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

Sport and EU Competition Law: uncharted territories - (II) Mandatory player release systems with no compensation for clubs. By Ben Van Rompuy

The European Commission’s competition decisions in the area of sport, which set out broad principles regarding the interface between sports-related activities and EU competition law, are widely publicized. As a result of the decentralization of EU competition law enforcement, however, enforcement activity has largely shifted to the national level. Since 2004, national competition authorities (NCAs) and national courts are empowered to fully apply the EU competition rules on anti-competitive agreements (Article 101 TFEU) and abuse of a dominant position (Article 102 TFEU).

Even though NCAs and national courts have addressed a series of interesting competition cases (notably dealing with the regulatory aspects of sport) during the last ten years, the academic literature has largely overlooked these developments. This is unfortunate since all stakeholders (sports organisations, clubs, practitioners, etc.) increasingly need to learn from pressing issues arising in national cases and enforcement decisions. In a series of blog posts we will explore these unknown territories of the application of EU competition law to sport.

In this second installment of this blog series, we discuss a recent judgment of the regional court (Landgericht) of Dortmund finding that the International Handball Federation (IHF)’s mandatory release system of players for matches of national teams without compensation infringes EU and German competition law.[1] More...

The CAS Ad Hoc Division in 2014: Business as usual? – Part.1: The Jurisdiction quandary

The year is coming to an end and it has been a relatively busy one for the CAS Ad Hoc divisions. Indeed, the Ad Hoc division was, as usual now since the Olympic Games in Atlanta in 1996[1], settling  “Olympic” disputes during the Winter Olympics in Sochi. However, it was also, and this is a novelty, present at the Asian Games 2014 in Incheon.  Both divisions have had to deal with seven (published) cases in total (four in Sochi and three in Incheon). The early commentaries available on the web (here, here and there), have been relatively unmoved by this year’s case law. Was it then simply ‘business as usual’, or is there more to learn from the 2014 Ad Hoc awards? Two different dimensions of the 2014 decisions by the Ad Hoc Division seem relevant to elaborate on : the jurisdiction quandary (part. 1) and the selection drama (part. 2). More...

Sports Politics before the CAS II: Where does the freedom of speech of a Karate Official ends? By Thalia Diathesopoulou

On 6 October 2014, the CAS upheld the appeal filed by the former General Secretary of the World Karate Federation (WKF), George Yerolimpos, against the 6 February 2014 decision of the WKF Appeal Tribunal. With the award, the CAS confirmed a six-months membership suspension imposed upon the Appellant by the WKF Disciplinary Tribunal.[1] At a first glance, the case at issue seems to be an ordinary challenge of a disciplinary sanction imposed by a sports governing body. Nevertheless, this appeal lies at the heart of a highly acrimonious political fight for the leadership of the WKF, featuring two former ‘comrades’:  Mr Yerolimpos and Mr Espinos (current president of WKF). As the CAS puts it very lucidly, "this is a story about a power struggle within an international sporting body"[2], a story reminding the Saturn devouring his son myth.

This case, therefore, brings the dirty laundry of sports politics to the fore. Interestingly enough, this time the CAS does not hesitate to grapple with the political dimension of the case. More...

The new “Arrangement” between the European Commission and UEFA: A political capitulation of the EU

Yesterday, the European Commission stunned the European Sports Law world when it announced unexpectedly that it had signed a “partnership agreement with UEFA named (creatively): ‘The Arrangement for Cooperation between the European Commission and the Union of European Football Associations (UEFA)’. The press release indicates that this agreement is to “commit the two institutions to working together regularly in a tangible and constructive way on matters of shared interest”. The agreement was negotiated (as far as we know) secretly with UEFA. Despite recent meetings between EU Commissioner for sport Vassiliou and UEFA President Platini, the eventuality of such an outcome was never evoked. It is very unlikely that third-interested-parties (FIFPro, ECA, Supporters Direct etc.) were consulted in the process of drafting this Arrangement. This surprising move by an outgoing Commission will be analysed in a three-ponged approach. First, we will discuss the substance of the Arrangement (I). Thereafter, we will consider its potential legal value under EU law (II). Finally, and maybe more importantly, we will confront the political relevance of the agreement (III).  More...

