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

[Online Event] The ECtHR's  Semenya  ruling: A human rights game-changer for the transnational governance of sport? - 13 October 2023

During the 2023/2024 academic year, the Asser International Sports Law Centre will dedicate special attention to the intersection between transnational sports law and governance and gender. This online discussion is the first of a series of (online and offline) events which will explore the way in which international SGBs and the CAS define the gender divide in international sports, police gender-based abuses, and secure gender-specific rights to athletes.


Caster Semenya, a South-African runner and Olympic champion, was dominating her favorite distance, the 800m, for a number of years, when in 2018 the World Athletics (then known as IAAF) adopted a new set of regulations (colloquially known as the DSD Regulations), which imposed new conditions to the eligibility of athletes for certain female competitions, such as the 800m. Semenya, who has a condition known as differences in sex development (DSD), was forced to decide between subjecting to a specific medical treatment aimed at diminishing the level of testosterone in her body or stopping competing on her preferred distance. As she refused to undergo any medical treatment to regain eligibility, she decided to challenge the legality of World Athletics DSD Regulations before the CAS in Lausanne. While the CAS acknowledged that the Regulations were discriminatory and were disregarding the legal sex of Semenya in the name of a so-called sporting sex, the arbitrators also considered that this discrimination was justified and proportionate. Semenya’s challenge against the award was rejected by the Swiss Federal Tribunal (SFT) in August 2020. As a last resort, she decided to lodge an application with ECtHR against Switzerland.


On 11 July 2023, the ECtHR released its judgment in the much-awaited Caster Semenya v. Switzerland case. In short, the Strasbourg Court sided with Semenya and concluded that Switzerland failed to comply with its positive obligations stemming from the European Convention on Human Rights. The ruling is an important milestone in the interaction between the CAS and (European) human rights law. It will likely affect the place of human rights (and in particular the ECHR) at the CAS, the intensity of the supervision exercised by the SFT, as well as the justification of the regulatory decisions of the SGBs. We look forward to discussing these with our two speakers, who have followed closely the case and already blogged (here and here) about the judgment:


The online discussion will be introduced and moderated by Dr. Antoine Duval and Dr. Daniela Heerdt, and will include short presentations by the speakers and a Q&A with the audience.


Registration is available for free at: https://www.asser.nl/education-events/events/?id=4325

12th round of Caster Semenya’s legal fight: too close to call? - By Jeremy Abel

Editor's note: Jeremy Abel is a recent graduate of the LL.M in International Business Law and Sports of the University of Lausanne.

 

1.     Introduction

The famous South African athlete Caster Semenya is in the last lap of her long legal battle for her right to run without changing the natural testosterone in her body. After losing her cases before the Court of Arbitration for Sport (CAS) and the Swiss Federal Tribunal, she filed an application before the European Court of Human Rights (Court). In the meantime, the Court has released a summary of her complaint and a series of questions addressed to the parties of the case.

As is well known, she is challenging the World Athletics’ Eligibility Regulations for the Female Classification (Regulations) defining the conditions under which female and intersex athletes with certain types of differences of sex development (DSDs) can compete in international athletics events. Despite the Regulations emanating from World Athletics, the last round of her legal battle is against a new opponent: Switzerland.

The purpose of this article is to revisit the Semenya case from a European Convention on Human Rights (ECHR) perspective while considering certain excellent points made by previous contributors (see here, here and here) to this blog. Therefore, the blog will follow the basic structure of an ECHR case. The following issues raised by Semenya shall be analysed: the applicability of the ECHR, Semenya’s right to private life (Article 8 ECHR) and to non discrimination (Article 14 ECHR), as well as the proportionality of the Regulations. More...


“Sport Sex” before the European Court of Human Rights - Caster Semenya v. Switzerland - By Michele Krech

Editor's note: Michele Krech is a JSD Candidate and SSHRC Doctoral Fellow at NYU School of Law. She was retained as a consultant by counsel for Caster Semenya in the proceedings before the Court of Arbitration for Sport discussed above. She also contributed to two reports mentioned in this blog post: the Report of UN High Commissioner for Human Rights,  Intersection of race and gender discrimination in sport (June 2020); and the Human Rights Watch Report, “They’re Chasing Us Away from Sport”: Human Rights Violations in Sex Testing of Elite Women Athletes (December 2020).

This blog was first published by the Völkerrechtsblog and is republished here with authorization. Michele Krech will be joining our next Zoom In webinar on 31 March to discuss the next steps in the Caster Semenya case.



Sport is the field par excellence in which discrimination
against intersex people has been made most visible.

