Editor’s note: Thomas Terraz is a L.LM. candidate in the European Law programme at Utrecht University and a former intern of the Asser International Sports Law Centre

1.     Sport Nationalism is Politics

Despite all efforts, the Olympic Games has been and will be immersed in politics. Attempts to shield the Games from social and political realities are almost sure to miss their mark and potentially risk being disproportionate. Moreover, history has laid bare the shortcomings of the attempts to create a sanitized and impenetrable bubble around the Games. The first blog of this series examined the idea of the Games as a sanitized space and dived into the history of political neutrality within the Olympic Movement to unravel the irony that while the IOC aims to keep the Olympic Games ‘clean’ of any politics within its ‘sacred enclosure’, the IOC and the Games itself are largely enveloped in politics. Politics seep into the cracks of this ‘sanitized’ space through: (1) public protests (and their suppression by authoritarian regimes hosting the Games), (2) athletes who use their public image to take a political stand, (3) the IOC who takes decisions on recognizing national Olympic Committees (NOCs) and awarding the Games to countries,[1] and (4) states that use the Games for geo-political posturing.[2] With this background in mind, the aim now is to illustrate the disparity between the IOC’s stance on political neutrality when it concerns athlete protest versus sport nationalism, which also is a form of politics.

As was mentioned in part one of this series, the very first explicit mention of politics in the Olympic Charter was in its 1946 version and aimed to combat ‘the nationalization of sports for political aims’ by preventing ‘a national exultation of success achieved rather than the realization of the common and harmonious objective which is the essential Olympic law’ (emphasis added). This sentiment was further echoed some years later by Avery Brundage (IOC President (1952-1972)) when he declared: ‘The Games are not, and must not become, a contest between nations, which would be entirely contrary to the spirit of the Olympic Movement and would surely lead to disaster’.[3] Regardless of this vision to prevent sport nationalism engulfing the Games and its codification in the Olympic Charter, the current reality paints quite a different picture. One simply has to look at the mass obsession with medal tables during the Olympic Games and its amplification not only by the media but even by members of the Olympic Movement.[4] This is further exacerbated when the achievements of athletes are used for domestic political gain[5] or when they are used to glorify a nation’s prowess on the global stage or to stir nationalism within a populace[6]. Sport nationalism is politics. Arguably, even the worship of national imagery during the Games from the opening ceremony to the medal ceremonies cannot be depoliticized.[7] In many ways, the IOC has turned a blind eye to the politics rooted in these expressions of sport nationalism and instead has focused its energy to sterilize its Olympic spaces and stifle political expression from athletes. One of the ways the IOC has ignored sport nationalism is through its tacit acceptance of medal tables although they are expressly banned by the Olympic Charter.

At this point, the rules restricting athletes’ political protest and those concerning sport nationalism, particularly in terms of medal tables, will be scrutinized in order to highlight the enforcement gap between the two.

2.     The Legal Framework

a.     Athlete Led Political Protest

The groundwork for political neutrality is set out in the Fundamental Principles of Olympism (point 5) and Rule 2 (5) of the Olympic Charter. As was illuminated in the first blog, this is presented by the Olympic Charter to ensure the autonomy of sport. One of the specific ways in which the Olympic Charter tries to secure this ideal is through Rule 50 which bans political protest at Olympic sites.[8] Last year, the IOC Athletes’ Commission released its Guidelines on Rule 50 which underscored the far-reaching prohibitions Rule 50 entails. Athletes are not allowed to display any sort of ‘political messaging’ or make any ‘gestures of a political nature’. This includes no ‘signs or armbands’, no ‘hand gestures or kneeling’. Even ‘refusal to follow the Ceremonies protocol’ is considered a violation of Rule 50. Rubbing salt in the wound is the fact that the geographic scope of this ban extends to ‘all Olympic venues’, thus even covering the Olympic Village. Athletes may only disperse their political speech during ‘press conferences and interviews’, ‘team meetings’ and through ‘digital or traditional media, or on other platforms’. The Guidelines, however, underline that this exception only applies to ‘expressing views’, making a distinction from ‘protests and demonstrations’, which includes the actions described above. Arguably, drawing such a line may be blurry in practice. In other words, at what point does an athlete’s expression of a view become political protest? This question is particularly relevant given the broad interpretation the Guidelines have taken on what constitutes political protest. In the end, while the Guidelines claim that this is only to ensure that everyone ‘can enjoy the experience of the Olympic Games without any divisive disruption’, such a broad interpretation of Rule 50 arguably goes beyond the attempt to prevent any ‘disruption’ to athletes’ achievements.

