The rise of Dutee Chand, India’s 100 and 200-meter champion in the under 18-category, was astonishing. Her achievements were more than promising: after only two years, she broke the 100m and 200m national junior records, competed in the 100m final at the World Youth Athletics Championships in Donetsk and collected two gold medals in the Asian Junior Championships in Chinese Taipei. But, in July 2014, this steady rise was abruptly halted. Following a request from the Athletics Federation of India (AFI), the Sports Authority of India (SAI) conducted blood tests on the Indian sprinters. Dutee was detected with female hyperandrogenism, i.e a condition where the female body produces high levels of testosterone. As a result, a few days before the Commonwealth Games in Glasgow, the AFI declared Dutee ineligible to compete under the IAAF Regulations and prevented her from competing in future national and international events in the female category. Pursuant to the IAAF ‘Hyperandrogenism Policy’, the AFI would allow Dutee to return to competition only if she lowers her testosterone level beneath the male range by means of medical or surgical treatment.[1] On 25 September 2014, Dutee filed an appeal before the CAS, seeking to overturn the AFI’s decision and declare IAAF and IOC’s hyperandrogenism regulations null and void. She is defending her right to compete the way she actually is: a woman with high levels of testosterone. Interestingly enough, albeit a respondent, AFI supports her case.

IAAF and IOC rules set limits to female hyperandrogenism, which is deemed an unfair advantage that erodes female sports integrity. While these rules have been contested with regard to their scientific and ethical aspects, this is the first time that they will be debated in court. This appeal could have far-reaching ramifications for the sports world. It does not only seek to pave the way for a better ‘deal’ for female athletes with hyperandrogenism, who are coerced into hormonal treatment and even surgeries to ‘normalise’ themselves as women[2], but it rather brings the CAS, for the first time, before the thorny question:

How to strike a right balance between the core principle of ‘fair play’ and norms of non-discrimination, in cases where a determination of who qualifies as a ‘woman’ for the purposes of sport has to be made? 

‘Prove your gender!’

The separation between women and men in athletic competitions has been paradigmatic. Considering the sex-based physiological differences, which in case of a mixed competition would lead to virtually no women participation, the separation opened the door for women to compete at the highest levels. Nevertheless, the determination on the eligibility of women athletes to participate in the female category has become a source of controversies. So far, as decades of flawed IOC policies have demonstrated, it has not been clarified ‘who is woman’ for the purposes of sport.

The idea of ‘sex testing’ in sports dates back to 1960s and even preceded doping tests. The first gender test introduced by the IOC is nowadays laughable: nude parades of female competitors before a panel of judges in charge to verify the presence of female genitals and other sex characteristics.[3] Soon, this test was proven unworkable, since in intersex conditions, where people are born with both male and female genitalia, the outside did not match the inside.

The next test introduced was dubbed ‘chromosome testing’, which was based on the assumption that chromosomes are the key factor in determining sex, i.e. XY for male and XX for female. However, this test overlooked natural situations, where males have an extra X chromosome or females are missing one and was, therefore, soon abandoned. Thereafter, the SRY (i.e. the gene that triggers male sex determination) gene detection test was introduced, but the Olympics Games in Atlanta 1996 proved its deficiency:  eight women were tested positive for it and all were finally cleared for competition. Following this series of gender policies, which were deemed particularly discriminatory towards women with sexual development disorders, the IOC removed gender verification tests in June 1999.

It was not before 2009, in the wake of the Caster Semenya case, involving the South African 800m and 1500m runner and world champion, that an urgent need for reconsidering sex determination policies was brought into surface. Semenya’s masculine appearance, unusual muscle build and, foremost, her outstanding victory in the 2009 World Championships 800m race, fuelled a frenzy of suspicions on her gender. Following her victory, in an unprecedented breach of confidentiality and privacy rules, the IAAF leaked that Semenya had undergone tests to determine whether she had an unfair advantage as compared with other women. For three years, Semenya was not allowed to participate in events as her gender was still under investigation. In 2012, she was cleared by the gender testing committee and she began racing again. The story of Semenya, who suffered from humiliation and castigation by athletics officials and the media, unveiled IAAF’s incompetency in handling complex gender-related issues.

As a reply, in an attempt to establish an unambiguous, objective and scientifically based policy, IAAF and IOC, in 2011 and 2012 respectively, released new regulations. In that context, the focus shifted from sex testing to endogenous testosterone testing. The natural levels of testosterone have become the new golden rule: the purpose is not to determine ‘who is woman’, but rather ‘what makes a woman a woman’. Both policies are based on the assumption that testosterone is a key factor for men’s often superior strength and speed and, as a result, women with testosterone levels typical for males have an ‘unfair’ advantage. Therefore, according to the new regulations, if a female athlete has androgen levels higher than the normal male range, she is deemed ineligible to compete in women’s competition and will only be considered able to compete again if she lowers her testosterone level by means of medical or surgical treatment.

Despite IAAF’s protest to the contrary, this is the recent re-incarnation of ‘sex testing’.[4] The real import of these rules has been illustrated by the Dutee’s case. With Dutee’s appeal pending before the CAS, the legality of IAAF and IOC’s current gender policy needs to be scrutinized.

