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

Time to focus on freedom of expression: Rainbows, armbands, and FIFA’s commitment to human rights - By Prof. Mark James (Manchester Metropolitan University)

Editor's note: Mark James is Professor of Sports Law at Manchester Metropolitan University and the author of a leading Sports Law textbook.


The opening days of the FIFA World Cup Qatar 2022 have already resulted in a number of issues of interest to sports lawyers and human rights lawyers, with FARE’s Piara Powar claiming that this is the most political major sporting event that he has attended. Both FIFA and the local organisers have been active in their suppression of expressions of support for LGBTQIA+ rights by players, fans and journalists alike, calling into question once again the legality of restricting free speech by sporting rules and regulations.

There have been two major flashpoints to date. First, seven European federations had asked FIFA for permission for their captains to wear armbands supporting the ‘OneLove’ campaign. FIFA’s response was to refuse, resulting in the German players covering their mouths for their pre-match photographs in protest at their being silenced. There are several grounds on which FIFA would seek to support its position:

  •  Law 4.5 of the Laws of the Game prohibits any playing equipment from carrying any political, religious or personal slogans, statements or images.
  • Regulation 4.3.1 of FIFA’s Equipment Regulations and Regulation 27.1 of the FIFA World Cup 2022 Regulations prohibits clothing or equipment that includes political, religious, or personal slogans, statements, or images, or otherwise does not comply in full with the Laws of the Game.
  • Regulation 33.3 of the FIFA World Cup 2022 Regulations prohibits the display of political, religious or personal messages or slogans of any nature in any language or form by players and officials.
  • Regulation 13.8.1 of FIFA’s Equipment Regulations states that for FIFA Final Competitions, the captain of each Team must wear the captain’s armband provided by FIFA (all Regulations available in the FIFA Legal Handbook 2022).

Although the DFB is considering a challenge to FIFA’s refusal to allow its captain to wear the OneLove armband, which would ultimately be heard before CAS, it is unlikely to succeed in the face of the strict requirements of the above Laws and Regulations. However, what could cause more difficulty for both FIFA and CAS is if the DFB frames its case as a challenge to the compliance of the rules that restrict players’ freedom of expression with Article 3 of FIFA’s Statutes, which states that ‘FIFA is committed to respecting all internationally recognised human rights.’ Article 3, together with the additional detail provided by FIFA’s Human Rights Policy, ensures that freedom of expression as defined in Article 19 of the Universal Declaration of Human Rights and Article 10 of the European Convention on Human Rights are limitative rules that can be applied directly to FIFA’s activities, as has been argued by Bützler and Schöddert. Further, if the affected players and associations can define themselves as human rights defenders, then Article 11 of FIFA’s Human Rights Policy states that, ‘FIFA will respect and not interfere with the work of … human rights defenders who voice concerns about adverse human rights impacts relating to FIFA.’ Any challenge using this approach would be the first real test of the enforceability of the human rights protections to which FIFA claims to be committed. It would also be a test of CAS’s ability to require adherence to the human rights commitments made by ISFs and to prove that they are more than simple window-dressing.

Secondly, members of The Rainbow Wall, a contingent of LGBTQIA+ rights-supporting Welsh fans, were prevented from entering the Ahmed bin Ali stadium whilst wearing bucket hats incorporating a rainbow into its design. No explanation for why was given, however, FIFA and the local organisers would argue that openly supporting LGBTQIA+ rights with the aim of promoting legal change in a country where homosexuality is illegal is a political statement on apparel and therefore entry into the stadium wearing the rainbow hat is in breach of the Regulation 3.1.23 of the Stadium Code of Conduct. A similar argument could be used to justify preventing US journalist Grant Wahl from entering the stadium wearing a t-shirt incorporating a rainbow into its design and Danish journalist Jon Pagh from wearing the OneLove armband. However, it must be stressed that no such explanation for the prohibitions applied to these garments was provided to any of the affected fans or journalists. It must also be recognised that the opinion that promoting LGBTQIA+ rights is a political expression is highly contested. In a statement from FIFPRO, the opposing view was stated succinctly: ‘We maintain that a rainbow flag is not a political statement but an endorsement of equality and thus a universal human right.’

It is clear that, as with Rule 50 of the Olympic Charter, the chilling effect that FIFA’s Regulations have on players’ and fans’ freedom of expression is likely to be unlawful, as has been discussed at length both on this blog and on the Verfassungsblog Debate on Freedom of Expression in the Olympic Movement. Instead of revisiting these arguments, which are taken to apply to FIFA’s actions at Qatar 2022, two additional issues related to the FIFA Statutes are explored here.