The consequences for athletes who do not follow these rules can be very serious. Bye-Law 1 to Rule 50 states that if such ‘propaganda’ appears on an athlete’s clothing or equipment (e.g. an armband or hidden t-shirt), they may be disqualified. The Guidelines, on the other hand, remain rather vague. Instead, each case is to be decided by the athlete’s ‘National Olympic Committee, International Federation and the IOC’ and ‘disciplinary action’ will be decided on an individual basis. Nevertheless, given simply the looming threat of a disqualification, it is likely that the vast majority of athletes will simply fall into line.[9]

b.    Sport Nationalism and Medal Tables

The clearest example of the wilful disregard of the Olympic Movement to combat sport nationalism is its tacit acceptance of Olympic medal tables despite an explicit ban in the Olympic Charter. The foundations of this ban can be found in Rule 6 of the Olympic Charter which stipulates that the ‘Olympic Games are competitions between athletes in individual or team events and not between countries’ (emphasis added). Rule 57 then specifically addresses medal tables, stating that the ‘IOC and the OCOG shall not draw up any global ranking per country’. Finally, Rule 27 (6) highlights how NOCs bear a special responsibility to ‘preserve their autonomy and resist all pressures of any kind, including but not limited to political, legal, religious or economic pressures which may prevent them from complying with the Olympic Charter’. With this framing, while the IOC and OCOG are not allowed to create a medal table, the NOCs have essentially been left off the hook. In practice, NOCs have not hesitated to boast of their performances on medal tables. For instance, the United States Olympic Committee jumped at the opportunity to celebrate how it had topped the medal chart for the ‘6th straight games’ at Rio 2016.[10] In the meantime, political leaders and the media continue to gush over the achievements of their countries through their standing in the medal table.[11] While hosting Olympic athletes at the White House, Obama emphasized how Team USA had ‘won the most medals by far’ at the Rio Games.[12] Additionally, national governments are aware of their standings in medal tables and have used them to shape their sport policies, including funding for elite sport.[13] NOCs play a role here as well. For example, the Dutch NOC*NSF, in its overview of its elite sport strategy and finance, has set its goal to be a top 10 nation in elite sport, which involves ‘striving for more medals’.[14] Indeed, the determination of whether a nation is in the top 10 presupposes the creation of some sort of ‘global ranking per country’. Lastly, concerning the media, the IOC’s editorial guidelines for Olympic properties at Rio 2016 even clearly states that it has ‘no objection’ to medal tables in published material.[15]

The Olympic Charter requires the IOC ‘to oppose any political ... abuse of sport and athletes’.[16] All the above examples are illustrations of using sport and athletes’ achievements for political purposes.[17] Given this picture, it could be argued that the IOC has increasingly taken a rather laid back approach to medal tables and does not seem to mind how other actors – both within and outside the Olympic Movement – use them to stimulate a country versus country narrative around the Olympic Games.[18] In essence, medal tables paint those countries at the top as the winners and those at the bottom as the losers, further elevating nationalist politics: the myth of the nations of the innately strong and those of the weak. The IOC, as the ‘supreme authority’ of the Olympic Movement, could adopt a stronger tone to push back against the omnipresent nature of medal tables within the Games as it stands in complete opposition to its fundamental principles.[19] Indeed, part of the IOC’s mission is to ‘to take action to strengthen the unity of the Olympic Movement, to protect its independence, to maintain and promote its political neutrality and to preserve the autonomy of sport’ (emphasis added).[20] But there is no unity in the Olympic Movement concerning medal tables, only disarray, ranging from tacit acceptance to zealous celebrations of a nation’s ranking.