Commissioner for Human Rights, Council of Europe
Issue Paper: Human rights and intersex people (2015)


Olympic and world champion athlete Caster Semenya is asking the European Court of Human Rights (ECtHR) to make sure all women athletes are “allowed to run free, for once and for all”. Semenya brings her application against Switzerland, which has allowed a private sport association and a private sport court to decide – with only the most minimal appellate review by a national judicial authority – what it takes for women, legally and socially identified as such all their lives, to count as women in the context of athletics. I consider how Semenya’s application might bring human rights, sex, and sport into conversation in ways not yet seen in a judicial forum. More...







SFT rejects Semenya appeal: nothing changes - By Andy Brown

Editor's note: Andy Brown is a freelance journalist who has been writing about the governance of sport for over 15 years. He is the editor of The Sports Integrity Initiative where this blog appeared first.


For the last three days, I have been struggling with what to write regarding the Swiss Federal Tribunal’s (SFT) Decision to dismiss a challenge from Caster Semenya and Athletics South Africa (ASA) against the Court of Arbitration for Sport’s (CAS) Decision to dismiss a challenge to the Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development), otherwise known as the DSD Regulations. From reading World Athletics’ statement welcoming the ruling, one could be forgiven for thinking that it had won a major trial. Sports journalists, accustomed to covering events now curtailed by Covid-19, focus on the fact that Semenya has ‘lost’ her case against the DSD Regulations. Neither assertion is strictly accurate.

The SFT’s powers to review the CAS’s ruling are severely limited. It can only consider whether the CAS Decision violates ‘widely recognised principles of public order’ on Swiss public policy grounds. The SFT has only reversed a decision based on a a violation of Swiss public policy once in 30 years.

The SFT didn’t reconsider the evidence put forward to the CAS. ‘For there to be incompatibility with public policy, it is not enough that the evidence has been poorly assessed, that a finding of fact is manifestly false or that a rule of law has been clearly violated’, its Decision reads. ‘The only question to be resolved is in fact whether or not the verdict of the CAS renders the referred award incompatible with substantive public policy’. 

There were questions about whether the appeal from Semenya and ASA qualified to be reviewed by the SFT in the first place. World Athletics is a private organisation headquartered in Monaco, and the SFT was troubled as to whether such a complaint brought by a South African athlete against an overseas private organisation is capable of violating Swiss public policy.

‘It is doubtful whether the prohibition of discriminatory measures falls within the scope of the restrictive concept of public order when the discrimination is committed by a private person and occurs in relations between individuals’, the Decision quotes from its pervious 29 July 2019 Decision, which refused the ASA’s request to provisionally suspend the application of the DSD Regulations. ‘In any event, there is no need to examine this question further here since […] the award under appeal does not in any way establish discrimination which would be contrary to public order’

The SFT ruled that the CAS was correct to uphold conditions of participation for 46 XY DSD athletes in order to guarantee fair competition for certain disciplines in female athletics. In doing so, the SFT was ruling on whether the decision taken by the CAS violates public policy, based only on the complaints brought forward by Semenya and ASA. 

Semenya and the ASA had challenged the CAS Decision based around the idea that the DSD Regulations are discriminatory. The CAS held that they are discriminatory, but agreed with the IAAF (as World Athletics was then named) that such discrimination was necessary to protect its female category. The SFT ruled that even if the discriminatory rules of a private organisation such as the IAAF were considered able to pose a threat to public order, Semenya and the ASA had failed to demonstrate that the CAS Decision was so egregious that it posed such a threat.

‘Caster Semenya essentially alleges a violation of the prohibition of discrimination’, reads the Swiss Federal Supreme Court statement. ‘The CAS has issued a binding decision based on the unanimous opinion of the experts who were consulted that testosterone is the main factor for the different performance levels of the sexes in athletics; according to the CAS, women with the “46 XY DSD” gene variant have a testosterone level comparable to men, which gives them an insurmountable competitive advantage and enables them to beat female athletes without the “46 XY DSD” variant. Based on these findings, the CAS decision cannot be challenged. Fairness in sport is a legitimate concern and forms a central principle of sporting competition. It is one of the pillars on which competition is based. The European Court of Human Rights also attaches particular importance to the aspect of fair competition. In addition to this significant public interest, the CAS rightly considered the other relevant interests, namely the private interests of the female athletes running in the “women” category.’

Such strong support for the principle behind its DSD Regulations was rightly welcomed by World Athletics. Its statement asserted that the SFT ‘acknowledged that innate characteristics can distort the fairness of competitions’. I would argue that the SFT ruling didn’t do this, but rather found that a CAS Decision asserting this didn’t violate Swiss public policy. Semantics, perhaps.

