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

Will the World Cup 2022 Expansion Mark the Beginning of the End of FIFA’s Human Rights Journey? - By Daniela Heerdt

Editor's note: Daniela Heerdt is a PhD candidate at Tilburg Law School in the Netherlands. Her PhD research deals with the establishment of responsibility and accountability for adverse human rights impacts of mega-sporting events, with a focus on FIFA World Cups and Olympic Games.


About three years ago, the Fédération Internationale de Football Association (FIFA) adopted a new version of its Statutes, including a statutory commitment to respect internationally recognized human rights. Since then, FIFA undertook a human rights journey that has been praised by various stakeholders in the sports and human rights field. In early June, the FIFA Congress is scheduled to take a decision that could potentially undo all positive efforts taken thus far.

FIFA already decided in January 2017 to increase the number of teams participating in the 2026 World Cup from 32 to 48. Shortly after, discussions began on the possibility to also expand the number of teams for the 2022 World Cup hosted in Qatar. Subsequently, FIFA conducted a feasibility study, which revealed that the expansion would be feasible but require a number of matches to be hosted in neighbouring countries, explicitly mentioning Bahrain, Kuwait, Oman, Saudi Arabia and the United Arab Emirates (UAE). One does not have to be a human rights expert to be highly alarmed by this list of potential co-hosting countries. Nevertheless, the FIFA Council approved of the possibility to expand in March 2019, paving the way for the FIFA Congress to take a decision on the matter. Obviously, the advancement of the expansion decision raises serious doubts over the sincerity of FIFA’s reforms and human rights commitments. More...



How Data Protection Crystallises Key Legal Challenges in Anti-Doping - By Marjolaine Viret

Editor's Note: Marjolaine is a researcher and attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences. Her interests focus on interdisciplinary approaches as a way of designing effective solutions in the field of anti-doping and other science-based domains. Her book “Evidence in Anti-Doping at the Intersection of Science & Law” was published through T.M.C Asser Press / Springer in late 2015. She participates as a co-author on a project hosted by the University of Neuchâtel to produce the first article-by-article legal commentary of the 2021 World Anti-Doping Code. In her practice, she regularly advises international federations and other sports organisations on doping and other regulatory matters, in particular on aspects of scientific evidence, privacy or research regulation. She also has experience assisting clients in arbitration proceedings before the Court of Arbitration for Sport or other sport tribunals.


Since the spectre of the EU General Data Protection Regulation (‘GDPR’) has loomed over the sports sector,[1] a new wind seems to be blowing on anti-doping, with a palpable growing interest for stakes involved in data processing. Nothing that would quite qualify as a wind of change yet, but a gentle breeze of awareness at the very least.

Though the GDPR does mention the fight against doping in sport as a potential matter of public health in its recitals,[2] EU authorities have not gone so far as to create a standalone ground on which anti-doping organisations could rely to legitimise their data processing. Whether or not anti-doping organisations have a basis to process personal data – and specifically sensitive data – as part of their anti-doping activities, thus remains dependent on the peculiarities of each national law. Even anti-doping organisations that are incorporated outside the EU are affected to the extent they process data about athletes in the EU.[3] This includes international sports federations, many of which are organised as private associations under Swiss law. Moreover, the Swiss Data Protection Act (‘DPA’) is currently under review, and the revised legal framework should largely mirror the GDPR, subject to a few Swiss peculiarities. All anti-doping organisations undertake at a minimum to abide by the WADA International Standard for Privacy and the Protection of Personal Information (‘ISPPPI’), which has been adapted with effect to 1 June 2018 and enshrines requirements similar to those of the GDPR. However, the ISPPPI stops short of actually referring to the GDPR and leaves discretion for anti-doping organisations to adapt to other legislative environments.

The purpose of this blog is not to offer a detailed analysis of the requirements that anti-doping organisations must abide by under data protection laws, but to highlight how issues around data processing have come to crystallise key challenges that anti-doping organisations face globally. Some of these challenges have been on the table since the adoption of the first edition of the World Anti-Doping Code (‘WADC’) but are now exposed in the unforgiving light of data protection requirements. More...



What happens in Switzerland stays in Switzerland: The Striani Judgment of the Brussels Court of Appeals

In the last five years, the Striani case has been the main sword of Damocles hanging over UEFA’s Financial Fair Play Regulations. At the very least, the only real judicial threat they have faced (apart from the relatively harmless challenge mounted in the Galatasaray case at the CAS). Indeed, a Belgian player agent, Daniele Striani, represented by Bosman’s former lawyer Jean-Louis Dupont, attempted, in various fora, to challenge the compatibility of UEFA’s CL&FFP Regulations with EU law. Striani lodged a complaint with the European Commission (which was quickly rejected in October 2014) and initiated a private action for damages before the Brussels Court of First Instance. The latter deemed itself not competent to decide on the matter, but nevertheless accepted to order a provisory stay of the enforcement of the UEFA FFP Regulations pending a preliminary reference to the Court of Justice of the EU (see Ben van Rompuy’s blog on the case here). The CJEU unsurprisingly rejected to enter into the matter, but UEFA and Striani decided to appeal the first instance ruling to the Court of Appeal, which rendered its decision on 11 April. It is unclear at this stage whether Striani will attempt to challenge it at the Belgian Cour de Cassation (Highest Civil Court), however this would entail considerable risks and costs and his lawyers to date have not indicated that they would do so (see here). 