3.     Unveiling the Hypocrisy

In view of this, there seems to be a disparity in the Olympic Movement’s approach to politics when it comes from athletes, where there is the potential for severe sanctions, compared to sport nationalism arising from medal tables, where it seems to have all but accepted their existence. Looking beyond simply medal tables, so much of the Olympic Games emphasizes a competition between countries, further stimulating sport nationalism: (1) an opening ceremony where athletes march into an arena behind their nation’s flag and where the host puts on ‘cultural performances’ that ‘dramatize national myths, experiences, and values’[21]; (2) national anthems that are religiously played during each medal ceremony while national flags are hoisted up; (3) the way in which many team sports are played between countries. More credence is given to this view when one also observes how the media – and sometimes even NOCs -  help push a country versus country narrative, which can potentially overshadow athletes’ individual accomplishments.^[22] The constant flood of national imagery during the Games casts doubt on the idea that the Olympic Games is not a competition between countries, creating greater friction between the ideas of ‘universalism and nationalism’.[23] It should also be recalled, as was pointed out in the first blog, that states use sport nationalism to help push foreign and internal political agendas.  Some have argued that in this way sport can be ‘regarded as compensation, a sense of nostalgia or as a cure against the erosion of national identity’, even becoming ‘an alternative to war’.[24] Others have taken another view that instead of acting as a sort of pressure release, the Games ‘may provide opportunities for extending and exacerbating nationalist-inspired conflicts’, further entrenching nationalism.[25]

However, this blog is not arguing that the IOC should take heavy handed action to discourage the media from tallying up medals or to reel in a NOC’s pride in the performance of its athletes or to rid the Olympic Games of all signs of national imagery. On the contrary, it seems that the idea to minimize sport nationalism through the inclusion of Rule 6 and 57 of the Olympic Charter should be characterized as an expression of a lofty ideal that personifies international unity – i.e. something to be aspired to but not some concrete goal to be realized through rigorous enforcement. Again, it is completely legitimate for the Olympic Movement to strive for this ideal and to also defend its political neutrality. Yet, given how the IOC has all but accepted this form of politics (sport nationalism), it is puzzling why it has not taken a more tolerant approach to political expression from athletes, including protests/demonstrations, especially when considering how medal tables arguably pose a far greater threat to the fundamental principles of the Olympic Movement.[26] Perhaps given how sports can help stir national pride within a populace, it is possible that this phenomenon may encourage more viewership hours. Consequently, presenting the Games as a country versus country competition may be more lucrative. On the other hand, potentially unpredictable athlete protests may risk dividing audiences and may also put Olympic sponsors on edge. But assuming this is the case, is this reason enough to ban such expression altogether?

Regardless, in the same way sport nationalism will likely never be completely erased, athletes’ political expression will continue to be part of the Olympic fabric. Fundamentally, it all boils down to whether it is truly possible to disentangle politics and sport? If so, is it realistic or even desirable? One could maybe argue that this unbundling is necessary to promote international unity and to ensure the universality, neutrality and autonomy of sport. However, how far should the Olympic Movement go to achieve this result and is such a consequentialist approach appropriate considering the pressures it places on athletes – i.e. do the ends justify the means? I would argue that this process of sanitization is burdened with too many moral concerns and is an enforcement minefield in practice. While outside the scope of this blog, it should be noted that it is not difficult to imagine an athlete challenging the concerned provisions on the basis of human rights and/or EU law.

All things considered, the IOC chooses the kind of politics it is willing to tolerate within its sphere of influence. The national structures within the Olympic Movement, the influence of national governments, and the seducing narratives of nationalism create significant headwinds in favor of the politics of sport nationalism. Therefore, the IOC, an entity that embodies the transnational, has a responsibility to be a counterbalance in this system.[27] In doing so, the IOC - the leader of the Olympic Movement – should defend, or at least tolerate, the free expression of its ‘people’, the athletes. This is not a radical proposition. It is worth remembering that athletes form an integral part of the Olympic Movement.^[28] Simply respecting the free expression of athletes does not automatically sacrifice the political neutrality of the Olympic Movement.