Sports Politics before the CAS: Early signs of a ‘constitutional’ role for CAS? By Thalia Diathesopoulou

It took almost six months, a record of 26 witnesses and a 68 pages final award for the CAS to put an end to a long-delayed, continuously acrimonious and highly controversial presidential election for the Football Association of Thailand (FAT). Worawi Makudi can sit easy and safe on the throne of the FAT for his fourth consecutive term, since the CAS has dismissed the appeal filed by the other contender, Virach Chanpanich.[1]

Interestingly enough, it is one of the rare times that the CAS Appeal Division has been called to adjudicate on the fairness and regularity of the electoral process of a sports governing body. Having been established as the supreme judge of sports disputes, by reviewing the electoral process of international and national sports federations the CAS adds to its functions a role akin to the one played by a constitutional court in national legal systems. It seems that members of international and national federations increasingly see the CAS as an ultimate guardian of fairness and validity of internal electoral proceedings. Are these features - without prejudice to the CAS role as an arbitral body- the early sign of the emergence of a Constitutional Court for Sport? More...

Olympic Agenda 2020: To bid, or not to bid, that is the question!

This post is an extended version of an article published in August on hostcity.net.

The recent debacle among the candidate cities for the 2022 Winter Games has unveiled the depth of the bidding crisis faced by the Olympic Games. The reform process initiated in the guise of the Olympic Agenda 2020 must take this disenchantment seriously. The Olympic Agenda 2020 took off with a wide public consultation ending in April and is now at the end of the working groups phase. One of the working groups was specifically dedicated to the bidding process and was headed by IOC vice-president John Coates.  More...

The CAS jurisprudence on match-fixing in football: What can we learn from the Turkish cases? - Part 2: The procedural aspects. By Thalia Diathesopoulou

With this blog post, we continue the blog series on Turkish match-fixing cases and our attempt to map the still unchartered waters of the CAS’s match-fixing jurisprudence.

The first blog post addressed two issues related to the substance of match-fixing disputes, namely the legal characterization of the match-fixing related measure of ineligibility under Article 2.08 of the UEL Regulations as administrative or disciplinary measure and the scope of application of Article 2.08. In addition, The Turkish cases have raised procedural and evidentiary issues that need to be dealt with in the framework of match-fixing disputes.

The CAS panels have drawn a clear line between substantial and procedural matters. In this light, the Eskişehirspor panel declared the nature of Article 2.08 UEL Regulations to be administrative and rejected the application of UEFA Disciplinary Regulations to the substance. Nonetheless, it upheld that disciplinary rules and standards still apply to the procedure. This conclusion, however, can be considered puzzling in that disciplinary rules apply to the procedural matters arising by a pure administrative measure. To this extent, and despite the bifurcation of different applicable rules into substantial and procedural matters, the credibility of the qualification of Article 2.08 as administrative seems to be undermined. And here a question arises: How can the application of rules of different nature to substantial and procedural matters in an identical match-fixing dispute be explained?More...

The EU State aid and Sport Saga – A blockade to Florentino Perez’ latest “galactic” ambitions (part 2)

This is the second part of a blog series on the Real Madrid State aid case. In the previous blog on this case, an outline of all the relevant facts was provided and I analysed the first criterion of Article 107(1) TFEU, namely the criterion that an advantage must be conferred upon the recipient for the measure to be considered State aid. Having determined that Real Madrid has indeed benefited from the land transactions, the alleged aid measure has to be scrutinized under the other criteria of Article 107(1): the measure must be granted by a Member State or through State resources; the aid granted must be selective; and it must distorts or threatens to distort competition. In continuation, this blog will also analyze whether the alleged aid measure could be justified and declared compatible with EU law under Article 107(3) TFEU.More...