While the ruling of the Court of Appeal does not touch upon the much-discussed question of the compatibility of UEFA’s FFP Regulations with EU law (see our many blogs on the question here, here and here), it remains an interesting decision to discuss broader questions related to the procedural ease in challenging regulatory decisions passed by sports governing bodies (SGBs) based in Switzerland. Competition law constitutes the main legal tool available to sports stakeholders looking to challenge existing regulatory arrangements from the outside (e.g. not going through the internal political systems of the SGBs or the CAS route). Recent cases, such as the ISU decision of the European Commission, the Pechstein case in front of the German courts or the Rule 40 decision of the German competition authority, have demonstrated the potency of competition law to question the legality of the rules and decisions of the SGBs.[1] In this regard, the decision of the Brussels Court of Appeal narrows the range of parties allowed to challenge in European courts the SGBs’ rules and decisions on the basis of competition law. More...

Can European Citizens Participate in National Championships? An Analysis of AG Tanchev’s Opinion in TopFit e.V. Daniele Biffi v Deutscher Leichtathletikverband e.V. - By Thomas Terraz

Editor’s note: Thomas Terraz is a third year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.


1.     Introduction

To many it may seem obvious that athletes in a national championship should only be able to participate if they have the nationality of the relevant state. The Dutch Road Cycling National Championships should have Dutch cyclists, and the German Athletics Championships should have German athletes and so forth. However, in reality, foreign competitors are allowed to participate in many national championships in the EU, and there is a wide discrepancy between the rules of national sport governing bodies on this issue. There is no unified practice when investigating this point by country or by sport, and rules on participation range from a complete ban on foreign competitors to absolutely no mention of foreign athletes.[1] Thus, the question arises: should foreign athletes be able to participate in national sport championships?

The Court of Justice of the European Union (CJEU) will soon be required to provide an, at least partial, answer to this dilemma as a result of an application for a preliminary ruling.  A German Court has referred three questions to the CJEU on the case TopFit e.V. Daniele Biffi v Deutscher Leichtathletikverband e.V. (DLV) which in essence ask whether EU citizenship rights and in particular, the requirement of non-discrimination on the basis of nationality, should be applied to non-nationals wishing to participate in an athletics national championship in Germany. In the meantime, the Advocate General (AG), who provides a non-binding opinion to the Court before a decision is delivered, Evgeni Tanchev has delivered an interesting opinion on the case. It addresses the claims from the applicants based on EU citizenship rights and urges the CJEU to instead review the case on the basis of the freedom of establishment.

This blog will dissect the AG’s opinion to assess the main arguments put forward in relation to freedom of establishment and EU citizenship. Furthermore, it will weigh the ramifications this case may have on the boundaries of EU law in relation to sport. To fully appreciate the AG’s opinion, it is necessary to first discuss the intriguing factual and legal background colouring this case. After all, this will not be the first time the CJEU faces thorny issues concerning discrimination on the basis of nationality and sport. More...


International and European Sports Law – Monthly Report – February and March 2019. 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

The Court of Arbitration for Sport bans 12 Russian track and field athletes

On 1 February 2019, the Court of Arbitration for Sport (CAS) communicated that it had rendered another 12 decisions in the seemingly endless saga concerning the state-sponsored doping programme in Russia. These first-instance decisions of the CAS involve 12 Russian track and field athletes who were all found guilty of anti-doping rule violations based on the evidence underlying the reports published by professor Richard McLaren and suspended from participating in sports competitions for periods ranging from two to eight years. Arguably the most prominent name that appears on the list of banned athletes is Ivan Ukhov, the 32-year-old high jump champion from the 2012 Olympic Games in London.

The case was brought by the International Association of Athletics Federation (IAAF) that sought to convince the arbitrators that the athletes in question had participated in and/or benefited from anabolic steroid doping programmes and benefited from specific protective methods (washout schedules) in the period between the 2012 Olympic Games in London and the 2013 IAAF World Championships in Moscow. The CAS was acting in lieau of the Russian Athletics Federation that remains suspended and thus unable to conduct any disciplinary procedures. The athletes have had the opportunity to appeal the decisions to the CAS Appeals Arbitration Division.