Articles 3 and 4 of FIFA’s Statutes state that:

3 Human rights

FIFA is committed to respecting all internationally recognised human rights and shall strive to promote the protection of these rights.

4 Non-discrimination, equality and neutrality

4.1 Discrimination of any kind against a country, private person or group of people on account of race, skin colour, ethnic, national or social origin, gender, disability, language, religion, political opinion or any other opinion, wealth, birth or any other status, sexual orientation or any other reason is strictly prohibited and punishable by suspension or expulsion.

FIFA is a long-time supporter of pride events and in its press release for Pride Month 2022 stated:

[The] FIFA World Cup Qatar 2022™ will be a celebration of unity and diversity – a joining of people from all walks of life – regardless of race, ethnicity, religion, age, disability, sex characteristics, sexual orientation, gender identity and expression – everybody will be welcome.

Claims that all staff involved in the Qatar 2022 including public and private security forces, would be trained on how to accomplish their tasks in a non-discriminatory manner, seem not to have been operationalised effectively.

This begs the question whether FIFA is in breach of its own Statutes by refusing to allow players to express themselves freely on armbands and failing to protect fans’ freedom of expression by wearing rainbows. At the very least, FIFA should have ensured that a protective LGBTQIA+ regime in the stadiums and the fan zones during the World Cup was implemented to enable the ‘celebration of unity and diversity’ it claims that Qatar 2022 should be. FIFA’s actions in Qatar call into question its claims to be an inclusive and supportive leader on anti-discrimination and human rights, and is likely to see a backlash from the LGBTQIA+ community that it claims to support when it engages with Pride 2023; accusations of hypocrisy and virtue signalling are guaranteed.

With no resolution to the debate at the time of writing, Articles 3 and 4 could provide players and fans with the opportunity to demonstrate their support for human rights and anti-discrimination causes. At the Sochi 2014 Winter Olympics, Athlete Ally developed the ‘Principle 6 Campaign.’ Instead of criticising directly Russia's so called anti-gay laws, which are currently in the process of being extended, athletes promoted Principle 6 of the Olympic Charter, which at the time stated that, ‘Any form of discrimination with regard to a country or a person on grounds of race, religion, politics, gender or otherwise is incompatible with belonging to the Olympic Movement.’ The eventual outcome of this campaign was the addition of sexual orientation to the list of characteristics protected by Principle 6. Unlike at Sochi 2014, there is no need to campaign for a change to either of Articles 3 or 4 of the FIFA Statutes; instead, activists want to ensure that they are being applied. An immediate response for both players and fans would be for them to quote specifically from Articles 3 and 4, as it would be extremely difficult for FIFA to claim that they are making political or personal statements when promoting FIFA’s own foundational values. A creative reminder of what FIFA claims to stand for could enable player and fan activism to continue throughout the tournament, and beyond, whilst affected players and associations can develop a compelling case for the restrictions on freedom of expression to be struck out by CAS, the Swiss Federal Tribunal and/or the European Court of Human Rights.

New Event - Zoom In - Sports Governing Bodies and the Russian invasion of Ukraine - The end of neutrality? - 12 October - 16.00-17.30 CET

Sport is often presented by Sports Governing Bodies (SGBs), and in particular the International Olympic Committee, as apolitical. A neutral endeavor, which ignores the whims of politics and keeps national governments at arm’s length. In short, it is thought of as an autonomous sphere of transnational society wishing to remain unaffected by the political turbulences out there. In fact, many SGBs enforce strict rules banning political speech by individuals, and in the spaces, subjected to their contractual power. Moreover, FIFA, for example, regularly issues effective sanctions against states which are perceived as threatening the autonomy of the governance of football on their territory. Hence, this apolitical ideal of international sports is not only a founding myth of the Olympic Movement, it is actively pursued by SGBs through their private regulatory powers and has hard consequences for athletes, clubs, sport officials alike.


Yet, on 24 February, Russia decided to invade Ukraine, in what has become the most important land war in Europe since the implosion of ex-Yugoslavia. This invasion was quickly followed by condemnations from the IOC and many other SGBs, leading in many cases, most prominently by UEFA and FIFA, to the exclusion of Russian teams and athletes from international sporting competitions. This reaction is difficult to square with the neutrality and autonomy of sport so vigorously defended by the international SGBs until recently. It raises also many questions of double standards: why did this illegal invasion lead to sporting consequences and not others? Furthermore, the Court of Arbitration of Sport recently released two orders (available here and here) concerning UEFA and FIFA’s decisions to exclude Russian national teams and clubs from their football competitions, which outline the legal strategies pursued by the SGBs to reconcile the public urge to exclude Russia(ns) from international sporting competitions, and their commitments to political neutrality.

We are very happy to welcome three outstanding scholars to discuss these issues with us from different methodological perspectives.