The CAS jurisprudence on match-fixing in football: What can we learn from the Turkish cases? - Part 1 - By Thalia Diathesopoulou

The editor’s note:

Two weeks ago we received the unpublished CAS award rendered in the Eskişehirspor case and decided to comment on it. In this post Thalia Diathesopoulou (Intern at the ASSER International Sports Law Centre) analyses the legal steps followed and interpretations adopted by CAS panels in this case and in a series of other Turkish match-fixing cases. The first part of the post will deal with the question of the legal nature of the ineligibility decision opposed by UEFA to clubs involved in one way or another into match-fixing and with the personal and material scope of UEFA’s rule on which this ineligibility is based. The second part is dedicated to the procedural rules applied in match-fixing cases.


Introduction

The unpredictability of the outcome is a sine qua non feature of sports. It is this inherent uncertainty that draws the line between sports and entertainment and triggers the interest of spectators, broadcasters and sponsors. Thus, match-fixing by jeopardising the integrity and unpredictability of sporting outcomes has been described, along with doping, as one of the major threats to modern sport.[1] More...


Sport and EU Competition Law: uncharted territories - (I) The Swedish Bodybuilding case. By Ben Van Rompuy

The European Commission’s competition decisions in the area of sport, which set out broad principles regarding the interface between sports-related activities and EU competition law, are widely publicized. As a result of the decentralization of EU competition law enforcement, however, enforcement activity has largely shifted to the national level. Since 2004, national competition authorities (NCAs) and national courts are empowered to fully apply the EU competition rules on anti-competitive agreements (Article 101 TFEU) and abuse of a dominant position (Article 102 TFEU).

Even though NCAs have addressed a series of interesting competition cases (notably dealing with the regulatory aspects of sport) during the last ten years, the academic literature has largely overlooked these developments. This is unfortunate since all stakeholders (sports organisations, clubs, practitioners, etc.) increasingly need to learn from pressing issues arising in national cases and enforcement decisions. In a series of blog posts we will explore these unknown territories of the application of EU competition law to sport.More...

Asser International Sports Law Blog | The Müller case: Revisiting the compatibility of fixed term contracts in football with EU Law. By Kester Mekenkamp

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 Müller case: Revisiting the compatibility of fixed term contracts in football with EU Law. By Kester Mekenkamp

Editor’s note: Kester Mekenkamp is an LL.M. student in European Law at Leiden University and an intern at the ASSER International Sports Law Centre.

On 17 February 2016, the Landesarbeitsgericht Rheinland-Pfalz delivered its highly anticipated decision in the appeal proceedings between German goalkeeper Heinz Müller and his former employer, German Bundesliga club Mainz 05.[1] The main legal debate revolved around the question (in general terms) whether the use of a fixed term contract in professional football is compatible with German and EU law. 

In first instance (see our earlier blog posts, here and here), the Arbeitsgericht Mainz had ruled that the ‘objective reasons’ provided in Section 14 (1) of the German Part-time and Fixed-term Employment Act (Gesetz über Teilzeitarbeit und befristete Arbeitsverträge, “TzBfG”), the national law implementing EU Directive 1999/70/EC on fixed-term work, were not applicable to the contract between Müller and Mainz 05 and therefore could not justify the definite nature of that contract.[2] In its assessment the court devoted special attention to the objective reason relating to the nature of the work, declining justifications based thereupon.[3] Tension rose and the verdict was soon labelled to be able to have Bosman-like implications, if held up by higher courts.[4]

The Landesarbeitsgericht Rheinland-Pfalz has however taken a different road, one going in the (radically) opposite direction, by deciding that the contested fixed term contract period between a Bundesliga football club and a professional player can in fact be justified based on the objective reason of the nature of the work.[5] This case is an example of how the successful reliance on EU law ultimately depends on the interpretation of a national implementing measure by the competent national courts.[6]