The unfair results of ‘fairness in sports’: The dark side of IAAF’s and IOC’s gender policy

Fair competition, which provides a fair opportunity to compete and prohibits athletes from competing with unfair advantages, has been widely accepted as a value integral to sports.[5] In this light, considering hyperandrogenism as an uncommon athletic capacity in relation to other female competitors, IAAF and IOC introduced the ineligibility of female athletes with hyperandrogenism in order to preserve the ‘sacrosanct’ competitive equality in the female category. However, it is our opinion that the current policy is on the borderline of what is fair for the following reasons: 

1. The ‘testosterone’ criterion as yardstick to determine eligibility?

According to the IAAF androgen policy, a general scientific consensus on naturally occurring testosterone as a relevant physical characteristic to separate athletes into different competition classes exists. The first problem is that this argument relies on the flawed assumption that a bright line between male and female can be drawn, not acknowledging situations of an ‘intersex’ status. As David Epstein, reporter and author of “The Sports Gene”, puts it clearly “neither body parts nor for the chromosome within them unequivocally differentiate male from female athletes”. Furthermore, while IAAF relies on a binary perception of biological sex in order to identify the gender of athletes, gender, in fact, is a social construction, which does not correspond to the complexities of biological sex. Secondly, it relies on the assumption that testosterone levels in the human body have limited variability within the sexes. Nevertheless, recent studies have found a complete overlap between testosterone levels in elite men and women, ripping apart testosterone levels as a reliable factor for separating between sexes.  The third problem is the lack of supporting scientific evidence that a competitive advantage can derive from high natural levels of testosterone.[6] Indeed, the scientific understanding of testosterone receptors is far from comprehensive. A recent research supported by the Swiss WADA laboratory added to the uncertainty: “Unfortunately, and to the best of our knowledge, there are neither available data on serum androgen levels nor reliable statistics on the so-called hyperandrogenism among a large and high-level female athletes’ population”.

IAAF policy, in overall, seems to create an absurd result: instead of introducing an objective criterion-if any- for separating between men and women, it rather suggests a classification of athletes between ‘high testosterone’ and ‘low testosterone’. However, ‘High-T’ and ‘Low-T’ categories of competition are not on the agenda.  

2. IAAF policy fosters discrimination

The current policy suggests a discriminatory treatment: it targets only women suspected for hyperandrogenism due to their physical appearance and high levels of performance. Women are asked to prove that they are female, while there is no such a requirement or restriction for men.

Furthermore, the fundament itself of the androgen policy is discriminatory against women who do not conform to traditional notions of femininity. Indeed, it lays on the physiological superiority of men in terms of endurance and strength as compared to women, perpetuating the long-established perception that an intrinsic link between manliness and sport exists, while femininity is associated with more gentle exercise.[7] In IAAF’s view, ‘too masculine women’ do not belong to the female category. It seems that under a scientifically based guise, IAAF seeks to impose a preference for certain social norms regarding what constitutes femininity in a woman’s appearance as criteria for participation.[8]

However, in order to perceive the level of discrimination, the most important question to be addressed is how you qualify an athlete. Hyperandrogenism is a rare biological characteristic and according to IAAF regulations and controversial scientific evidence, it gives female athletes a natural advantage that other female athletes do not have. Similarly, long limbs, broad wingspan for swimmers and height for basketball players are natural advantages.[9] Nevertheless, the later ones, but for hyperandrogenism, have never been considered as unfair. Indeed, the quintessence of elite sports lays on the participation of individuals with rare biological characteristics. In this light, the inevitable question arises: Why should female athletes like Dutee be obliged to reduce or eliminate an inherent advantage that they are born with? Why is then nobody asking a swimmer like Phelps to operate his double-jointed ankles? Or as SAI director-general Juji Thomson remarked: “ Just because Usain Bolt's height is to his advantage will the international authorities want his legs chopped off to ensure a level-playing field?” In other words, why hyperandrogenism has been viewed as different to other biological advantages broadly accepted in some elite athletes? The answer is simple: IAAF’s policy reflects the well-established public perception of femininity and female athletes who do not conform to this norm have to be excluded or ‘feminise’ themselves.

Thereby, IAAF and IOC policy exacerbate bullying and marginalization of women in sports putting their physical difference under unethical and humiliating scrutiny. Semenya had been intruded into the toilets by competitors seeking to check whether she really was a girl. While, after a race in Berlin, her competitor Mariya Savinova sneered “just look at her” when she was asked whether Semenya was a man. Similarly, the most talented female athletes, such as Serena Williams, Martina Navratilova, WNBA player Brittney Griner– and the catalogue is really long-, have been accused of not really being female. This play is up again with IAAF’s ‘are you woman enough to compete as female?’ policy seeking to confer legality to discrimination.

What should not be overlooked, finally, is the bitter truth that the current IAAF policy inevitably targets in priority women from developing countries. Athletes like Semenya or Dutee never perceived their difference, until they appeared on track field courts, where this difference has been flagged in the most humiliating way as abnormality. In sharp contrast to IOC’s declarations on eliminating any kind of discrimination in sports, IAAF and IOC gender policy achieves the most undesirable result: sex and social discrimination ‘all-in-one’. 

3. The disproportionate results of IAAF’s policy: To undergo treatment or not? This is not a question!

Female athletes with hyperandrogenism are faced with two choices: undergo medical treatment to fit the IAAF ‘Procrustean bed’ or abandon female competitions. The disproportionate and unfair consequences are evident.

As Katrina Karkazis, pioneer of Dutee’s motion against IAAF, remarks, the IAAF and IOC treat a physical difference as an illness, which requires a medical response. However, the necessity of such an invasive medical, or surgical, intervention is highly questionable. The suggested treatment does not stop at lowering female athletes’ testosterone level below IAAF’s limit of 10nmol/liter, but it rather aims to eliminate hyperandrogenism. In this sense, sharing IAAF’s assumption that testosterone is the key to performance, such treatment will render athletes like Dutee less competitive than other women who do not have hyperandrogenism or whose hyperandrogenism is below the cut-off. Thereby, IAAF policy, albeit mandating fairness in competition, puts a disproportionate burden on female athletes with hyperandrogenism.