Federal Cartel Office in Germany finds Rule 40 of the Olympic Charter disproportionately restrictive

At the end of February, the German competition authority Bundeskartellamt announced that it had entered into a commitment agreement with the German Olympic Sports Confederation (DOSB) and the International Olympic Committee (IOC) in which these two organisations had agreed to considerably enhance advertising opportunities for German athletes and their sponsors during the Olympic Games. The respective agreement is a direct consequence of the Bundeskartellamt’s finding that the IOC and the DOSB had abused their dominant position on the market for organising and marketing the Olympic Games by demanding that the athletes refrain from promoting their own sponsors while the Games are ongoing, as well as shortly before and after the Games. This restriction stems from Rule 40(3) of the Olympic Charter under which no competitor who participates in the Games may allow his person, name, picture or sports performances to be used for advertising purposes, unless the IOC Executive Board allows him/her to do so.

As part of fulfilling its obligations under the commitment agreement, the DOSB has relaxed its guidelines on promotional activities of German athletes during the Olympic Games. For its part, the IOC has declared that these new guidelines would take precedence over Rule 40(3) of the Olympic Charter. However, it still remains to be seen whether in response to the conclusions of the German competition authority the IOC will finally change the contentious rule.

The Grand Chamber of the European Court of Human Rights refuses to pronounce itself on Claudia Pechstein’s case

Claudia Pechstein’s challenge against the CAS brought before the European Court of Human Rights (ECtHR) has not yielded the desired result for the German athlete. On 5 February 2019, a Panel of the Grand Chamber of the ECtHR decided that the Grand Chamber would not entertain the case. This means that the judgment handed down by the 3rd Chamber of the ECtHR on 2 October 2018, in which the ECtHR confirmed that except for the lack of publicity of oral hearings the procedures of the CAS are compatible with the right to a fair trial under Article 6(1) of the European Convention on Human Rights, has now become final and binding. However, the protracted legal battle between the five-time Olympic champion in speed skating and the CAS is not over yet since there is one more challenge against the CAS and its independence pending before the German Constitutional Court.  More...

New Event! FIFA and Human Rights: Impacts, Policies, Responsibilities - 8 May 2019 - Asser Institute

In the past few years, FIFA underwent intense public scrutiny for human rights violations surrounding the organisation of the World Cup 2018 in Russia and 2022 in Qatar. This led to a reform process at FIFA, which involved a number of policy changes, such as:

  • Embracing the United Nations Guiding Principles on Business and Human Rights;
  • The inclusion of human rights in the FIFA Statutes;
  • Adopting new bidding rules including human rights requirements;
  • And introducing a Human Rights Advisory Board.

To take stock of these changes, the Asser Institute and the Netherlands Network for Human Rights Research (NNHRR), are organising a conference on the Fédération Internationale de Football Association (FIFA) and human rights, which will take place at the Asser Institute in The Hague on 8 May 2019.

This one-day conference aims to take a deeper look at FIFA’s impacts on human rights and critically investigate the measures it has adopted to deal with them. Finally, we will also address FIFA’s potential legal responsibilities under a variety of human rights laws/instruments.


Preliminary Programme

9:00 Registration & Coffee

9:45 Welcome by Antoine Duval (Asser Institute) & Daniela Heerdt (Tilburg University)

10:00 Opening Remarks by Andreas Graf (Human Rights Officer, FIFA)

10:30 Panel 1: FIFA & Human Rights: Impacts

  • Zoher Shabbir (University of York) – The correlation between forced evictions and developing nations hosting the FIFA World Cup
  • Roman Kiselyov (European Human Rights Advocacy Centre) - FIFA World Cup as a Pretext for a Crackdown on Human Rights
  • Eleanor Drywood (Liverpool University) - FIFA and children’s rights: theory, methodology and practice 

12:00 Lunch

13:00 Panel 2: FIFA & Human Rights: Policies

  • Lisa Schöddert & Bodo Bützler (University of Cologne) – FIFA’s eigen-constitutionalisation and its limits
  • Gigi Alford (World Players Association) - Power Play: FIFA’s voluntary human rights playbook does not diminish Switzerland’s state power to protect against corporate harms
  • Brendan Schwab (World Players Association) & Craig Foster - FIFA, human rights and the threatened refoulement of Hakeem Al Araibi 

14:30 Break

15:00 Panel 3: FIFA & Human Rights: Responsibilities

  • Daniel Rietiker (ECtHR and University of Lausanne) - The European Court of Human Rights and Football: Current Issues and Potential
  • Jan Lukomski (Łukomski Niklewicz law firm) - FIFA and the International Covenant on Economic, Social and Cultural Rights : Obligations, duties and remedies regarding the labour rights         protected under the ICESCR
  • Raquel Regueiro Dubra (Complutense University of Madrid) - Shared international responsibility for human rights violations in global events. The case of the 2022 World Cup in Qatar.
  • Wojciech Lewandowski (Polish Academy of Sciences/University of Warsaw) - Is Bauer the new Bosman? – The implications of the newest CJEU jurisprudence for FIFA and other sport governing bodies

