Editor's note
Zlatka Koleva is a graduate from the Erasmus University Rotterdam and is currently an Intern at the ASSER International Sports Law Centre.
The decision on appeal in the case
of O’Bannon v. NCAA seems,
at first sight, to deliver answers right on time regarding the unpaid use of
names, images and likenesses (NILs) of amateur college athletes, which has been
an ongoing debate in the US after last year’s district court decision that
amateur players in the college games deserve to receive compensation for their
NILs.[1]
The ongoing struggle for compensation in exchange for NILs used in TV
broadcasts and video games in the US has reached a turning point and many have
waited impatiently for the final say of the Court of Appeal for the 9th
circuit. The court’s ruling on appeal for the 9th circuit, however,
raises more legitimate concerns for amateur sports in general than it offers
consolation to unprofessional college sportsmen. While the appellate court
agreed with the district court that NCAA should provide scholarships amounting
to the full cost of college attendance to student athletes, the former rejected
deferred payment to students of up to 5,000 dollars for NILs rights. The
conclusions reached in the case relate to the central antitrust concerns raised
by NCAA, namely the preservation of consumer demand for amateur sports and how
these interests can be best protected under antitrust law. More...
In June 2014, two prominent Dutch speed skaters, Mark Tuitert
(Olympic Champion 1500m) and Niels Kerstholt
(World Champion short track), filed a competition law complaint against the
International Skating Union (ISU) with the European Commission.
ChanceToCompeteTwitter.png (50.4KB)
Today, the
European Commission announced that it has opened a
formal antitrust investigation into International Skating Union (ISU) rules
that permanently ban skaters from competitions such as the Winter Olympics and
the ISU World and European Championships if they take part in events not organised
or promoted by the ISU. The Commissioner for Competition, Margrethe Vestager, stated that the Commission "will
investigate if such rules are being abused to enforce a monopoly over the
organisation of sporting events or otherwise restrict competition. Athletes can
only compete at the highest level for a limited number of years, so there must
be good reasons for preventing them to take part in events."
Since
the case originates from legal advice provided by the ASSER International
Sports Law Centre, we thought it would be helpful to provide some
clarifications on the background of the case and the main legal issues at
stake. More...
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...
Editor's note
Piotr is an intern at the ASSER International Sports Law Centre.
Introduction
On 24 July the Court of Arbitration
for Sport (CAS) issued its decision in the proceedings brought by the Indian
athlete Ms. Dutee Chand against the Athletics Federation of India (AFI) and the
International Association of Athletics Federations (IAAF) in which she
challenged the validity of the IAAF Regulations Governing Eligibility of
Female with Hyperandrogenism to Compete in Women’s Competition (Regulations). The Regulations were
established in 2011 as a response to the controversies surrounding South
African athlete Caster Semenya (see e.g.
here, here, and here), and for the purpose of
safeguarding fairness in sport by prohibiting women with hyperandrogenism, i.e. those with excessive levels of
endogenous (naturally occurring) testosterone, from competing in women athletics
competitions. Owing to the subject-matter that the Regulations cover, the case
before the CAS generated complex legal, scientific and ethical questions. The
following case note thus aims at explaining how the Panel addressed the issues
raised by the Indian athlete. It follows a previous blog we published in December 2014 that
analysed the arguments raised in favour of Ms. Chand. More...
Editor's note: James Kitching is Legal Counsel and Secretary to the AFC judicial bodies at the Asian Football Confederation. James is an Australian and Italian citizen and one of the few Australians working in international sports law. He is admitted as barrister and solicitor in the Supreme Court of South Australia. James graduated from the International Master in the Management, Law, and Humanities of Sport offered by the Centre International d'Etude du Sport in July 2012.
Introduction
On 12 May 2015, the Court of Arbitration for Sport (CAS) announced that the World
Anti-Doping Agency (WADA) had filed
an appeal against the decision issued by the Australian Football League (AFL) Anti-Doping Tribunal (AADT) that thirty-four current and
former players of Essendon Football Club (Essendon)
had not committed any anti-doping rule violation (ADRV) identified within the AFL Anti-Doping Code (AADC). The players had each been charged with using
Thymosin-Beta 4 (TB4) during the
2012 AFL season.
On 1 June 2015, WADA announced that it had filed an appeal against the decision by the AADT to clear Mr.
Stephen Dank (Dank), a sports
scientist employed at Essendon during the relevant period, of twenty-one
charges of violating the AADC. Dank was, however, found guilty of ten charges and banned for life.
This blog will solely discuss the likelihood of the
first AADT decision (the Decision)
being overturned by the CAS. It will briefly summarise the facts, discuss the
applicable rules and decision of the AADT, review similar cases involving ‘non-analytical
positive’ ADRVs relating to the use of a prohibited substance or a prohibited
method, and examine whether the Code of Sports-related Arbitration (CAS Code) is able to assist WADA in its
appeal.
This blog will not examine the soap opera that was
the two years leading-up to the Decision. Readers seeking a comprehensive
factual background should view the excellent up-to-date timeline published by the
Australian Broadcasting Corporation. More...
Star Lawyer Jean-Louis Dupont is almost
a monopolist as far as high profile EU law and football cases are concerned.
