Asser International Sports Law Blog

Since the release of the earth-shattering ARD documentary two years ago, the athletics world has been in a permanent turmoil. The International Athletics Association Federation (IAAF) is faced with both a never-ending corruption scandal (playing out in front of the French police authorities) and the related systematic doping of Russian athletes. The situation escalated in different phases led by the revelations of Russian insiders. First, in December 2014 with the ARD documentary, which demonstrated how widespread (and organized) the recourse to doping was in Russian athletics. It triggered the Pound investigation financed by the World Anti-Doping Agency (WADA), which led to two damaging reports (available here and here) for the Russian anti-doping system and the IAAF itself. Thereafter, in November 2015, the IAAF had no other choice but to provisionally suspend the Russian athletics federation (ARAF then RusAF) and its members from IAAF competitions. Yet, this was only the beginning as shortly after the former head of Moscow’s anti-doping laboratory provided a detailed sketch to the New York Times of the operation of a general state-led doping scheme in Russia. The system was designed to avert any positive doping tests for top-level Russian sportspeople and was going way beyond athletics. These allegations were later largely confirmed and reinforced by the McLaren investigation initiated by WADA in May 2016, and which published its first report in July 2016 shortly before the Rio Olympics. In June 2016, the IAAF anticipated the conclusions of the report (it had received most of McLaren’s evidence beforehand) and decided to maintain the ineligibility of Russian athletes for IAAF competitions, and for the Rio Olympics. It did, however, foresee a narrow exception for Russian athletes able to show that they were properly tested outside of Russia. Nonetheless, the athletes using this exception were to compete under a neutral flag at the Olympics. Unsurprisingly, Russian athletes led by pole superstar (and now IOC member), Yelena Isinbayeva, and the Russian Olympic Committee decided to challenge this decision in front of the Court of Arbitration for Sport (CAS). Interestingly, while the decision was rendered on 21 July 2016, the full text of the award was publically released only on 10 October 2016. In September, I analysed the Rio CAS Ad Hoc Decisions involving Russian athletes aiming to participate to the Olympics. I will now turn to the IAAF decision, which is of great importance to the future of the anti-doping system. Indeed, it lays out the fundamental legal boundaries of the capacity of international federations to impose sanctions on their members (and their members) in order to support the world anti-doping fight.

My blog will provide first a chronological narrative of the decisions taken by the IAAF to sanction the RusAF and its athletes. Thereafter, I will analyse the key aspects of the scope of the review of the IAAF’s ineligibility decision by the CAS.

I. From the ARD documentary to the ineligibility of Russian athletes for the Rio Olympics

The IAAF started acting upon the suspicions of doping in Russian athletics only after the publication of the first part of the Pound report on 9 November 2015. In its first press release after the publication of the report, the president of the IAAF, Sebastian Coe, announced that he had “taken the urgent step of seeking approval from his fellow IAAF Council Members to consider sanctions against the Russian Athletics Federation (ARAF)”. He was considering “provisional and full suspension and the removal of future IAAF events”. This announcement was quickly followed on 13 November 2015 with the provisional suspension of the ARAF by the Council of the IAAF. Consequently, Russian athletes, and athlete support personnel were banned from competing in international competitions including World Athletics Series competitions and the Olympic Games. Furthermore, Russia lost the right to host the 2016 World Race Walking Team Championships (Cheboksary) and 2016 World Junior Championships (Kazan), while ARAF were to delegate the conduct of all outstanding doping cases to CAS. The provisory ban was based on IAAF Constitution Article 6.11(b) and Article 14.7. The ARAF could have challenged the decision of the Council but declined to do so (as is explained in a letter accessible here) and accepted the sanctions. Simultaneously, the decision also included a specific procedure for RusAF to regain IAAF membership. It foresaw that an inspection team led by an Independent Chair, Rune Andersen, would verify whether RusAF complies with a long list of precise criteria.