Furthermore, concerns have been raised about the medical effects of the treatment suggested. In fact, it has been argued that long-term hormone therapy can have devastating results on female athletes’ health. Dutee’s denial to undergo this treatment is far from a ‘caprice’. A study published in 2013 revealed the cases of four female athletes identified as having hyperandrogenism, who were sent to a clinic in France. It was reported that those athletes also had medical procedures that had nothing to do with lowering their testosterone levels for sports: a reduction to the size of their clitorises, feminizing plastic surgery and oestrogen replacement therapy. It seems that the IAAF is pulling the trigger on female athletes’ head, who are ready to accept any treatment- even the most questionable ones- in order to keep competing.

On the other hand, the ineligibility sanction leads to a further disproportionate result: If Dutee is considered too masculine to compete in the female category, does she qualify for the male category? Can the mere presence of higher testosterone levels in a female athlete’s body presume that she can compete as a man? The answer has to be answered in negative, notwithstanding the ‘fair play’ issues that may arise. IAAF and IOC rules are cruelly disproportionate: athletes like Dutee who refuse to undergo this questionable treatment are effectively left without a forum to display their talent.

Do it like Pistorius

So far, the IAAF and IOC policy have been shown scientifically shaky, discriminatory and disproportionate. In parallel with these arguments, Dutee has also a very important precedent to rely upon: the CAS ruling in the Pistorius case.

In 2008, Oscar Pistorius, the South African double amputee runner, challenged IAAF rules that prohibited competitive running on ‘cheetah’ legs in international IAAF-sanctioned events alongside able-bodied athlete as being in breach of its commitment to non-discrimination. In that case, the fundamental rights of disabled athletes to be adequately accommodated and have genuinely equal opportunity to compete were at issue. Pistorius had to prove that he gained no advantage from using the prostheses. Reviewing scientific testing and analysis, the CAS concluded that ‘Cheetah’ legs did not give Pistorius an overall advantage.

Although the ‘tailor-made’ effect of the award could raise serious criticism[10], the Pistorius case has been landmark from a twofold point of view. Firstly, the CAS did not hesitate to challenge the indeterminacy of scientific analysis and developed the ‘net advantage’ approach, which stipulates that both the benefits and burdens have to be taken into consideration in determining whether a device provides an advantage to an athlete who uses it.[11] A similar approach has been adopted in the Veerpalu doping case, where the CAS questioned the scientific reliability of the limits applied for the WADA human growth hormone test (HGH).[12] Pistorius and Veerpalu cases have set an important threshold: international sports governing bodies, when it comes to enforce scientific- related sanctions, should rely on scientifically well-founded assessments.

Secondly, the CAS took an extraordinary step. It sent a clear message to international federations that they must address the eligibility criteria surrounding disabled athletes in a transparent and impartial manner.[13] There is no reason why the CAS in the Dutee case would do it differently. After all, sporting rules that seek to ensure fair competition and prevent a competitor from obtaining an unfair advantage have at least to be proportionate and non-discriminatory. 

Let Dutee Run?

The lines between male and female are blurring. As Fausto-Sterling has observed “the reason sports federations can’t get this right is because there is no right”.[14] Sports governing bodies may never be able to ensure fair competition without reaching absurd results.[15] In its daunting task to legally enforce controversial science related and ethical issues, CAS is facing a double challenge. It has the opportunity to set fair and accurate eligibility rules based on objective criteria, which will also preserve the essence of sports. Undoubtedly, sports governing bodies have the authority to establish their eligibility rules. However, self-regulation does not come without limits: sports federations’ rules have to comply with the non-discrimination clauses included in their statutes[16] and the IOC charter. The role of the CAS in monitoring the compliance of these regulations with non-discrimination norms is essential. Therefore, in some cases, CAS has to leave its ‘comfort-zone’: it has to deviate from its well-established practice to provide a significant degree of deference to sports governing bodies with regard to their authority to establish the eligibility rules and rather applies a ‘fairness’ requirement on a case-by-case basis, such as in the Pistorius case.

More importantly, CAS has the chance to finally flesh out the toothless IAAF and IOC commitments to gender equality. Dutee’s case is a fertile ground for an interpretation in the light and purpose of the recent UN resolution on sport and the proclaimed values underpinning the Olympic 2020 Agenda. After all, what is the point of trumpeting non-discrimination in sports, if, in 2014, a female athlete is deemed ‘not woman enough’ to compete with women?

Whatever the CAS decides, one thing remains certain: discrimination against women with sexual development specificities will not anymore be in the blind spot of the law. Dutee showed the way.

[1] IAAF Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition - In force as from 1st May 2011 ,  Article 6.8 <http://www.iaaf.org/about-iaaf/documents/medical >

[2] Dr Ben Koh, Daryl Adair and  Peter Sonksen OBE, ‘Testosterone, sex and gender differentiation in sport – where science and sports law meet’ (14 October 2014) <http://www.lawinsport.com/articles/item/testosterone-sex-and-gender-differentiation-in-sport-where-science-and-sports-law-meet>

[3]  J Ellison, ‘Caster Semenya And The IOC’s Olympics Gender Bender’ (26 July 2012) <http://www.thedailybeast.com/articles/2012/07/26/caster-semenya-and-the-ioc-s-olympics-gender-bender.html>

[4] R Pielke, ‘Dutee Chand, science and the spirit of sport: why IAAF policy is deeply flawed’ (20 October 2014) <http://www.sportingintelligence.com/2014/10/20/dutee-chand-science-and-the-spirit-of-sport-why-iaaf-policy-is-deeply-flawed-201001/>

[5] P Zettler, ‘Is It Cheating to Use the Cheetahs? The Implications of Technologically Innovative Prostheses for Sports Values and Rules’ (2009) 27 Boston University International Law Journal, 389.