This year, besides a mediatised challenge against UEFA’s FFP regulations, he
is going after FIFA’s TPO ban on behalf of the Spanish and
Portuguese leagues
in front of the EU Commission, but also before the Brussels First Instance
Court defending the infamous Malta-based football
investment firm Doyen Sport. FIFA and UEFA’s archenemy,
probably electrified by the 20 years of the Bosman ruling, is emphatically trying to
reproduce his world-famous legal prowess. Despite a first spark at a success in
the FFP case against UEFA with the Court of first instance of Brussels sending
a preliminary reference to the Court of Justice of the EU (CJEU), this has
proven to be a mirage as the CJEU refused, as foretold, to answer the questions of the Brussels Court,
while the provisory measures ordered by the judge have been suspended due to
UEFA’s appeal. But, there was still hope, the case against FIFA’s TPO ban, also
involving UEFA and the Belgium federation, was pending in front of the same
Brussels Court of First Instance, which had proven to be very willing to block UEFA’s
FFP regulations. Yet, the final ruling is another disappointment for Dupont
(and good news for FIFA). The Court refused to give way to Doyen’s
demands for provisional measures and a preliminary reference. The likelihood of
a timely Bosman bis repetita is
fading away. Fortunately, we got hold of the judgment of the Brussels court and
it is certainly of interest to all those eagerly awaiting to know whether
FIFA’s TPO ban will be deemed compatible or not with EU law. More...
“I'm
sure that in 1985, plutonium is available in every corner drugstore, but in
1955, it's a little hard to come by.” (Dr. Emmett L. Brown)[1]
Back to the future?
Availing oneself of EU law in the ambit of sports in
1995 must have felt a bit like digging for plutonium, but following the
landmark ruling of the European Court of Justice (ECJ) in the Bosman case[2],
20 years later, with all the buzz surrounding several cases where EU law is
being used as an efficient ammunition for shelling various sports governing or
organising bodies, one may wonder if in 2015 EU law is to be “found in every
drug store” and the recent cases (see inter alia Heinz Müller v 1. FSV Mainz 05, Daniel Striani ao v UEFA, Doyen Sports ao v URBSFA, FIFA, UEFA) [3] cannot
but invitingly evoke the spirit of 1995.
One of the aforementioned cases that also stands out
pertains to the injunction decision[4] issued
on 29 April 2015 by the Regional Court (Landesgericht) in Frankfurt am Main
(hereinafter: the Court) in the dispute between the intermediary company Firma
Rogon Sportmanagement (hereinafter: the claimant) and the German Football
Federation (Deutschen Fußball-Bund, DFB), where the claimant challenged the
provisions of the newly adopted DFB Regulations on Intermediaries (hereinafter: DFB Regulations)[5] for
being incompatible with Articles 101 and 102 TFEU.[6]
The Court, by acknowledging the urgency of the matter stemming from the
upcoming transfer window and the potential loss of clients, deemed a couple of
shells directed at the DFB Regulations to be well-aimed, and granted an
injunction due to breach of Article 101 TFEU. More...
Introduction
The first part of the present blog article provided a
general introduction to the compatibility of fixed-term contracts in football
with Directive 1999/70/EC[1]
(Directive). However, as the Member States of the European Union enjoy a
considerable discretion in the implementation of a directive, grasping the
impact of the Directive on the world of football would not be possible without considering
the national context. The recent ruling of the Arbeitsgericht Mainz (the lowest
German labour court; hereinafter the Court) in proceedings brought by a German
footballer Heinz Müller provides an important example in this regard. This second
part of the blog on the legality of fixed-term contract in football is devoted
to presenting and assessing the Court’s decision.
I. Facts and Procedure
Heinz Müller, the main protagonist of this case, was a goalkeeper
playing for 1.FSV Mainz 05 a club partaking to the German Bundesliga. More...
Introduction
On 25 March 2015, the Labour Court of Mainz
issued its decision in proceedings brought by a German footballer,
Heinz Müller, against his (now former) club 1. FSV Mainz 05 (Mainz 05). The
Court sided with the player and ruled that Müller should have been employed by
Mainz 05 for an indefinite period following his 2009 three year contract with
the club which was subsequently extended in 2011 to run until mid-2014. The
judgment was based on national law implementing Directive 1999/70 on fixed-term
work[1]
(Directive) with the latter being introduced pursuant to art. 155(2) TFEU (ex
art. 139(2) TEC). On the basis of this
article, European social partners’ may request a framework agreement which they
conclude to be implemented on the European Union (EU, Union) level by a Council
decision on a proposal from the Commission. One of the objectives of the framework
agreement,[2]
and therefore of the Directive, was to establish a system to prevent abuse
arising from the use of successive fixed-term employment contracts or
relationships[3]
which lies at the heart of the discussed problem.[4]
More...
Ever since UEFA started imposing disciplinary
measures to football clubs for not complying with Financial Fair Play’s break-even requirement in 2014, it remained a mystery how UEFA’s
disciplinary bodies were enforcing the Club Licensing and Financial Fair Play (“FFP”)
regulations, what measures it was imposing, and what the justifications were for
the imposition of these measures. For over a year, the general public could
only take note of the 23 settlement agreements between Europe’s footballing
body and the clubs. The evidential obstacle for a proper analysis was that the
actual settlements remained confidential, as was stressed in several of our
previous Blogs.[1]
The information provided by the press releases lacked the necessary information
to answer the abovementioned questions.
On 24 April 2015, the UEFA Club Financial
Control Body lifted part of the veil by referring FC
Dynamo Moscow to the Adjudicatory Body. Finally, the Adjudicatory Body had the
opportunity to decide on a “FFP case. The anxiously-awaited Decision was reached by
the Adjudicatory Chamber on 19 June and published not long after. Now that the
Decision has been made public, a new stage of the debate regarding UEFA’s FFP
policy can start.More...