Speakers:

  • Prof. Carmen Pérez (Universidad Carlos III de Madrid), who wrote a blog on the reactions of SGBs to Russia’s invasion
  • Dr. Daniela Heerdt (Asser Institute and Centre for Sports and Human Rights), who is the co-author of a blog mapping the reactions of SGBs to Russia’s invasion
  • Carole Gomez (University of Lausanne and Institut de Relations Internationales et Strategiques), who has been interviewed numerous times by international media on the issue (see here and here)

Moderators:

Register for free HERE!


ISLJ Conference 2022 - Transnational sports law and governance in turbulent times - Early Bird Registration Ends Tomorrow!

On 25 and 26 October 2022, the Asser Institute in The Hague will host the 2022 edition of the International Sports Law Journal (ISLJ) Conference. The ISLJ is the leading academic journal in transnational sports law and governance and is proud to provide a platform for transnational debates on the state of the field. 2022 has put a number of complex issues and disputes on the top of the transnational sports law agenda, which will be at the heart of the conference.


Sports governing bodies react to Russia's invasion of Ukraine
First, Russia’s brutal invasion of Ukraine in February triggered a swift and decisive reaction by a wide range of international sports governing bodies (SGBs), leading in particular to the exclusion of Russian teams and athletes from many international sporting competitions, including most prominently the FIFA World Cup 2022 in Qatar. These reactions have shown, once again, that sport is far from immune from the turbulences of international relations and raise the question of its alleged neutrality and apolitical nature. To engage with these issues, we have invited Prof. Jonathan Grix (Metropolitan Manchester University) to deliver a keynote speech and will dedicate a specific panel to discussing the intersection between transnational sports law and international law/relations.

Monopoly of sports governing bodies
Second, the organization of international sports is also currently threatened by challenges to the traditional monopoly position of international SGBs raised under EU antitrust law. Early July 2022, the Grand Chamber of the Court of Justice of the European Union heard two crucial cases (International Skating Union and Superleague) concerning the compatibility of the rules of international SGBs aimed at sanctioning athletes and clubs who participate in unauthorized third-party competitions. Dr. Van Rompuy (Leiden University), the driving force behind the ISU case, will be discussing with us the potential impact of competition law on the governance of sport and what to expect from the pending decisions of the CJEU. Additionally, we will host two panels dedicated to the application of competition law to sports governance, both at an international and national level.

Human rights and mega-sporting events
Third, with both Beijing and Qatar hosting mega-sporting events this year, it is difficult to ignore the human rights issues raised by international sporting competitions. A fast-growing social movement aimed at urging the SGBs to abide by their human rights responsibilities has been developing around the activism of some NGOs and the creation of the Centre for Sport and Human Rights (CSHR). The CEO of the CSHR, Mary Harvey, will be joining us to share her thoughts on the role of sports lawyers and sports law academics in this discussion. Her intervention will be followed by a panel dedicated to the intersections between human rights and transnational sports law and governance.

Trans and queer participation in sporting competitions
Finally, the question of the participation of transgender athletes in sporting competitions has become an extremely contentious issue of debate in recent years, especially in the United States. Furthermore, International SGBs, such as FINA recently, have started to impose specific requirements to the participation of trans athlete in international competitions. Our closing panel will take a fresh look at this question by foregrounding the way in which trans and queer participation in sporting competitions has been accommodated in South Asia.

Online participation available
For the first time this year, we will allow online participation to the conference for an affordable price. Our aim is to internationalise and diversify further our audience and to reach people who in light of the current challenges, be it Covid-19 or climate change, are not in a position to come in person to The Hague.

Programme
Download the full programme.

Register HERE! (Early Bird Registration is available only until 1 October, 23:59CET)

A personal reflection on the Summer Programme on Sports Governance and Human Rights - By Pedro José Mercado Jaén

Editor’s note:Pedro is an intern at the Asser Institute and currently studying the Erasmus Mundus Master Degree in Sports Ethics and Integrity (KU Leuven et al.) He was one of the participants of the first edition of the Summer Programme on Sports Governance and Human Rights.


In early September, the first Summer Programme on the Governance of Sport and Human Rights took place at the Asser Institute. During one week, various experts in the field presented different lectures to a very diverse group of participants with a wide range of professional backgrounds. Being a participant myself, I would like to reflect on this one-week course and share what I learned. More...



Can Formula 1 drive to protect human rights? A case study of the Bahrain GP - By Pedro José Mercado Jaén

Editor's Note: Pedro is an intern at the Asser Institute and currently studying the Erasmus Mundus Master Degree in Sports Ethics and Integrity (KU Leuven et al.) He worked as a research fellow for the Centre for Sport and Human Rights, and his primary research interests lie in the fields of International Human Rights and sport. 


