Editor’s Note: Emre Bilginoglu[1] is an attorney in Istanbul and the co-founder of the Turkish E-Sports Players Association, a non-profit based in Istanbul that aims to provide assistance to professional gamers and to work on the relevant laws affecting them. 

The world is witnessing the rise of a new sport that is growing at an incredible speed: E-Sports. We are only starting to understand its legal implications and challenges.

In recent years, E-Sports has managed to attract thousands of fans to arenas to see a group of people play a video game. These people are literally professional gamers (cyber athletes)[2] who make money by competing in tournaments. Not all video games have tournaments in which professional players compete against each other.

The most played games in E-Sports competitions are League of Legends (LoL), Defense of the Ancients 2 (DotA 2) and Counter-Strike: Global Offensive (CS:GO). LoL and DotA are both Multiplayer online battle arena (MOBA) games, a genre of strategy video games in which the player controls a single character in one of two teams. The goal of the game is to destroy the opponent’s main structure. CS:GO is a first-person shooter (FPS) game, a genre of video games where the player engages combat through a first-person perspective. The main objective in CS:GO is to eliminate the opposing team or to terrorize or counter-terrorize, planting bombs or rescuing hostages. Other games that have (popular) E-Sports competitions include Starcraft II (real time strategy), Hearthstone (collectible card video game), Call of Duty (FPS) and FIFA (football).

The gaming requires cooperation between team players, a high level of concentration, rapid reactions and some seriously fast clicking. E-Sports is a groovy term to describe organized competitive computer gaming. The E-Sports industry is exponentially growing, amounting to values expressed in billions of dollars. According to Newzoo, a website dedicated to the collection of E-Sports data, there are some 250 million occasional viewers of E-Sports with Asia-Pacific accounting for half of the total amount. The growth of the industry is indubitably supported by online streaming media platforms. This article aims to explain what E-Sports is and to give the readers an insight on the key legal questions raised by it. 

Is E-Sports a Sport?

The introductory legal question regarding E-Sports is whether it is a sport. There are different definitions of “sport”. According to the Council of Europe, “sport” means all forms of physical activity which, through casual or organised participation, aim at expressing or improving physical fitness and mental well-being, forming social relationships or obtaining results in competition at all levels.

SportAccord a non-profit association which is composed of autonomous and independent international sports federations and other international organisations contributing to sport in various fields, also offers a definition of sport. According to this definition, sport:

1) includes an element of competition;

2) does not rely on any element of “luck” specifically integrated into the sport;

3) does not pose an undue risk to the health and safety of its athletes or participants;

4) is in no way harmful to any living creature;

5) and does not rely on equipment that is provided by a single supplier.

Sport categories designated by SportAccord are primarily: physical sports (e.g. basketball); mind sports (e.g. chess); motorized sports (e.g. motorcycle racing); coordination sports (e.g. snooker); and animal-supported sports (e.g. equestrianism).

SportAccord also states that activities with limited physical or athletic activity would be carefully considered. E-Sports indeed involves a limited physical activity. The professional gamer generally sits in front of a designated computer. However, at this point it is important to highlight the existence of multiplayer video games that involve a considerable amount of physical activity. Home video game consoles that detect movement were released in early 2000s, paving the way for true E-Sports cyber athletes in the near future. Until now however, games that require physical activity have not been played at a professional level.

Having said this, E-Sports does involve a clear element of competition, does not rely only on luck, does not pose an undue risk to the health and safety of its competitors and is not harmful to any living creature. At some point, it does rely on equipment that is provided by a single supplier, as the subject game that is played is in general produced by a single supplier. In other words, E-Sports clearly complies with the remaining criteria (2 to 5) suggested to be defined as a “sport”.

Even though there are a myriad of multiplayer games, one mostly categorizes E-Sports as a primarily mind and coordinated sport. It does not require lots of physical activities except for very fast finger movement. A similar sport is chess. It is challenging to oppose the argument of David Papineau, professor of philosophy of science at King’s College London, who, as regards chess, said that “(t)he activity is playing a game, therefore it is not a sport but a game”. However, chess is a strategy board game and at the same time it is an organized sport with an international governing body, namely FIDE.

Can E-Sports Be an Olympic Sport?
The International Olympic Committee (IOC) is the supreme authority of the Olympic movement. The IOC decides which sports are included in the Olympic Games. Choices of the IOC always bring forth discussions and debates in the sports community. Some sports are discontinued and some are re-introduced. Wrestling was announced to be dropped from the 2020 Olympic Games in 2020, but was reinstated seven months after losing its place. Even though wrestling is one of the founding sports of the Olympics, the IOC could have removed it from the Olympic Games. The IOC recently reinstated baseball and softball, and added skateboarding -, karate, climbing and surfing- to the sports programme for the Olympic Games in Tokyo 2020. Therefore, it is possible to say that popularity is one of the crucial elements for a sport to be included to the Olympic Games. Chess, led by FIDE, is attempting to be an Olympic Sport. Although the attempt for Tokyo 2020 was not successful, things may change in the future.

In my opinion, E-Sports can very well be regarded as an Olympic sport in the near future. Whatever game that is played on a professional level, may be regarded as its discipline. The crucial setback is the perishability of games. Video games become “obsolete” with time. This is especially the case with sports games. Squads and the game play changes every season. That is one of the reasons why FIFA releases a new video game every single year. Therefore, video games such as FIFA are unlikely to make it to the top E-Sports games awarding prize money.

What type of Governance for E-Sports ?

The formation of a single internationally recognized E-Sports federation would be a first step in a long journey to reach the Olympics. Currently however, several international E-Sports organizations exist.

In South Korea, where E-Sports is what football is to Brazil, the South Korean E-Sports Association was founded in 2000. The Association regulates the working conditions of cyber athletes. The highest earnings in E-Sports by countries are listed as: China, the United States, South Korea, Sweden and Canada. As for international associations, three of them need to be mentioned.

First, there is the World E-Sports Association (WESA), founded in 2016 by a group of E-Sports teams and ESL (i.e. largest video game event company in the world). WESA aims to professionalize the industry, regulating matters regarding revenues and schedules. WESA even has an internal arbitration court, namely WESA Arbitration Court. It operates independently from WESA and is open to everyone involved in E-Sports, such as players, teams, organizers and publishers.

The second is the International e-Sports Federation (IeSF), an international organization based in Seoul, South Korea. A total of 46 nations are member of the IeSF. It has listed seven objectives in its Statute, the first one being as follows: to “constantly improve e-Sports and promote it in the light of its values - humanitarian, educational, cultural, unity of purpose and ability to promote peace”. IeSF is a signatory of the World Anti-Doping Code (WADC). ESL also endorsed the WADC and conducts doping tests on cyber athletes. Stimulants- drugs that improve reaction time and concentration are prohibited.

The third association worth mentioning is the International eGames Committee (IEGC), a non-profit E-Sports organization, supported by the government of the United Kingdom. It aims to positively shape the future of competitive gaming.

In my view, countries that seek to be a part of the E-Sports world should establish their own national federations and apply to IeSF. IeSF should collaborate with WESA, which is founded by the most significant organizations in the industry. IeSF is capable of growing into an internationally recognized authority that is in charge of international competitions between national teams, whereas WESA would be in charge of all competitions between clubs.