17:00 Closing Remarks by Mary Harvey (Chief Executive, Centre for Sports and Human Rights)


More information and registration at https://www.asser.nl/education-events/events/?id=3064

International and European Sports Law – Monthly Report – January 2019 - 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

#Save(d)Hakeem

The plight of Hakeem al-Araibi – the 25-year-old refugee footballer who was arrested last November in Bangkok upon his arrival from Australia on the basis of a red notice issued by Interpol in contravention of its own policies which afford protection to refugees and asylum-seekers – continued throughout the month of January. Bahrain – the country Hakeem al-Araibi fled in 2014 due to a (well-founded) fear of persecution stemming from his previous experience when he was imprisoned and tortured as part of the crackdown on pro-democracy athletes who had protested against the royal family during the Arab spring – maintained a firm stance, demanding that Hakeem be extradited to serve a prison sentence over a conviction for vandalism charges, which was allegedly based on coerced confessions and ignored evidence.

While international sports governing bodies were critised from the very beginning for not using enough leverage with the governments of Bahrain and Thailand to ensure that Hakeem’s human rights are protected, they have gradually added their voice to the intense campaign for Hakeem’s release led by civil society groups. FIFA, for example, has sent a letter directly to the Prime Minister of Thailand, urging the Thai authorities ‘to take the necessary steps to ensure that Mr al-Araibi is allowed to return safely to Australia at the earliest possible moment, in accordance with the relevant international standards’. Yet many activists have found this action insufficient and called for sporting sanctions to be imposed on the national football associations of Bahrain and Thailand.      

When it looked like Hakeem will continue to be detained in Thailand at least until April this year, the news broke that the Thai authorities agreed to release Hakeem due to the fact that for now the Bahraini government had given up on the idea of bringing Hakeem ‘home’ – a moment that was praised as historic for the sport and human rights movement.

Russia avoids further sanctions from WADA despite missing the deadline for handing over doping data from the Moscow laboratory 

WADA has been back in turmoil ever since the new year began as the Russian authorities failed to provide it with access to crucial doping data from the former Moscow laboratory within the required deadline which expired on 31 December 2018, insisting that the equipment WADA intended to use for the data extraction was not certified under Russian law. The Russian Anti-Doping Agency thus failed to meet one of the two conditions under which its three-year suspension was controversially lifted in September 2018. The missed deadline sparked outrage among many athletes and national anti-doping organisations, who blamed WADA for not applying enough muscle against the Russian authorities.

Following the expiry of the respective deadline, it appeared that further sanctions could be imposed on the Russian Anti-Doping Agency, but such an option was on the table only until WADA finally managed to access the Moscow laboratory and retrieve the doping data on 17 January 2019. Shortly thereafter, WADA President Sir Craig Reedie hailed the progress as a major breakthrough for clean sport and members of the WADA Executive Committee agreed that no further sanctions were needed despite the missed deadline. However, doubts remain as to whether the data have not been manipulated. Before WADA delivers on its promise and builds strong cases against the athletes who doped – to be handled by international sports federations – it first needs to do its homework and verify whether the retrieved data are indeed genuine.  

British track cyclist Jessica Varnish not an employee according to UK employment tribunal

On 16 January 2019, an employment tribunal in Manchester rendered a judgment with wider implications for athletes and sports governing bodies in the United Kingdom, ruling that the female track cyclist Jessica Varnish was neither an employee nor a worker of the national governing body British Cycling and the funding agency UK Sport. The 28-year-old multiple medal winner from the world and European championships takes part in professional sport as an independent contractor but sought to establish before the tribunal that she was in fact an employee of the two organisations. This would enable her to sue either organisation for unfair dismissal as she was dropped from the British cycling squad for the 2016 Olympic Games in Rio de Janeiro and her funding agreement was not renewed, allegedly in response to her critical remarks about some of the previous coaching decisions.

The tribunal eventually dismissed her challenge, concluding that ‘she was not personally performing work provided by the respondent – rather she was personally performing a commitment to train in accordance with the individual rider agreement in the hope of achieving success at international competitions’. Despite the outcome of the dispute, Jessica Varnish has insisted that her legal challenge contributed to a positive change in the structure, policies and personnel of British Cycling and UK Sport, while both organisations have communicated they had already taken action to strengthen the duty of care and welfare provided to athletes.  

 

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Upcoming Events

Call for papers - Third Annual International Sports Law Conference of the International Sports Law Journal - 24 and 25 October 2019 - Asser Institute

The Editors of the International Sports Law Journal (ISLJ) invite you to submit abstracts for the third ISLJ Annual Conference on International Sports Law, which will take place on 24 and 25 October 2019 at the Asser Institute in The Hague. The ISLJ, published by Springer and 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 with renowned academic experts and practitioners.