I.               Introduction

“I can’t do everything and I can’t do it alone. I need allies.” These are the words of the seven-time Formula 1 (F1) world champion, Lewis Hamilton. He was urging more support to advocate for the protection of human rights in the countries visited by Formula 1. During the last years, Hamilton together with Sebastian Vettel, have become the leaders of a movement demanding accountability and greater awareness of the impact of F1 on society.

The inclusion of the Bahrain GP on the F1 racing calendar for the first time in 2004 ignited concerns, which have grown with the inclusion of Abu Dhabi in 2007, Russia in 2014, Azerbaijan in 2017, and Saudi Arabia and Qatar in 2021. The inability and lack of commitment of state authorities to protect and respect human rights, the ineffectiveness of judicial procedures and the systematic repression of political opposition are some of the factors that make these countries prone to human rights violations. Academics and CSOs regularly argue that F1, by signing multi-million dollar contracts with these countries, is complicit in sportswashing. Those pulling the sport’s strings deny these accusations and claim that human rights are at the centre of their agenda when they visit these countries. They claim F1 can drive the improvement of human rights standards in a particular country. However, reality tells a different story. The Bahrain GP has been running for more than a decade and the situation in the country has only worsened, without any signs of F1 contributing to the improvement of the protection of human rights there.

This blog aims to provide an overview of the human rights challenges F1 is facing when hosting a Grand Prix. For this purpose, a case study of the Bahrain GP, one of the longest-running on the modern/current F1 calendar, will be carried out. This will allow us to examine in detail the historical evolution of the GP, the complaints from civil society organisations and the reaction of the Federation Internationale de l’Automobile (FIA) and other stakeholders to the ongoing allegations of human rights violations.More...



Call for papers - ISLJ Conference on International Sports Law - Asser Institute - 25 and 26 October 2022

 

Call for papers

ISLJ Conference on International Sports Law

Asser Institute, The Hague

25 and 26 October 2022


The Editors of the International Sports Law Journal (ISLJ) invite you to submit abstracts for the ISLJ Conference on International Sports Law, which will take place on 25 and 26 October 2022 at the Asser Institute in The Hague. The ISLJ, published by Springer and TMC Asser Press, is the leading academic publication in the field of international sports law. The conference is a unique occasion to discuss the main legal issues affecting international sports and its governance with renowned academic experts.


We are delighted to announce the following confirmed keynote speakers:

  • Jonathan Grix (Professor of Sport Policy and Politics at Manchester Metropolitan University), and
  • Mary Harvey (CEO at the Centre for Sport and Human Rights),
  • Ben Van Rompuy (Assistant Professor at Leiden University).


We welcome abstracts from academics and practitioners on all issues related to international sports law and governance. We also welcome panel proposals (including a minimum of three presenters) on a specific issue. For this year’s edition, we specifically invite submissions on the following themes and subthemes:

  • International sports law and governance in times of conflict:
    • The emergence of the idea(l) of political neutrality of SGBs and its translation in legal/governance practice
    • The intersection between public international law and international sports law and governance in the context of international conflicts
    • The role of sports diplomacy/conditionality in the context of international conflicts
    • International sports law and the Russian invasion of Ukraine

  • Human rights and mega sporting events (MSEs)
    • The adverse or positive impact of MSEs on (specific) human rights
    • The influence of human rights commitments on the organisation of MSEs
    • The effects of MSEs on human rights in organising countries
    • The responsibilities and strategies of SGBs to ensure respect of human rights at MSEs
    • The role and responsibilities of states in ensuring respect of human rights in the context of MSEs

  • Competition law and challenges to the governance monopoly of SGBs
    • The impact of competition law on SGBs and their governance
    • The limits of competition law on effecting change in the governance of sport
    • The specific modalities of application of competition law to sports governance
    • The legitimacy of competition authorities in challenging SGBs


Please send your abstract of 300 words and CV no later than 1 July 2022 to a.duval@asser.nl. Selected speakers will be informed by 15 July.

The selected participants will be expected to submit a draft paper by 10 October 2022. Papers accepted and presented at the conference are eligible for publication in a special issue of the ISLJ subject to peer-review. Submissions after this date will be considered for publication in later editions of the Journal.

The Asser Institute will cover one night accommodation for the speakers and may provide a limited amount of travel grants (max. 250€). If you wish to be considered for a grant, please indicate it in your submission.