E-Sports and Free Speech
Since there is a certain amount of (virtual) killing and planting bombs involved, some games are not suitable for children. Deciding who can play which game is up to certain institutions around the world. One of them is Pan European Game Information (PEGI). PEGI is the age rating system for video games in Europe, Israel and Quebec. The Entertainment Software Rating Board (ESRB) is another institution providing an age rating system for video games, this time for North America. PEGI and ESRB standards are generally not legally binding. PEGI standards are legally enforced in few jurisdictions, one being the United Kingdom. Another example is Austria. In Austria, protection of minors are implemented by states. Two of the nine states, Vienna and Carinthia, legally adopted PEGI standards.

California passed a law that prohibited the sale of certain video games to minors. It was struck down by the U.S. Supreme Court. The Supreme Court ruled that video games were protected speech under the First Amendment.[3] The Supreme Court had its own reasons, such as “Psychological studies purporting to show a connection between exposure to violent video games and harmful effects on children do not prove that such exposure causes minors to act aggressively.” or “This country has no tradition of specially restricting children’s access to depictions of violence.”

E-Sports and IP Law
Apart from constitutional law, video games can be subject to other fields of the law. Intellectual property law is one of such fields. For example, DotA is a fan-made custom map originated with Warcraft III, a strategy video game created by Blizzard Entertainment. It was not a separate game until published by Valve Corporation as Dota 2. Blizzard sought to prevent registration by its competitor Valve of the trademark Dota by resorting to the United States Patent and Trademark Office. Subsequently, Blizzard and Valve reached a settlement agreement and Valve went on to publish Dota 2.

Playing Dota 2 is free of charge and Valve speedily hosted its first competition in 2011, with a prize pool of 1.6 million dollars. The International became an annual Dota 2 E-Sports tournament. The prize pool for the tournament in 2016 was approximately 20 million dollars. The team Wings Gaming of China completed the tournament in first place and was awarded 9.1 million dollars. The final was viewed by almost 6 million spectators. Dota 2 tournaments have awarded a total prize money of approximately 90 million dollars so far. League of Legends took the second place with 36 million dollars, followed by Counter Strike: GO (nearly 27 million dollars) and Starcraft II (nearly 22 million dollars). 

E-Sports Clubs, Athletes and the Law
The E-Sports teams that participate in these kind of high level competitions have different rosters for different games. They are starting to become more and more important business entities with their superstar players. The teams are mainly sponsored by tech firms, consumer electronics companies, gaming equipment producers, web hosting companies, automobile manufacturers, energy drinks manufacturers and business people who dream of owning a sports team but who cannot afford to acquire a professional football club. Football clubs themselves are also keen on forming their own E-Sports club, not only limited to football games. PSG (FIFA, LoL, Starcraft, CS, Call of Duty and Hearthstone) Schalke 04 (LoL) and Manchester City (FIFA) have already signed their own E-Sports players. Besiktas was the first football club in the world to form an E-Sports team in 2015. Fenerbahce has also entered the arena in 2016 and will be competing in the upcoming Turkish League of Legends season with a roster of accomplished players. As for football, FIFA and EA Sports organise the FIFA Interactive World Cup 2017. FIFA announced that the winning prize would be 200 thousand dollars.

High level cyber athletes are mostly men. However, the industry is trying to tackle gender discrimination and promote women cyber athletes. Cyber athletes sign contracts with their teams and sometimes receive salaries from video game developers. The developer of League of Legends, Riot Games chooses to pay salaries to competitors. Cyber athletes may want to make some extra money by streaming on online platforms, an important issue while drafting a contract. Therefore, E-Sports concerns both labor law and contract law. It also concerns criminal law, as there have been several incidents of betting-related match-fixing in E-Sports. In one such case, the manager of a LoL club was inciting his players to lose against big teams, claiming that the organizers would kick them out of the league should they win. The players allegedly did so, believing their manager. In the end, the manager was found to be betting against his own team, which finished the season with no wins. A player of the team attempted suicide, leaping off a building. Fortunately, he survived. In another case, a Dota 2 player placed a bet against his own team in a major event and won $322. “322” is now a nickname for players who deliberately fail in a game.

In Turkey, where I practice law, E-Sports players became athletes licensed by the “Federation of Developing Sports”, established by the Sports Ministry. There are about three thousand licensed players. The level of professionalism in elite clubs is surprising, and they are actually pretty successful in international tournaments. Space Soldiers (CS:GO), SuperMassive (LoL) are followed by tens of thousands of fans, even though they were founded only a few years ago.

The primary concern of the athletes and their families in general is the lack of opportunities after their brief but intense careers. Successful cyber athletes require a superordinate level of reactions and excellent reflexes. These attributes become slower with time. Consequently, cyber athletes are usually active between the ages 18-23. It is arduous for them to find time to study, as they need at least eight hours of training per day. National legislators around the world should also focus on devising E-Sports regulations, as more and more professional contracts are being signed. Cyber athletes are transferred from clubs to other clubs as in any other sport and foreign cyber athletes may encounter problems regarding their visas. France recently tackled the legal vacuum and granted a specific legal status for cyber athletes.

Conclusion
Call it a sport or not, E-Sports is growing exponentially. It is an industry worth billions and watched by millions. Although the industry is a commercial success, there are still lots of legal issues to tackle. These legal issues fall within the scope of various fields of law causing lawyers to work on improving their respective national laws.

Transfers of cyber athletes, drafting contracts for cyber athletes and the resolution of contractual disputes are some of the key issues, as well as tackling doping and match-fixing, intellectual property rights, broadcasting rights in particular, and the exploitation of minors or professional gamers. WESA and IeSF are significant international organizations that can endeavor on unifying E-Sports regulations and tackling legal problems faced by the players and the clubs.

The 21st century will offer more new games to play. Considering the current growth in the industry, I would dare predict that the industry will be worth hundreds of billions in the near future. I would recommend the countries and E-Sports governing bodies leading the industry to work together and bring forth certain essential regulations. This would also benefit game developers, as their games and gamers would find a place in the industry on a legal basis. I would also suggest the industry to incite women cyber athletes and facilitate their involvement in professional competitions, so that possible instances of discrimination are proactively precluded.

[1] Nurettin Emre Bilginoglu, LLM, Attorney-at-law - Istanbul, Turkey.  E-mail: emre@caglayanyalcin.com.

[2] Although there is no precise definition of a “professional E-Sports player”, the approach of FIFA could be deemed applicable by analogy. According to Article 2 of FIFA Regulations on the Status and Transfer of Players, a professional is a player who has a written contract with a club and is paid more for his footballing activity than the expenses he effectively incurs. In E-Sports, certain players are paid more for their gaming activities than the expenses they incur.

[3] Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011).

Editor’s note: Tomáš Grell comes from Slovakia and is currently an LL.M. student in Public International Law at Leiden University. He contributes also to the work of the ASSER International Sports Law Centre as a part-time intern.

