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 Event! Governing European football: What role for the European Union? - 16 December - Brussels

Join us for a round table co-organized by GLawNet and the Asser Institute at the Campus Brussels of the Maastricht University (Avenue de Tervueren 153, 1150 Brussels) just one day after the publication of the Opinion of Advocate General Rantos in the European Super League (ESL) case. The discussion between academics and stakeholders will focus on the role played by the EU, as well as the role it ought to play, in determining the way football is organised and governed.


In 2021, the announcement of the creation of a breakaway European Super League (ESL), as well as the drama of its early demise, stunned the world.  Since then, the company behind the ESL and UEFA (as well as FIFA) are locked into a legal battle that will soon come to an end at the Court of Justice of the European Union (CJEU). Following the preliminary questions raised by a Spanish court, the CJEU will weigh in on whether UEFA and FIFA breached EU competition law with their attempts to thwart the emergence of the ESL. It will not be the first time that the governing bodies of football, both Swiss associations, face scrutiny before the EU courts - many will remember the 1995 Bosman ruling. However, this time around various stakeholders and observers are calling for the EU to not only referee this particular dispute, but to as well start playing a stronger governance role by regulating European football.


Programme:

15:00 – 15:05 Opening: Mariolina Eliantonio (Maastricht University)

15:05 – 16:30 - Roundtable: Governing European Football: What role for the European Union?
Moderator: Carlo Colombo (Maastricht University)

16:30 Reception


This is an In-Person event only and will take place at the Campus Brussels of the Maastricht University (Avenue de Tervueren 153, 1150 Brussels). If you wish to attend, please register HERE.


Supported by undefined

New Event! Zoom In on International Skating Union v. European Commission - 20 January - 16.00-17.30 (CET)

On Wednesday 20 January 2021 from 16.00-17.30 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret, is organising a Zoom In webinar on the recent judgment of the General Court in the case International Skating Union (ISU) v European Commission, delivered on 16 December 2016. The Court ruled on an appeal against the first-ever antitrust prohibition decision on sporting rules adopted by the European Commission. More specifically, the case concerned the ISU’s eligibility rules, which were prohibiting speed skaters from competing in non-recognised events and threatened them with lifelong bans if they did (for more details on the origin of the case see this blog). The ruling of the General Court, which endorsed the majority of the European Commission’s findings, could have transformative implications for the structure of sports governance in the EU (and beyond).

We have the pleasure to welcome three renowned experts in EU competition law and sport to analyse with us the wider consequences of this judgment.


Guest speakers:

Moderators:


Registration HERE


Zoom In webinar series

In December 2020, The Asser International Sports Law Centre in collaboration with Dr Marjolaine Viret launched a new series of zoom webinars on transnational sports law: Zoom In. You can watch the video recording of our first discussion on the arbitral award delivered by the Court of Arbitration for Sport (CAS) in the Blake Leeper v. International Association of Athletics Federations (IAAF) case on the Asser Institute’s Youtube Channel. Click here to learn more about the Zoom In webinar series.

The ISU Commission's Decision and the Slippery Side of Eligibility Rules - By Stefano Bastianon (University of Bergamo)

Editor’s note: Stefano Bastianon is Associate Professor in European Law at the University of Bergamo and lawyer admitted to the Busto Arsizio bar. He is also member of the IVth Division of the High Court of Sport Justice (Collegio di Garanzia dello sport) at the National Olympic Committee.

1. From the very beginning, the outcome of the ISU case was highly predictable, at least for those who are familiar with the basics of antitrust law. Nevertheless, more than twenty years after the Bosman judgment, the sports sector has shown the same shortsightedness and inability to see the forest for the trees. Even this attitude was highly predictable, at least for those who know the basics of sports governance. The final result is a clear-cut decision capable of influencing the entire sports movement. More...



Bailing out your local football club: The Willem II and MVV State Aid decisions as blueprint for future rescue aid (Part 2)

This is part two of the blog on the Willem II and MVV State Aid decisions. Where part one served as an introduction on the two cases, part two will analyze the compatibility assessment made by the Commission in two decisions.


The compatibility of the aid to MVV and Willem II (re-)assessed

Even though it was the Netherlands’ task to invoke possible grounds of compatibility and to demonstrate that the conditions for such compatibility were met, the aid granted to both Willem II and MVV was never notified. The Netherland’s failure to fulfill its notification obligation, therefore, appears to be at odds with the Commission’s final decision to declare the aid compatible with EU law. Yet, a closer look at the Commission’s decision of 6 March 2013 to launch the formal investigation shows that the Commission was giving the Netherlands a ‘second chance’ to invoke grounds that would lead to a justification of the measures.More...