In early 2016, the IAAF taskforce started its verifications based on the aforementioned criteria. In March 2016, after its first visit to Moscow in January, the taskforce considered that “the Russian delegates have made significant progress towards meeting many of the Verification Criteria established by IAAF Council”. Yet, it also added that “there is significant work still to be done to satisfy the Reinstatement Conditions and so RusAF should not be reinstated to membership at this stage”. However, after the revelations of the New York Times in May 2016, the IAAF taskforce recommended in June that “RusAF should not be reinstated to membership at this stage, because several important Verification Criteria have not been met”. The taskforce considered that:

The deep-seated culture of tolerance (or worse) for doping that led to RusAF being suspended in the first place appears not to have changed materially to date.
A strong and effective anti-doping infrastructure capable of detecting and deterring doping has still not been created.
There are detailed allegations, which are already partly substantiated, that the Russian authorities, far from supporting the anti-doping effort, have in fact orchestrated systematic doping and the covering up of adverse analytical findings.

This meant “that Russian athletes remain[ed] ineligible under IAAF Rules to compete in International Competitions including the European Championships and the Rio 2016 Olympic Games”. The taskforce also recommended that RusAF remains suspended, i.e. that no “representatives of RusAF (i.e. officials, athlete support personnel, etc.) should take part in International Competition or in the affairs of the IAAF”. The IAAF Council unanimously endorsed the recommendations. At the same meeting, and also upon recommendation of the taskforce, the IAAF Council passed a rule amendment “to the effect that if there are any individual athletes who can clearly and convincingly show that they are not tainted by the Russian system because they have been outside the country, and subject to other, effective anti-doping systems, including effective drug-testing, then they should be able to apply for permission to compete in International Competitions, not for Russia but as a neutral athlete”. These changes were introduced in Rule 22.1A IAAF Competition Rules (Rule 22.1A).[1] Finally, the IAAF also decided to let Yuliya Stepanova compete due to her “extraordinary contribution to the fight against doping in sport”.

On 23 June, the IAAF published a set of guidelines on the basis of which Russian athletes could request a permission to compete in IAAF events (and the Olympics) if they could demonstrate not being tainted by the Russian state doping system as provided under the exception enshrined in Rule 22.1A. However, athletes using this exception would be allowed to compete only as neutral athlete. Stepanova was the first athlete authorized to compete at the Rio Games by the IAAF (ironically, she would later be blocked by the IOC) based on the rule 22.1A. She was joined only by Darya Klishina (the IAAF later rescinded this eligibility in light of her involvement in the McLaren Report, but the CAS decided against all odds to let her compete in Rio).

The IAAF felt comforted in its decisions by the release of the McLaren Report on 18 July. Yet, the Russian athletes and the Russian Olympic Committee were obviously extremely dissatisfied with this outcome. Both sides agreed to submit the matter, through the ordinary arbitral procedure, to the CAS, which held a quick hearing on 19 July.

II. The Key Legal Questions at the CAS

While the decision to reject the demands of the Russian athletes was publicized immediately (on 21 July) on the CAS’ website, it is only three months later that the full text of the award was made available for all to see. For analytical purposes, and following the award’s internal structure, I will deal with the following four key questions:

Does the suspension of the RusAF extend to the eligibility of the Russian athletes?
Is the new IAAF rule 22.1.A a sanction?
Can the ROC nominate athletes to the Olympic Games without the assent of the IAAF?
Will the Russian athletes falling under rule 22.1.A compete as neutral athletes in Rio?

1. Does the suspension of the RusAF under Rule 22.1(a) extend to the eligibility of the Russian athletes?

The Russian athletes challenged first the application by IAAF of Rule 22.1(a) IAAF Competition rules. The Rule provides for the IAAF-wide ineligibility of “[a]ny athlete, athlete support personnel or other person whose National Federation is currently suspended by the IAAF”. In other words, the claimants “want an exception to the rule for doping cases, so that the ineligibility for the athletes affiliated to a suspended national federation, a member of the IAAF, would not apply if the suspension is imposed for the federation’s failure to ensure an effective doping control system”[2].

i. Rule 22.1(a) is a valid rule extending the ineligibility of a federation to its athletes

The Panel rejects this challenge.

First, it considers that it is not its duty to rewrite the IAAF’s rules. Instead, the “rule- making power, and the balance to be struck in its exercise between the competing interests involved, is conferred on the competent bodies of the sport entity, which shall exercise it taking into account also the overall legislative framework”[3].

Second, it highlights “that the suspension of the Russian track and field federation is not disputed in this arbitration”[4]. This is due to the fact that ARAF did not contest the original decision of IAAF in November 2015. Consequently, “the dispute heard by the Panel regards only the consequences for the athletes affiliated to the Russian federation of the suspension imposed on their federation and not the reasons for the suspension”[5].

