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

Report from the first ISLJ Annual International Sports Law Conference - 26-27 October at the T.M.C. Asser Instituut

Close to 100 participants from 37 different countries attended the first ISLJ Annual International Sports Law Conference that took place on 26-27 October 2017 in The Hague. The two-day programme featured panels on the FIFA transfer system, the labour rights and relations in sport, the protection of human rights in sport, EU law and sport, the Court of Arbitration for Sport, and the world anti-doping system. On top of that, a number of keynote speakers presented their views on contemporary topics and challenges in international sports law. This report provides a brief summary of the conference for both those who could not come and those who participated and would like to relive their time spent at the T.M.C. Asser Institute.More...

International and European Sports Law – Monthly Report – October 2017. By Tomáš Grell

Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked. More...

Multi-Club Ownership in European Football – Part II: The Concept of Decisive Influence in the Red Bull Case – By Tomáš Grell

 

Introduction 

The first part of this two-part blog on multi-club ownership in European football outlined the circumstances leading to the adoption of the initial rule(s) aimed at ensuring the integrity of the UEFA club competitions (Original Rule) and retraced the early existence of such rule(s), focusing primarily on the complaints brought before the Court of Arbitration for Sport and the European Commission by the English company ENIC plc. This second part will, in turn, introduce the relevant rule as it is currently enshrined in Article 5 of the UCL Regulations 2015-18 Cycle, 2017/18 Season (Current Rule). It will then explore how the UEFA Club Financial Control Body (CFCB) interpreted and applied the Current Rule in the Red Bull case, before drawing some concluding remarks.  More...

Multi-Club Ownership in European Football – Part I: General Introduction and the ENIC Saga – By Tomáš Grell

Editor’s note: Tomáš Grell holds an LL.M. in Public International Law from Leiden University. He contributes to the work of the ASSER International Sports Law Centre as a research intern.

 

Introduction

On 13 September 2017, more than 40,000 people witnessed the successful debut of the football club RasenBallsport Leipzig (RB Leipzig) in the UEFA Champions League (UCL) against AS Monaco. In the eyes of many supporters of the German club, the mere fact of being able to participate in the UEFA's flagship club competition was probably more important than the result of the game itself. This is because, on the pitch, RB Leipzig secured their place in the 2017/18 UCL group stage already on 6 May 2017 after an away win against Hertha Berlin. However, it was not until 16 June 2017 that the UEFA Club Financial Control Body (CFCB) officially allowed RB Leipzig to participate in the 2017/18 UCL alongside its sister club, Austrian giants FC Red Bull Salzburg (RB Salzburg).[1] As is well known, both clubs have (had) ownership links to the beverage company Red Bull GmbH (Red Bull), and therefore it came as no surprise that the idea of two commonly owned clubs participating in the same UCL season raised concerns with respect to the competition's integrity. More...


International and European Sports Law – Monthly Report – September 2017. By Tomáš Grell

Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

 

The Headlines 

2024 and 2028 Olympic Games to be held in Paris and Los Angeles respectively

On 13 September 2017, the Session of the International Olympic Committee (IOC) held in Lima, Peru, elected Paris and Los Angeles as host cities of the 2024 and 2028 Olympic Games respectively. On this occasion, the IOC President Thomas Bach said that ''this historic double allocation is a 'win-win-win' situation for the city of Paris, the city of Los Angeles and the IOC''. The idea of a tripartite agreement whereby two editions of the Olympic Games would be awarded at the same time was presented by a working group of the IOC Vice-Presidents established in March 2017. Both Paris and Los Angeles have pledged to make the Olympic Games cost-efficient, in particular through the use of a record-breaking number of existing and temporary facilities. In addition to economic aspects, it will be worthwhile to keep an eye on how both cities will address human rights and other similar concerns that may arise in the run-up to the Olympic Games. More...

The limits to multiple representation by football intermediaries under FIFA rules and Swiss Law - By Josep F. Vandellos Alamilla

Editor’s note: Josep F. Vandellos Alamilla is an international sports lawyer and academic based in Valencia (Spain) and a member of the Editorial Board of the publication Football Legal. Since 2017 he is the Director of  the Global Master in Sports Management and Legal Skills FC Barcelona – ISDE.

I think we would all agree that the reputation of players’ agents, nowadays called intermediaries, has never been a good one for plenty of reasons. But the truth is their presence in the football industry is much needed and probably most of the transfers would never take place if these outcast members of the self-proclaimed football family were not there to ensure a fluid and smooth communication between all parties involved.

For us, sports lawyers, intermediaries are also important clients as they often need our advice to structure the deals in which they take part. One of the most recurrent situations faced by intermediaries and agents operating off-the-radar (i.e. not registered in any football association member of FIFA) is the risk of entering in a so-called multiparty or dual representation and the potential risks associated with such a situation.