Likewise, when World Athletics quotes the SFT Decision as confirming that ‘It is above all up to the sports federations to determine to what extent a particular physical advantage is likely to distort competition and, if necessary, to introduce legally admissible eligibility rules to remedy this state of affairs’, it is paraphrasing two texts quoted in the SFT Decision. The first is ‘La qualification juridique des rules autonomes des organizations sportive’ by Jérôme Jaquier, 2004. ‘Inborn characteristics specific to athletes in a particular group can also distort the fairness of competition’, the SFT Decision quotes from Jaquier. ‘When they enact regulations, the objective of sports federations is to ensure fair and equitable competition’.

The context of the second quote, from ‘Sportrecht – Berücksichtigung der Interessen des Sports in der Rechtsordnung’ by Martin Kaiser, 2011, is even more interesting. It is preceded with a statement from the Swiss Federal Supreme Court, which reads: ‘It is not for the Federal Court to make, abstractly, comparisons between the disciplines to assess whether a particular athlete has an advantage that makes sporting competition meaningless’

‘It is above all for the sporting federations to determine to what extent a particular physical advantage is liable to distort competition’, the SFT Decision quotes from Kaiser. ‘And, if so, to establish legally admissible eligibility rules to remedy this state of affairs’. 

Again, such details might be considered as semantics. But – I would argue – important semantics. Reading the media maelstrom that has resulted from the SFT Decision, one could be forgiven for assuming that Semenya has lost her case, and has no chance of ever defending her 800m title. However, a statement issued by her lawyers reveals that she intends to challenge the ruling in European and domestic courts.

“I am very disappointed by this ruling, but refuse to let World Athletics drug me or stop me from being who I am”, the statement continues. “Excluding female athletes or endangering our health solely because of our natural abilities puts World Athletics on the wrong side of history. I will continue to fight for the human rights of female athletes, both on the track and off the track, until we can all run free the way we were born. I know what is right and will do all I can to protect basic human rights, for young girls everywhere.” More...



The Semenya Decision of the Swiss Federal Tribunal: Human Rights on the Bench - By Faraz Shahlaei

Editor's note: Faraz Shahlaei is a JSD Candidate at Loyola Law School, Los Angeles. His research and teaching interests are public international law, international sports law, international human rights and dispute resolution.

 

The issue of international human rights was a central contention in Caster Semenya case ever since the start of her legal battle against the regulations of the IAAF. However, the human rights arguments were poorly considered in the two proceedings related to this case. To put it in perspective, it is like having a key player nailed to the bench throughout the whole game; no coach ever tried to give it a chance while it had the potential to be the game changer for all parties.

In 2019, the Human Rights Council, the inter-governmental human rights body of the UN, expressed concern over issues of discrimination in sports in particular regarding IAAF female classification regulations. In June 2020, the United Nations High Commissioner for Human Rights submitted a report to the United Nations Human Rights Council on the “Intersection of Race and Gender Discrimination in Sport”. The report draws a detailed picture of how human rights in the Semenya case have been violated and also elaborates on the inherent problem of addressing human rights issues in alternative dispute resolution mechanisms favored by the sport governing bodies. However, despite an in-depth discussion of Caster Semenya’s case at both the CAS and then the SFT, the question of human rights, a key concern and a fundamental pillar of the case, hasn’t been adequately answered yet! More...


The SFT’s Semenya Decision under European human rights standards: Conflicting considerations and why a recourse could be successful at Strasbourg - By Kevin Gerenni

Editor's note: Kevin Gerenni is Assistant Professor in Public International Law (Facultad de Derecho de la Universidad de Buenos Aires) and LLM Candidate 2021 in Public International Law at the London School of Economics.


Even though the decision rendered by the SFT in the Semenya Case was foreseeable, the Tribunal did put forward some concerning reasoning in terms of public policy (“ordre public”) and human rights. In case Semenya decides to challenge the Swiss state before the ECtHR, one can expect the case to shake some grounds at the ECtHR, which would be faced with the question of the application to sport not of fair trial guarantees (as in Mutu & Pechstein) but of substantial human rights provisions such as the prohibition of discrimination on the basis of sex (Article 14 ECHR) and the right to private life (Article 8 ECHR).

Under Swiss law, the reasons that may lead to the annulment of an arbitral award are enumerated in art. 190 of the Swiss Private International Law Act (PILA). Semenya’s strongest case relied on art. 190(2)(e): the award’s incompatibility with public policy. Naturally, this point concentrated most of the SFT’s attention. In order to analyze the compatibility of the CAS award with Swiss public policy, the SFT focused on three main potential breaches of human rights: prohibition of discrimination, personality rights, and human dignity. In doing so, it put forward certain observations that differ with European human rights standards and the ECtHR’s jurisprudence. The purpose of this short article is to analyze those discrepancies and, consequently, Semenya’s prospects of success before the Strasbourg Tribunal.More...