[6] M Naimark, ‘A New Study Supports Female Athletes Unfairly Excluded From Sport’ (12 September 2014) <http://www.slate.com/blogs/outward/2014/09/12/sex_verification_in_sports_a_new_study_supports_unfairly_excluded_female.html>

[7] Dr Ben Koh,Daryl Adair and  Peter Sonksen OBE (n 2)

[8] R Pielke (n 4)

[9] For a very interesting comparison of the physiques between athletes from a wide range of different sports and competitions, see Howard Schatz’s Athlete series.

[10] CAS 2008/A/1480 Pistorius v/ IAAF (16 May 2008), para 56.

[11] CAS 2008/A/1480 Pistorius v/ IAAF (16 May 2008), para 36.

[12] M Viret and E Wisnosky, ‘Sinkewitz v. Veerpalu: Struggling to fit anti-doping science into a legal framework’ (19 March 2014) < http://wadc-commentary.com/wp-content/uploads/2014/04/WADC_COMMENTARY_Sinkewitz-Blog.pdf>

[13] Cornelius, 236

[14] J Ellison (n 3).

[15] P Zettler (n 5), 394.

[16] For instance, IAAF Constitution 2011, Art 3: “The Objects of IAAF are (…) 4. To strive to ensure that no gender, race, religious, political or other kind of unfair discrimination exists, continues to exist, or is allowed to develop in Athletics in any form, and that all may participate in Athletics regardless of their gender, race, religious or political views or any other irrelevant factor.”

Football intermediaries, or agents, are again under attack in the news. For some, corrupt behaviour has become endemic in football’s culture. It is always dangerous to scapegoat a whole profession or a group of people. Many intermediaries are trying their best to lawfully defend the interests of their clients, but some are not. The key focus should be on providing an adequate legal and administrative framework to limit the opportunities for corrupt behaviour in the profession. This is easier said than done, however. We are dealing with an intrinsically transnationalized business, often conducted by intermediaries who are not subjected to the disciplinary power of federations. Sports governing bodies are lacking the police power and human resources necessary to force the intermediaries to abide by their private standards. In this context, this blog aims to review a recent case in front of the regional court of Frankfurt in Germany, which highlights the legal challenges facing (and leeway available to) national federations when regulating the profession.

Since April 2015, the FIFA Regulations on Working with Intermediaries (“Intermediaries Regulations”) entered into force. They replaced the 2008 FIFA Players’ Agents Regulation and introduced dramatic changes to the regulation of players’ agents (for a quick introduction read our short guide here). Although seeing its first light on April Fools’ Day, the Intermediaries Regulations are not to be taken lightly. On the contrary, the new rules constitute a major turning point in the governance of player and club representation. Furthermore, the question of the compatibility of the Intermediaries Regulations with EU competition law promptly arose when the Landgericht Frankfurt am Main (LG) had to rule on a challenge to the Reglement für Spielervermittlung (DFB-regulations), the national measure implementing the FIFA Regulations issued by the German Football Federation (DFB, Deutschen Fußball Bund). In its injunction of 29 April 2015 the LG found some provisions of the DFB-regulations to be contrary to Article 101 TFEU (see our earlier blog). This decision was appealed by both parties to the Oberlandesgericht Frankfurt am Main (OLG), which rendered its ruling on 2 February 2016. This blog aims to analyse the decision of the OLG, while also putting it into its wider legal and social context.

I.              Back to the future: The Piau case revived

It is not the first time that the regulation of football agents/intermediaries by football federations and EU law are colliding. The previous Piau saga that started on 23 March 1998 with a complaint to the European Commission by a French agent, Laurent Piau, ended only very recently in front of the French Courts with a painful defeat for Mr. Piau. In the framework of that case, the then Court of First Instance of the EC (CFI) issued a ruling on the compatibility of the FIFA Agents Regulations with EU competition law, on appeal against the Commission’s decision to reject the complaint by Laurent Piau. In that decision, the CFI famously showed its surprise to see a private association engaging in regulatory activity without an express delegation of public power. In the words of the Tribunal, “the rule-making power claimed by a private organisation like FIFA, whose main statutory purpose is to promote football, is indeed open to question”.[1] Indeed, “[i]n principle, such regulation, which constitutes policing of an economic activity and touches on fundamental freedoms, falls within the competence of the public authorities”.[2] Yet, as many know, the world of football is special and in practice national states have very much relinquish regulatory control over it.