The representation of the interests of multiple parties in football intermediation can take place for instance when the agent represents the selling club, the buying club and/or the player in the same transfer, or when the agent is remunerated by multiple parties, and in general when the agent incurs the risk of jeopardizing the trust deposited upon him/her by the principal. The situations are multiple and can manifest in different manners.

This article will briefly outline the regulatory framework regarding multiparty representation applicable to registered intermediaries. It will then focus on provisions of Swiss law and the identification of the limits of dual representation in the light of the CAS jurisprudence and some relevant decisions of the Swiss Federal Tribunal.More...



The Evolution of UEFA’s Financial Fair Play Rules – Part 3: Past reforms and uncertain future. By Christopher Flanagan

Part Two of this series looked at the legal challenges FFP has faced in the five years since the controversial ‘break even’ requirements were incorporated. Those challenges to FFP’s legality have been ineffective in defeating the rules altogether; however, there have been iterative changes during FFP’s lifetime. Those changes are marked by greater procedural sophistication, and a move towards the liberalisation of equity input by owners in certain circumstances. In light of recent statements from UEFA President Aleksander Čeferin, it is possible that the financial regulation of European football will be subject to yet further change. More...

The Evolution of UEFA’s Financial Fair Play Rules – Part 2: The Legal Challenges. By Christopher Flanagan

The first part of this series looked at the legal framework in which FFP sits, concluding that FFP occupied a ‘marginal’ legal position – perhaps legal, perhaps not. Given the significant financial interests in European football – UEFA’s figures suggest aggregate revenue of nearly €17 billion as at clubs’ 2015 accounts – and the close correlation between clubs’ spending on wages and their success on the field,[1] a legal challenge to the legality of FFP’s ‘break even’ requirement (the Break Even Requirement), which restricts a particular means of spending, was perhaps inevitable.

And so it followed.

Challenges to the legality of the Break Even Requirement have been brought by football agent Daniel Striani, through various organs of justice of the European Union and through the Belgian courts; and by Galatasaray in the Court of Arbitration for Sport. As an interesting footnote, both Striani and Galatasaray were advised by “avocat superstar” Jean-Louis Dupont, the lawyer who acted in several of sports law’s most famous cases, including the seminal Bosman case. Dupont has been a vocal critic of FFP’s legality since its inception. More...





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. More...


International and European Sports Law – Monthly Report – July and August 2017. By Tomáš Grell

 Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser.

 

The Headlines

ISLJ Annual Conference on International Sports Law 

On 26 and 27 October 2017, the T.M.C. Asser Institute in The Hague will host the first ever ISLJ Annual International Sports Law Conference. This year's edition will feature panels on the Court of Arbitration for Sport, the world anti-doping system, the FIFA transfer regulations, human rights and sports, the labour rights of athletes, and EU law and sport. We will also welcome the following distinguished keynote speakers:

  • Miguel Maduro, former Advocate General at the European Court of Justice and former head of the FIFA's Governance Committee;
  • Michael Beloff QC, English barrister known as one of the 'Godfathers' of sports law;
  • Stephen Weatherill, Professor at Oxford University and a scholarly authority on EU law and sport;
  • Richard McLaren, CAS Arbitrator, sports law scholar and former head of the World Anti-Doping Agency's investigation into the Russian doping scandal.

You will find all the necessary information related to the conference here. Do not forget to register as soon as possible if you want to secure a place on the international sports law pitch! [Please note that we have a limited amount of seats available, which will be attributed on a 'first come, first served' basis.] More...

Asser International Sports Law Blog | The International Cricket Council and its human rights responsibilities to the Afghanistan women's cricket team - By Rishi Gulati

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 International Cricket Council and its human rights responsibilities to the Afghanistan women's cricket team - By Rishi Gulati

Editor's note: Dr Rishi Gulati is Associate Professor in International Law at the University of East Anglia (UK) and Barrister in Law. He has a PhD from King’s College London, Advanced Masters in Public International Law from Leiden University, and a Bachelor of Laws from the Australian National University. Amongst other publications, he is the author of Access to Justice and International Organisations (Cambridge University Press, 2022). He has previously worked for the Australian Government, has consulted for various international organizations, and regularly appears as counsel in transnational cases.

On 1 December 2024, Jay Shah, the son of India’s powerful Home Minister and Modi confidante Amit Shah, will take over the role of the Independent Chair of the International Cricket Council (ICC). This appointment reflects the influence India now has on the governance of cricket globally. A key test Jay Shah will face is whether or not the ICC should suspend the Afghanistan Cricket Board (ACB) from its membership as Afghanistan no longer maintains a women’s cricket team contrary to the organization’s own rules, as well as its human rights responsibilities. 

The Post-Taliban Situation for Women’s Cricket in Afghanistan

As is well known, following the highly chaotic US withdrawal from Afghanistan in 2021, the Taliban returned to power in that country. Since its return, the Taliban has banned education for young women and teenage girls, severely restricted their right to work, outlawed women’s voices being raised in public, issuing at least 100 decrees and edicts institutionally and systematically violating Afghan women and girls’ basic freedoms recognised in international law. 