This is a follow-up contribution to my previous blog on FIFA's responsibility for human rights abuses in Qatar published last week. Whereas the previous part has examined the lawsuit filed with the Commercial Court of the Canton of Zurich ('Court') jointly by the Dutch trade union FNV, the Bangladeshi Free Trade Union Congress, the Bangladesh Building and Wood Workers Federation and the Bangladeshi citizen Nadim Shariful Alam ('Plaintiffs') against FIFA, this second part will focus on the Court's ruling dated 3 January 2017 ('Ruling').[1] 

Before embarking on a substantive analysis of the Ruling, it is worth recalling the Plaintiffs' claims. First, the Plaintiffs requested the Court to order FIFA to redress the ongoing human rights violations by pressing the responsible Qatari authorities to abolish the controversial kafala system and ensure that human rights and fundamental freedoms of migrant workers are preserved ('Claim 1'). Alternatively, they asked the Court merely to declare the unlawfulness of those human rights violations ('Claim 2'). As regards the monetary compensation, the Bangladeshi worker Nadim Shariful Alam sought damages of USD 4,000 and a satisfaction amounting to CHF 30,000 ('Claim 3').[2] The present blog attempts to provide a clear overview of the basis on which the Court rejected the Plaintiffs' claims and to draw a few concluding remarks therefrom.

The Court's reasoning 

The Court considers at the outset of the Ruling that the case at hand immediately proves to be ripe for a decision.[3] Therefore, FIFA had not been invited by the Court to express its views before the Ruling was issued. Pursuant to the Swiss Code of Civil Procedure ('ZPO'), a court shall verify ex officio the fulfilment of the relevant procedural requirements[4], including but not limited to unambiguity of claims[5] and jurisdiction ratione materiae.[6] The following subsections of this blog will take a brief look at how the Court appraised these two procedural requirements.

Unambiguity of the Plaintiffs' claims 

Should a certain claim be considered unambiguous in line with Swiss rules on civil procedure, it needs to be enforceable[7] and sufficiently specified.[8] In respect of Claim 1 (i.e. to oblige FIFA to press the competent Qatari authorities), the Court states that such claim would not be enforceable, since ''anyone who merely exerts pressure on something does not redress any susceptible ills.''[9] The Court is firmly convinced that only the sovereign State of Qatar is empowered to bring about a direct change in the country's human rights situation. In addition, the Court finds Claim 1 to be vague, because it does not specify the Qatari authorities to which FIFA should turn in order to ameliorate the humanitarian conditions for World Cup-related migrant workers.[10]

In respect of Claim 2 (i.e. to declare the illegality of the respective human rights violations), the Court is of the opinion that it does not meet the requirement of being sufficiently specified either. In particular, the Court argues that the Plaintiffs did not precisely identify what part of FIFA's conduct should be declared unlawful. According to the Court's line of reasoning, if Claim 2 were to be admitted, this would essentially make it impossible for FIFA to defend itself.[11] 

Jurisdiction ratione materiae     

Based on the above, the Court considers Claims 1 and 2 inadmissible on account of their ambiguity and does not analyse whether it may exercise jurisdiction ratione materiae over these claims. Nevertheless, in obiter dicta comments, it indicates that Claim 1 is more likely to fall within the ambit of public law.[12] More importantly, the Court does not rule out that a decision requiring a private association (i.e. FIFA) to interfere in domestic affairs of a sovereign State (i.e. Qatar) could be potentially deemed unlawful[13], and that such a decision would consequently negate the Plaintiffs' legitimate interest.[14]

Given that Claim 3 (i.e. Mr. Alam's request for monetary compensation) is clearly unequivocal, the Court proceeds to determine whether it has subject-matter jurisdiction to entertain such claim. The Commercial Courts in Switzerland are endowed with jurisdiction ratione materiae, insofar as a commercial dispute within the meaning of Article 6 (2) ZPO is concerned. A dispute is classified as commercial in accordance with the said provision, if both parties are registered with the Swiss Commercial Registry or an equivalent foreign registry and at least one of them exercises a commercial activity. Article 6 (3) ZPO further clarifies that in a situation where only the defendant is registered with the Swiss Commercial Registry or an equivalent foreign registry, the claimant is free to choose between the Commercial Court and the ordinary court.

Applied to the case at hand, Mr. Alam relies on Article 6 (3) ZPO, since he does not raise Claim 3 as a tradesman registered either with the Swiss Commercial Registry or an equivalent foreign (Bangladeshi) registry.[15] In this regard, the Court also notes that Mr. Alam is not engaged in any kind of commercial activity.[16] Perhaps surprisingly, the question of whether FIFA exercises a commercial activity in terms of Article 6 (2) (a) ZPO turns out to be less straightforward. Although FIFA generally conducts significant commercial activities, the Court underlines that ''the exercising of an alleged power to influence the political system and legal order of a foreign State and/or the neglect of such influence cannot – even interpreting the term broadly – be regarded as a commercial activity.''[17] Consequently, the Court concludes that, in the absence of a commercial dispute between Mr. Alam and FIFA, it is precluded from adjudicating on Claim 3.[18]

It follows from the above that the Court draws a rigid demarcation line between what it considers as being FIFA's commercial activities and its policy influence vis-à-vis World Cup-hosts. However, in practice, a large share of FIFA's revenue comes from FIFA-organized football tournaments, the most prominent being by far the FIFA World Cup. FIFA's Financial and Governance Report 2015 indicated that, insofar as the financial year 2015 is concerned, event-related revenue amounted to 85 % of FIFA's aggregate revenue (USD 973 million out of USD 1,152 million).[19] Especially the sale of broadcasting rights for the FIFA World Cup constitutes an irreplaceable source of FIFA's funding. Moreover, the practice shows also that FIFA is used to compel World Cup-hosts to modify their domestic laws for the benefit of tournament's sponsors, a textbook example thereof being the well-known 'Budweiser Law' which has already been discussed in the first part of this blog. Hence, it seems that FIFA's commercial activities and its policy influence vis-à-vis World Cup-hosts are much more intertwined in reality than envisaged by the Court.   

A way forward

Based on the aforementioned reasons, the Court dismissed the Plaintiffs' lawsuit in its entirety. The Plaintiffs were entitled to challenge the Ruling before the Swiss Federal Court within 30 days of its delivery.[20] For the time being, it remains unclear to us whether the Plaintiffs availed themselves of the right to appeal the Ruling or not.

It should be emphasized that the Ruling in question does not imply that FIFA generally cannot be held accountable for human rights abuses linked to the World Cup in Qatar. The Court rejected the Plaintiffs' claims on grounds of inadmissibility and lack of jurisdiction, without pronouncing itself on the merits of the case. In particular, the Court points out that the Plaintiffs' claims, as they were formulated, would not be enforceable, because FIFA is allegedly not in a position to force Qatar to amend the widely criticised labour laws.[21] That being said, the Court arguably turns a blind eye to the ever-increasing power of non-State actors in contemporary international relations.