This blog post will try to provide an insight in the court’s reasoning, addressing the four main arguments raised in the judgment. Followed by some point of criticism, making comparisons with the ruling in first instance, as well as the Dahmane v KRC Genk case.[7]  


The reasoning of the court

The Landesarbeitsgericht turns to the concept of the specificity of the work (“Eigenart der Arbeitsleistung”) in the second part of its decision.[8] It thereby immediately stresses that every ‘employment relationship’ has its particularities, which thus prohibits a broad interpretation of the nature of the work. It elucidates:

It therefore must be a specificity, the nature of which transcends in an exceptional way the particularities inherent to every (normal) employment relationship, wherein also industry specific features have to be considered.[9]

Thus, for the justification of Section 14 (1) (4) TzBfG to apply, it has to be a special ‘employment relationship’, which in an extraordinary way transcends the particularities inherent to any normal form of employment. The court follows by stating that the employment relationship between a Bundesliga club and a professional football player is characterized by specific features rendering it such special status.[10] The following arguments are substantiating this claim: 


1. Extraordinary high degree of uncertainty 

At the time of concluding the contract, there is an extraordinary high degree of uncertainty regarding the timespan the player can be employed successfully in the pursuit of the club’s sporting and thereto related economical goals.[11]

In the field of professional football, however, there are special features which lead to a degree of uncertainty significantly exceeding the one present at the conclusion of other employment contracts.[12]

The court substantiates this by referring to the possibility of injuries, leading to potential constraints on the player’s future performance. The latter is in any case dependent on many factors and thus only partially predictable. Other unforeseeable circumstances are put forward by the court that may affect the player’s use and performance in a team. It depends in particular on the manager’s tactical approach, the changes therein and the player’s adaptability to those changes. Group dynamics can negatively influence the individual performance. Moreover, in their constant strive for improvement, clubs take on new players, which may cause a previously valuable player to be no longer suited to the raised performance level of the team and the associated increased sporting objective of the club. This leads the court to believe that there is a legitimate interest for the club to use fixed term contracts.[13]


2. The particular need for a balanced age structure of the professional squad

A legitimate interest, to limit the contracts of professional players, derives from professional football’s immanent nature of the particular need, guided by the sporting goal, for a balanced age structure of the squad.[14]

From this a legitimate interest to use fixed term contracts can be derived. For reasons of competitiveness, clubs are constantly striving to “refresh” their squad. They achieve this by signing young players, introducing skilled players from their own youth department in the first team and possibly endow them with a professional contract. The court states that if professional players would have indefinite contracts, this would inevitably lead (in a certain time) to an immense inflation and total oversizing of the squad, which for most teams then would no longer be financeable.[15]


3. The public’s need for variety

Taking into account the public’s variety-need in assessing the legality of a fixed-contract is justified in light of the increasing commercialization of professional football and it having many similarities with the entertainment industry.[16]

Referring to case law in the area of theatre and stage arts, the court considers sports fans’ need for variety to be a specific feature of professional football. This aspect, in view of the increasing commercialization of professional football, further justifies the use of definite contracts. Fans of course want excellent performing players and crowd favourites (“Publikumsliebling”) to stay with the club on a long-term basis, yet this cannot be foreseen at the time of the conclusion of the contract. The court is however adamant that fans strive for variety with regard to the composition of the team as such.[17]

The public expects the club’s management to, from time to time, if not in every transfer window, improve and thus change the team by attracting new players.[18]

Thus, according to the court, the public expects the club’s management to attract new players and thus periodically change the composition of the team. Likewise it notes that, when concluding a contract, clubs and players need to start from the assumption that fans want change and, hence, want to see different players over time.[19] 


4. The player’s interests

Even from the player’s perspective, according to the court, the use of fixed term contracts is beneficial.