Bailing out your local football club: The Willem II and MVV State Aid decisions as blueprint for future rescue aid (Part 1)

The European Commission’s decisions of 4 July 2016 to order the recovery of the State aid granted to seven Spanish professional football clubs[1] were in a previous blog called historic. It was the first time that professional football clubs have been ordered to repay aid received from (local) public authorities. Less attention has been given to five other decisions also made public that day, which cleared support measures for five football clubs in the Netherlands. The clubs in question were PSV Eindhoven, MVV Maastricht, NEC Nijmegen, FC Den Bosch and Willem II.

Given the inherent political sensitivity of State aid recovery decisions, it is logical that the “Spanish decisions” were covered more widely than the “Dutch decisions”. Furthermore, clubs like Real Madrid and FC Barcelona automatically get more media attention than FC Den Bosch or Willem II. Yet, even though the “Dutch decisions” are of a lower profile, from an EU State aid law perspective, they are not necessarily less interesting.

A few days before entering the quiet month of August, the Commission published the non-confidential versions of its decisions concerning PSV Eindhoven, Willem II and MVV Maastricht (hereinafter: “MVV”). The swiftness of these publications is somewhat surprising, since it often takes at least three months to solve all the confidentiality issues. Nonetheless, nobody will complain (especially not me) about this opportunity to analyze in depth these new decisions. More...

FIBA/Euroleague: Basketball’s EU Competition Law Champions League- first leg in the Landgericht München. By Marine Montejo

Editor's note: Marine Montejo is a graduate from the College of Europe in Bruges and is currently an intern at the ASSER International Sports Law Centre.

On 3 June 2016, the Landgericht München (“Munich Regional Court”) ordered temporary injunctions against the International Basketball Federation (“FIBA”) and FIBA Europe, prohibiting them from sanctioning clubs who want to participate in competitions organized by Euroleague Commercial Assets (“ECA”). The reasoning of the Court is based on breaches of German and EU competition law provisions. FIBA and FIBA Europe are, according to the judge, abusing their dominant position by excluding or threatening to exclude national teams from their international competitions because of the participation of their clubs in the Euroleague. This decision is the first judicial step taken in the ongoing legal battle between FIBA and ECA over the organization of European basketball competitions.

This judgment raises several interesting points with regard to how the national judge deals with the alleged abuse of a dominant position by European and international federations. A few questions arise regarding the competence of the Munich Regional Court that may be interesting to first look at in the wake of an appeal before examining the substance of the case. More...

International and European Sports Law – Monthly Report – April 2016. By Marine Montejo

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


The Headlines

This month saw the conflict between FIBA Europe and the Euroleague (more precisely its private club-supported organizing body, Euroleague Commercial Assets or ‘ECA’) becoming further entrenched. This dispute commenced with FIBA creating a rival Basketball Champions League, starting from the 2016-2017 season with the hope to reinstate their hold over the organization of European championships. The ECA, a private body that oversees the Euroleague and Eurocup, not only decided to maintain its competitions but also announced it would reduce them to a closed, franchise-based league following a joint-venture with IMG. In retaliation, FIBA Europe suspended fourteen federations of its competition (with the support of FIBA) due to their support for the Euroleague project.More...


The boundaries of the “premium sports rights” category and its competition law implications. By Marine Montejo

Editor’s note: Marine Montejo is a graduate from the College of Europe in Bruges and is currently an Intern at the ASSER International Sports Law Centre.

In its decisions regarding the joint selling of football media rights (UEFA, Bundesliga, FA Premier league), the European Commission insisted that premium media rights must be sold through a non-discriminatory and transparent tender procedure, in several packages and for a limited period of time in order to reduce foreclosure effects in the downstream market. These remedies ensure that broadcasters are able to compete for rights that carry high audiences and, for pay TV, a stable number of subscriptions. In line with these precedents, national competition authorities have tried to ensure compliance with remedy packages. The tipping point here appears to be the premium qualification of sport rights on the upstream market of commercialization of sport TV rights.

This begs the question: which sport TV rights must be considered premium? More...

Interview with Wil van Megen (Legal Director of FIFPro) on FIFPro’s EU Competition Law complaint against the FIFA Transfer System

Editor’s note
Wil is working as a lawyer since 1980. He started his legal career at Rechtshulp Rotterdam. Later on he worked for the Dutch national trade union FNV and law firm Varrolaan Advocaten. Currently he is participating in the Labour Law Section of lawfirm MHZ-advocaten in Schiedam in the Netherlands. He is also a member of a joint committee advising the government in labour issues.