The CFI was pragmatic enough to recognize this unusual state of affairs. In fact, this peculiarity also enabled it to consider that the FIFA regulations, issued by a private organization, could not escape the scope of EU competition law.[3] Yet, in fine, the CFI endorsed the compatibility of the FIFA regulations with EU Competition law. It considered first that the European Commission (EC) was right in holding that it obtained the repeal of the most restrictive provisions contained in the original FIFA regulations.[4] Furthermore, the CFI supported the EC’s view that the compulsory nature of the FIFA licensing mechanism could be justified under the framework of then Article 81(3) EC [now 101(3)TFEU]. It stated that the “Commission did not commit a manifest error of assessment by considering that the restrictions stemming from the compulsory nature of the licence might benefit from an exemption on the basis of Article 81(3) EC”.[5] Finally, the CFI affirmed the applicability of Article 82 EC [now 102 TFEU] to the FIFA regulations, but concluded that “it follows from the above considerations regarding the amended regulations and the possible exemption under Article 81(3) EC that such an abuse [of a dominant position] has not been established”.[6]

Thus, based on the framework of analysis used in Piau, there is absolutely no doubt that EU competition law is applicable to the DFB-regulations (and analogically to all the other national regulations implementing the new FIFA Intermediaries Regulations).[7] The key question, however, is whether the restrictive effect on competition of those new rules can be justified. Such a justificatory framework of analysis is also broadly in line with the CJEU’s case law on competition law and sport, and in particular its Meca-Medina ruling.[8] The question of the legitimate objectives and proportionality of the new rules was rightly identified by the LG and OLG as the defining one to assess rule-by-rule the legality of the DFB’s regulations.

II.            The OLG Frankfurt and the Compatibility of the DFB regulations with EU Competition Law

The OLG’s ruling bears no clear winner or loser, as both parties can claim to have prevailed on parts of their claims. In its decision the Court clearly outlined a set of provisions that it deemed compatible with EU law, and another contrary to it. In any event, this case is again a good reminder that EU law is no golden bullet against the regulations of the Sports Governing Bodies (SGBs). Instead, their compatibility with EU law must be assessed on a case-by-case basis, bearing in mind their contexts and objectives. Nevertheless, EU law can be invoked to challenge the rationality of the SGBs’ regulations and to check any disproportionate encroachment on the economic freedom of the affected actors.

A.    The DFB rules incompatible with EU Law

In the present case, the DFB’s regulations for intermediaries faced a relatively detailed quasi-constitutional control by the OLG. The German court found that parts of the regulatory options adopted by the German federation are disproportionate to attain their objectives and therefore contrary to Article 101 TFEU. This is especially true of the rule forcing intermediaries to abide by the rules and jurisdictions of the DFB, UEFA and FIFA, and of the rule imposing a duty to provide an extended certificate of good conduct usually reserved for professions involving a risk to the integrity of minors.

In line with the decision in first instance, the OLG ruled against the provision requiring intermediaries to submit to the jurisdictions of FIFA, UEFA, DFB and its members in connection with all violations of their regulations and statutes (see point 1 of DFB Vermittlererklärung für natürliche Personen – Anhang 1, and a related notice later issued by the DFB).^[9] In the OLG’s view, it would result in an impossible situation for intermediaries, as they would be required to have a ‘reasonable’ knowledge of, at least, 35 different association statutes and face being subjected to 30 different jurisdictions.^[10] The court puts forward that it is necessary, as a prerequisite for the submission of non-members to the rules of an association and its jurisdiction, to be able, at any time to take knowledge, in a reasonable manner, of the content of the regulations, compliance mechanisms and sanctions. This possibility was not warranted in the present case. In other words, if the DFB wishes to subject intermediaries to its jurisdiction it is possible, but it would need to clearly define what such a submission would entail in terms both of the rules and procedures that would be applicable. In fact, as recognized by the European Parliament,[11] some type of disciplinary control by the national federations over the intermediaries is necessary to give some teeth to their regulations.

Furthermore, the OLG also rules that agents cannot be forced to submit an extended certificate of good conduct (erweiterten Führungszeugnisses).^[12] The OLG agrees with the appellant that this duty is impossible to fulfil as under German criminal law, such certificate can be issued only for occupations suitable to establish/result in contacts with children and young people. Yet, such a contact with minors is not at the heart of an intermediary’s profession, especially that, as we will see below, intermediaries cannot derive any financial compensation for a transfer or employment contract involving a minor, it seems thus impossible for he or she to obtain the requisite certificate.^[13]

The OLG has clearly drawn a line in the sand. There is a limit to the obligations the DFB can impose, they must be rationally possible to fulfil and connected to the objectives pursued and must not be unreasonably burdensome for the intermediaries.

B.    The DFB rules compatible with EU Law

The judgment is rather remarkable for what it considers proportionate regulation by the DFB.

First, it endorses, contrary to the LG, the proportionality of the ban on intermediary fees for transfers or contracts involving minors.[14] This ban was a very controversial part of the new FIFA regulations, as it was deemed extremely restrictive of the economic freedom of intermediaries and potentially counter-productive. [15] However, in the view of the OLG, article 7.7 of the DFB-regulations pursues a legitimate objective: the protection of minors (der Minderjährigenschutz).[16] It aims, more specifically, to prevent the transfer of underage players based solely on the economic interests of the intermediary and/or that underage players are taken to Germany without a stable employment perspective.[17] Moreover, the OLG deems this prohibition to be necessary as the other legal protections for minors provided by the German civil code are often inapplicable.[18] Finally, the court considers this prohibition to be proportionate. First, because intermediaries are not barred from being remunerated for advising minors when this advice is not requested in the framework of the conclusion of an employment contract or a transfer. Furthermore, the OLG notes that similar measures have been adopted in all other European countries and is supportive of a uniform approach to the regulation of the role of intermediaries in transfers of minors.[19] Overall, this is not a surprising assessment. The need to combat human trafficking and to fight abuses linked to transfers of minors have been repeatedly emphasised by the European institutions in their soft law.[20] Recently, the European Parliament underlined ‘the specific vulnerability of young players and the risk of them becoming victims of human trafficking’[21]. Only time will tell whether this type of draconian measure will rein such abuses. In any event, if reducing the economic incentives of intermediaries linked to transfers of minors will most probably restrict their economic opportunities, it is also likely to diminish the connected incentives for human trafficking in football.[22]