We are delighted to announce the following confirmed keynote speakers:


  • Beckie Scott (Chair of the World Anti-Doping Agency (WADA) Athlete Committee, Olympic Champion, former member of the WADA Executive Committee and the International Olympic Committee (IOC)),
  • Ulrich Haas (Professor of Law at Univerzität Zürich, CAS arbitrator), and
  • Kimberly Morris (Head of FIFA Transfer Matching System (TMS) Integrity and Compliance).


We welcome abstracts from academics and practitioners on any question related to international sports law. 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:


  • The role of athletes in the governance of international sports
  • The evolution of sports arbitration, including the Court of Arbitration for Sport
  •  The role and functioning of the FIFA transfer system, including the FIFA TMS
  •  The intersection between criminal law and international sports (in particular issues of corruption, match-fixing, human trafficking, tax evasion)
  • Hooliganism
  • Protection of minor athletes
  • Civil and criminal liability relating to injuries in sports


Please send your abstract of 300 words and CV no later than 30 April 2019 to a.duval@asser.nl. Selected speakers will be informed by 15 May.


The selected participants will be expected to submit a draft paper by 1 September 2019. All papers presented at the conference are eligible (subjected to peer-review) for publication in a special issue of the ISLJ.  To be considered for inclusion in the conference issue of the journal, the final draft must be submitted for review by 15 December 2019.  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 will provide a limited amount of travel grants (max. 250€). If you wish to be considered for a grant please indicate it in your submission. 

A Reflection on the Second Report of FIFA’s Human Rights Advisory Board - By Daniela Heerdt (Tilburg University)

Editor's note: Daniela Heerdt is a PhD candidate at Tilburg Law School in the Netherlands and works as Research Officer for the Centre for Sports and Human Rights. Her PhD research deals with the establishment of responsibility and accountability for adverse human rights impacts of mega-sporting events, with a focus on FIFA World Cups and Olympic Games. She published an article in the International Sports Law Journal that discusses to what extent the revised bidding and hosting regulations by FIFA, the IOC and UEFA strengthen access to remedy for mega-sporting events-related human rights violations.

 

On November 26th, the Human Rights Advisory Board[1] of the Fédération Internationale de Football Association (FIFA) published its second report. This blog provides a summary and brief evaluation of the report, by drawing a comparison to the previous report issued by the Human Rights Advisory Board (hereinafter: the Board) based on the content of the recommendations and FIFA’s efforts to implement the Board’s recommendations. The third part of this blog briefly reflects on the broader implications of some of the new recommendations issued for FIFA’s internal policies. The conclusion provides five more general points of observation on the report. More...

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

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 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.

 

A)   Regulatory framework:

Those agents acting in the market as registered intermediaries will necessarily be subjected to the specific football regulations enacted by FIFA and the national associations in which they operate. The answer as to the possibility to represent more than one party to a deal will therefore, be necessarily found in internal rules of each association. 

As opposed to the obsolete FIFA Players’ Agent Regulations[1], the FIFA Regulations on Working with Intermediaries (RWWI) allow intermediaries to represent more than one party in a transaction. Pursuant to the definition of intermediary[2] in combination with Article 8 RWWI, the only substantive requirement to intermediaries willing to act for multiple parties is that they obtain prior written consent and confirmation in writing on which party (i.e. the player and/or the club) will remunerate the services of the intermediary. The regulations, therefore, prioritize transparency over the question of who pays for the services of the intermediary. Consequently, it is not forbidden for an intermediary to represent and be paid by multiple parties to a transaction, as long as they all know and agree to it in advance.  

At a national level, most FIFA member associations[3] have followed the solution adopted in the RWWI and have transposed ad literam the right of intermediaries to multiparty representation as long as the transparency and information requirements are met (i.e. any potential conflict of interest is disclosed to the parties in advance, and subject to the prior written consent of the parties to the transaction).

However, there are still many agents that prefer to operate off-the-radar of organized football and its regulations. For these ‘rogue’ agents, the scenario is different and the question of the legality of multiparty representation will ultimately depend on the applicable law chosen by the parties[4]. Based on my personal experience, off-the-radar agents often end up acting through very rudimentary authorizations subject to the ordinary jurisdiction of the CAS. For this reason, I chose to dissect in this paper the limits of multiparty representation according to Swiss law, for based on article XY of the CAS Code of Sports Arbitration it represents the applicable law to ordinary disputes before the CAS when parties fail to make a particular choice of law.

The provisions of the contract of brokerage (“contrat de courtage”) in Articles 412-418 of the Swiss Code of Obligations (CO) are of relevance in this regard. The cornerstone provision concerning conflict of interest is found in Article 415 CO[5] whose English translation reads as follows:

Where the broker acts in the interests of a third party in breach of the contract or procures a promise of remuneration from such party in circumstances tantamount to bad faith, he forfeits his right to a fee and to any reimbursement of expenses”.