Since 1991 he is dealing with the labour issues of the trade union for professional football players VVCS and cyclists’ union VVBW. Since 2002, he works for FIFPro, the worldwide union for professional football players based in Hoofddorp in the Netherlands. He is involved in many international football cases and provides legal support for FIFPro members all over the world. Wil was also involved in the FIFPro Black Book campaign on match fixing and corruption in Eastern Europe. More...


Asser International Sports Law Blog | Unpacking Doyen’s TPO Deals: In defence of the compatibility of FIFA’s TPO ban with EU law

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

Unpacking Doyen’s TPO Deals: In defence of the compatibility of FIFA’s TPO ban with EU law

FIFA’s Third-Party Ownership (TPO) ban entered into force on the 1 May 2015[1]. Since then, an academic and practitioner’s debate is raging over its compatibility with EU law, and in particular the EU Free Movement rights and competition rules. 

The European Commission, national courts (and probably in the end the Court of Justice of the EU) and the Court of Arbitration for Sport (CAS) will soon have to propose their interpretations of the impact of EU law on FIFA’s TPO ban. Advised by the world-famous Bosman lawyer, Jean-Louis Dupont, Doyen has decided to wage through a proxy (the Belgian club FC Seraing) a legal war against the ban. The first skirmishes have already taken place in front of the Brussels Court of first instance, which denied in July Seraing’s request for provisional measures. For its part, FIFA has already sanctioned the club for closing a TPO deal with Doyen, thus opening the way to an ultimate appeal to the CAS. In parallel, the Spanish and Portuguese leagues have lodged a complaint with the European Commission arguing that the FIFA ban is contrary to EU competition law. One academic has already published an assessment of the compatibility of the ban with EU law, and many practitioners have offered their take (see here and here for example). It is undeniable that the FIFA ban is per se restrictive of the economic freedoms of investors and can easily be constructed as a restriction on free competition. Yet, the key and core question under an EU law analysis, is not whether the ban is restrictive (any regulation inherently is), but whether it is proportionate, in other words justified.

I will first present the key arguments of the opponents of the ban, before offering my own assessment. As the reader might know, I am no friends of FIFA and a staunch critic of its bad governance syndrome. Although I am convinced that FIFA’s governance deserves a ground-up rebuilt, I also believe that FIFA’s TPO ban is justified.

 

I.               Antithesis: FIFA’s TPO ban is contrary to EU law 

The legal waters are very much chartered insofar as the question of the application of EU law to FIFA’s TPO ban is concerned.[2] The key legacy of the CJEU’s jurisprudence on sport, starting with the Bosman ruling, is that FIFA’s regulations do not escape the reach of EU law and that they must be subjected to a proportionality control of the restrictions they impose on economic freedoms. The fundamental question with respect to the TPO ban is then whether it will be deemed justified and proportionate by the national courts, the CAS, the European Commission and ultimately the CJEU.

The opponents of the FIFA ban consider first and foremost that the practice of TPO (they usually prefer to refer to as Third-Party Investments or Third-Party Entitlements) is a legitimate financial investment practice, which is needed to sustain and raise the competitiveness of certain clubs. Basically if banks are reluctant to finance those clubs, then less risk-averse investors have to step in. Thus, they support investment in the training capacity of the clubs (especially in South America) and their capacity to take their chances in the most prestigious competitions (for example FC Porto or Atlético Madrid). Hence, TPO can be seen as a legitimate investment practice and its regulation left to the contractual freedom of the parties. Such a radical libertarian view is not often supported nowadays,[3] as the potential integrity risks of TPO are widely acknowledged.[4]

Instead, if the risks connected to TPO are to be tackled, it is argued that TPO should be properly regulated. In EU law jargon, this is labelled a less restrictive alternative.[5] The existence of a less restrictive alternative would point at the disproportionate nature of the FIFA ban. For example, a bundle of regulatory measures are suggested by the Spanish league (La Liga):

·      Prohibition of certain transactions based on the player's age;

·      Maximum percentage of participation in the "economic rights";

·      Quantitative limitations on the maximum number of players per club;

·      Maximum remuneration for the investor;

·      Prohibition of certain clauses that may limit the independence and autonomy of the clubs; and

·      Prohibition of transactions depending on the investor's particular status or business (or participation in the same) such as shareholders, directors and managers of the clubs.