4.     Conclusion

Over the past year, the IOC has faced increasing public pressure, particularly from athlete stakeholders (see here, here and here) to reverse its course concerning Rule 50 of the Olympic Charter. As a result, it announced that the IOC Athletes Commission would conduct a consultation process concerning Rule 50. The IOC Athletes Commission just recently finished its consultation and its ‘recommendations will be presented to the IOC Executive Board by the end of April 2021’. Meanwhile, NOCs have also individually taken certain steps to allow more athlete activism, such as the US Olympic and Paralympic Committee (USOPC) which has committed to not sanction athletes who ‘peacefully and respectfully’ protest ‘in support of racial and social justice for all human beings’. In this regard, the USOPC declared that ‘human rights are not political, calls for equity and equality must not be confused with divisive demonstrations’. While perhaps attractive at first glance, the USOPC is only moving the goalposts by playing semantics with ‘politics’ by narrowing its definition to eliminate ‘human rights’[29] from its ambit. In doing so, the USOPC does not explain why human rights are not political issues. The reality is that the scope and implications of human rights remain hotly contested issues everywhere in the world, they can hardly be depoliticized. Nevertheless, the softening of the USOPC’s position and its acknowledgement of some its past mistakes is a good start.[30]

In view of today’s strong social currents, the IOC may be forced to abandon its dream of a pure and apolitical Olympic Games. Politics has and will continue to ooze into the sanitized spaces of the Olympic Games. Allowing athletes to raise their voice during the Games would allow them to share their political views with the world, instead of confining them to remaining passive laborers in the Olympic economy subject to the power politics of states.

[1] Although the current IOC President, Thomas Bach, would likely dispute this point. Bach recently argued: ‘Neither awarding the Games, nor participating, are a political judgment regarding the host country.’ See Thomas Bach, ‘The Olympics are about diversity and unity, not politics and profit. Boycotts don't work’ (The Guardian, 24 October 2020).

[2] This is by no means an exhaustive list.

[3] Philip Barker, ‘The forbidden Olympic table’ (Inside the Games, 24 January 2020).

[4] See how the Washington Post gleefully counts the number of US gold medals and celebrates the fact that the U.S. has ‘more than double any other country’s count’. See Team GB’s (British Olympic Association) fervent count of its medals at Rio 2016. See also Team USA’s (U.S. Olympic and Paralympic Committee) glorification of its record-breaking medal count at the Rio 2016.

[5] For example when athletes are used during photo ops for political leaders around the world. See United States (Trump and Obama), Russia (here and here), and The Netherlands among many others.

[6] Ivo van Hilvoorde, Agnees Elling and Ruud Stokvis, ‘How to influence national pride? The Olympic medal index as a unifying narrative’ [2010] 45 International Review for the Sociology of Sport 87.

[7] Jackie Hogan, ‘Staging The Nation: Gendered and Ethnicized Disources of National Identity in Olympic Opening Ceremonies’ [2003] 27 Journal of Sport and Social Issues 100.

[8] Rule 50: ‘No kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas.’

[9] Indeed, athletes have been banned for life in the past for political actions. For instance, Vince Matthews and Wayne Collett who were banned for life after a podium protest at the 1972 Munich Olympics. Recently, there have been calls to undo their life bans.

[10] See also Team GB’s tracking of its own ‘record-breaking’ medal performance at the Rio Games.

[11] For some examples of the media obsession around the Olympic Games’ medal tables see: ‘Tokyo Olympics 2020 medal table: How does it work, which country usually wins and what are Britain's hopes?’ (The Telegraph, 26 January 2021); ‘Rio Olympics 2016: Team GB’s record breakers return home from Rio’ (BBC, 23 August 2016). ‘2020 Olympics: USA forecast to top medals table with GB and Australia fifth’ (The Guardian, 23 July 2019); Lazaro Gamio, Kim Soffen and Chiqui Esteban, ‘1,000 Times Gold’ (The Washington Post).

[12] Some have even suggested that the US performance at the 2012 London Olympics could have contributed to a boost in Obama’s polling for the presidential election that year. See John Cassidy, ‘Did the Olympics Boost Obama?’ (The New Yorker, 10 August 2012).

[13] See Germany’s concern of its place in medal rankings to justify restructuring its funding for elite sport. This is also acknowledged by van Hilvoorde, Elling and Stokvis (n 6).

[14] Original: ‘We streven naar meer medailles, in meer disciplines, met meer impact.’

[15] The Pyeongchang editorial guidelines (page 14) do not discourage their use.

[16] Rule 2 (11) Olympic Charter.

[17] See also other examples of the abuse of sport and athletes for political purposes by ‘states that use the Games for geo-political posturing’ in the first blog of this series.