Following the Court's line of reasoning, the only feasible way for World Cup-related migrant workers (and trade unions acting on their behalf) to pursue effective legal redress in Switzerland is to claim damages based solely on the illegality of FIFA's decision to select Qatar as World Cup-host. An affirmative response given by the Court to such claim would undoubtedly encourage hundreds of other migrant workers currently residing in Qatar to follow the same path. Nonetheless, absent an explicit legal obligation on the part of FIFA to press the relevant Qatari authorities, it remains questionable how much impact such a decision would have on the overall human rights situation in Qatar and on those migrant workers coming to the Gulf country in the future.

Further implications for transnational corporations

From a broader perspective, this case represents an example of a transnational private actor (i.e. FIFA) being sued in a State of its domicile (i.e. Switzerland) for damages resulting from human rights abuses which occurred in another country (i.e. Qatar). Taking into account FIFA's global operation and large-scale commercial activities, an analogy between FIFA and transnational corporations can be reasonably drawn.

The underlying purpose of suing a transnational entity in a State of its domicile is to evade judicial proceedings in developing countries which might prove to be largely inefficient.[22] In the United Kingdom, a group of Nigerian plaintiffs has recently sued Royal Dutch Shell plc ('RDS'), an Anglo-Dutch multinational oil company, and its Nigerian operating subsidiary Shell Petroleum Development Company of Nigeria Ltd ('SPDC'), for damages resulting from a severe pollution allegedly caused by the SPDC (and to a certain extent also the RDS) on Nigerian soil. On 26 January 2017, Mr. Justice Fraser, sitting as a Judge in the London High Court, dismissed the lawsuit in question on jurisdictional grounds.[23] Amnesty International has subsequently denounced the judgment by stating that it ''gives green light for corporations to profit from abuses overseas.'' However, less than a year ago, Mr. Justice Coulson, sitting as a Judge in the same court, decided to grant a forum for claims brought by Zambian citizens in relation to a massive water contamination in Zambia arising out of activities performed by Vedanta Resources plc ('Vedanta'), a global mining company with its headquarters in London, and its Zambian operating subsidiary Konkola Copper Mines plc.[24] Mr. Justice Coulson concluded that ''the claimants would almost certainly not get access to justice if these claims were pursued in Zambia.''[25] It has been suggested that Mr. Justice Coulson allowed the case to proceed in British courts particularly due to a substantial involvement of the parent company Vedanta with its Zambian subsidiary, as opposed to more independent regime established between the RDS and its Nigerian subsidiary SPDC. A decision on the merits is still pending.

The two cases referred to above demonstrate that extra-territorial human rights violations are usually triggered by a direct action of a foreign-incorporated subsidiary. Yet, FIFA's case differs in that the respective human rights violations emanate rather from a direct (in)action of a sovereign State - Qatar's unwillingness or inability to set aside its controversial labour laws. Alternatively, it could be argued that, by reason of its decision to award the World Cup to the Gulf country, FIFA is complicit in human rights violations triggered by Qatar's (in)action. That being said, is the difference between FIFA's case and the two cases mentioned above really substantial? In practice, is not the relationship between FIFA and Qatar akin to that of Vedanta and its Zambian subsidiary, with a high degree of direct involvement by FIFA? Be that as it may, the importance of the Ruling with respect to transnational corporations registered both in and outside Switzerland cannot be underestimated.

[1]      Ruling of the Commercial Court of the Canton of Zurich, HG160261-O, 3 January 2017. Parts of the Ruling which are quoted in this blog were translated from German by Prof. Liesbeth Zegveld (her team), who provided us with the English version of the Ruling.

[2]      Ibid., p. 2-3

[3]      Ibid., p. 4

[4]      See Art. 60 ZPO

[5]      Ruling of the Swiss Federal Supreme Court, BGE 137 III 617 E. 4.3

[6]      See Art. 59 (2) (b) ZPO

[7]      Ruling of the Swiss Federal Supreme Court, BGE 97 II 92

[8]      Supra note 6

[9]      Supra note 2, p. 6

[10]    Ibid., p. 7

[11]    Ibid., p. 8

[12]    Ibid., p. 9

[13]    Ibid.

[14]    According to Art. 59 (2) (a) ZPO, one of the preconditions for considering a civil lawsuit is the existence of plaintiff's legitimate interest

[15]    Supra note 2, p. 10

[16]    Ibid., p. 11

[17]    Ibid., p. 15

[18]    Ibid.

[19]    FIFA's Financial and Governance Report 2015, p. 17

[20]    Supra note 2, p. 18

[21]    Ibid., p. 6

[22]    E. Brabandere, 'Human Rights and Transnational Corporations: The Limits of Direct Corporate Responsibility', (2010) 4 (1) Human Rights and International Legal Discourse 66, at 76

[23]    Judgment rendered by Mr. Justice Fraser in the High Court of Justice, Queen's Bench Division, Technology and Construction Court, 2017 EWHC 89 (TCC), 26 January 2017

[24]    Judgment rendered by Mr. Justice Coulson in the High Court of Justice, Queen's Bench Division, Technology and Construction Court, 2016 EWHC 975 (TCC), 27 May 2016

[25]    Ibid., para. 198

Editor’s note: Rhys Lenarduzzi recently completed a Bachelor of Law (LL.B) and Bachelor of Philosophy (B.Phil.) at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.

As one may have gathered from the series thus far, the question that comes out of this endeavour for me, is whether redistribution in football would be better divorced from the transfer system?

In my introductory blog I point towards historical, cultural, and of course the legal explanations as to why redistribution was established, and why it might be held onto despite obvious flaws. In my second blog, I point out how the training compensation and solidarity mechanisms work in practice through an African case study, as well as the hindrance caused and the Eurocentricity of the regulations. The key take-away from my third blog on the non-application of training compensation in women’s football might be that training compensation should apply to both men’s and women’s football, or neither. The sweeping generalisation that men’s and women’s football are different as justification for the non-application to the women’s game is not palatable, given inter alia the difference between the richest and poorest clubs in men’s football. Nor is it palatable that the training compensation mechanism is justified in men’s football to incentivise training, yet not in women’s football.

In the fourth blog of this series, I raise concerns that the establishment of the Clearing House prolongs the arrival of a preferable alternative system. The feature of this final blog is to consider alternatives to the current systems. This endeavour is manifestly two-fold; firstly, are there alternatives? Secondly, are they better? 

1. Is training compensation necessary to incentivise training?

It might be the case that this question does not receive adequate attention. Though we are told there exists a need to incentivise training and the system as it stands is justified by this notion, is that truly what the redistributive mechanisms in the current form achieve? Furthermore, for all the flaws in reasoning and hindrance created by the mechanisms, is it really worth it?

During my time as an agent, I have personally never heard from a director or executive of a football club, the words or sentiment that, time - effort - money placed towards their youth football programs is done so solely, predominantly, or at all in anticipation of training compensation or solidarity payments.  Nor have I ever come across the sentiment from within any club, that a club would not care for or abandon its youth programs without the ‘dangling carrot’ of potential compensation. FIFA now refer to the redistributive mechanisms as ‘training rewards’, though one may reasonably struggle to connect these training rewards with a true definition of incentive. It appears more likely to be the case that any desire or expectation to be rewarded or compensated is an after the fact conclusion, when a player progresses professionally and a training club concludes that they are part of the reason for that players’ success. In a macro sense, given how infrequent it is for a training club to develop a professional, this seems to add weight to an argument that compensation does not create the purported incentive, or at least that clubs do not rely on the prospect.  It is because of this that I tend to lean towards the view that the incentivisation to train youth as a justification for redistributive measures may not have aged well. In any event, it would be interesting to test that intuition derived from experience, through a proper social scientific survey of clubs. Systems with such far-reaching implications should be grounded in a proper study of the socio-economic drivers of the training of football players.