Reactions of International Sport Organisations to the Russian Invasion of Ukraine: An Overview - By Daniela Heerdt & Guido Battaglia

Editor's note:

Daniela is a researcher at the Asser Institute in the field of sport and human rights. She has a background in public international law and human rights law and defended her PhD project entitled “Blurred Lines of Responsibility and Accountability – Human Rights Abuses at Mega-Sporting Events” in April 2021 at Tilburg University. She also works as independent consultant in the field of sport and human rights for the Centre for Sport and Human Rights, or the European Parliament among other clients from the sports ecosystem

As Head of Policy and Outreach, Guido is in charge of the Centre for Sport & Human Rights engagement with governments, international and intergovernmental organisations and sports organisations. He represents the Centre at conferences, events and bilateral dialogues to reach new audiences and partners and raise public awareness and understanding of the Centre’s work .



On February 24, 2022, the Russian military invaded Ukrainian territory. What followed was an escalation of the war, day by day, causing thousands of victims and forcing millions of people to flee. On March 2, the UN General Assembly overwhelmingly adopted a resolution deploring "in the strongest possible terms" Russia's aggression against Ukraine by a vote of 141 to 5, with 35 abstentions. On March 29, Russian and Ukrainian representatives met in Istanbul for another round of negotiations. No ceasefire has been agreed and hostilities continue.

Many states, international organizations and corporations quickly took measures in response to this invasion. Hundreds of companies decided to withdraw from Russia. Some countries decided to strengthen economic sanctions against Russia and Belarus and to provide military and economic help to Ukraine. Many civil society actors mobilised to organize and provide humanitarian support for Ukraine. Interestingly, international sports organisations like the International Olympic Committee (IOC), the Fédération Internationale de Football Association (FIFA), World Athletics and many other international federations, issued statements condemning the invasion and imposed bans and sanctions on Russian and Belarussian sports bodies and athletes.

This blog post provides an overview of the measures adopted by a number of international sports federations (IFs) that are part of the Olympic Movement since the beginning of the war and analyses how they relate to the statements issued by the IOC and other sanctions and measures taken by international sports organisations in reaction to (geo)political tensions and conflict.

More...





[Conference] Towards a European Social Charter for Sport Events - 1 December - 13:00-17:00 - Asser Institute

Sport events, especially when they are of a global scale, have been facing more and more questions about their impact on local communities, the environment, and human rights. 

It has become clear that their social legitimacy is not a given, but must be earned by showing that sport events can positively contribute to society. During this half-day conference, we will debate the proposal of a European Social Charter for Sport Events in order to achieve this goal. 

In January 2021, a consortium of eight partners launched a three-year project, supported by the European Commission under the Erasmus+ scheme, aimed at devising a European Social Charter for Sport Events (ESCSE). The project ambitions to develop a Charter which will contribute to ensuring that sport events taking place in the European Union are socially beneficial to the local communities concerned and, more generally, to those affected by them. The project is directly inspired by the decision of the Paris 2024 bid to commit to a social charter enforced throughout the preparation and the course of the 2024 Olympics.

This first public event in the framework of the ESCSE project, will be introducing the project to a wider public. During the event we will review the current state of the implementation of the Paris 2024 Social Charter, discuss the expectations of stakeholders and academics for a European Social Charter and present for feedback the first draft of the ESCSE (and its implementing guidelines) developed by the project members. It will be a participatory event; we welcome input from the participants.

The Asser International Sports Law Centre, powered by the Asser Institute, is contributing to the project through the drafting of a background study, which we will introduce during the conference.

Please note that we can provide some financial support (up to 100 euros)  towards travel and/or accommodation costs for a limited number of participants coming from other EU Member States or the UK. To apply for this financial support please reach out to ConferenceManager@asser.nl.  `

Register HERE

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12th round of Caster Semenya’s legal fight: too close to call? - By Jeremy Abel

Editor's note: Jeremy Abel is a recent graduate of the LL.M in International Business Law and Sports of the University of Lausanne.

 

1.     Introduction

The famous South African athlete Caster Semenya is in the last lap of her long legal battle for her right to run without changing the natural testosterone in her body. After losing her cases before the Court of Arbitration for Sport (CAS) and the Swiss Federal Tribunal, she filed an application before the European Court of Human Rights (Court). In the meantime, the Court has released a summary of her complaint and a series of questions addressed to the parties of the case.

As is well known, she is challenging the World Athletics’ Eligibility Regulations for the Female Classification (Regulations) defining the conditions under which female and intersex athletes with certain types of differences of sex development (DSDs) can compete in international athletics events. Despite the Regulations emanating from World Athletics, the last round of her legal battle is against a new opponent: Switzerland.

The purpose of this article is to revisit the Semenya case from a European Convention on Human Rights (ECHR) perspective while considering certain excellent points made by previous contributors (see here, here and here) to this blog. Therefore, the blog will follow the basic structure of an ECHR case. The following issues raised by Semenya shall be analysed: the applicability of the ECHR, Semenya’s right to private life (Article 8 ECHR) and to non discrimination (Article 14 ECHR), as well as the proportionality of the Regulations. More...