The proposed regulatory changes would undeniably be an improvement with regard to the current situation. However, I do not believe they are sufficiently credible to undermine the legality of FIFA’s TPO ban.

 

II.             Thesis: FIFA’s TPO ban is compatible with EU law

A.    The necessity to tackle the integrity risks generated by TPO

First, we need to come back to the function and functioning of TPO deals. There is a reason why banks refuse to offer loans to certain clubs. They are often in difficult financial situations, their revenues do not add up with their expenses. Investment funds fill this gap, they replace banks in financially supporting these clubs. In return, they expect a modern version of the “pound of flesh”, a share of the transfer fee attached to a specific player. For a club, the TPO investments will only be fruitful while it is successful on the pitch and lucky in picking the players it recruits. It is a very risky bet on the future. In good times everybody wins, but in bad times the club is in deep trouble (see FC Twente’s fate). The TPO system works as a devil’s circle, the club is drawn into more and more TPO deals to stay financially viable.

Furthermore, TPO deals are not unlike the complex financial instruments that led to the terrible financial crisis of 2008. They give way to similar conflicts of interest. Where banks were selling derivatives based on subprime mortgages to their clients while betting against them at the same time, TPO funds might push their clients to recruit (thanks to loans they have generously provided for high interests) a mediocre player in which they already have a stake. Another option would be for a TPO fund, which is often (if not always) also acting as an agent, to force the departure of a player by triggering an offer which the club cannot refuse (or it would have to buy back the rights which is impossible due to its financial situation). The many hat(s) of TPO investment funds are extremely worrying in terms of conflicts of interest.[6] The most dangerous, though in my view less likely (but see the Tampere case), risk being that TPO investors would use their broad networks of influence to fix games. FIFA’s objective of curbing those risks is clearly a legitimate one.

The heart of the trade of TPO funds is to leverage the hubris of football clubs, to corner them into making a bad financial deal in return for a credible shot at winning a title. But once the high is over, the low starts and the awakening is rather uncomfortable. The high financial risks saddled to the club are sustainable only so long as it is a winner. As soon as its fate on the pitch turns, the bad news accumulates and not unlike a bank run the club crashes, while the investors have more often than not managed to escape before the fall. In short, unless you truly believe in the superpowers of the invisible hand of the market, this practice, as well as the financial practices that led to the financial crisis, deserves either a thorough regulation or an outright ban.

B.    Is there a realistic regulatory alternative to the ban?

The key question for the assessment of the TPO ban under EU law is whether the many negative externalities triggered by the use of TPO could be tackled by the way of a less restrictive encroachment on the economic freedoms of the investors/clubs than the FIFA ban. Critics of the ban have very much insisted on the existence of less restrictive regulatory alternatives and put forward some proposals. Yet, I am of the opinion that these alternatives are generally unworkable in the present context. The main reason being that FIFA is incapable to properly regulate and control the TPO investment market. This is due to the fact that FIFA does not dispose of the legal competence needed to force investment funds to disclose information. To do so, it must be empowered by governments to be able to cease the information wanted, which is unlikely. Some would object, that this could be done via the FIFA TMS system put in place to supervise international transfers. But it would be extremely difficult for FIFA to verify any complex set of contractual information entered into the TMS. The destiny of former article 18 bis of the FIFA Regulations on the Status and Transfers of Players (see the 2014 version here) is there to prove this point. Under article 4.2 of Annexe 3 of the FIFA RSTP 2014, Clubs were already supposed to provide a “Declaration on third-party payments and influence”. Nonetheless, in previous years, FIFA was unable to charge any club (except for Tampere in a match-fixing context and due to a local police investigation) on the ground that an investor was exercising undue influence, mainly because it lacked the knowledge needed to do so. This is exemplified in the case of the ERPA signed by Doyen and FC Twente, which was only partially disclosed to the Dutch Football Association.

If FIFA is powerless, how is it supposed to enforce the ban? Well here lies the crucial difference between a ban and complex regulation. A ban is simpler to enforce, as it is merely a black-or-white matter. FIFA will be able to rely on investigative journalists unearthing investment contracts linked to transfers. The mere existence of a TPO contract will lead to a dissuasive sanction, without the need to get into the nitty-gritty details of each case. It thus makes it easier for FIFA to control the use of TPO and to force investment funds to come out in the open and take charge of the management of a club if they wish to stay active on the transfer market. The higher probability of being caught linked to the use of TPO will most likely work as a strong deterrent for clubs to engage in such a financing practice. This is undeniably a blunt instrument, and in an ideal world a true regulation of the TPO market would be put in place and enforced, but this ideal world is not compatible with the pluralist and complex transnational legal setting in which the transfer system operates. The complex regulatory schemes proposed as substitute to the ban are very well intended, but they do not take into account the extreme difficulty (and costs) linked to their implementation. The fiasco of the old FIFA Players’ Agents Regulations illustrates the practical constraints that burden any regulation of the football transfer market.