On the other hand, the possibility of attracting large and exciting transfer fees is often spoken about within club walls.  For these ‘selling clubs’ with a clear intention to invest in youth and capitalise later in the form of transfer fees, such fees may be seen as compensation of sorts, but more likely as a remuneration for a deliberate though hardly risk-free investment. Moreover, these clubs do not simply abandon their first team and focus on youth and potential transfers exclusively. First team squads are also the beneficiary of strong youth systems and commonly the main reason a club invests in youth. Additionally, clubs can have a strong connection to their communities and see a combined duty and benefit of having strong youth programs. Clubs not only play a role in sustaining the social fabric of the communities to which they are situated, but benefit commercially through the many ways in which fans add value.

If it is true that compensation does not amount to incentivisation, then it is difficult to conclude that it is necessary. However, even if training compensation and the solidarity mechanism are not deemed necessary, a strong case can still be made for redistribution so long as the gap between wealthy and poor clubs remains or grows, and entire continents continue to be nurseries and the source of the muscle drain.

2. Imagining Alternative Redistributive Mechanisms

Proposing an alternative to the existing FIFA systems of redistribution is a difficult task. I have raised the concern of the Eurocentricity of the current regulations, and in proposing something else, one must be mindful that these are global regulations. If one suggests a form of taxation or tariff to redistribute, awareness of the myriad cultural differences on taxation and the multiplicity of enforcement contexts might be important. Also, whilst I have raised the question on whether compensation ought to be divorced from the transfer system, reasons for redistributing at all should be axiomatically better than not having a system of redistribution.

Intent and what is to be achieved needs to be clear. Is the ideal system of redistribution in place to reward ‘something’ or should redistribution be directed more deliberately and where it is needed, acting as welfare of a kind? I have already suggested that compensation does not incentivise clubs, though conversely, might clubs be disincentivised to grow if they only remain the beneficiaries of redistribution insofar as they stay sufficiently small and poor, whatever that threshold might be? Or could a system still incentivise growth, with clubs the beneficiaries of an amount that would not be enough to sustain themselves in full, yet enough to help them to continue to grow and commercialise? Whether greater commercialisation is a desirable change is another worthwhile question.

Despite the difficulties in suggesting an alternative, one can hope that a system of redistribution can be non-discriminative, does not create the hindrance effect to the current extent or encourage risky circumvention of the regulations (see blog 2 for detail), and is able to attain its legitimate aims. I would submit that the current systems do not tick these boxes. In this section, I provide some food for thought regarding potential alternatives, though I must caveat that I am not an economist and have not yet settled on an alternative myself.

a)     Coubertobin Tax

I will begin this section by introducing Andreff’s Coubertobin tax, in the interest of highlighting that others have thought about alternative systems of redistribution and have perhaps proposed alternatives that are arguably better than the current systems. Whilst I hope to present the Coubertobin tax adequately, one will need to read Andreff for the full picture.  Though valuable food for thought, I do not endorse the Coubertobin tax per se, as it has its flaws and remains connected to the transfer system, albeit to a lesser extent.

Inspired by a mix of the economic thought of James Tobin and Pierre de Coubertin, the idea of a Coubertobin tax “is to levy a tax at a 1 % rate on all transfer fees and initial wages agreed on in each labour contract signed by athletes and players from developing countries with foreign partners.”[1]

The objectives are as follows:

1. slightly covering the education and training cost, for his/her home developing country, of any athlete or player transferred abroad;
2. providing a stronger disincentive to transfer an athlete or a player from a developing country, the younger he/she is when the transfer takes place;
3. thus, slowing down the muscle drain from developing countries and toward professional player markets in developed countries; and
4. accruing revenues to a fund for sports development in the home developing country from the tax levied on every athlete or player transfer abroad.[2]

There is little wonder why Andreff desires to redistribute to developing countries. He has done extensive work on the correlation between economic prosperity and sporting success. This list is by no means exhaustive, but for instance, he writes extensively on the muscle drain, where athletes from developing nations move for financial and developmental reasons, which creates a myriad of follow-on issues to the home-country. He identifies the toll poverty takes on a developing country’s domestic leagues and competitions due to the muscle drain and the inability to train professionals to a world class standard. He notes that some athletes defect to other nations early and qualify for the adopted country’s national team. Per Andreff and in summary “the overall context of sport underdevelopment does not provide a strong incentive for talented players to stay in their home country even if a professional championship does exist there.”[3]

Andreff’s proposal is not set in stone and an admirable element to his work on the matter is the consistent offering of caveats that suggest, with more study and/or work, a certain piece of the Coubertobin system may benefit from amendment. Andreff describes his system as “a solution (not a panacea) which is likely to alleviate, along with some of the financial problems of developing countries, the aforementioned problem of the muscle drain.”[4] Most relevant is perhaps the idea that, the younger the player is in question regarding a transfer, the higher the tax (see suggested formulae).[5] This he submits, may put a brake on the muscle drain at such early ages, or result in greater amounts of money moved to developing nations if a club wishes to recruit a player at a significantly young age.

Andreff acknowledges hindrances, though takes a macro view that encompasses protecting minors, as well as strengthening local leagues in developing countries given the talent will remain for longer periods. One can envisage an additional positive result, in having young athletes finish non-football education having stayed at home until a later date.

Though this is my interpretation, I suspect Andreff finds it an easy task to identify the beneficiaries or winners of these transactions and therefore those parties should be the ones who pay the Coubertobin tax, on “the bill for the transfer fee and the first year wage”.[6]

Andreff raises the concern of “bargaining and corruption surrounding the tax collection in developing countries”,[7] though offers a plausible solution. “[T]he collection of the Coubertobin tax should be monitored and supervised by an international organization, either an existing one (UNDP or the World Bank) or an ad hoc one to be created.”[8] This is plausible as it is not so different to the way FIFA intends to outsource the operation of the Clearing House to a suitable and reputable organisation that would be subject to audit (see blog 4).

Andreff admits the tax “would meet with both hindrance and resistance”,[9] it would “not be easy to implement and enforce insofar as it has to be accepted on a worldwide basis”,[10] the system would contain administrative costs that would need sorting and ironing out, and there would need to be a method for disputes and perhaps fines for non-compliance.  Even so, the Coubertobin tax provides much food for thought as it is proposed for all professional sport and not just football. It attempts to address the muscle drain and the taxes proposed may prove less a hindrance than the current FIFA systems.

b)    Abolishment and Free Market Economics

If this was day one of football, there might be a strong argument for a free market approach, with emphasis on club management to make sure intelligent decisions are made to sustain clubs, with wealth the responsibility of the clubs themselves. However, we are not at the beginning of football.  Certain clubs in certain regions are the victims of much more than mismanagement, adding weight to an argument for a need to redistribute equitably.