Furthermore, the OLG’s judgment also endorses the transparency requirements imposed by the DFB. More precisely, it deemed the obligation for clubs and players to disclose the contract details covering remuneration and payments to intermediaries’ enshrined in article 6.1 DFB-regulations compatible with EU competition law.[23] The legitimate aim pursued is the transparency and traceability of the market for intermediaries. Behind this objective, lies the idea that player transfers should be primarily based on sporting, rather than financial reasons. Consequently, it deems that an obligation to disclose payments connected to intermediation is necessarily linked to the attainment of this goal. This duty to disclose is also considered proportionate. For the OLG, it does not run counter the German data protection rules, nor does it constitute a disproportionate infringement in the commercial operations of an intermediary. When balancing the interest of the intermediary to keep the financial flows secret and the interest of the DFB in unveiling these flows, the OLG finds that transparency aimed at limiting the external influence of intermediaries on transfers should prevail.^[24] In the eyes of the court, the DFB has concretely demonstrated that the negotiation of transfers is linked with important fees (erheblichen Zahlungen), which are liable to trigger a transfer of a player for economic reasons, rather than sporting ones. This, the OLG argues, runs counter to the ideal of fair sporting competitions. ^[25] In general, striving for greater transparency/publicity in the intermediary market is at the heart of the regulatory shift intended by the new FIFA regulations.[26] In fact, a recent report by two Harvard based scholars argues that the lack of transparency in the transfer market is one of the main causes for money laundering and corruption in football.[27] This is reinforced by the concentration of the market for intermediaries, with a group of happy few constituting an oligopoly.[28] Besides, due to the inherently transnational operation of the market, it is extremely difficult to monitor for national authorities. Intermediaries rely on complex contractual structures (many of them have been recently exposed on the footballleaks website), juggling with national laws and arbitration clauses to reduce both their taxes and regulatory oversight. Though the transparency requirements imposed by the DFB are extremely limited (a first rough synthesis for 2015 is available here) and way bolder proposals must be put on the table,[29] this is an important step in the right direction. This quest for transparency and openness around the financial flows involving intermediaries is very much “applauded” by the European parliament.[30] In fact, if supporters and citizens, who are often in fine called to financial rescue when an overspending club is ailing, are expected to exercise a public check over the over-optimistic (and sometimes corrupt) management of clubs and the correlated extravagant fees paid to intermediaries, they must be able to rely on trustful data to conduct such a critical assessment.

Finally, and this is most interesting in light of the on-going legal battle over FIFA’s third-party ownership ban, the OLG, confirming the LG’s assessment, also recognized the legitimacy of the DFB’s ban on an intermediary having an interest in future transfer compensations.[31] Its legitimate purpose is to rein the disproportionate influence, based on personal financial incentives, of intermediaries on a player’s transfers.[32] The OLG seems to follow the LG’s view that the potentiality of obtaining a share of future transfer fees constitutes a major incentive for intermediaries to actively encourage an early termination of a player’s contract.[33] In short, the German court endorses the need to limit incentives for intermediaries to trigger contractual ruptures over their personal financial interest in a future transfer of a player. A similar logic could be applied to the proportionality assessment of the TPO ban. Indeed, this ban is also aimed at avoiding that transfers be triggered for purely financial reasons. The idea being that a club should not be in a position of dependence vis-à-vis a third-party (in practice often an intermediary) that would force it to transfer a player to satisfy its own purely economic rationale. In this regard, the OLG’s judgment is very encouraging for FIFA as it supports a logic of ‘de-financiarization’ of football. The court is very much recognizing that economic incentives should not be front-and-centre in contemporary football and that the fact that there is a clear economic dimension to sport (triggering for example the application of EU law and/or labour law) should not overshadow its other dimensions (cultural, social, ethical, educational). Conciliation is necessary, players are not amateurs anymore, transfers are possible, TV rights money can trickle down, but the rampant financiarization (and collateralization) of labour contracts seems both dangerous in terms of the economic instability it might trigger (think FC Twente) and of the unethical abuses it might incite and conceal.

Conclusion: The legal consequences of FIFA’s retreat

The new FIFA Regulations for Intermediaries are first and foremost a confession of impotence from the part of FIFA. Fifteen years after introducing a worldwide regulatory mechanism applicable to football agents, FIFA basically acknowledged its incapacity to control the profession and rein its negative externalities. The old licensing system proved unable to provide a qualitative level playing field for agents, nor was FIFA capable (or willing to invest enough resources) to truly enforce its rules. In fact, at the local level, a multitude of informal agents and practices had practically hollowed out the FIFA Regulations.[34] Yet, instead of strengthening its regulatory apparatus and enforcement mechanisms, FIFA decided to retreat and basically handed over the responsibility to regulate intermediaries to the multitude of national federations. One can be excused for doubting at first that such a re-nationalization is well suited to control an inherently transnational market.[35] Yet, there is still some room left for hope.

