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

New Transnational Sports Law Articles Released on SSRN - Antoine Duval

I have just released on SSRN four of my most recent articles on Lex Sportiva/Transnational Sports Law. The articles are available open access in their final draft forms, the final published version might differ slightly depending on the feedback of the editors. If you wish to cite those articles I (obviously) recommend using the published version.

I hope they will trigger your attention and I look forward to any feedback you may have!

Antoine


Abstract: This chapter focuses on the emergence of a transnational sports law, also known as lex sportiva, ruling international sports. In the transnational law literature, the lex sportiva is often referred to as a key example or case study, but rarely studied in practice. Yet, it constitutes an important playground for transnational legal research and practice, and this chapter aims to show why. The focus of the chapter will first be on the rules of the lex sportiva. Law, even in its transnational form, is still very much connected to written rules against which a specific behaviour or action is measured as legal or illegal. As will be shown, this is also true of the lex sportiva, which is structured around an ensemble of rules produced through a variety of law-making procedures located within different institutions. The second section of this chapter will aim to look beyond the lex sportiva in books to narrate the lex sportiva in action. It asks, what are the institutional mechanisms used to concretize the lex sportiva in a particular context? The aim will be to go beyond the rules in order to identify the processes and institutions making the lex sportiva in its daily practice. Finally, the enmeshment of the lex sportiva with state-based laws and institutions is highlighted. While the lex sportiva is often presented as an autonomous transnational legal construct detached from territorialized legal and political contexts, it is shown that in practice it operates in intimate connection with them. Hence, its transnational operation is much less characterized by full autonomy than assemblage.


Abstract: This chapter aims to show that the work of the Court of Arbitration for Sport (‘CAS’), which is often identified as the institutional centre of the lex sportiva, can be understood as that of a seamstress weaving a plurality of legal inputs into authoritative awards. In other words, the CAS panels are assembling legal material to produce (almost) final decisions that, alongside the administrative practices of sports governing bodies (‘SGBs’), govern international sports. It is argued that, instead of purity and autonomy, the CAS’ judicial practice is best characterised by assemblage and hybridity. This argument will be supported by an empirical study of the use of different legal materials, in particular pertaining to Swiss law, EU law and the European Convention on Human Rights (‘ECHR’), within the case law of the CAS. The chapter is a first attempt at looking at the hermeneutic practice of the CAS from the perspective of a transnational legal pluralism that goes beyond the identification of a plurality of autonomous orders to turn its sights towards the enmeshment and entanglement characterising contemporary legal practice.


Abstract: Has the time come for the Court of Arbitration for Sport to go public? This article argues that after the Pechstein decision of the European Court of Human Rights, CAS appeal arbitration must be understood as forced arbitration and therefore must fully comply with the due process guarantees enshrined in Article 6(1) ECHR. In particular, this entails a strong duty of transparency with regard to the hearings at the CAS and the publication of its awards. This duty is of particular importance since the rationale for supporting the validity of CAS arbitration, if not grounded in the consent of the parties, must be traced back to the public interest in providing for the equality before the (sports) law of international athletes. Thus, the legitimacy and existence of the CAS is linked to its public function, which ought to be matched with the procedural strings usually attached to judicial institutions. In short, if it is to avoid lengthy and costly challenges to its awards, going public is an urgent necessity for the CAS.


Abstract: In 1998 the FIFA welcomed the Palestinian Football Association as part of its members - allegedly, as an attempt by then FIFA President, the Brazilian João Havelange, to showcase football as an instrument of peace between Israeli and Palestinians. Ironically, almost 20 years after Palestine’s anointment into the FIFA family, instead of peace it is the conflict between Israeli and Palestinians that moved to FIFA. In recent years the Palestinian Football Association (PFA) and the Israeli Football Association (IFA) have been at loggerheads inside FIFA over the fate - I will refer to it as the transnational legality – of five (and then six) football clubs affiliated to the IFA which are physically located in the Israeli settlements in the Occupied Palestinian Territories (OPT). This chapter chronicles the legal intricacies of this conflict, which will serve as a backdrop to discuss arguments raised regarding the legality of business activities of corporations connected to the Israeli settlements. Indeed, as will be shown in the first part of this chapter, the discussion on the legality of economic activities in the OPT has recently taken a business and human rights turn involving systematic targeting of corporations by activists. Interestingly, we will see that this business and human rights turn also played a role in the conflict between the IFA and the PFA. This case study is therefore an opportunity to examine how the strategy of naming and shaming private corporations, and in our case not-for-profit associations, for their direct or indirect business involvement in the settlements has fared. It is also an occasion to critically assess the strength of the human rights ‘punch’ added to the lex sportiva, by the UNGPs.

