case Diarra finds a new club in the future.

Yet, during the period between 22 August 2014 and 10 April 2015, Diarra had attracted attention from several European clubs (e.g. Inter Milan, West Ham United, Celtic Glasgow and Sporting Charleroi). Negotiations, however, did not succeed for the reason that those clubs were afraid of being held jointly liable for a compensation which could have been potentially awarded by the DRC. On 19 February 2015, the Belgian football club Sporting Charleroi (Charleroi) offered Diarra a 15-month contract concerning the period between 30 March 2015 and 30 June 2016. This offer was, however, subject to the following conditions:

  1. Diarra is registered and qualified as a member of Charleroi by 30 March 2015 at the latest; and
  2. The governing bodies, Belgian Football Association (URBSFA) and FIFA, expressly confirm that Charleroi is not required to pay the compensation for which Diarra could be held liable at the end of the proceedings before the DRC.

On this second condition, Diarra and Charleroi demanded confirmation from FIFA and the URBSFA. Both governing bodies refused to adopt a concrete position with respect to the application of Article 17 (2) RSTP to the case at hand. On 27 March 2015, in light of the abovementioned replies obtained from FIFA and URBSFA, Diarra referred the case to the President of the Commercial Court of Brussels asking to order FIFA and URBSFA:

  1. To register and qualify him as a professional football player of Charleroi, thereby allowing him to play for the rest of the 2014/2015 season;
  2.  Not to apply Article 17 (2) and (4) RSTP to Charleroi.

No order had been delivered before the DRC Decision was issued. Furthermore, the DRC Decision confirmed that Article 17 (2) RSTP was not applicable to any new club which would hire Diarra in future. As a result, Diarra decided to withdraw his action from the Commercial Court of Brussels. However, he was not able to play as a professional player for Charleroi until the end of the 2014/2015 season. In July 2015, Diarra entered into a contract with the French top-tier club Olympique Marseille. This contract is still in force. 

Diarra also appealed against the DRC Decision before the CAS in Lausanne. On 27 May 2016, the CAS rendered its award by which it confirmed the DRC Decision. In the end, Diarra filed a lawsuit with the the Tribunal de Commerce du Hainaut. Diarra sued both FIFA and URBSFA for damages caused by not being able to exercise the status of a professional football player during the entire 2014/2015 season. Finally, on 19 January 2017, the Hainaut Commercial Tribunal – Charleroi division rendered the judgment analysed in this blog.            

 

II.            The decision of the Tribunal of Charleroi

A.    Does the Tribunal of Charleroi have jurisdiction?

FIFA (and the Belgium federation) argued that the Tribunal lacked jurisdiction for two (main) reasons: Diarra was bound by a CAS arbitration clause and the Belgium court is incompetent based on the Lugano Convention. Let’s turn to the Tribunal’s rebuttal of both objections.

1.     The inexistence of a CAS arbitration clause

FIFA argued that M. Diarra was bound, through his registration as a professional football player with the French Football Federation, by the CAS arbitration clause included in the Statutes of FIFA.[1] In particular it refers to Article 68 of the FIFA Statutes

The Tribunal finds that this provision poses difficult problems of interpretation. Especially, Article 68(3) FIFA Statutes does not stipulate that the prohibition to have recourse to ordinary courts entails necessarily an arbitration clause in favorem of the CAS. Instead, the Tribunal finds this lack of clarity in the wording of the provision to play in favour of the player. Thus, it concludes that the FIFA Statutes do not create an obligation for the player to turn to the CAS to solve this dispute.

The judges add that even if one considers the FIFA Statutes to be sufficiently clear and precise, the parties must have concluded an arbitral convention in the sense of Article 1680 of the Code Judiciaire Belge (Belgian Judicial Code). In this regard, FIFA needs to demonstrate through documentary evidence (not necessarily signed by the parties) the existence of an agreement fulfilling the law’s requirements of clarity and precision.[2] Yet, in the present case, FIFA was unable to show that it had any contractual links with Diarra. Hence, the judges concluded that there were no elements demonstrating that Diarra would have consented expressly or implicitly to arbitrate at the CAS disputes stemming from its relation with FIFA. Additionally, the Tribunal refers in footnote 7 to the evident contradiction between FIFA’s claim and the agreement signed with the European Commission to put an end in 2001 to the Commission’s investigation into the FIFA RSTP. Indeed, this agreement clearly stipulates that “arbitration is voluntary and does not prevent recourse to national courts”.[3] Finally, the Tribunal insists that any general prohibition (as the one included in FIFA’s statutes) to have recourse to national courts would be contrary to Ordre Public and, therefore, must be disregarded by the Tribunal.

Is it a new Pechstein? Hardly. FIFA is not relying on a specific arbitration clause included in its Statutes, nor does it refer to any arbitration clause included in the Statutes of the French Football Federation. In the Pechstein case (on ‘Pechstein’ see our blogs here and here), Claudia Pechstein was forced (as a condition of entry to the competitions of the ISU) to sign an arbitration agreement in favour of the CAS. In the Diarra case, the player never signed anything and the Tribunal just highlighted that the vague language included in the FIFA Statutes cannot be constructed as a sufficient legal basis for a general arbitration agreement binding all football players (and clubs) for all disputes involving FIFA or national federations around the globe.

2.     The competence of the Tribunal of Charleroi on the basis of the Lugano Convention

The second objection raised by FIFA and the URBSFA regarding the competence of the Tribunal is related to the Lugano Convention. In principle, as pointed out by the respondents, Article 2.1. Lugano Convention foresees that one should be sued in the courts of her domicile. Any derogation to this general rule is, in their view, limited to exceptional circumstances in which there is a particularly close linked between the dispute and the jurisdiction other than the one of the domicile of the respondent.