Selected procedural issues –and questions– arising out the Caster Semenya Judgment of the Swiss Federal Tribunal - By Despina Mavromati

Editor's note: Dr Despina Mavromati is an attorney specializing in international sports law and arbitration (Sportlegis Lausanne) and a UEFA Appeals Body Member. She teaches sports arbitration and sports contracts at the University of Lausanne, Switzerland

 

As the title indicates, this short note only deals with selected procedural issues and questions arising out of the very lengthy Semenya Judgment. In a nutshell, the SFT dismissed Semenya’s appeal to set aside the CAS Award, which had denied the request of Caster Semenya (Semenya, the Athlete) to declare unlawful the Differences of Sex Development (DSD) Regulations of World Athletics (formerly IAAF).[1]

At the outset, it has to be reminded that the CAS Award dealt with the merits of the Semenya case in a final and binding way by rendering an arbitral award according to Article R59 of the CAS Code (and Article 190 of the Swiss Private International Law Act – PILA). Therefore, the SFT did not act as an appellate court but rather as a cassatory court, entitled to review only whether the exhaustively enumerated grounds for annulment set out in Article 190 (2) PILA were met (and provided that they were properly invoked and substantiated in the motion to set aside said award).More...

Caster Semenya Case Exposes Design Flaws in International Sports Governance - By Roger Pielke Jr.

Editor's note: Roger Pielke Jr. is a professor at the University of Colorado Boulder

 

The decision this week by the Swiss Federal Tribunal not to revisit the arbitral decision of the Court of Arbitration for Sport (CAS) in the case of Caster Semenya was not unexpected, but it does help to expose a major design flaw in international sports governance. Specifically, the institutions that collectively comprise, create and enforce “sports law” appear incapable of addressing flawed science and violations of basic principles of medical ethics.

While different people will have different, and legitimate, views on how male-female competition classifications might be regulated, the issues highlighted involving science and ethics are not subjective, and are empirically undeniable. In normal systems of jurisprudence, procedures are in place to right such wrongs, but in sports governance processes in place prevent such course corrections. And that is a problem.

The empirical flaws in the science underpinning the IAAF (now World Athletics) Semenya regulations are by now well understood, and have been accepted by WA in print and before CAS (I was an expert witness for Semenya, and was present when IAAF accepted responsibility for the flawed research). You can read all the details here and in the CAS Semenya decision. I won’t rehash the flawed science here, but the errors are fatal to the research and obvious to see.

One key part of the comprehensive institutional failures here is that the journal which originally published the flawed IAAF research (the British Journal of Sports Medicine, BJSM) has, inexplicably, acted to protect that work from scrutiny, correction and retraction. Normally in the scientific community, when errors of this magnitude are found, the research is retracted. In this case, the BJSM refused to retract the paper, to require its authors to share their data or to publish a critique of the IAAF analysis. Instead, upon learning of the major errors, the BJSM published a rushed, non-peer reviewed letter by IAAF seeking to cover-up the errors. All of this is non-standard, and a scandal in its own right.

The violation of basic principles of medical ethics required by the implementation of the WA Semenya regulations is also not contested. Both WA and the IOC have claimed to uphold the World Medical Association’s Helsinki Declaration on medical and research ethics. Yet, the WMA has openly criticized the WA regulations as unethical and asked doctors not to implement them. In response, WA has stated that it will help athletes who wish to follow the regulations to identify doctors willing to ignore medical ethics guidelines.

Flawed science and ethical violations are obviously issues that go far beyond the case of Caster Semenya, and far beyond sport. In any normal system of jurisprudence such issues would prove readily fatal to regulatory action, either in the first instance of proposed implementation or via review and reconsideration.

Sport governance lacks such processes. At CAS, the panel claimed that matters of scientific integrity and medical ethics were outside their remit. The SFT is allowed to reconsider a CAS decision only on narrow procedural grounds, and thus also cannot consider matters of scientific integrity or medical ethics. So far then, the flaws in the WA regulations – sitting in plain sight and obvious to anyone who looks, have not been correctable.

This leaves the world of sport governance in a compromised position. Some may look past the scientific and ethical issues here, perhaps judging that barring Semenya from sport is far more important that correcting such wrongs. 

Regardless of one’s views on sex and gender classification in sport, the WA regulations and the processes that produced and have challenged them reveal that sports governance has not yet entered the 21st century. Science and ethics matter, and they should matter in sport jurisprudence as well.  It is time to correct this basic design flaw in international sport governance.