The article differentiates between two non-cumulative hypothetical situations where the broker (i.e. agent) may be in a position of conflict of interests.

  • First: the broker “Acts in the interest of a third party in breach of the contract”.
  • Second: the broker “Procures a promise of remuneration from such party in bad faith”.

The first hypothesis establishes the prohibition of the broker to act in the interest of a third party if the obligations towards his client are breached. Accordingly, an agent representing a player is prevented from assisting the players’ contracting club to negotiate the terms of his employment contract, as he would be defending irreconcilable interests (i.e. the interest of the club to pay the lowest salary possible v/ the interest of the player to obtain the highest possible salary). Conversely, the same agent could be hired by the club in a different transaction without incurring a conflict of interest with the player. The condition triggering this first hypothesis will be thus, whether the agent acting for the third party is in breach of his contractual obligations.

It is important to note that the published English translation of the CO differs slightly from the original text of the code[6]. While the English translation refers to the breach of the “contract”, the original French version refers instead to a breach of the “obligations” which has obviously a broader scope, covering a wider range of situations than a contract might include.

This linguistic difference can be misleading as the obligations emanating from the CO may go beyond the obligations set forth in a simple authorization or a brokerage contract. By way of example, think of a very simple “Authorization” that does not explicitly prohibit the agent of the player to simultaneously act for the club. Sticking to literal text of the English translation, one could be tempted to believe that the agent was not acting in breach of the contract. However, the same situation seen under the lens of the legal obligations would imply that the agent could still be infringing the obligation of loyalty and trust stemming from the CO.

In view of the above, a correct evaluation of the first hypothesis will necessarily account for the legal obligations inherent to the brokerage contract, the scope of which might go beyond the obligations stipulated in the contract. Amongst these, the obligation of loyalty, the obligation to safeguard the interest of the client by not entering into conflictive situations, and the obligation of transparency and information.

The second hypothesis covers the prohibition in Swiss law of dual representation by procuring a promise of payment from third parties to the relationship broker/principal, if such a promise amounts to bad faith.

It needs to be underlined that this provision does not exclude dual payment, but subjects it to a certain limit, i.e. not incurring in bad faith. Delineating bad faith can turn out to be a difficult task as the concept itself has an inevitable component of subjectivity and, as opposed to good faith which is legally presumed (cf. Article 3 of the Swiss Civil Code), bad faith must always be proven by the party claiming it, who ultimately bears the burden of proof[7]

Applied to football agents, it can be safely assumed that an agent acting in good faith towards his client would necessarily act in a transparent way and inform his client that he is simultaneously acting for the other contracting party. Not disclosing such information in the context of negotiations can serve as indication of bad faith when combined with other elements. However, to prove the presence of bad faith will still require sufficient material evidence in order to discharge the burden of proof, since the simple negligence of the broker would not be sufficient to fall under the scope of the article.

The consequence for a broker (i.e. football agent) infringing the prohibition of dual representation in he hypotheses described in article 415 CO is the nullity of the contract and the forfeiture of the right to be remunerated, or the obligation to reimburse the amounts received if the infringement is ascertained after the realization of the contract and payment of the fee (“quod nullum est nullum producit effectum”).  

With the above premises in mind, a detailed look into the CAS and the Swiss Federal Tribunal jurisprudence regarding Article 415 CO will help identifying the scope of the legal obligations of a football agent towards his client (i.e. club and/or player), as well as the mechanisms used by the decision-making bodies to determine the existence of bad faith.

 

B)   Jurisprudence:

One of the very few CAS cases dealing with Article 415 CO in the context of football agents' relationships with clubs is the CAS award  2012/A/2988 PFC CSKA Sofia v. Loic Bensaid.

In short, the dispute opposed the flagship Bulgarian football club CSKA Sofia against a French football agent and revolved around the right of the latter to be remunerated by the club, considering he had acted simultaneously in representation of the player in the signature of the employment contract.

One of the many arguments used by the club in support of its alleged right not to pay the agent was based on Article 415 CO. The club asserted that the agent acted in violation of his obligations for having represented both parties. On the merits, the Sole Arbitrator concluded, nevertheless, that the agent had fulfilled the obligations of transparency and information as the Club was aware at all times that the agent also acted for the player and knew about the existence of the representation contract with the player[8]. The full knowledge and acceptance of the situation impeded the club to contend, at a later stage, the violation of the duty of loyalty and transparency.

Secondly, adhering to the grounds of the supporting FIFA decision, the Sole Arbitrator also remarked that the mandate between the Agent and the player did not contain any obligation to remunerate the services of the agent. The prohibition of agents to be remunerated twice for their services has been traditionally a key element in previous FIFA decisions where dual representation was at the center of the dispute[9]. This fact possibly led the Sole Arbitrator to also highlight this circumstance when assessing the behavior of the agent. However, the Sole Arbitrator further stated that, even if the mandate would have provided for a remuneration in favor of the agent (quod non), Article 415 CO would still not have been violated as the club failed to discharge the burden of proof as to the existence of bad faith, reinforcing with it that dual representation is only forbidden to the extent the agent acts in bad faith[10].