Asser International Sports Law Blog | The Evolution of UEFA’s Financial Fair Play Rules – Part 1: Background and EU Law. By Christopher Flanagan

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 Evolution of UEFA’s Financial Fair Play Rules – Part 1: Background and EU Law. By Christopher Flanagan

Editor's Note: Christopher is an editor of the Asser International Sports Law Blog. His research interests cover a spectrum of sports law topics, with a focus on financial regulatory disputes, particularly in professional football, a topic on which he has regularly lectured at the University of the West of England.

 

It is five years since the Union of European Football Associations (UEFA) formally introduced ‘Financial Fair Play’ (FFP) into European football through its Club Licensing and Financial Fair Play Regulations, Edition 2012. With FFP having now been in place for a number of years, we are in a position to analyse its effect, its legality, and how the rules have altered over the last half decade in response to legal challenges and changing policy priorities. This article is split into three parts: The first will look at the background, context and law applicable to FFP; Part Two will look at the legal challenges FFP has faced; and Part Three will look at how FFP has iteratively changed, considering its normative impact, and the future of the rules.

 

Background

Certain aspects of FFP were incredibly controversial from the outset. To a neutral observer, this might seem confusing: FFP is, ostensibly, a set of rules designed to make sure clubs pay their bills on time, stay solvent, and do not need to look to external benefactors to cover their losses. Leading sports economist Stefan Szymanski described insolvency as “a chronic problem in the world of professional Association football”, so, superficially at least, a regulatory response to this would seem natural and appropriate. Where the market fails, it is the regulator’s duty to respond.

UEFA’s President at the time, Michel Platini, said “You, we, the fans and football lovers, have no interest in seeing clubs, the real heritage of European football, disappear due to risky management”. This is a sentiment with which most fans would agree.

Accordingly, UEFA incorporated FFP into its existing licensing requirements, meaning any club that wished to compete in a UEFA competition would be required to meet the financial standards set by FFP. These standards would be overseen and enforced by a new body within UEFA’s administration called the ‘Club Financial Control Body’. The Club Financial Control Body would be further segregated into an Investigatory Chamber and an Adjudicatory Chamber.

So, why the controversy? The contentious aspect of FFP was its ‘break even’ requirement. The ‘break even’ requirement is a de facto soft salary cap, tying the maximum amount a club can spend (with defined exceptions) to its revenue generation. An overview of the break even requirement as originally conceived can be found here. In essence, “The break-even result for a reporting period is calculated as relevant income less relevant expenses’’.[1] “Income” includes receipts such as gate receipts, sponsorship, broadcasting rights, commercial activities and player sales; “expenses” includes wages, the cost of purchasing players and the cost of finance.[2]

Crucially, when FFP was first introduced, losses could not be met or offset by equity participants (i.e. owners). This was pertinent to the prevailing financial climate in football, in which certain clubs across Europe were spending unprecedented sums with the support of wealth benefactors, who would cover the clubs’ losses. Such spending was seen at clubs such as Chelsea, Manchester City, Paris Saint Germain, Monaco, Malaga and Anzhi Makhachkala, with mixed results on and off the pitch.

Thus FFP was accused of calcifying football’s competitive hierarchy[3] and foreclosing smaller clubs from sporting and consequent business success. This debate has been played out over the last five years in the academic literature[4] and in various legal fora. The rules and the mechanisms for enforcing the rules have become increasingly sophisticated as the years have passed. UEFA, perhaps in response to these challenges, has made gradual, iterative changes to FFP that have seen the rules soften to accommodate exogenous equity input in defined permissible circumstances. These changes will be looked at in greater depth in Part Three.

 

The challenge of EU law

FFP has been described ‘legally fragile’, which is an apt description. This is because the rules cannot be said to be unquestionably permissible under European Union (EU) law; nor can they be said to be categorically in breach of EU law. The rules exist in a regulatory ‘grey’ area – FFP, in its particularly in its original, more restrictive, guise, may or may not have been illegal. This is a question for a competent (judicial) authority to decide; however, as will be discussed in more detail in Part Two, the route to such a decision has been far from straight forward, and in the intervening years, FFP has changed substantially.

The essential legal questions to determine the legality of FFP are:

  1. Does FFP breach EU competition law?
  2. Does FFP breach EU free movement law?
  3. Is there a sanctuary for any breach of EU law under the doctrine of the specificity of sport?