Caster Semenya at the SFT – in 10 points - By Jack Anderson

Editor's note: Jack Anderson is Professor and Director of Sports Law Studies at the University of Melbourne

 

1.     Caster Semenya appealed to the Swiss Federal Court (SFT) arguing that World Athletics’ regulations violated human rights principles relating to gender discrimination and human dignity. The Swiss Federal Tribunal (as at CAS) held that World Athletics’ regulations may prima facie breach such human rights principles but were “necessary, reasonable and proportionate” to maintain fairness in women's athletics;


2.     Although in part addressed at the SFT, expect further legal argument on this in the domestic courts of South Africa or at the ECtHR, and in the following ways:

  • Necessity - is the athletic advantage that Caster Semenya has of such a scientifically-measurable extent that it is necessary for World Athletics to intervene in such an invasive manner? In a broader ethical sense, is the incidence of what the World Athletics’ regulations call “difference of sex development” of such prevalence in the general population, and specifically in middle-distance athletics, that, by way of the principle of “sporting beneficence”, intervention is justified. Or, in contrast, is the incidence of DSD not at a level which justifies a departure from the ethical principle of primum non nocere – first, do no harm?
  • Reasonableness - if World Athletics’ regulations are necessary, is the manner of implementation reasonable and in line with the principle of human and bodily integrity? In answering such a question, the focus must be on the fact that in order to continue to compete in her favourite events (such as the 800 metres) Caster Semenya will have to lower her testosterone level through medication;
  • Proportionate - if World Athletics’ regulations are necessary and reasonable is the manner of implementation proportionate? In answering such a question, the focus must be on whether the regulations disproportionately discriminate against a certain, limited group of athletes in a certain, limited number of events and in a certain, limited manner.More...


Chronicle of a Defeat Foretold: Dissecting the Swiss Federal Tribunal’s Semenya Decision - By Marjolaine Viret

Editor's note: Marjolaine is a researcher and attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences.

 

On 25 August 2020, the Swiss Supreme Court (Swiss Federal Tribunal, SFT) rendered one of its most eagerly awaited decisions of 2020, in the matter of Caster Semenya versus World Athletics (formerly and as referenced in the decision: IAAF) following an award of the Court of Arbitration for Sport (CAS). In short, the issue at stake before the CAS was the validity of the World Athletics eligibility rules for Athletes with Differences of Sex Development (DSD Regulation). After the CAS upheld their validity in an award of 30 April 2019, Caster Semenya and the South African Athletics Federation (jointly: the appellants) filed an application to set aside the award before the Swiss Supreme Court.[1] The SFT decision, which rejects the application, was made public along with a press release on 8 September 2020.

There is no doubt that we can expect contrasted reactions to the decision. Whatever one’s opinion, however, the official press release in English does not do justice to the 28-page long decision in French and the judges’ reasoning. The goal of this short article is therefore primarily to highlight some key extracts of the SFT decision and some features of the case that will be relevant in its further assessment by scholars and the media.[2]

It is apparent from the decision that the SFT was very aware that its decision was going to be scrutinised by an international audience, part of whom may not be familiar with the mechanics of the legal regime applicable to setting aside an international arbitration award in Switzerland.

Thus, the decision includes long introductory statements regarding the status of the Court of Arbitration for Sport, and the role of the Swiss Federal Tribunal in reviewing award issued by panels in international arbitration proceedings. The SFT also referred extensively throughout its decision to jurisprudence of the European Court of Human Rights (ECtHR), rendered in cases related to international sport and the CAS. More...

Asser International Sports Law Blog | What Pogba's transfer tells us about the (de)regulation of intermediaries in football. By Serhat Yilmaz & Antoine Duval

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

What Pogba's transfer tells us about the (de)regulation of intermediaries in football. By Serhat Yilmaz & Antoine Duval

Editor’s note: Serhat Yilmaz (@serhat_yilmaz) is a lecturer in sports law in Loughborough University. His research focuses on the regulatory framework applicable to intermediaries. Antoine Duval (@Ant1Duval) is the head of the Asser International Sports Law Centre.


Last week, while FIFA was firing the heads of its Ethics and Governance committees, the press was overwhelmed with ‘breaking news’ on the most expensive transfer in history, the come back of Paul Pogba from Juventus F.C. to Manchester United. Indeed, Politiken (a Danish newspaper) and Mediapart (a French website specialized in investigative journalism) had jointly discovered in the seemingly endless footballleaks files that Pogba’s agent, Mino Raiola, was involved (and financially interested) with all three sides (Juventus, Manchester United and Pogba) of the transfer. In fine, Raiola earned a grand total of € 49,000,000 out of the deal, a shocking headline number almost as high as Pogba’s total salary at Manchester, without ever putting a foot on a pitch. This raised eyebrows, especially that an on-going investigation by FIFA into the transfer was mentioned, but in the media the sketching of the legal situation was very often extremely confusing and weak. Is this type of three-way representation legal under current rules? Could Mino Raiola, Manchester United, Juventus or Paul Pogba face any sanctions because of it? What does this say about the effectiveness of FIFA’s Regulations on Working with Intermediaries? All these questions deserve thorough answers in light of the publicity of this case, which we ambition to provide in this blog.