The re-nationalization of the Regulations will undoubtedly bring about a complex regulatory landscape with different regimes applicable in each national jurisdiction.[36] Moreover, agents/intermediaries might face an enhanced amount of red tape and administrative fees if they aim at entering each and every national market. These negative consequences can be tempered, however, by a number of things. First of all, the market for intermediaries has never been truly transnational. Sociologists have shown that it operates more as a chain of national actors rather than with truly transnational players.[37] Furthermore, the big transfer money (and thus intermediary money) in football is concentrated on a small number of national markets (mainly the European big five[38]). This means that if those markets jointly engage in a strict regulation of intermediaries it will affect disproportionately (probably positively) the profession. Due to massive TV rights revenues these national federations and leagues also dispose of the necessary (financial and administrative) resources to rigorously enforce their rules. For example, if at a European level, national federations were able to coordinate their new intermediaries regulations and provide a level regulatory field for the profession, which would involve both reducing the administrative costs to exercise it and a sharper control of its negative externalities, FIFA’s regulatory retreat would be largely compensated by a potentially more effective regulatory system.

What is the role of EU law in this regard? The Piau case is a good reminder that the CJEU is sympathetic to the need to regulate the market for intermediaries. Since then, the soft law of the European institutions (and especially the European Parliament’s position) has very much comforted this sympathy.[39] However, it would be rather naïve to believe that the EU would be able and willing to take on the task of single-handedly re-regulating such a complex transnational field. It has currently other burning priorities and crucially lacks the resources and expertise to do so. The role of EU law is rather one of a careful catalyst and counter-power, aimed at encouraging private regulations at the national or transnational level and eschewing that they go too far in scapegoating the intermediaries and in restricting their economic freedoms. In this regard, the OLG Frankfurt provided, on the basis of EU law, a rather balanced review of the DFB regulations, striking down some of the more intrusive (or arguably less rational) parts of the regulations, while recognizing the legitimacy and proportionality of others. EU law can be invoked to open up a critical discussion over the regulatory trade-offs of transnational private regulations. Not more but also not less.

[1] Case T-193/02, Laurent Piau v Commission [2005] ECR II-0209, paras. 112-115; Landesgericht Frankfurt am Main: Urteil vom 29. April 2015 · Az. 2-06 O 142/15, para. 77. On the Piau ruling see D. Waelbroeck & P. Ibañez-Colomo, ‘Case C-171/05 P, Laurent Piau, Order of the Court of Justice (Third Chamber) of 23 February 2006, [2006] ECR I-37’, Common Market Law Review 43: 1743–1756, 2006.

[2] Ibid., para. 78.

[3] “On the other hand, since they are binding on national associations that are members of FIFA, which are required to draw up similar rules that are subsequently approved by FIFA, and on clubs, players and players’ agents, those regulations are the reflection of FIFA’s resolve to coordinate the conduct of its members with regard to the activity of players’ agents. They therefore constitute a decision by an association of undertakings within the meaning of Article 81(1) EC (Case 45/85 Verband der Sachversicherer v Commission [1987] ECR 405, paragraphs 29 to 32, and Wouters and Others, paragraph 71), which must comply with the Community rules on competition, where such a decision has effects in the Community.” Ibid., para. 75.

[4] Ibid., paras 83-99.

[5] Ibid., para. 104.

[6] Ibid., para. 117.

[7] This is well recognized and explicated in the OLG’s judgment. See, OLG Frankfurt am Main, Urt. v. 02.02.2016, Az.: 11 U 70/15 (Kart), para. II.1.

[8] Case C-519/04 P David Meca-Medina and Igor Majcen v Commission [2006] ECR I-6991, para. 42 ff. See further S. Weatherill, ‘Anti-doping Revisited: The Demise of the Rule of ‘Purely Sporting Interest’?’ in S. Weatherill, European Sports Law, ASSER Press, Springer, 2014, pp. 379-399 and B. Van Rompuy, The Role of EU Competition Law in Tackling Abuse of Regulatory Power by Sports Associations, available at http://ssrn.com/abstract=2767467.

[9] OLG Frankfurt am Main, Urt. v. 02.02.2016, Az.: 11 U 70/15 (Kart),, II.2.b.

[10] Ibid, II.2.b

[11] The European Parliament “Underscores the finding of the study that the regulations of agents established by sports federations are basically aimed at controlling access to the profession and regulating its exercise, but that these bodies have only limited supervisory and sanctioning powers, since they lack any means of control or direct action vis-à-vis sports agents who are not registered with them; nor are they entitled to impose civil or criminal penalties”. European Parliament, Resolution on players’ agents in sports, 17 June 2010, (2011/C 236 E/14), para.8.

[12] OLG Frankfurt am Main, Urt. v. 02.02.2016, Az.: 11 U 70/15 (Kart), II.3.a

[13] Ibid, II.3.a: Art. 3.2 and 3.3 DFB-regulations

[14] Ibid, II.2.a

[15] For a good critique see N. de Marco, ‘The new FA Football Intermediaries Regulations and the Disputes Likely to arise’, at §23-25.

[16] Art. 7.7 DFB-regulations

[17] OLG Frankfurt am Main, Urt. v. 02.02.2016, Az.: 11 U 70/15 (Kart), II.2.a

[18] “Die Regelung ist auch notwendig; insbesondere bieten entgegen den Darstellungen der Klägerin die Regelungen zur beschränkten Geschäftsfähigkeit Minderjähriger gemäß §§ 104 ff BGB im vorvertraglichen Feld der Anbahnung eines möglichen Vertragsschlusses keinen Schutz. Dies erlangt Bedeutung, sofern - wie vom Beklagten dargestellt - eine Mehrzahl an potentiellen Spielern angeworben, jedoch nur einer tatsächlich vermittelt wird.” Ibid, II.2.a.