 

EU competition law

Article 101 of the Treaty of the Functioning of the European Union (TFEU) prohibits agreements that have as their object or effect “prevention, restriction or distortion of competition within the internal market”.[5] This puts regulatory associations such as UEFA in a difficult position. It is the very nature of regulation that competition is restricted or distorted; indeed, it is the very purpose of regulatory rules that participants subject to those rules alter their behaviour accordingly, which has an inevitable consequence on the competitive landscape.

Consideration should also be given to Article 102 TFEU, which prohibits undertakings (and in some circumstances collections of undertakings, i.e. oligopolies) that are in a dominant position from abusing their market dominance.

In view of this friction, the European courts have developed, through the case of Wouters, the concept of regulatory ancillarity.[6] This is the doctrine under which, subject to a test of proportionality, reasonability and necessity, even in circumstances where there is a prima facie breach of competition law by a regulatory body (in that particular case by the Dutch Bar Association), this may be permissible under EU competition law where the regulatory body in question “could reasonably have considered that that regulation, despite the effects restrictive of competition that are inherent in it, is necessary for the proper practice of the [relevant profession]”.

The applicability of Wouters to a sporting regulatory context is confirmed and clarified in the landmark Meca-Medina case. In considering whether a regulatory rule breaches competition law, the European courts must determine: 

  1. Whether the rules are necessary for the proper conduct of the sport;
  2. Whether the penalties are inherent to the restrictions in questions; and
  3. Whether the effects of the rules are proportionate to the aims pursued.

Should UEFA be unable to meet the test under the regulatory ancillarity doctrine, there is an alternative exemption with a lower threshold to which it could look. Within Article 101(3) TFEU, there is an exemption for agreements which promote “technical or economic progress, while allowing consumers a fair share of the resulting benefit” as long as such restrictions do not (a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives; or (b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.

It is open to UEFA to argue that FFP dampens inflation in football in a way that is for the improvement of the game and passes a benefit to ‘consumers’ (i.e. fans) by, for example, reducing the need for ticket price increases to sustain escalating players’ wages. This would perhaps be difficult for UEFA to establish, but the economics of FFP are complicated and second order effects should be borne in mind.

 

EU free movement – workers, services and/or capital 

The EU is built upon certain deeply enshrined freedoms. These include the free movement of workers (Article 45 TFEU), the free movement of services (Article 56 TFEU), and the free movement of capital. Any agreement that acts as an impediment to these freedoms is susceptible to a finding of illegality.

In order to be permissible under EU law, any rule or agreement that restricts any fundamental freedom must be:

  1. Justified by a necessary objective in the general interest;
  2. Suitable for achieving that objective; and
  3. Proportionate.

In the case of sporting rules, the European courts have determined that the rule in question must not “go beyond what is necessary for achieving the aim pursued”,[7] which is to reiterate that it must be proportionate – a recurrent theme in considering the legality of rules made by the governing bodies of sport, such as UEFA.

The criteria to be met by UEFA in establishing that FFP does not breach EU fundamental freedoms is in line with the threshold to be met in establishing compliance with EU competition law: FFP must be necessary, suitable and proportionate.

However, in the case of free movement law, it is far from obvious that FFP will have a substantive impact on fundamental freedoms. In previous writing on the subject, I have made the following analogy:

The restriction does not emanate from the rule per se, rather by the size of the club’s turnover; players are no more restricted from moving between clubs by FFP than this author is denied a Ferrari by his credit rating.[8]


The specificity of sport under EU law

In the event that a competent adjudicative authority makes a prima facie finding that FFP is in breach of EU competition law or EU free movement law, there is still a possibility of an overall finding that FFP is not illegal under the doctrine of the specificity of sport; however, this would require the adjudicative body in question to row back considerably from the current position, and general trajectory, of the level of latitude granted to the governing bodies of sport by the European courts.

The concept of specificity will be familiar to all those with an interest in sports law and policy. It is the hypothesis under which, at its starkest interpretation, suggests governing bodies, not courts (or governments or other legislative bodies), are best placed to determine how sport should be run. Sports, it is argued, should have rule making autonomy. A more moderate view on specificity holds that due regard should be paid to the idiosyncrasies of the sports sector and the legitimate governance function played by governing bodies. 

The role of sports governing bodies, whose rules, as was the case with FFP, are often enacted in a broadly consensual way, with engagement, input and consent from key stakeholders, should be acknowledged and some due reverence should be paid to governing bodies' ability to regulate the sporting aspects under their aegis.

Indeed, the European Union had no express competence to in respect of sport until the introduction of Article 165 TFEU, a soft competency, which states that, “The Union shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and its social and educational function.”

However, the distinction between elite football as being ‘purely sport’ and elite football as a business has become blurred in to the point of being indistinguishable; and the EU clearly has express competence to deal with business.