Paul Pogba: From Manchester to Juventus…and back 

On 3 August 2012, 19 years old Paul Pogba moved from Manchester United to Juventus on a free transfer. Four years later, his comeback to Manchester United was the most expensive transaction that the history of football ever recorded. Interestingly (and controversially), the latter transfer involved only one agent, Carmine “Mino” Raiola, acting on behalf of the three parties involved in the transaction. Indeed, on 20 July 2016, Raiola signed an agreement with Juventus stipulating that one of his companies, Topscore Sports Ltd, was contracted to find a suitable acquirer for the player before 31 August 2016 in return of a hefty commission payable by Juventus if Pogba was transferred for a minimum fee of €90,000,000 below which the club was not prepared to sell the player and the company was not entitled to any remuneration. A year before, one of Raiola’s many companies, Topscore Sports Ltd, had already been appointed by Juventus as of 1 March 2015 to facilitate the transfer of Pogba. The 2016 contract acknowledged that Topscore Sports Ltd succeeded in “creating hype around the future transfer” and triggered “a bidding war” to recruit the player. Hence, pursuant to the 2016 agreement, if Topscore managed to secure a transfer above the minimum fee, Juventus would pay to Raiola’s company €18,000,000. Furthermore, Raiola would earn €3,000,000 more for each €5,000,000 increase above the minimum fee of the final amount.

Simultaneously, on 27 July 2016, Mino Raiola signed a representation contract with the player through the Monaco based company Uuniqq Srl. The contract provided for a commission “amounting to 5% of the Player’s Basic Gross Income as result of any employment contract negotiated or renegotiated by the Intermediary”. While, on 8 August 2016, Raiola concluded, again through Uuniqq Srl, an agreement with Manchester United. On 9 August 2016, Juventus and Manchester United agreed to the transfer of Pogba for a compensation of €105,000,000. Pogba obtained a salary of €10,200,000 in 2016/2017, reaching €13,800,000 in 2017/2018. On top of that, he also secured a €2,200,000 bonus every time Manchester United qualifies for the Champions League and a €1,160,000 one in case he wins the ballon d’or. According to the agreement with Manchester United, the agent would be paid for his intermediary services five installments of €3,883,658 each, payable every 30 September from 2017 to 2020. In addition to that, Manchester United was undertaking the duty to pay the player’s fee to the agent. Consequently, Uuniqq Srl was also due to receive five installments of €516,342 each, payable on the same dates.

To sum up, as a consequence of Pogba’s transfer from Juventus to Manchester United, Topscore Sports Ltd collected a total commission of €27,000,000 from Juventus, consisting of the agreed minimum of €18,000,000 plus an additional €9,000,000 for overshooting his targeted transfer fee. Uuniqq Srl got a total commission of €22,000,000, resulting from the €19,420,000 (5 instalments of €3,883,658 each) paid by Manchester United as “club services” and €2,580,000 (5 instalments of €516,342 each) paid by the club as “player’s services” on behalf of Pogba. This is the contractual set-up leading to the headline number of € 49,000,000, but is it actually legal?  

 

Three key questions on the legality of Mino Raiola’s role in Pogba’s transfer

There is a tremendous amount of confusion in the press regarding the legality of the above-explained contractual arrangements. For example, FIFA might be investigating the transfer, but in practice it is not in a position of enforcing any direct sanctions, besides a fine for any misleading declarations of Manchester United or Juventus to the FIFA TMS, against the clubs, the player or the intermediary. Indeed, since the entry into force of the new FIFA Regulations on Working with Intermediaries (RWI) in 2015, the responsibility to police intermediaries has been delegated to national federations, in the present case the English FA and the Italian FIGC. It means in practice that the key question is whether Raiola, the clubs or the player complied with the obligations enshrined in the federations’ regulations. The Italian FIGC has not fulfilled its basic transparency obligations under the new FIFA rules, and should be sanctioned by FIFA for not doing so, thus it is impossible to assess whether Raiola and Juventus have complied with the FIGC’s rules. However, the FA has done his regulatory homework well and we believe that the case will raise numerous questions with regard to the compatibility of the behaviour of the parties with the FA’s Regulations on Working with Intermediaries (FA RWI).

  • Is Mino Raiola's total fee/commission in breach of the FA RWI?