New Article Published! The Olympic Charter: A Transnational Constitution Without a State?

My latest article has just been published online by the Journal of Law and Society. It is available open access here.

The article stems from a conference organised by Jiri Priban from Cardiff University on Gunther Teubner's idea of societal constitutionalism applied to transnational regimes. My role was to test whether his descriptive and normative framework was readily applicable to the lex sportiva, and in particular its overarching "constitutional" text: the Olympic Charter.

As you will see my conclusion is mixed. I find that the Olympic Charter (OC) displays many constitutional features and is even able to regularly defend successfully its autonomy vis-à-vis national states and their laws. However, while I document some inception of limitative constitutional rules, such as the ban on discrimination or the principle of fair play, I also conclude that those have limited impact in practice. While constitutional changes to the OC can be triggered by scandal, resistance and contestation, as illustrated by the emergence of environmental concerns after the Albertville Games and the governance reshuffle of the IOC after the Salt Lake City scandal, I am also sceptical that these were sufficient to tackle the underlying problems, as became obvious with the unmatched environmental damage caused by the Sotchi Games in 2014.

In conclusion, more than sporadic public outrage, I believe that the intervention of national law and, even more, European Union law will be capable and needed to rein the Olympic regime and impose external constitutional constraints on its (at least sometimes) destructive operations.

Here is the abstract of the article: This article examines various aspects of Teubner's theory of societal constitutionalism using the lex sportiva as an empirical terrain. The case study focuses on the operation of the Olympic Charter as a transnational constitution of the Olympic movement. It shows that recourse to a constitutional vocabulary is not out of place in qualifying the function and authority of the Charter inside and outside the Olympic movement. Yet, the findings of the case study also nuance some of Teubner's descriptive claims and question his normative strategy.

Good read! (And do not hesitate to share your feedback)


Asser International Sports Law Blog | UEFA Financial Fair Play Regulations Put PSG and Manchester City on a Transfer Diet

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

UEFA Financial Fair Play Regulations Put PSG and Manchester City on a Transfer Diet

The main lesson of this year’s transfer window is that UEFA’s Financial Fair Play (FFP) rules have a true bite (no pun intended). Surely, the transfer fees have reached usual highs with Suarez’s move to FC Barcelona and Rodriguez’s transfer from AS Monaco to Real Madrid and overall spending are roughly equal to 2013 (or go beyond as in the UK). But clubs sanctioned under the FFP rules (prominently PSG and Manchester City) have seemingly complied with the settlements reached with UEFA capping their transfer spending and wages.

 

FFP's Transfer Diet

PSG’s summer of impuissance

It was widely expected, and trumpeted, that PSG and Manchester City would disregard the transfer restrictions imposed on them. Besides all the talking and the costly recruitment of David Luiz for nearly 50M€ earlier this summer, PSG’s transfer activity was limited to Serge Aurier’s arrival on loan from modest Toulouse. Moreover, the talks over Di Maria’s move to PSG faltered over the inability of the French club to pay a transfer fee due to the FFP constraints. Thus, PSG was forced into relative thrift by the FFP rules, a remarkable achievement in itself. This has recently triggered widespread critique against UEFA and FFP by PSG officials.

 

Manchester City overtaken by Manchester United

Even though Manchester City has largely dominated the transfer contest against its arch-rival over the latest years, this balance has dramatically tilted during this summer. United was able to attract a number of high-ranked and expensive players, most notably Di Maria for the total sum of 66M€ (more than City’s total spending). In a final transfer twist, United was even able to snap away Falcao from City apparently due to FFP concerns.  City did not engage in the usual frenzy spending spree of the previous years. It did spend around 60 M€ (and racked in 25M€ in transfer fees), but this number pales in regard to the 116M€ spent in 2013. Here again, despite talks to the contrary and vouching to disregard UEFA’s FFP rules, one cannot ignore the toll taken by them on the capacity of Manchester City to outrageously dominate the UK transfer market.