C.    TPO is not compatible with the 2001 agreement between the European Commission and FIFA

There is a final argument in favour of the compatibility of the TPO ban with EU law, which is grounded in the 2001 agreement between FIFA, UEFA and the European Commission. As should be obvious by now, the existence of TPO is dependent on the existence of the FIFA transfer system. Such a transfer system is unknown in other industries (though one could very well imagine a transfer system for academics for example). In turn, the FIFA transfer system restricts the economic freedom of both clubs and players. The European Commission highlighted these restrictions during its investigation of the FIFA transfer system in the early 2000s. However, the Commission signed an agreement with FIFA and UEFA signalizing its support for a new (the current) FIFA transfer system in 2001 and put an end to its investigation. This support was conditioned on the idea that a form of transfer system was needed to maintain the contractual stability necessary to the existence of stable and successful teams.[7] This is the fundamental assumption that underlies the compatibility with EU law of the FIFA transfer system, and therefore the sheer existence of TPO. Yet, TPO as a practice is per se promoting contractual instability. Players have to change clubs for TPO investors to cash in on their investments. It is perfectly logical for TPO contracts to include various clauses strongly incentivizing clubs to sell their players. If not, they will have to bear the costs, for example, of paying a fee (usually the invested amount plus a healthy interest) in case the player leaves the club on a free transfer, or forcing the club to buy back at market rate the investors’ shares in the economic right of a player in case of an offer above a minimum price. For a cash-strapped club, e.g. a club that lost access to the banking system and has to turn to TPO investors, this is usually impossible and means that it will be forced to sell-on the player. In a way, TPO is a radical perversion of the deal stroke by FIFA/UEFA and the Commission. The transfer system was meant to ensure that contractual stability is secured in football, not to enhance contractual instability. This contradiction between TPO and the rationale conditioning the legality under EU law of the FIFA transfer system will necessarily bear on the EU Commission’s analysis of FIFA’s TPO ban.

 

Conclusion: TPO is a symptom, the transfer system is the problem

20 years of the Bosman case oblige, the case has been back in the news cycle this week (see here, here, and here). It is widely credited, or rather blamed, for having changed football for bad, turning it into some kind of commercial monster. I very much doubt this storytelling is right. It is based on a collective misreading of the case. Bosman took stock of a contemporary development in football at that time: the eagerness of the “football family” to commercialize its activities by primarily selling TV rights in a monopoly position. What Bosman is about, then, it is the regulation of this economic activity. Central questions are: How should the proceeds be distributed and especially who should bear the costs of ensuring competitive balance amongst the teams? Until Bosman the players were the main losers, they could not move freely across Europe and in some countries they could not transfer for free even after the end of their contracts. This situation was deemed an unjustified restriction on the player’s freedom by the Court. Nevertheless, and this is widely forgotten, Bosman is not about dogmatically ensuring that economic freedoms and a deregulated market always prevail. In fact, Advocate General Lenz was advocating as an alternative to the transfer system that the economic revenues derived from TV rights be shared more equally to ensure competitive balance.[8] This is obviously an important restriction on the economic freedom of clubs and leagues, yet the Court endorsed it as viable alternative.[9] Since then, the Court has repeatedly approved various type of sporting regulations restricting the economic freedoms of athletes or clubs.[10] After Bosman, FIFA and UEFA (supported by many clubs) insisted on maintaining a transfer system instead of the alternative suggested by Lenz and the Court. Despite the Commission’s aforementioned challenge of the legality of the FIFA transfer system, FIFA and UEFA were able to marshal the political support of the most influential Member States (France, Germany and the UK) in their bid to save the transfer system.[11] This led to the 2001 agreement and to the survival of the transfer system in its current form.