[18] On the narratives around medal tables and the Games see van Hilvoorde, Elling and Stokvis (n 6).

[19] Rule 1 (1) Olympic Charter. Principles such as political neutrality and the autonomy and universality of sport.

[20] Rule 2 (5) Olympic Charter.

[21] Hogan (n 7).

[22] The media may also help stir nationalism by depicting the athletes of its home-nation as ‘succeeding because of their intellect, commitment, and consonance’ while foreign athletes fail due to insufficient ‘strength and skill’. See James Angelini, Andrew Billings and Paul MacArthur, ‘The Nationalistic Revolution Will Be Televised: The 2010 Vancouver Olympic Games on NBC’ [2012] 5 International Journal of Sport Communication 193. Also – Andrew Billings and others, Nationalistic Notions of the Superpowers: Comparative Analyses of the American and Chinese Telecasts in the 2008 Beijing Olympiad [2011] 55 Journal of Broadcasting & Electronic Media 251. Again, on narratives surrounding the Games and medal tables see van Hilvoorde, Elling and Stokvis (n 6).

[23] See Hogan (n 7). See also John Hargreaves, ‘Olympism and Nationalism: Some Preliminary Consideration’ [1992] 27 International Review for the Sociology of Sport 119.

[24] van Hilvoorde, Elling and Stokvis (n 6). See also George Orwell’s description of nationalism and sport in ‘The Sporting Spirit’.

[25] Hargreaves (n 23). It is interesting to note Hargreaves mentions how the Olympic Movement in of itself could perhaps be a sort of counterweight to such a ‘international relation model’. However, given how the Olympic Movement seems to have in many respects abandoned its fight against sport nationalism in the decades since, this caveat has arguably lost much of its weight.

[26] IOC President Thomas Bach even recognizes the trends of ‘rising nationalism’.

[27] This relates to Hargreaves’ point of the Olympic Movement acting to a certain extent autonomously and not simply ‘instruments of foreign policy’ of states. See Hargreaves (n 23).

[28] Rule 1 (1) Olympic Charter: ‘Under the supreme authority and leadership of the International Olympic Committee, the Olympic Movement encompasses organisations, athletes and other persons who agree to be guided by the Olympic Charter. The goal of the Olympic Movement is to contribute to building a peaceful and better world by educating youth through sport practised in accordance with Olympism and its values.’ (emphasis added)

[29] It is possible that the USOPC primarily is referring to ‘racial and social justice’.

[30] The USOPC also recognized its past errors in taking positions against athletes in previous instances.

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.

I.               Facts and Procedure

The case was introduced in March 2015 by Doyen Sports Investments Limited, the Maltese investment fund specialised in football and an obscure Belgium football club, the RFC Seresien/Seraing United, against the Belgium federation (URBSFA), FIFA and UEFA. For its part, FIFPro decided to voluntarily intervene in the debates.

Seraing United plays in the Proximus League, the Belgium Second Division, and signed a specific collaboration contract with Doyen Sports on 30 January 2015. This collaboration contract foresees that Doyen and Seraing United will collaborate to select at least two players in each summer transfer window to be recruited by Seraing via a TPI (Third-Party Investment). In return, Doyen will contribute 300 000€ for the 2015/2016 season to Seraing’s budget and own 30% of rights of the players it has picked. For example, during this summer’s transfer window Seraing and Doyen have concluded a TPI contract to finance the recruitment of Ferraz Pereira. It is this contract that led to the present dispute. Indeed, as Seraing indicated in its filing for registration that Ferraz Perreira was recruited via a TPI contract, the URBSFA decided to block the registration of the player in the FIFA TMS system. The procedure regarding the release of an International Transfer Certificate is still on-going in front of FIFA’s internal bodies.

The claimants demanded that the judge blocked any attempt of FIFA, UEFA and the Belgium federation to implement the TPO ban (in the form of FIFA Circular 1464) and, if necessary, to send a preliminary reference to the CJEU.

II.             Jurisdiction of the Brussels Court

The first key question, as in the FFP case, was whether the Brussels Court had jurisdiction over the matter. This was unproblematic as far as the demands against the Belgium federation are concerned, as it is seated in Belgium and a potential arbitration clause does not hinder the demand of provisory measures to the national judge under Belgium law.