The fees payable to Mino Raiola by all parties involved in the transfer (Manchester United as “the registering club”, Juventus as “the former club” and Pogba as “the player”) seems to be the most controversial, and peculiar, aspect of the transfer. Mino Raiola is to receive almost 38% of the total value of Pogba’s contract from Manchester United and only 5% from Pogba directly. Despite the fact that the amount of these fees seems excessive in comparison to market standards under which the level of intermediary commission varies between 5% to 10% and in some of the most extreme cases 20% (see here and here), they do not as such breach the FA RWI. The English FA regulates remuneration payable to intermediaries under section C of its regulations and the indicative level of commission is at 3% (regulation C11). However, this is only a “recommendation” and is aimed at providing guidance to the market and not at constituting an absolute requirement. The non-binding nature of this restriction on the level of commission means that the parties to the transfer are free to negotiate a higher level of commission and this seems to be the case for the representation contracts between Manchester United, Pogba, and Mino Raiola. Additionally, the level of commission, if payable by the player, is to be calculated in accordance with the player’s gross annual income for the entire duration of the relevant employment contract (Article C11.a) whereas the Club’s fee is either based on the player’s gross annual income for the entire duration of the relevant employment contract (Article C11.b) or on the transfer compensation (transfer fee) paid in connection with the transfer (Article C11.c). Both the club and the player are entitled to make the payments to the intermediary in a lump sum or periodic instalments (Article C3 and C7). The club can also make the payments to the intermediary on behalf of the player, if a written request made by the player to do so, and periodic deductions from player’s salary can be made by the club to sanction those payments (Article C2.b). In the light of these provisions of the FA RWI,  the representation contracts published by the Danish news outlet, Politiken (see here) clearly prescribe the remunerations and payment schedules to Mino Raiola by both Manchester United and Pogba  and these contractual arrangements seem to be in compliance with the regulations.

  • Can Mino Raiola represent all parties to the transfer?

The other controversial aspect of the transfer is the representation arrangements by Mino Raiola in respect of Manchester United, Pogba and Juventus. According to the documents published by Politiken and Mediapart, Mino Raiola represented both Manchester United and Pogba under the same transaction. At this point, distinction needs to be made between the dual representation (the intermediary represents the player and either the registering or the former club) and the multiple representation (the intermediary representing the player, the registering club and the former club) as the FA RWI uses both terminologies interchangeably. However, the distinction between the dual and the multiple representation becomes clear under the Intermediary Declaration Form IM1 (see here), the document that must be completed by all parties to the transfer and lodged with the English FA. The document clearly outlines declaration requirements in respect of representation of the player, the registering club and the former club. The representation arrangements between Manchester United, Pogba and Mino Raiola is a dual representation, which is clearly acknowledged by the English FA in its annual disclosure of individual transactions registered, where Mino Raiola and his company, Uuniqq Srl, are listed as the representative of both the Club and the Player (see here). Additionally, as mentioned above, Mino Raiola had also a representation contract with Juventus for the sale of the player. Under the circumstances, it seems the representation contract with Juventus adds another layer to the representation arrangements and constitutes the element of multiple representation with regards to the FA RWI. These arrangements clearly raise the possibility of a conflict of interest, therefore, the English FA allow dual/multiple representation only if the intermediary and the other relevant parties to the transfer strictly comply with the consent requirements of its regulations (Article E1). Otherwise the intermediary may only act for one party to the transfer (Article E1) and cannot receive any remuneration from other parties (Article E3).

Firstly, if the intermediary has a pre-existing representation contract with one party (“the first party”) to the transfer, then that contract should be lodged with the English FA (Article E2.a). In this case, the extracts of representation contract refer to “the player representation contract” between Pogba and Mino Raiola which seems to indicate the existence of a representation contract prior to the multiple representation arrangements. Therefore, it is safe to assume that Pogba could be “the first party” to the transaction and the existing representation contract can constitute a pre-existing representation contract under the FA RWI which should have been lodged with the English FA prior to the other representation arrangements. Secondly, the intermediary should obtain all parties’ (emphasis added) prior written consent to provide services to any other party to the transaction (“the other party(ies)”) (Article E2.b) meaning that Mino Raiola should have obtained the consent of Manchester United, Pogba and Juventus to enter into the multiple representation arrangements. Then, once the intermediary and the other party(ies) agree on the terms of representation, prior to entering into actual representation contracts, the intermediary must inform all parties of the full details regarding the proposed fee to be paid by all parties to the intermediary (Article E2.c). Mino Raiola, should not only have sought the consent of all parties to the multiple representation but also disclosed them the level of fees payable to him by each party. Finally, all parties to the transfer should be given opportunity to seek independent legal advice on the proposed arrangements and provide their written consent for the intermediary to enter into dual/ multiple representation arrangements with other parties (Article E2.d, E2.e).