As it stands, an equitable system or one where redistribution is directed to where it is most needed, is not in place and has not been proposed. Could it be the case, at least in the interim, that the free market is the best and fairest? The current systems appear at least somewhat a case of over-regulation with side effects that were not, or could not have been anticipated, like the hindrance effect and the pressures on vulnerable clubs to waive compensation to name just a couple.  It then seems defensible to abolish systems that do not work in the interim, than to hang on to those flawed systems until a better proposal is put forth. Instead, all efforts could be placed into study and research to remedy the obvious flaws.

Conversely, the free market in modern football would not appear to improve the situation for the kind of club I have identified frequently throughout this series, and although it may eliminate the hindrance effect, destination clubs would have their pick of players and poor clubs would undoubtedly lose all talent. Furthermore, if a system of redistribution was to be created that clearly improved football and the free-market approach had been adopted in the interim, a valid consideration might be the difficulty the relevant bodies would have in re-introducing a system of redistribution, having gone back to the free market for a period.  It is for these reasons that I can not endorse such an approach, however sympathetic I am to abolishment and the idea of alleviating hindrance and promoting free movement.

c)     FIFA Funded Solidarity: A New Model

As he addressed the Confederation of African Football’s (CAF) 42nd ordinary general assembly, FIFA President Gianni Infantino said, “I believe in Africa. I count on Africa, and you can count on me to help you to bring Africa to the top.” However admirable and applaudable are the purported goals of FIFA for Africa, and the sentiment warm, one cannot help but wonder if this African project, relevant to this blog series, could not be expedited by a substantial FIFA based investment. Infantino went on to say, “I want to see at least 50 national teams and 50 clubs from all over the world that can compete for the title of world champions with realistic chances of winning. And why shouldn’t Africa be at the top, with the incredible talent that we see shining every week, mainly in Europe’s top clubs? I am convinced it’s only a matter of commitment, work and engagement by all of us together.”

To answer the President’s question, one cannot see African clubs on top in a global sense, so long as all the best African players play, as the President said, in Europe. Further, we will continue to be less likely to see an African national team win a World Cup, whilst some of the best African players play for other nations to which they moved when they were younger, and whilst African federations are unable to organise like European federations, given they do not have the same resources.  I could of course go on, but one likely gathers my point. 

So, could FIFA make an investment sufficient to prop up Africa as it supposedly desires? Perhaps. How about an amount equal to the frequently referred gap between what is owed and paid when it comes to the redistributive mechanisms of FIFA? Could FIFA at least cover that gap? If one considers the annual financial reports, certainly, and probably further and in a more specific and deliberate fashion. Surely direct, targeted investment is preferable to leaving redistribution to the whim of a club’s good fortune to have registered a player that would go on to be a professional. That is, of course, if that player’s club did not have to waive training compensation to render a transfer possible.

The FIFA Forward Development Programme is described by FIFA as “global football development and the way we share the success of the FIFA World Cup”. It is an encouraging and frankly exciting initiative, and again one must applaud the efforts. Under the Infantino administration, FIFA has pledged more funding in this way than ever before. “On 13 June 2018, the FIFA Congress decided to increase investment in the FIFA Forward Development Programme still further for the next cycle of 2019-2022 with a 20% increase in the annual entitlement for each of the 211 member associations and six confederations.”

Anyone can go to the webpage for the FIFA Forward Programme, roll their cursor over the interactive map and see that FIFA are investing money in places of need. Disappointingly, not overly specific information is provided regarding the exact use of funding, though there are encouraging articles that unpack some of the investments and initiatives and these efforts should be commended (the FIFA Foundation Community Programme is another example of some of the encouraging work being done).  One element that is interesting and appealing within these funding programs, is the toying with an application process to be granted some form of investment. This perhaps shows an increased awareness that money ought to be distributed specifically and deliberately, to address a genuine need. Though not a trial per se, this kind of process could be used as one and may turn out to be preferable to clubs in need, who would for instance prefer to bypass the national association if that relationship is not so sturdy.   

At first glance, the almost even allocation of investment per member association found in Circular no. 1659 - FIFA Forward Development Programme – regulations (FIFA Forward 2.0) may seem equitable, though taking into account that some of the wealthier associations may be the beneficiaries of the systemic exploitation and drain that has featured in this blog series, might render the near even distribution questionable. Whilst “an additional amount of up to USD 1,000,000 is available for member associations with an annual revenue of USD 4 million or less”, one might reasonably wonder if that amount of extra funding to smaller and/or poorer associations is sufficient to affect real change.

Whilst I hope I have made clear that FIFA’s efforts ought to be commended, the overarching theme of this section is to consider if more could be done and if so, might those extra efforts to distribute funds be preferable and able to replace the current systems of redistribution connected to the transfer system. I do not find impressive the self-congratulatory theme of the statement from Alejandro Domínguez, Chairman of the FIFA Finance Committee, of being hundreds of millions of dollars under budget in the 2019 annual report, as well as possessing “sufficient liquidity”. FIFA, a not-for-profit organisation, was delighted to report that “at the 2019 year-end, total assets had increased to USD 4,504 million (four billion, five hundred and four million), chiefly made up of cash and financial assets (82%). Reserves also remained at a very satisfactory level at USD 2,586 million (two billion, five hundred and eighty-six million), clearly above the amount budgeted.”[11]

Proposing FIFA fund more redistribution is not a risk free, nor a concern free proposition, but it does appear the idea could be taken more seriously by the relevant stakeholders. FIFA’s predominate money maker is the FIFA World Cup, which is in a sense, a way of using the produce of the richest clubs in the world, which have in turn benefitted from some of the poorest clubs nursing the players until they are of age. FIFA, filling the frequently mentioned gap from the profits of the World Cup makes as much sense as any proposal. Is this not simply a case of, if more can be done then more should be done? Going off FIFA’s reports, it has the resources.

Within this potential alternative, where FIFA are responsible for raising and redistributing funding that would otherwise supposedly come from the current redistribution systems, is a change to the modality of redistribution. From what is currently intimately connected to training and transfers, this alternative provides for the much-needed decoupling, not only based on the philosophical flaws, but additionally due to the preferable practical implications that divorcing redistribution, training and the transfer market could achieve. In terms of a body or mechanism to implement an alternative like this, how might a Clearing House kind of project unfold, that adopts a specific and deliberate ethos to distributing FIFA funds? To expand, following a substantial process of planning and allocation of adequate resources, the creation of a specific arm dedicated to researching and identifying those areas of football most in need, as well as receiving and vetting applications for funding. Might that or a similar solution be achievable? It could be in-house or outsourced the same way the Clearing House is intended to be, geared to make suggestions, provide expert economic advice and proposals, reporting its findings back to FIFA for an extra layer of approval. Food for thought in any case.

3. Concluding Remarks

There is a core of wealth in football that has benefitted from, been propped up by, and drained the periphery. It is important to ensure the strength and survival of football outside this core of wealth and to actively make sure value is added to the periphery. Football needs to promote this notion and in doing so ask the question, where will the big clubs turn for talent and youth if those reservoirs which they drain are emptied and unable to continue to produce talent? 