As far as UEFA and FIFA are concerned, however, the question is more complex. The Brussels Court quickly side-lined the objection based on a putative CAS arbitration clause, but it went into greater details concerning its international jurisdiction on the basis of the Lugano Convention. Under article 6 par. 1 of the Lugano Convention a defendant can be sued in the court of a place where one of the defendants is domiciled if “the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings”. In the FFP case, it is this close connection between the claims raised against UEFA and the Belgium Federation that could not be decisively proven and that led the Court to declare itself incompetent to deal with the matter. In the present case, the Court clearly distinguishes between FIFA and UEFA.

Concerning the claims raised against FIFA, the Court considers that:

“The relations between FIFA and the URBSFA are characterized by the fact that FIFA is the association adopting the international regulations which national federations, members of FIFA, including the URBSFA, have the duty to respect and enforce against their own members, i.e. the football clubs.” (para.42 of the judgment)

It deduces from this consideration that the URBSFA will have to implement FIFA’s TPO ban. However, this close connection exists only insofar as the claims raised are connected with provisory measures to be applied on the Belgian territory. In the eyes of the Court, FIFA’s objections to its jurisdiction based on article 22.2 of the Lugano Convention are not relevant, insofar that the case does not involve primarily a question of company or association law. The Court, contrary to the FFP case against UEFA, concludes that it has jurisdiction to deal with the claims raised against FIFA. This is a first, clear, legal victory for Jean-Louis Dupont. Yet this does not apply to UEFA as it did not adopt the regulations challenged, nor is the Belgium federation implementing its rules when enforcing the TPO ban. Thus, a close link in the sense of article 6 par. 1 of the Lugano Convention is missing[1]. Neither is article 31 of the Lugano Convention suitable to ground the Court’s jurisdiction against UEFA[2]. Hence, the Court declares itself incompetent to deal with the claims raised against UEFA.

The Court’s recognition that it has jurisdiction to deal with the claims directed against FIFA’s TPO ban insofar as FIFA’s rules have to be implemented by the URBSFA on the Belgium territory meant that this time Dupont could hope for a viable preliminary reference. Yet, as we will see, this did not lead to the award of the provisory measures hoped by the claimants.

III.           The conditions for awarding provisory measures under Belgium law

Under Belgium law two main conditions need to be fulfilled to lead to the granting of provisory measures: there need to be urgency and “appearance of right” (condition de l’apparence), which is analogous to the likelihood to prevail. There is urgency when it is feared that harm of certain intensity, or the likelihood of a serious inconvenience, make an immediate decision preferable. In the present case, the Court considers that Doyen is necessarily negatively affected by the TPO ban, as it is unable to exercise its economic activity[3]. The ban prejudices also Seraing United, which is deprived of an opportunity to finance its activities in a difficult context (URBSFA’s new regulations restricting the conditions to be considered a professional club). Thus, the Court finds that the urgency of the matter is given.

However, and this is the crux of the case, the judge refuses to consider that there is an appearance of right. In other words, he denied that the claimants are likely to prevail on the substance of the application of EU competition law. This is the most important part of the judgment, as it is the first time that a judicial authority adopts a legally binding (though provisional) opinion on the potential compatibility of the TPO ban with EU competition law (the much-cited Spanish’s Competition Authority opinion is advisory and does not cover the application of EU competition law). The claimants argued that the TPO ban is contrary to EU competition law (Article 101 and 102 TFEU) and to the EU free movement rights (Article 63, 56 and 45 TFEU). While, FIFPro, to which the Court recognized the privilege of expressing the collective opinion of professional players, FIFA and UEFA considered that it is compatible with EU law. 