It is certainly ironical that the transfer system is based on the same legal principles denounced by UEFA and FIFA officials when they talk of slavery regarding TPO. This hypocrisy, rightly pointed out by the critics of the ban,[12] does not entail that the TPO ban is contrary to EU law, as they in turn seem to assume. However, it does imply that TPO as a practice is just the tip of the iceberg. In fact, it is a symptom, as well as the murky world of agents, of a global transfer market gone rogue. This is due mainly to the insistence of FIFA in transforming players into moveable assets included on the balance sheets of clubs. The transfer system is certainly not about contractual stability or the financing of training facilities. Indeed, FIFA is trumpeting the growing number of transfers each year (see this year’s celebratory press release here) and is very much dragging its feet as far as enforcing training compensations and solidarity payments is concerned.[13] Undoubtedly, there is some doublespeak going on. If clubs are forced to turn to TPO investors it is mainly because FIFA and UEFA (and the big clubs) have refused to put in place the necessary redistributive mechanisms to ensure a minimum of competitive balance as was advocated by the CJEU in the Bosman ruling 20 years ago (and by the EU Commission recently). Instead, they have put their faith into a transfer system that is neither correcting competitive imbalances nor guaranteeing contractual stability (a view supported by Stefan Szymanski on behalf of FIFPro). FIFA has lost control over its Frankenstein-like transfer system and it is desperately trying to rein its negative externalities with regulatory patches (e.g. UEFA’s Financial Fair-play Rules or FIFA’s TPO ban). In this regard, the TPO ban is unlikely to contravene EU law, but it is also unlikely to be a solution to the many problems caused by FIFA and UEFA’s handling of the post-Bosman football era.


[1] See FIFA Circular no. 1464 announcing the ban.

[2] This is well done by Johan Lindholm in his article: Can I please have a slice of Ronaldo? The legality of FIFA’s ban on third-party ownership under European union law.

[3] The Spanish Competition Authority comes close to such a view in its advisory opinion criticizing FIFA’s TPO ban. It states at page 6 (in Spanish): “Se ha de partir del hecho de que si el mercado ha facilitado la aparición de estas operaciones es porque una multitud de agentes (tanto clubs como jugadores), actuando de manera descentralizada, han considerado que es lo mejor para sus intereses. Por tanto, la prohibición del TPO resulta en una limitación de la capacidad de obrar y de la libertad de empresa, restringiendo el uso de una conducta que en principio es maximizadora de beneficios (o minimizadora de pérdidas).”

[4] Even though very reluctantly by the Spanish Competition Authority, see p.9-10.

[5] This is also the view of Johan Lindholm, he considers that “regulation is likely a legally more successful response to the perceived ills of TPO”.

[6] This is also true for other types of third party funding, for example in arbitration.

[7] This is in essence the meaning of paragraph 57 of the EU Commission’s rejection decision in the Affaire IV/36 583-SETCA-FGTB/FIFA. The paragraph states : « La protection des contrats pendant une période de durée limitée qui se traduit par des sanctions correspondant notamment à la suspension du joueur pendant une période de 4 mois à 6 mois (dans des cas de récidives) semble indispensable pour garantir la construction d’une équipe. Un club a besoin d’un temps minimum pour construire son équipe. Si un joueur pouvait rompre unilatéralement son contrat dès la première année et être transféré à la fin de la saison vers un autre club, sans aucune sanction autre que la compensation financière, son club d’origine n’aurait pas de possibilité de construire convenablement son équipe. Les sanctions visent donc à démotiver les joueurs de rompre unilatéralement leurs contrats pendant les deux premières années pour permettre l’existence d’équipes stables. En raison des spécificités du secteur en cause la durée de la période protégée et des sanctions semble être proportionnée aux objectifs légitimes quelles visent à atteindre. »

[8] See in particular paragraphs 218-234 of his Opinion.

[9] See para. 110 of the Bosman ruling.

[10] For example: Selection rules in Deliège; Transfer windows in Lehtonen; FIFA’s agent regulation in Piau; Doping sanctions in Meca-Medina; Training compensations in Bernard. The European Commission also recognised the legality of UEFA’s rule limiting the multiple ownership of clubs in ENIC.

[11] On this episode see Borja Garcia’s article, ‘The 2001 informal agreement on the international transfer system’.

[12] In his article Johan Lindholm criticizes this moral posture taken by FIFA and UEFA. He rightly points at its hypocrisy: “[…] a third party owning fifty percent of the economic rights to a player is the very height of moral corruption, but a club owning one hundred percent of the same right is not only perfectly acceptable but also applauded”.

[13] A recent study commissioned by the European Clubs Association (ECA) on the transfer market, shows (at page 88) that the solidarity payments are way below the 5% threshold imposed by the FIFA RSTP (reaching instead only 1,15% of the transfer fees).

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