The general trend in decisions of the European courts has been to circumscribe self-determination by the governing bodies of sport. Through cases such as Bosman,[9] Meca-Medina, and Bernard,[10] the European courts have made it clear that sport cannot avoid or cherry-pick the applicability of EU law. This is acutely relevant in the case of FFP, which, after all, deals with how football clubs are run financially. There are obvious sporting consequences to this, but it is difficult to characterise FFP as anything other than a rule restrictive of the business of sport.

UEFA’s position on Article 165 is that “while sport is not ‘above the law’, there is now a provision in the Treaty itself recognising that sport cannot simply be treated as another ‘business’, without reference to its specific characteristics”. This is not an unreasonable position; sport is a unique industry in which, unlike other industries, the survival of competitors is important for any given club to flourish. Perhaps the courts could be persuaded that a carve-out based on specificity should be applicable to FFP – but this would require a seismic change of direction.

So it is incredibly unlikely that specificity as a discrete sui generis doctrine would give sanctuary to FFP were the rules deemed to be otherwise in breach of EU law. However, facts peculiar to the football industry (i.e. its specificity) should be considered as part of an assessment as to whether FFP is a proportionate mechanism to pursue UEFA’s objectives. As noted above, proportionality is a limb of the tests for derogations to EU competition and fundamental freedom law.

I have previously commented that: 

For football clubs, there is a strong correlational link between spending money and playing success. This has encouraged clubs to risk financial vulnerability in pursuit of improved match results, despite the mathematical impossibility of all clubs being able to improve their fortunes on the field. This innate instability has resulted in persistent insolvencies despite the remarkable growth in turnover seen in the professional game. Regrettably, when balance sheets weaken, the risk of insolvency increases; and once a club becomes insolvent, its survival is subject to the predilections of its creditors. The game’s governing bodies should aim to militate against…this volatility.

UEFA would doubtless argue that, given the specific nature of the industry it regulates, instituting a soft salary cap such as that implemented by FFP is a proportionate response. In that sense at least, the specificity of sport might be of consideration in the legality of FFP.

 

Conclusion 

It is difficult to say with any degree of conclusiveness whether FFP is legal or not. There are strong arguments either way. The marginal nature of the legal position has been problematic for UEFA and has undoubtedly led to the legal challenges to FFP over the last five years, which are discussed in greater depth in Part Two of this series.

The uncertain legal position, and the challenges generated by that lack of clarity has also, in all likelihood, shaped UEFA’s policy decisions as FFP has evolved in the years since its inception. These are discussed in Part Three of this series.

FFP has certainly been fertile ground for debate, and will likely continue to be so until such a time as there has been a determinative, binding view of its legality. When or whether this will happen remains to be seen.


[1] Annex X, Club Licensing and Financial Fair Play Regulations, Edition 2012.

[2] Ibid.

[3] Thomas Peeters and Stefan Szymanski , 'Financial Fair Play in European Football ' [2014] 29(78) Economic Policy 343-390

[4] See, for example, Serby, T. (2016) The state of EU sports law: lessons from UEFA’s ‘Financial Fair Play’ regulations, International Sports Law Journal 16(1–2):37–51; Flanagan, C (2013) A tricky European fixture: an assessment of UEFA’s Financial Fair Play regulations and their compatibility with EU law, International Sports Law Journal 13(1):148; Lindholm, J (2010) The Problem with Salary Caps Under European Union Law: The Case Against Financial Fair Play, Texas Review of Entertainment and Sports Law, Vol. 12.2, pp. 189-213

[5] Noting that UEFA certainly constitute an association of undertakings in the relevant legal sense, see for example Case T-193/02 Piau (2005) ECR I-209, (2005) 5 CMLR 42 or EU Commission decision 2003/778/EC, 23 July 2003, Case COMP C.2-37.398 - Joint selling of the commercial rights of the UEFA Champions League §§ 106-107

[6] As identified and defined by Whish and Bailey in Competition Law (OUP, 8th)

[7] Case C-176/96, Jyri Lehtonen and Castors Canada Dry Namur- Braine ASBL v Fédération Royale Belge des Sociétés de Basketball ASBL (FRBSB) ECR (2000) I-2681

[8] Flanagan, C (2013) A tricky European fixture: an assessment of UEFA’s Financial Fair Play regulations and their compatibility with EU law, International Sports Law Journal 13(1).

[9] Case C-415/93 Union Royale Belge des Socie ́te ́s de Football Association ASBL v Jean-Marc Bosman (1995) ECR I-4921.

[10] C-325/08 Olympique Lyonnais v Olivier Bernard and Newcastle United FC (2010) ECLI:EU:C:2010:143.

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