[19] “Schließlich erlangt bei der Verhältnismäßigkeitsprüfung auch Bedeutung, dass im europäischen Ausland ausnahmslos Regelungen hinsichtlich des Verbots der kostenpflichtigen Vermittlung minderjähriger Spieler verabschiedet wurden, so dass eine einheitliche Handhabung im Sinne des Minderjährigenschutzes in besonderer Weise geboten erscheint.” Ibid, II.2.a.

[20] See amongst others: European Parliament, Resolution on the future of professional football in Europe, 29 March 2007, (2006/2130(INI)), paras 35-38; European Parliament, Resolution on players’ agents in sports, 17 June 2010, (2011/C 236 E/14), para.6-7;

[21] European Parliament, Resolution on players’ agents in sports, para.6.

[22] This is a truly worrying development. See A. C. Najarian, ‘"The Lost Boys": FIFA's Insufficient Efforts To Stop Trafficking of Youth Footballers’, 22 Sports Law. J. 151 2015. On the ‘muscle drain’ phenomena, see W. Andreff, ‘“Muscle Drain” in Sport and how to regulate it? A plea for a “Coubertobin” tax’ and J. Scherrens, ‘The muscle drain of African Football Players to Europe: Trade or Trafficking?’, Master Thesis 2007.

[23] OLG Frankfurt am Main, Urt. v. 02.02.2016, Az.: 11 U 70/15 (Kart), II.3.b; Art. 6.1 DFB-regulations

[24] Ibid, II.3.b

[25] “Dies widerspricht dem Grundsatz eines am fairen Wettbewerb orientierten sportlichen Wettkampfs [...]“. Ibid, II.3.b

[26] In FIFA’s own words: “The new system does not regulate access to the activity but provide a framework for tighter control and supervision of the transactions relating to transfer of football players in order to enhance transparency.” FIFA, Working with intermediaries – reform of FIFA’s players’ agents system, Background information, April 2015, p.2.

[27] M. Andrews and P. Harrington, Off Pitch: Football’s financial integrity weaknesses, and how to strengthen them, CID Working Paper No. 311 January 2016, p.68-103.

[28]“The analysis of shares highlights that the big five league players’ representation market is highly concentrated: half of the footballers are managed by 83 football agents or agencies. Our study reveals the existence of closed relational networks that clearly favors the concentration of players under the control of few agents.”R. Poli, G. Rossi & R. Besson, Football Agents in the biggest five European football markets. An empirical research report, CIES, February 2012, p.2.

[29] Andrew and Harrington suggest for example to create both a “Transfer Clearinghouse to house transfer process information” and a “centralized processes for registering and managing intermediaries”, op.cit. 27, p.96-99.

[30] The EP “[a]pplauds sport governing bodies’ efforts to bring about more transparency and supervision of financial flows.” European Parliament, Resolution on players’ agents in sports, 17 June 2010, (2011/C 236 E/14), para.11. See also European Parliament, Resolution on the European dimension in sport, 2 February 2012 (2011/2087(INI)), paras 76, 78 and 87.

[31] OLG Frankfurt am Main, Urt. v. 02.02.2016, Az.: 11 U 70/15 (Kart),, II.3.c; Art. 7.3 DFB-regulations

[32]“Zweck der Regelung ist es, einer an sachfremden, d.h. nicht sportlichen Interessen ausgerichteten Einflussnahme der Vermittler auf Spielerwechsel, insbesondere im Bereich der vorzeitigen Vertragsbeendigung, entgegenzuwirken. Die Regelung ist geboten, da dieser Zweck durch das Verbot insbesondere der Zahlung von Transferentschädigungen oder Beteiligungen an einem künftigen Transferwert eines Spielers den Anreiz zur sachfremden, finanziell motivierten Einflussnahme mindert.” Ibid, II.3.c.

[33] LG Frankfurt am Main: Urteil vom 29. April 2015 · Az. 2-06 O 142/15, paras. 83-84

[34] A finding shared by the CIES study and the Study on Sports Agents in the European Union commissioned by the EC in 2009.

[35] The European Parliament stated in its 2010 Resolution on Agents that « doing away with the existing FIFA licence system for player’s agents without setting up a robust alternative system would not be the appropriate way to tackle the problems surrounding player’s agents in football”. European Parliament, Resolution on players’ agents in sports, 17 June 2010, (2011/C 236 E/14), para. 10. The same scepticism is displayed by M. Andrews and P. Harrington, Off Pitch: Football’s financial integrity weaknesses, and how to strengthen them, CID Working Paper No. 311 January 2016, at p.98.

[36] For a preliminary rough mapping, see M. Colucci (ed.), The FIFA Regulations on Working with Intermediaries – Implementation at National Level, International Sports Law and Policy Bulletin, Issue 1-2015.

[37] This is highlighted in the CIES study of 2012.

[38] I.e. the English Premier League, the German Bundesliga, the Spanish La Liga, the Italian Serie A and the French Ligue 1.

[39] European Parliament, Resolution on the future of professional football in Europe, 29 March 2007, (2006/2130(INI)), para. 44; European Parliament, Resolution on the White Paper on Sport, 8 May 2008 (2007/2261(INI)), para. 100; European Parliament, Resolution on players’ agents in sports, 17 June 2010, (2011/C 236 E/14); European Parliament, Resolution on the European dimension in sport, 2 February 2012 (2011/2087(INI)), paras 75-78. This need for regulation is also embraced, though more carefully, by the European Commission in its White Paper on Sport, see European Commission, White Paper on Sport, COM(2007) 391, at para. 4.4. See also European Commission, ‘Commission blows the whistle over inflated football transfer fees and lack of level playing field’, 7 February 2013