If one is convinced that it is not necessary to incentivise training, that the current regulations have significant negative effects, that any system of redistribution should be non-discriminative, provide minimal hindrance to free movement and pursue deliberate legitimate aims, then one is in favour of overhaul. Further then, surely there is an obligation to address what can be in the immediate sense. Namely, to either default to the free market, until a convincing system of redistribution is created, or perhaps preferably, for FIFA to take the reins and fund redistribution to the periphery of football to a greater extent.

[1] Wladimir Andreff (2001). The correlation between economic underdevelopment and sport. European Sport Management Quarterly, 1, p.274.

[2] Wladimir Andreff, “A Coubertobin Tax Against Muscle Drain”, 4th Play the Game Conference: Governance in Sport: The Good, the Bad & the Ugly, Copenhagen, 6-10 November (2005) p.10.

[3] Ibid, p.5.

[4] Ibid, p.9.

[5] Ibid, p.11.

[6] Ibid, p.12.

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] Ibid.

[11] FIFA Annual Report 2019 p.124.

Editor's note
Zlatka Koleva is a graduate from the Erasmus University Rotterdam and is currently an Intern at the ASSER International Sports Law Centre.

The decision on appeal in the case of O’Bannon v. NCAA seems, at first sight, to deliver answers right on time regarding the unpaid use of names, images and likenesses (NILs) of amateur college athletes, which has been an ongoing debate in the US after last year’s district court decision that amateur players in the college games deserve to receive compensation for their NILs.[1] The ongoing struggle for compensation in exchange for NILs used in TV broadcasts and video games in the US has reached a turning point and many have waited impatiently for the final say of the Court of Appeal for the 9^th circuit. The court’s ruling on appeal for the 9^th circuit, however, raises more legitimate concerns for amateur sports in general than it offers consolation to unprofessional college sportsmen. While the appellate court agreed with the district court that NCAA should provide scholarships amounting to the full cost of college attendance to student athletes, the former rejected deferred payment to students of up to 5,000 dollars for NILs rights. The conclusions reached in the case relate to the central antitrust concerns raised by NCAA, namely the preservation of consumer demand for amateur sports and how these interests can be best protected under antitrust law.

Facts and proceedings 

The case is brought before the district court by Ed O’Bannon, a former American basketball player at the University of California, Los Angeles (UCLA).[2] In 2008 he visited a friend’s house, where he saw his friend’s son playing a video game depicting him as a player in a college basketball competition.[3] The producer, Electronic Arts (EA), based video games on the concept of college football and men’s basketball.[4] O’Bannon saw an avatar with a striking resemblance of himself, playing for UCLA with his jersey number 31. He never consented to the use of his likenesses nor did he receive any financial remuneration for its usage.[5] For this reason, O’Bannon filed a lawsuit against the NCAA (National Collegiate Athletic Association) and the CLC (Collegiate Licensing Company) for using his NILs for commercial purposes.[6] The main argument supported by his legal counsel was that the NCAA restrictions on compensation for student athletes beyond university scholarships impose a limitation on trade under Section 1 of the Sherman Antitrust Act.[7] In June 2014 the claims based on antitrust law found a solid ground and the case was sent to the district court.[8] The court at first identified two markets where the NCAA rules can have a significant impact, namely the college education market and the group licensing market.[9] Afterwards, it applied the three-step Rule of Reason test in order to determine whether the NCAA restrictions on compensation for the usage of NILs violate antitrust laws.[10] After weighting the anticompetitive and procompetitive purposes of those rules, the court took the decisive third step in pursuit of less restrictive alternatives available to the NCAA in the attainment of its final goal – preserving the nature of amateur college games.[11] It ruled that there are two alternative routes, which preserve amateurism and, at the same time, protects the NILs rights of college athletes: stipends to the full cost of attendance or deferred payments as portions of the license agreements concluded between third party licensing companies and universities upon completion of their college education.[12] The NCAA objected to the district court’s decision on the ground that the court in the Board of Regents[13] declared the NCAA rules a matter of law and compensation norms, falling outside of the scope of a commercial activity, and therefore not covered by the Sherman Act. Finally, the association claimed that the plaintiffs failed to demonstrate injury as a result of the restrictions on compensation.[14] The Court of Appeal for the 9^th circuit ruled on the case as follows.

The judgment of the Court of Appeal for the 9^th circuit

Preliminary questions

The court started the legal discussion by answering to some preliminary legal questions before ruling on the substance. It rejected the notion that Board of Regents automatically renders the NCAA’s rules valid as a matter of law.[15] In fact, “a restraint that serves a procompetitive purpose can still be invalid under the Rule of Reason”.[16] Thus, procompetitive rules are not necessarily deemed lawful.[17] Moreover, rules designed to promote competitiveness “surely affect commerce” and, therefore, fall under the scope of the Sherman Act, according to the reasoning of the Court of Appeal in the 9^th circuit.[18] Finally, the court disagreed with NCAA in finding that the plaintiffs have no standing for failing to demonstrate the injury inflicted by the compensation rules.[19] On the contrary, the plaintiffs have shown willingness and readiness by video game producers to pay for their NILs rights have they possessed these rights, which means that the requirement of antitrust injury in this case is satisfied.[20]

Rule of Reason test

Judge Bybee then continued with the application of the Rule of Reason as assessed in relation to the restrictive measures towards compensation of student athletes.

1. Anticompetitive effect

The court concluded that the NCAA’s rules have an anticompetitive effect on the college education market and invalidated the association’s arguments.[21] It further examined whether the rules produce a procompetitive effect on the market and concluded that the district court has indeed undermined the importance the NCAA pays with regard to the preservation of amateurism in college competitions.[22]

2. Procompetitive purposes

Henceforth, the court outlined two procompetitive purposes of the NCAA’s restrictions: integrating academia with athletics and fostering the popularity of NCAA by promoting amateurism.[23] Nonetheless, it was highlighted that not every restrictive rule preserves the nature and distinctive character of college amateur sports.[24] For this reason, it should be examined whether there are any substantially less restrictive measures available to attain the goals intended by NCAA.[25]

3. Substantially less restrictive alternatives

The appellate court concurred with the district court on the first alternative, namely the grants-in-aid up to the full cost of attendance. The court for the 9^th circuit stated that “the district court did not clearly err in its judgment”[26] and “indicated that raising the grant-in-aid cap to the cost of attendance would have virtually no impact on amateurism”.[27] In fact, “there is no evidence that this cap will significantly increase costs”,[28] since NCAA already granted permission to schools to fund athletes to the full cost of attendance.[29] Nevertheless, the court rejected cash compensation beyond college scholarships to athletes on the ground that if amateur sportsmen receive a payment, they lose their amateur status.[30] The central question which needs closer attention is whether payments to amateur athletes promote amateurism more than the lack of any such remuneration.[31] The court, thus, contended that the comparison between smaller and larger sums and their respective impact on the market is irrelevant, since this is not a point of discussion in this analysis: it would not crystalize whether “paying students small sums is virtually as effective in promoting amateurism as not paying them”.[32] It further rejected the analogy with professional baseball and the Olympic Games, when in 1970s there was a strong opposition against the raising salaries of baseball players and the Olympic Committee permitted the participation of professional athletes in the Games.[33] The court, however, did not agree with this line of reasoning, since the Olympics have not been so impacted by the introduction of professionalism as college sports would be.[34] Finally, the imposition of a 5000-dollar yearly ceiling of deferred payments to college athletes lacks solid argumentation.[35] Neal Pilson, a former sports consultant at CBS and an expert witness for the NCAA, did not opine on how cash compensation relates to the promotion of amateurism and his ‘offhand comment’ does not grant sufficient support for such a revolutionary turnover in the NCAA’s practice.[36] Consequently, the deferred payment alternative failed the Rule of Reason test and was, thus, rejected.[37]

On these grounds, the court concluded that a stipend beyond sports scholarships up to the full amount of college attendance is a substantially less restrictive measure, which withstands the Rule of Reason test, while the cash compensation argument failed the assessment. 