In June 2024, the UN Special Rapporteur on human rights in Afghanistan said that “[t]he system of discrimination, segregation, disrespect for human dignity and exclusion institutionalized by the Taliban is motivated by and results in a profound rejection of the full humanity of women and girls.” It should then come as no surprise that women in Afghanistan are not allowed to play domestic cricket in that country any more. Further, the Afghanistan women’s cricket team no longer plays international cricket for the Taliban does not allow it. All the gains made in the pre-Taliban period, where the sport in that country had made genuine advances, were lost in a moment.

The ICC’s obligations to Afghanistan Women’s Cricket

As a global body that regulates international cricket, the ICC rightly enjoys independence in its working. However, this independence does not mean that the ICC should be unaccountable and be able to evade or avoid its human rights responsibilities. In respect of its obligations to Afghanistan’s women cricket, it cannot be said that the ICC is living up to those responsibilities.

Indeed, global sporting bodies are powerful transnational institutions to whom the most basic human rights obligations ought to apply. Amongst other things, the UN Guiding Principles on Business and Human Rights (UNGPs) which some sports bodies have voluntarily adopted require them to ensure compliance with internationally recognised human rights standards, including on non-discrimination, and the need to provide an effective remedy to those adversely affected (see especially Principles 11-29 of the UNGPs).

Although the words “human rights” do not appear in its Articles of Association (the ICC is incorporated as a company limited by guarantee in the British Virgin Islands), the organization’s own rules do indeed facilitate non-discriminatory participation of women in the sport, albeit in a roundabout way. 

ICC members, which the ACB is, must be run independently, i.e., without government interference (para. 2.4, ICC Articles). If there is governmental interference, then the member cannot maintain its membership (para. 2.8, ICC Articles). Specifically on women’s participation in the sport, where pathways for women’s cricket are lacking, and a member does not maintain a women’s cricket team, its membership ought to be suspended for this would appear to constitute a serious breach of its obligations as a Member (para. 2.10, ICC Articles; also see the ICC membership criteria).

Due to the Taliban’s ban on women’s sport, interference in the ACB’s affairs is manifest. Crucially, there are no pathways for girls and women to play cricket in Afghanistan, with that country failing to maintain a women’s cricket team. There is a clear basis for suspending the Afghanistan Cricket Board (ACB) from its membership. As Goldschmidt has explained, “Afghanistan, on even the loosest assessment, is not meeting the requirements prescribed by the ICC’s governance arrangements. 

While it would be preferrable if the ICC were to expressly adopt human rights principles in its governance arrangements, in the case at hand, its current framework already allows it to live-up to the organization’s human rights responsibilities through a straightforward application of its rules. Afterall, South Africa was suspended from international cricket between 1970 and 1991 during the Apartheid regime in that country. But why is this double standard allowed to continue? 

How the ICC may respond to the conundrum?

It has been said, “the ICC has been keen to stress that it does not recognise the Taliban as the legitimate ruling authority, and hence will “not penalise the ACB, or its players, for abiding by the laws set by the government of their country.” It is perhaps understandable that the ICC wishes to ensure that Afghan men can continue to play international cricket, thus, expelling the ACB is a difficult proposition.

However, until women’s cricket is restored in Afghanistan, suspending the ACB from the ICC would be an apt action that is not only in line with its own rules, but entirely consistent with the organization’s human rights responsibilities. If taking a strong stance against what some call gender apartheid against girls and women in Afghanistan means that the men’s cricket team may not be able to participate in international cricket, then this is a price that must be paid. As unfortunate as this state of affairs may be, it does not constitute an exception to the ICC’s human rights responsibilities.

-This does not mean that Afghan men’s and women’s cricket teams cannot take part in cricket at all. Most women cricketers from that country fled to western states following the Taliban take-over. Representatives from the former Afghanistan women’s cricket team presently based in Australia requested the ICC for permission to play as an Afghan refugee team, stating: : “Creating a team of Afghan refugees can give us a chance to play, coach and administer a cricket team without borders…The creation of this team will allow all Afghan women who want to represent their country to come together under one banner.” 

An appropriate response would be to allow the establishment of a women’s refugee cricket team. There is nothing stopping the ICC to allow the men to do the same should the ACB be suspended. 

Doing so does not only help the ICC to abide by its human rights responsibilities, but also assists the organization to mitigate any potential issues arising with respect to cricket’s participation in the 2028 LA Olympics at which cricket will make a much awaited return. Indeed, the ICC is a member of the Olympic Movement, and given the International Olympic Committee’s increased emphasis on human rights considerations throughout its operations, the need for the ICC to live up to its human rights responsibilities is correspondingly pressing.

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