From the player’s side it is to be considered, that by the orderly conclusion of fixed-term contracts that cannot be terminated, the player’s risk of losing his job is, at least temporarily, lifted.[20]

Again referring to the imminent threat of possible injury, the court puts forward that a fixed term contract protects players particularly against early termination of the employment contract by personal compulsory redundancy. Furthermore, it is the court’s view that the ending of fixed term contracts creates room for possible subsequent transfers, deemed in the football player’s interests.[21]

Next, the court shortly addresses the typically extraordinary amount of remuneration paid in professional football (in the Bundesliga annually amounting to an average of 1.5 million euros). It takes note of the aim of EU Directive 1999/70/EC, being the improvement of the situation of weak and thus socially vulnerable workers and to prevent the emergence of a ‘precariat’ of always only temporary salaried workers. It subsequently notes that, in balancing the interests, the exceptionally high remuneration completely changes the scale in application of Section 14 TzBfG, however unfortunately without giving any further guidance.[22]

In an overall consideration of all these circumstances the court finds that the fixed term contract signed between Müller and Mainz 05, and thus the use of fixed term contracts in professional football in general, corresponds to the view of a sensible and reasonable contractual partner.[23] 


Und Jetzt? Some points of criticism

The Landesarbeitsgericht seems to have felt the need to soothe the debate that has arisen after the ruling in first instance. In direct opposition to the Arbeitsgericht Mainz, it has concluded that the contested fixed term contract period between a Bundesliga football club and a professional player can in fact be justified based on the objective reason of the nature of the work.[24] The protective stance in favour of the player provided by the Arbeitsgericht, together with the bulk of that court’s argumentation, has now been abandoned. Although the rationale given by the Landesarbeitsgericht for its ruling, especially the first and second argument (being for large parts in consensus with a commentator of the first instance ruling),[25] seems convincing to this author. Altogether, it still leaves room for further debate. 

On the one hand, with regard to the extraordinary high degree of uncertainty, the Landesarbeitsgericht even could have gone further by developing an argument based, not on the uncertainty of successful performance, but on the inevitability of a decline in physical performance.[26]

On the other hand, the court’s claim that the use of definite contracts is in the player’s own best interest seems rather circular, when it states that the ending of definite contracts at clubs makes room for subsequent transfers.[27] It moreover does not explain the precise influence of the high remuneration received in professional football in the balancing of interests under Section 14 TzBfG.[28] This author would have also liked some further elaboration on the courts assumption of the fans’ variety-need.[29]

Perhaps most importantly, by separating these ‘special employment relationships’ in professional football from normal employment, the Landesarbeitsgericht seems to have taken away the protective shield of labour law from the hands of the players/workers (supported in the ruling in first instance) and placed it right back at the feet of the clubs. It may be that the system of fixed term contracts is the most suitable in addressing the particularities of professional football,[30] and yes, the court has provided some valuable arguments for granting a justification based on the nature of the work. Still, the court must tread warily not to give clubs a carte blanche established on this special status of sport. Because, what would be the limits of this autonomy and how would these limits be policed?

In a previous Belgium case, the Dahmane v KRC Genk case (see our earlier blog post), the outcome was somewhat different. There, the Belgian court had to rule on a player’s unilateral termination of his labour contract with his club. In relation to this matter, the court decided, first, against a differentiation between football players and other professional athletes, and second, against a differentiation between professional athletes and normal workers. According to the Belgian court sport does exhibit certain particularities, however a perceived ‘specific nature of sport’ was not a decisive factor leading it to deviate from other labour relationships.

This reasoning is more in line with the Arbeitsgericht’s view in first instance regarding the question of the nature of the work. Be that as it may, the Landesarbeitsgericht does not concur, leaving us with yet another twist in this ongoing debate since the Bosman ruling. Can we speak of this perceived separate creature, being football or sport, and should this have a special status? And, if so, what should be the implications of this special status in relation to (EU) (labour) laws? These questions are far from settled.



[1] Landesarbeitsgericht Rheinland-Pfalz: Urteil vom 17.02.2016 – 4 Sa 202/15 (Appeal decision Heinz Müller case)

[2] FIFPro Press Release,Müller case is a wake-up call for football, 8 April 2015

[3] P. Drabik, Compatibility of fixed-term contracts in football with Directive 1999/70/EC on fixed-term work: the general framework and the Heinz Müller case, Int Sports Law J (2016).