Commentary

This judgment demonstrates a remarkable, yet confusing line of reasoning followed by the appellate court. On the one hand, albeit already affirmed by the NCAA itself, the decision confirms the right of schools to provide compensation up to the full amount of attendance to college athletes. On the other hand, however, the court could have outlined more clearly the instances in which an athlete can qualify for such full compensation and those cases in which student athletes risk violating their legal status of amateurs. A clear example of the court’s reluctance to give more specific guidelines with regard to this subject matter is the rejection of the argument raised by the district court in relation to the compensation received by college tennis players. Although they still qualify as amateurs, tennis competitors earn arguably around 10,000 dollars yearly in prize money.[38] The court conveniently circumvented this argument without stating opposing views or contesting the afore-mentioned statement. It directed its full attention on how the substantially less restrictive measures can contribute to the promotion of amateur college sports instead. In fine, there are two legal points that need further examination. Firstly, amateurism is a relevant concept as long as it relates to consumer demand in antitrust claims.[39] The question at step 3 should, thus, be reformulated to whether less restrictive alternatives are virtually effective in preserving consumer interest in college sports as those prohibiting extra compensation to amateur athletes.[40] In this respect, popular demand by consumers should be the decisive factor in antitrust cases within the sports sector. Secondly, what should also be taken into more careful consideration is that the court on appeal has skipped an essential step in the Rule of Reason analysis and, thus, arguably misapplied the concept.[41] Upon identification of less limiting measures for the attainment of the main goal, one has to balance the harm those alternatives might produce against the benefits there might be if such measures were not implemented. This final stage is necessary as to provide an objective cost-benefit analysis of a legal rule, which in turn determines whether it withstands the reasonableness test. Had the court applied the Rule of Reason in such a manner, the outcome of the case would have potentially differed significantly; the court would have weighted the cost of paying cash compensation to student athletes for their NILs rights against the lack of such additional educationally unrelated payment in the attainment of the NCAA’s final aim, namely preserving amateurism in college sports. [42]  Rather, as Chief Judge Thomas stated in his opinion, it is important to underline that, in the light of US antitrust rules, it is the preservation of popular demand for college sports which should be the key factor in the legal analysis of competition issues in such a scenario.[43]

At the end of the day, the NCAA’s dilemma is solved by the appellate court by exempting the association from further financial obligations towards college athletes. Both parties have 90 days after the release of the court’s decision to “weigh their options” for appeal before the Supreme Court.[44]

[1] Edward O'Bannon, Jr. v. National Collegiate Athletic Association (the NCAA) and Electronic Arts, Inc and Collegiate Licensing Company (CLC) 14-16601 (2015) [hereinafter referred to as ‘O’Bannon v NCAA (2015)’]; O’Bannon v. NCAA 7 F. Supp. 3d 955 (N.D. Cal. 2014) [hereinafter referred to as ‘O’Bannon v. NCAA (2014)’].

[2] Ibid, p 12.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Section 1 of Sherman Antitrust Act of 1890 15 U.S.C. states that ‘every contract, combination… in restraint of trade or commerce’ should be prohibited.

[8] O’Bannon v NCAA (2015) (n 1), p 14.

[9] O’Bannon v. NCAA (2014) (n 1), paras 956-968.

[10] Ibid., paras 984-1009.

[11] Ibid., paras 1005-1006.

[12] Ibid.

[13] NCAA v. Board of Regents of the University of Oklohoma 468 US 85 (1984).

[14] O’ Bannon v. NCAA (2015) (n 1), p 25.

[15] Ibid., p 26.

[16] Ibid., p 31.

[17] Ibid., p 32.

[18] Ibid., p 36: “We simply cannot understand this logic. Rules that are “anti-commercial and designed to promote and ensure competitiveness” […] surely affect commerce just as much as rules promoting commercialism.”

[19] Ibid., pp 37-43.

[20] Ibid., p 43.

[21] Ibid., pp 47-48.

[22] Ibid., pp 48-52.

[23] Ibid., p 51.

[24] Ibid., p 52.

[25] Ibid.

[26] Ibid., pp 54.

[27] Ibid.

[28] Ibid., p 56.

[29] Ibid.

[30] Ibid., p 57: “But in finding that paying students cash compensation would promote amateurism as effectively as not paying them, the district court ignored that not paying student-athletes is precisely what makes them amateurs”.

[31] Ibid., p 56: “The question is whether the alternative of allowing students to be paid NIL compensation unrelated to their education expenses, is “virtually as effective” in preserving amateurism as not allowing compensation.”

[32] Ibid., pp 58-59.

[33] Ibid., p 59.

[34] Ibid.

[35] Ibid., p 60.

[36] Ibid: “But even taking Pilson’s comments at face value, as the dissent urges, his testimony cannot support the finding that paying student-athletes small sums will be virtually as effective in preserving amateurism as not paying them.”

[37] Ibid., p 63 : “The Rule of Reason requires that the NCAA permit its schools to provide up to the cost of attendance to their student athletes. It does not require more.”

[38] O’Bannon v. NCAA (2014) (n 1), para 1000.

[39] Chief Judge Thomas, concurring in part and dissenting in part, p 68.

[40] Ibid.

[41] Carrier M (2015) How Not to Apply the Rule of Reason: The O’Bannon Case. Rutgers University School of Law – Camden. http://ssrn.com/abstract=2672256. Accessed 20 October 2015.

[42] O’ Bannon v. NCAA (2015) (n 1), p 59: “The district court adverted to testimony from a sports management expert, Daniel Rascher, who explained that although opinion surveys had shown the public was opposed to rising baseball salaries during the 1970s, and to the decision of the International Olympic Committee to allow professional athletes to compete in the Olympics, the public had continued to watch baseball and the Olympics at the same rate after those changes”.

[43] Supra n 39, Chief Judge Thomas: “Rather, we must determine whether allowing student-athletes to be compensated for their NILs is ‘virtually as effective’ in preserving popular demand for college sports as not allowing compensation”.

[44] Tracy M and Strauss B, Court Strikes Down Payments to College Athletes (The New York Times.com, 30 September 2015). http://www.nytimes.com/2015/10/01/sports/obannon-ncaa-case-court-of-appeals-ruling.html?_r=0. Accessed 2 October 2015.