This final remark of the Sole Arbitrator is crucial as it evidences, in my view, that whether the player and the agent agreed upon a remuneration, remains in the end irrelevant for the evaluation of a possible violation of Article 415 CO. Indeed, pursuant to the CAS arbitrator’s interpretation of the article, the agent can be remunerated twice, as it is the disregard of the obligations inherent to the contract and in particular for the second hypothesis acting in bad faith that determines compliance with Article 415 CO.

To better illustrate the irrelevance of the “double remuneration” discussion, think for a moment of a brokerage contract where there is no explicit reference to the remuneration. Does such a lacuna in the contract imply that the brokerage is necessarily, pro bono? The answer is no, for as a general rule, mandates given in the context of professional relationships are presumed to be lucrative (see Art. 394(3) CO). That is precisely the case of football agents when they contract with players or clubs. This circumstance renders the reference to a remuneration in the contract a secondary element, or at least not an essential one. The former FIFA PAR (Ed. 2008[11]) followed this ratio legis when explicitly providing for a default remuneration of 3% of the players’ basic income where the parties cannot agree on the remuneration.

Beyond the specific CAS awards, some decisions of the Swiss Tribunal Federal help getting the full perspective on dual representation in the context of disputes subject to Swiss law. Although these do not refer to football agents, the similarities that exist with real estate and/or corporate brokers allow to derive important conclusions that can be applied to football agents.

A first decision worth mentioning is no. 4A_214/2014 of 15 December 2014. The case concerned a classic real estate intermediation where the agent agreed a commission from both the seller and the buyer involved in the transaction. The agent also failed to inform the seller of the existence of a better buying offer from a third potential buyer. In this context, after concluding the deal, the buyer refused to pay the agent, invoking Article 415 CO.

This case is important because it reveals the existence of two types of brokerage contracts under Swiss law (i.e. “courtage de negotiation” and the “courtage d’indication”). Whereas in a brokerage of negotiation the broker is entrusted by his client to negotiate the conditions of the transaction, in a brokerage of indication, the broker is simply called to indicate the possibility to conclude a transaction, with no negotiation duties involved. Furthermore, according to the doctrine cited in the decision, both types of contract are treated differently under Article 415 CO.

In casu, the Federal Tribunal qualified the contracts signed by the agent with the buyer and the seller as “courtage de negotiation” as he was entrusted with conducting all aspects related to the transaction. The agent was required to obtain the best possible conditions for his clients (e.g. the best buying and selling price respectively) and this circumstance directly generated an irremediable conflict of interest (i.e. the negotiation was either benefitting the financial interests of seller or the buyer) infringing the obligation of loyalty inherent to the brokerage contracts with the parties.

All in all, the Federal Tribunal rejected the appeal submitted by the real estate agent and confirmed the nullity of both contracts for violating Article 415 CO. The Federal Tribunal followed a strict interpretation of Article 415 CO according to which “no one can serve two masters” and thus, dual representation would only be possible (if so) in simple intermediations where no negotiation from the broker is required[12], in other words in “courtage d’indication”. In addition, in this case the agent also acted in bad faith for failing to disclose the existence of a more favorable offer to the detriment of the seller.

The main lesson that can be learnt from this decision is that Article 415 CO must be interpreted restrictively and that it has to be distinguished between those intermediation contracts that imply an active involvement of the agent (i.e. the agent is contractually required to negotiate the terms of a transaction for the player and/or the club) and those contracts of intermediation where the agent is called to simply indicate the possible opportunity for his client to conclude a deal with no other involvement in the transaction. In this last case, dual representation could be allowed for there would be no conflict of interests, and therefore, no infringement of the obligations under the brokerage contract. The specific contractual clauses are therefore crucial as they ultimately reveal the extent of the role assumed by the agent.

The second important decision by the SFT is more recent, no. 4A_529/2015 of 4 March 2016. The factual background of this dispute is extremely complex. In brief, the case revolved around the selling and buying of the shares of a company exploiting a luxurious Hotel located in Switzerland. The seller and the broker entered into a negotiation brokerage contract whereby the latter was entrusted to find a buyer of the company against the payment of remuneration. The principal had to agree with the final potential buyer. In the end, it was proved that the broker misled the principal about the true identity of the final buyer (to whom the principal expressly refused to sell), with whom the broker had also agreed remuneration. On the basis of these facts, the principal refused to pay the broker. 