[4] “Successful lawsuit threatens time-limited contracts in football” http://www.dw.com/en/successful-lawsuit-threatens-time-limited-contracts-in-football/a-18341045.

[5] Landesarbeitsgericht Rheinland-Pfalz: Urteil vom 17.02.2016 – 4 Sa 202/15 (Appeal decision Heinz Müller case), II.1.b

[6] P. Drabik, “Compatibility of fixed-term contracts in football with Directive 1999/70/EC on fixed-term work: the general framework and the Heinz Müller case”, Int Sports Law J (2016), p. 153, 157

[7] A.R. 2009/AH/199 (6 may 2014), Dahmane v KRC Genk

[8] Appeal decision Heinz Müller case, II.1.b

[9] “Es muss sich daher um eine vertragstypische, die jedem Arbeitsverhältnis innewohnende Besonderheit in einem außergewöhnlichen Maß übersteigende Eigenart handeln, wobei jedoch auch branchenspezifische Merkmale bzw. Gesichtspunkte zu berücksichtigen sind“ Ibid, II.1.b

[10] Ibid, II.1.b

[11] Ibid, II.1.b.aa

[12] “Im Bereich des Profifußballs bestehen indes Besonderheiten, die dazu führen, dass das Maß dieser Ungewissheit das insoweit bei Abschluss sonstiger Arbeitsverträge gegebene Unsicherheitsrisiko erheblich übersteigt“, Ibid, II.1.b.aa

[13] Ibid, II.1.b.aa

[14] “Ein berechtigtes Interesse, die Verträge der Lizenzspieler zu befristen, ergibt sich auch aus der dem Profifußball immanenten Eigenart der besonderen Notwendigkeit einer ausgewogenen, der sportlichen Zielsetzung gerecht werdenden Altersstruktur des Spielerkaders“ Ibid, II.1.b.bb

[15] Ibid, II.1.b.bb

[16] “Die Berücksichtigung des Abwechslungsbedürfnisses des Publikums bei der Befristungskontrolle ist im Hinblick auf die zunehmende Kommerzialisierung des Profifußballs, der mittlerweile vielerlei Ähnlichkeiten mit der Unterhaltungsbranche aufweist, gerechtfertigt“ Ibid, II.1.b.cc

[17] Ibid, II.1.b.cc

[18] “Das Publikum erwartet von der sportlichen Leitung des Vereins, dass diese von Zeit zu Zeit, wenn nicht sogar in jeder Transferperiode, die Mannschaft durch Verpflichtung neuer Spieler verbessert und damit zugleich auch verändert“ Ibid, II.1.b.cc

[19] Ibid, II.1.b.cc

[20] “Auf Seiten des Spielers ist zu berücksichtigen, dass diesem durch den Abschluss eines befristeten, ordentlich unkündbaren Arbeitsvertrages zumindest vorübergehend das Risiko des Verlustes seines Arbeitsplatzes genommen wird“ Ibid, II.1.b.dd

[21] Ibid, II.1.b.dd

[22] Ibid, II.1.b.dd

[23] Ibid, II.1.b.ee

[24] Ibid, II.1.b

[25] Piotr Drabik, “Compatibility of fixed-term contracts in football with Directive 1999/70/EC on fixed-term work: the general framework and the Heinz Müller case”, International Sports Law Journal (2016), 15; 3-4, page 156

[26] As advocated in: Ibid, p. 152, 156,

[27] Appeal decision Heinz Müller case, II.1.b.dd

[28] Ibid, II.1.b.dd

[29] Ibid, II.1.b.cc

[30] As advocated in: Piotr Drabik, “Compatibility of fixed-term contracts in football with Directive 1999/70/EC on fixed-term work: the general framework and the Heinz Müller case”, International Sports Law Journal (2016), 15; 3-4, page 153

Comments are closed