Yet, the Tribunal refers to Article 5.3. Lugano Convention, which stipulates that “in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur”. It held that this special competence is grounded on the existence of closed connecting factors between the dispute and the place where the damage occurred. The judges refer to the Mines de potasse and Shevill jurisprudence of the Court of Justice of the EU to conclude that the notion of harmful event covers both the place where the damage materialized and the place where the event occurred. In the present case, it entails that Diarra is not forced to lodge a complaint in Switzerland, where FIFA adopted the controversial regulation. Instead, he could also submit a complaint at the place where the damage was felt. More precisely in Belgium (and more specifically Charleroi) due to the missed opportunity to be employed by Sporting Charleroi.

This is (with other cases we have chronicled on this blog, see here and here) a good reminder that FIFA’s regulations, as long as they have damaging effects outside of Switzerland, are easily subjected to challenges in the EU Member States. In particular due to a potential incompatibility with EU free movement and competition law.

B.    The compatibility of article 17(2) FIFA RSTP with EU law?

The core of the substantial evaluation of the case plays out mainly around the question of the compatibility of article 17(2) FIFA RSTP with EU law. Unfortunately for the European Sports Law geek, but reasonably in the context of the factual construction of the case, the Tribunal did not pick on the request of Diarra’s lawyer to send a preliminary reference to the CJEU regarding the compatibility of article 17(1) FIFA RSTP with EU free movement law. [4]

Instead, the Tribunal focused on the interpretation (at least until April 2015) by FIFA (and the URBSFA) of article 17(2) FIFA RSTP. Indeed, it refers to the legislative history of the FIFA RSTP and in particular the EU Commission-FIFA agreement to strongly affirm that “there is no doubt that the European Commission would have never given its green light to such a system, which boils down in fine to preventing a worker dismissed by his employer – even if it is due to his behaviour - to find a new job”.[5] To further support this argumentation it refers directly to the CAS award rendered in the latest episode of the ‘Mutu saga’. In that case, the CAS clearly affirmed that the interpretation provided by the FIFA DRC, insofar as it extends the applicability of article 17(2) FIFA RSTP to players dismissed by their clubs on the basis of their behaviour, is contrary to EU law and the Bosman jurisprudence. Thus, the Tribunal concludes that the application of article 17(2) FIFA RSTP supported by the defendants in the present case was contrary to the freedom of movement of workers. Henceforth, the faulty behaviour of FIFA was established.

Interestingly, and this is the more original aspect of the decision, the Tribunal found that the URBSFA should also be deemed at fault for having implemented the rule on FIFA’s behalf. The national federation cannot hide behind its duty to implement FIFA regulations, especially because since 21 January 2015 (meaning before it opposed the move to Sporting Charleroi) it should have been aware of the decision of the CAS (here the Tribunal is a bit unfair with the URBSFA because the full text of the award was not published until March 2015, and until then it was impossible for the URBSFA to clearly assess the CAS’ reasoning). Moreover, the Tribunal rejects the objection raised by the URBSFA that the Russian federation would not have issued an International Transfer Certificate. Instead, the judges held that “when the contract is terminated by the club, the player must have the possibility to sign a new contract with a new employer, without restrictions to his free movement”. The Tribunal added [and this is the key part that had me believe in a new Bosman for a minute ;)]

“Allowing, like the RSTP seems to do, a federation or association to which the former club belongs […] not to deliver an ITC if there is a contractual disputes between the former club and a player that has been dismissed (and who has not taken the initiative of breaching his contract) and who has concluded (or wishes to conclude) a new contract in another country, is equivalent to requiring the new club to pay to the former club the compensation requested from the player, which is akin to imposing to the new club to pay a transfer fee to the former club to recruit a player who in fact is out of contract. This is exactly the practice deemed contrary to EU law in the Bosman case.”[6]

The scope of this paragraph could have been way broader if the Tribunal had not included the “who has been dismissed” part. Indeed, it seems to exclude situations where the player decides to leave his club and, thus, preserves the possibility to hold the new club accountable for compensation due by the player to his former club for having terminated his contract.


Conclusion: Interpreting the FIFA RSTP with a lot of help from EU law

This case matters, not so much for Diarra, who has secured a meagre EUR 60 001 in damages (and not the EUR 6 million announced everywhere) plus a bit more if his lawyers manage to demonstrate a substantial loss of opportunity from not having played with Sporting Charleroi (which, with all due respect, should prove rather difficult), not so much for its substantial solution because the CAS had come to a similar conclusion in its Mutu award from 2015, not so much either for its arbitration dimension as the Tribunal’s considerations regarding the absence of an arbitral agreement are not really surprising (or new for that matter). No, its importance lies in the reaffirmation of the need to read the RSTP in the light of EU law and to interpret it with the jurisprudence of the CJEU in mind and the agreement with the EU Commission on the table. This decision is laying further ground for broader challenges to the RSTP on the basis of EU law. For example, I do not see where one can find in the EU Commission-FIFA agreement the endorsement of a joint liability of the new club and a player for damages incurred by the latter when terminating his contract with his former club. Thus, the entire article 17(2) FIFA RSTP is build on shaky legal grounds, and if one pursues the logic of the Tribunal until the end there is no reason why it should not be deemed contrary to the EU free movement rights of players.


[1] Jugement du Tribunal de Commerce du Hainaut, division Charleroi, A/16/00141, 19 January 2017, at paras 19-21.

[2] Ibid, at para.21.

[3] Ibid.

[4] Ibid, at para. 27.

[5] Ibid, at para. 28.

[6] Ibid.

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