  

 

 

The general timidity of FFP culprits

This is not an isolated development. Other clubs concerned by FFP settlements have followed a similar path (see graph below). In general, clubs sanctioned under FFP rules have reduced their transfer spending in comparison to previous years. More surprisingly, big players like PSG and Manchester City have complied with the net transfer limit of 49M€ imposed on them in the settlement. This points at an apparent success of the FFP regulations, which have not materialised, as many feared, as a public relations exercised in the guise of a toothless regulation. The rules have a real-world impact, and in spite of the high profiles of certain clubs concerned those have felt the urge to internalize them reinforcing UEFA’s claim that FFP is a serious regulation. As will be shown below, however, this also supports the claims that FFP regulations constitute a restriction on competition in need of adequate justification.


 


New strategies to bypass FFP rules 

This development has also led clubs to devise bypassing strategies to the FFP rules. The first strategy is to use loans as temporary or differed transfers by including a mandatory transfer clause in the contract. This is the solution adopted by PSG in the transfer of Serge Aurier from Toulouse. In a way there is no reason why this should not be considered as a new liability for accounting purposes, as it is akin to a delayed payment but not to a delayed transfer. Finally, there is the possibility of using affiliated clubs to store the long-term liabilities (wages and fees), while getting a player on short-term loans. This is likely the strategy used by Manchester City in the now infamous recruitment of Frank Lampard from its sister club New York City FC. Hence, one should not underestimate the ability of clubs to sidestep the FFP rules, albeit a way more difficult and protracted transfer game as before.

 

FFP’s compatibility with EU competition law still a threat

Does this real-world efficacy change anything to the assessment of FFP’s compatibility with EU competition law? Not really. On the one hand, it is all the more evident that the FFP rules have a restraining effect on free competition; certain economic actors are undoubtedly not free to invest their money, as they would see fit. On the other hand, the real test for evaluating the FFP’s compatibility with EU law is the Wouters/Meca-Medina proportionality test developed by the EU Court. First of all UEFA will have to identify the legitimate objective it intends to pursue with these regulations. This is likely to be good corporate governance, as one cannot consider that FFP rules improve the competitive balance by reducing the inequality between clubs in the absence of any redistributive effects. Actually, FFP will most likely sclerotize the pre-existing hierarchies. If good corporate governance in football is deemed a worthy objective (it probably will), the next question will be: are these regulations a proportionate mean to achieve it? At this stage UEFA will need to explain why the existing national bankruptcy frameworks are inadequate for this purpose (due, for example, to the political influence of clubs like in Spain, or to the particular feature of football competition that cannot tolerate the vagaries of a normal bankruptcy process), but also why the existing debt stock is not taken into account by the rules. Here, the brunt of the socio-political debate on the need of FFP will unfold.

 

As UEFA’s FFP rules strengthen their grip over clubs, they will be more and more incentivized to contest the rules in front of the EU Commission (PSG and Manchester City fans have recently submitted a complaint) or national tribunals. Thus, these questions will not remain hypothetical and will have to be met by UEFA with hard facts and convincing arguments. If not the FFP rules will be remembered as an ephemeral, though remarkable, interlude of the summer 2014.

 

Clubs

Amount spend on transfers in 2010 (in millions)

2011

2012

2013

2014

Manchester City

€182.45

€96.05

€61.95

€116.0

€65.5

PSG

€9.0

€107.1

€149.45

€135.9

€49.5

Galatasaray

€29.5

€23.6

€30.05

€41.84

€15.75

Trabzonspor

€7.9

€24.45

€8.06

€4.7

€29.11

Bursaspor

€1.38

€10.2

€3.66

€2.33

€1.8

FC Zenit

€43.0

€16.2

€103.76

€32.8

€22.8

Rubin Kazan

€43.6

€23.35

€29.0

€25.1

€8.0

FC Anzhi

€31.2

€84.5

€67.9

€59.4

€0

Levski Sofia

€0.8

€0.95

€1.25

€0.59

€0.05

 Data from transfermarkt.com






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