The Court, first, refers to the Piau ruling of the CJEU to affirm that FIFA has a dominant position on the market for the services of players’ agents[4]. This is not surprising. In fact the judge insists that the key legal question is whether there is an abuse of this dominant position. In this regard it considers that both abuses of dominant position under article 102 TFEU and restrictions on free competition under article 101 par. 1 TFEU must be analysed with due consideration to the specific sector in which FIFA is active and to the legitimate objectives it claims to pursue.[5] Subsequently, the judgment lists a number of factors highlighted by FIFA and FIFPro underlying the legitimate objectives of the ban:

·      These practices are mainly the deed of investment firms

·      From which we do not know the shareholders

·      Which conclude contracts with different clubs, potentially directly competing against each other on the field

·      These contracts are opaque as they are not registered

·      They can be easily transferred

·      The third-party investors are interested in the players’ quick transfers, in short sequences, as they will then reap their benefits

·      This is contradictory with the objective of contractual stability during the players contract with their club

·      If the transfer is not effectuated before the end of the employment contract (knowing that at this time the player recovers his full contractual freedom), the clubs are due to pay compensation […].[6]

The Court concludes that it is likely that third-party investors/owners will be in a conflict of interest, with equally important risks of manipulations and match-fixing arising, all of this in a totally opaque environment. Thus, though the TPI/TPO practice is apparently of financial nature, it is deemed to have important sporting consequences. Moreover, the Court remarks that the ban on the influence of third parties on clubs introduced by FIFA a few years ago via article 18 bis of the FIFA RSTP has proven ineffective. This hints at the necessity of a total ban. Additionally, it referred to the legitimate objectives of the ban invoked by FIFPro as representative of the point of view of the players.

In fine, the Court concluded that the likelihood that FIFA’s TPO ban would fail the tests of proportionality and necessity is not proven “with the force necessary” to warrant awarding provisional measures and, subsequently, rejects the demands of the claimants.

Conclusion: EU law is no magic bullet against FIFA’s regulations

Jean-Louis Dupont lost a new battle, but as far as FIFA’s TPO ban is concerned it is only the beginning of a long legal war. He still has a case to defend in the main proceedings and the opening of an investigation of the EU Commission to hope for (as well as a potential appeal to the CJEU in case the complaint on behalf of Doyen and the Iberian leagues is rejected). Nevertheless, this decision is no good omen for the future of his case. It is a worthy reminder that EU law is no magic bullets against the regulations of Sports Governing Bodies (SGBs), and FIFA in particular. The Meca-Medina/Wouters inherency test prevailing in competition cases and the similar proportionality test applied in the context of free movement rights ensure that the legitimate objectives of the regulatory practices of the SGBs are duly taken into account in the judicial or administrative review process. In fact, despite the recurrent complaints voiced by SGBs against EU law’s deregulatory bias and insensitivity to sports’ specificity, in reality the case law of the CJEU and the decisional practice of the Commission has been rather (too?) accommodating with sport’s specificities, regulatory needs and ideals. What EU law imposes is a duty to properly justify private regulations that find no sufficient legitimacy, to say the least, in the democratic nature of their legislative process[7]. Yet, especially when the diverse set of stakeholders active in a specific sporting field converge in favour of a particular policy orientation, as is the case with the TPO ban, which is supported by ECA and FIFPro, there is a strong presumption that the regulations concerned will be deemed proportionate and in the general interest. The implicit presumption of legitimacy and necessity of FIFA’s TPO ban can only be rebutted with extremely thorough arguments from the part of the claimants and will probably require that they convincingly demonstrate the easy availability of a less restrictive alternative system to deal with the perceived risks resulting from the widespread recourse to TPO/TPI agreements. As the Belgium Court aptly put it, the EU free movement rights are not absolute; if necessary they can, and will, be restricted in the name of the general interest[8].

[1] Ordinance, Brussels Court of First Instance, n°15/67/C, 24.07.2015, para.53-54

[2] Ibid, para. 55-57

[3] Ibid, para. 87.

[4] Ibid, para.94

[5]« L’existence d’un éventuel abus de position dominante (article 102 TUE) mais également celle d’une éventuelle restriction de la concurrence (article 101.1 TUE) sont notamment analysées au regard du secteur spécifique dans lequel la Fifa est active et des objectifs légitimes qui sous-tendent l’interdictiom nouvelle des TPI/TPO », Ibid, para.95.

[6] My translation of the bullet points included at para.95 of the decision.

[7] On this important role of EU law, see B. Van Rompuy, ‘The Role of EU Competition Law in Tackling Abuse of Regulatory Power by Sports Associations’, Maastricht Journal of European and Comparative Law, Vol.22, Issue 2, 2015 pp.179-208.

[8] « Ces droits ne sont pas absolus, mais peuvent connaître des limites nécessitées par l’intérêt général ». Para.99 of the decision.