The Federal Tribunal confirmed again that Article 415 CO is always interpreted strictly, and considered that by allowing the banned buyer to indirectly acquire the company, the broker acted in the interest of a third party against the obligation of loyalty. What is most significant about this decision is that the court delimitates very clearly the scope of the obligation of loyalty. It is described as a double-edged sword, implying on the one side: a positive obligation consisting of actively safeguarding and defending the interest of the principal; and on the other side: a negative obligation, consisting of abstaining from any conduct that could harm the interests of the client.  

In particular, the fact that the principal had not objected to a previous e-mail sent by the broker where he expressly indicated that the potential buyer was “C or any company indicated by it” was also irrelevant for the principal could not expect in ‘good faith’ that the buyer would make use of this substitution prerogative in favor of the real buyer. The arguments of the broker according to which it was not important for the principal to know who the buyer was and that he suffered no damage, were also dismissed.   

Finally, the argument of the broker according to which the remuneration to be received from the buyer was agreed after the transaction took place was also irrelevant in the eyes of the court.

With these cases in mind, when applying the holding of the SFT above to football agents' professional relationships, it follows that the scope of the obligation of loyalty will be significantly wider for football agents entrusted with negotiations than for agents simply tasked with identifying possible opportunities to close a deal.

Likewise, in order to determine the existence of a violation of the obligations assumed by the agent, it will not be enough to demonstrate that there has been no threat to the interests of the client or that the agent has not actively engaged in a conduct against those interests. Indeed, a simple passive conduct with the potential of jeopardizing the interests of the principal, such as failing to disclose relevant information, can be sufficient to violate the obligation of loyalty and deprive the agent from the right to be remunerated.

To this effect, the correct identification of the interest pursued by the client will ultimately determine the infringement by the agent of his obligations under the representation contract. In the end, the agent will only violate his obligation of loyalty as long as his behavior damages the interests of his client. These interests will vary depending on whether the principal is a football club or a player. If a club is trying to transfer or recruit a player, the interests will in most cases be of a financial nature. If instead, the principal is a football player terminating or signing a contract with a club, he might have non-economic interests (e.g. willing to play in a different championship, lack of integration of the family in the country etc.). Furthermore, the moment in which the remuneration is agreed is not relevant to establish the violation of the obligation of loyalty.


In conclusion, the contract of representation and its clauses in combination with the particular circumstances of each case will be fundamental to establish compliance with Article 415 CO when multiple representation takes place.   Football agents pretending to be remunerated by both contracting parties simultaneously without risking to violate their obligations must either enter into simple brokerage contracts with no negotiation attributions, or, when acting through a negotiation brokerage, always inform all parties in complete transparency. 

 



[1] See Article 19.8 FIFA PAR.

[2] “Definition of an intermediary

A natural or legal person who, for a fee or free of charge, represents players and/or clubs in negotiations with a view to concluding an employment contract or represents clubs in negotiations with a view to concluding a transfer agreement.” [Emphasis added]

[3] Only the FFF (France), the RFU (RUSSIA), the BFU (Bulgaria) the JFA (Japan) have explicitly adopted stricter rules prohibiting any conflict of interest. See Comparative Table of “The FIFA Regulations on Working with Intermediaries Implementation at a national level” (Ed. Michele Colucci).

[4] E.g. Arbitrage TAS 2007/O/1310 Bruno Heiderscheid c. Franck Ribéry.

[5] See article R45 of the CAS Code (ed. 2017).

[6] Art. 415. III. Déchéance:

“Le courtier perd son droit au salaire et au remboursement de ses dépenses, s'il agit dans l'intérêt du tiers contractant au mépris de ses obligations, ou s'il se fait promettre par lui une rémunération dans des circonstances où les règles de la bonne foi s'y opposaient.”

https://www.admin.ch/opc/fr/classified-compilation/19110009/index.html

[7] See. Decision of the SFT 131 III 511 para. 3.2.2 of  http://relevancy.bger.ch/php/clir/http/index.php?highlight_docid=atf%3A%2F%2F131-III-511%3Ade&lang=de&type=show_document

[8] See para. 118.

[9] E.g. Decision of the Single Judge of the PSC of 12 January 2012:12. In view of the above, the Single Judge formed the view that, although the Claimant appears to have represented the Respondent and the player in the same transaction, the documentary evidence contained in the file clearly demonstrates that the Claimant could not have possibly been remunerated twice for his services. Consequently, and in accordance with the general principles of bona fide and pacta sunt servanda the Single Judge decided that the Respondent must fulfill the obligation it voluntarily entered into with the Claimant by means of the representation agreement concluded between the parties, and therefore, the Respondent must pay the Claimant for the services he rendered in connection with the transfer of the player to the Respondent.”

[10] See also para. 118.

[11] See i.c. article 20 para. 4 FIFA PAR (ed. 2008).

[12] See para. 1.1.3 of the SFT decision. An example of a courtage d’indication would be the brokerage of insurances, where the broker, acting for the policy-holder, is paid instead, by the insurance company.

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