 As a result, the key focus of the investigation initiated by FIFA but which will inevitably move to the English FA seems to be whether Mino Raiola complied with the regulatory requirements imposing written consent prior to entering into the multiple representation arrangements. Due to the involvement of different companies located in multiple jurisdictions, it is particularly important that the representation contract with Juventus was disclosed to other parties of the transfer, i.e., Manchester United and Pogba and included under the IM1 form. A potential non-compliance with these requirements would constitute a regulatory breach. The omission of information under the relevant paperwork by the parties might be considered as the concealment or misrepresentation of reality and/or substance of any matters in relation to the transaction which is also regulatory breach (Article A3). Any regulatory breach shall be misconduct and sanctioned accordingly (Article F1). All parties involved have potentially, if a multiple representation agreement was not disclosed to the FA, breached the FA rules. However, only Juventus and Raiola knew with certainty about this multiple heads. It is doubtful that the FA could sanction Juventus, which is out of its jurisdictional reach (one could potentially envisage a transfer ban to the FA). Yet, Raiola’s multiple companies must be registered with the FA to conclude transfers with Premier League clubs, thus if he fails to demonstrate that he obtained prior written consent from all the parties to the multiple representation, one could envisage that the FA would suspend their registrations.

  • Who has authority to investigate and sanction Mino Raiola for regulatory breaches (if there is any)?

The final central question is: which governing body, in this case either the English FA, the Italian FIGC or FIFA, has the authority to investigate and sanction potential regulatory breaches in the transfer? The jurisdictional nexus derives from the international dimension of a transfer involving two different associations, (English FA and Italian FIGC) and the application of FIFA Regulations on Status and Transfer of Players (FIFA RSTP). It gets even more complicated if Raiola’s original intermediary registration with the Dutch FA is taken into consideration. Against this background, the FIFA Regulations on Working with Intermediaries (FIFA RWI)’s fundamental aim was to bring some transparency in an opaque market and Article 9.1 FIFA RWI authorises associations to hand out sanctions on any party under their jurisdiction that commits regulatory breach of FIFA regulations as well as their statutes or regulations. The article implies therefore that either the English FA or the Italian FIGC (or the Dutch KNVB) may have the authority to sanction Raiola if he falls under their jurisdiction. In the case of intermediaries, the jurisdiction is generally inferred by the registration and the English FA obliges any applicants to submit to its jurisdiction through the declaration under its intermediary registration process. A close scrutiny of the English FA’s intermediary disclosures reveals Mino Raiola’s intermediary registration as natural person (see here). He has also registered his five companies as legal persons including Uuniqq Srl (see here) which is the one used for the transfer of Pogba with the English FA. These registrations could provide the English FA with jurisdiction over Mino Raiola to investigate the transaction and, if any regulatory breach is proven, to impose any sanctions. The investigative power of the English FA over Minor Raiola also derives directly from his registration under which he consented to communicate to the English FA , for the purposes of investigation, all contracts, agreements and records in connection with his activities as an intermediary. Moreover, if for any reason Mino Raiola gets eventually sanctioned by the English FA, FIFA would have the authority to extend the sanction worldwide (Article 9.2 of FIFA RWI). 


Conclusion: Regulating intermediaries without FIFA 

What are the broader lessons we can learn from this case?

  • First, the transfer market remains, despite the recent TPO ban and FIFA RWI, an opaque market on which conflicts of interest are routine. In this regard, FIFA’s decision to retreat from any direct involvement in the regulation of intermediaries, despite the obvious shortcomings of the old licensing system, has proven to be a relatively poor and to some extent incoherent choice. The legitimate objectives invoked to ban TPO are in turn betrayed by the decision to let go of any supervision of intermediaries. In general, the cognitive dissonance of FIFA vis-à-vis the transfer system is striking, it attacks on the one hand (rightly in the view of one of us) the financiarization of football through TPO, but supports it on the other by maintaining in place a system that transforms players into speculative assets.
  • Second, the scope of regulation of intermediaries is now exclusively dependent on the decisions of national federations. If the English FA decides to crack down on conflicts of interest in the transfer market, it will have a tremendous impact on the way intermediaries operate. The English market represents a huge share of the whole transfer market and is hardly avoidable for major intermediaries. Further, if the federations of the so-called big five (England, France, Italy, Germany, Spain) leagues would accept to coordinate their intermediaries’ regulations, they would have such a dominant market position that in practice they would very much define how the transfer market operates. In this regard, the Pogba case will be decisive (and symbolic) to determine whether the English FA is ready to lead the way down a stricter regulatory road.
  • Third, fans (and their clubs) are the ultimate losers of this state of play, they should rebel! The intermediaries’ fees are a consequence of the structural lack of competition and transparency in the transfer market. In the end, those who are going to the stadium every week or have an expensive subscription to watch the Premier League are paying the intermediaries. We the consumers of football are the ones on the losing end of this masquerade of a market. If clubs are unwilling to assert their contractual rights against ruthless intermediaries, it is unlikely for example that Manchester United will ask compensation from Mino Raiola if he omitted to inform them of the obvious conflicts of interest in the Pogba transfer, their supporters (and shareholders) should try to force them to do so.

 

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