Thirdly, the Panel rejects the view that Rule 22.1(a) is a doping sanction. Rather, “it is a rule which affects the eligibility of athletes to enter into International Competitions and is a consequence of the organizational structure of international sport; national federations are members of international federations, and have the duty to respect the obligations deriving from such membership; athletes participate in organized sport, as controlled by an international federation, only on the basis of their registration with a national federation, which is a member of the international federation in question”[6]. Thus, “Rule 22.1(a) is a rule of general application, not specific to doping cases, and would apply equally to athletes who are members of federations that fail to pay their membership dues as to athletes who are members of federations that engage in other breaches of federation obligations to the IAAF as a member thereof” [7]. The claimants sought to frame Rule 22.1.(a) and Rule 22.1A as a package applying specifically to anti-doping cases. But the Panel disagreed, highlighting instead that “Rule 22.1(a) is not part of a new package of rules”, as it “has existed since at least 2000, whereas Rule 22.1A is a recent amendment”.[8] The Panel sees Rule 22.1(a) as “a necessary consequence of the sanction imposed on RusAF”. [9] In sum, the “athletes are ineligible because RusAF has been sanctioned, and accepted that sanction, not because of what the athletes have done”. [10]

ii. Rule 22.1(a) is not contrary to the World Anti-Doping Code

The Panel also rejects the argument that Rule 22.1(a) would be contrary to the World Anti-Doping Code (WADC). First, because it is not an additional doping sanction (and therefore is not covered by the Osaka rule jurisprudence of the CAS[11]) and second because it is consistent with the WADC’s mandate to international federations to introduce sanctions in case their members do not comply with the Code.[12] Furthermore, “it is a fundamental principle of the law of associations in all applicable jurisdictions that members of associations have an obligation to satisfy the requirements for membership in the association and if they fail to do so those members may have their association membership adversely affected”[13]. The Panel refuses to “disturb these well-accepted principles” [14].

iii. IAAF is not estopped to enforce Rule 22.1(a) on the Russian athletes

The Panel further refused to find that the IAAF was estopped from considering the Russian athletes ineligible based on Rule 22.1(a).[15] It is true that some IAAF employees/executives might have been involved in a corruption scheme to cover-up doping cases, however “[t]here is no suggestion that the IAAF officials were involved in the systemic doping of Russian athletes” [16]. Moreover, “none of the Claimant Athletes has argued that they knew about the IAAF’s wrongdoing and relied on it to their detriment, or that they believed that RusAF would not be suspended in the event of misconduct” [17]. The arbitrators also deny that the Rule 22.1(a) was too uncertain. In particular, the fact that the length of the ineligibility is indeterminate is deemed a “simple consequence of the fact that it is contingent on the National Federation (“NF”) being reinstated”.[18]

iv. The ineligibility of Russian athletes under Rule 22.1(a) is proportionate

Finally, even though it considers that “Rule 22.1(a) is not a sanction”, and, therefore, “it does not have to pass any test of proportionality”[19], the Panel engages in a very interesting exercise to assess its putative proportionality. It finds “that the effect (ineligibility to compete at International Competitions) on the athletes registered with a national federation suspended by IAAF is a proportionate consequence of the national federation’s suspension for its failure to put in place an adequate system to protect and promote clean athletes, fair play and integrity of sport”. [20] In the view of the arbitrators, “eradication of doping in sport, protection and promotion of clean athletes, fair play and integrity are undeniably legitimate objectives of extreme importance for the viability of sport at any level”.[21] In this regard, “the measure taken by IAAF, and the effect it produces, is capable of achieving those objectives, as it prevents athletes under the jurisdiction of the suspended national federation (for having failed to promote a doping-free environment) from competing with athletes registered with federations that have not been the subject of an exclusion”. [22] Furthermore, “the measure taken by IAAF is necessary to reach the envisaged goal: if the IAAF could not take a step having the mentioned effect, the suspension of the Russian federation would have no meaningful impact”. [23] Thus, “the constraints which the affected athletes, including the Claimant Athletes, will suffer as a consequence of the measure are justified by the overall interest to achieve the envisaged goal, which outweighs them, and do not go beyond what is necessary to achieve it”. [24] Finally, the Panel highlight the role played by Rule 22.1A. This provisions shows “that the effect produced by the suspension of a national federation (in force since at least 2000) was recently made more flexible, to take into account individual cases, in a way consistent with the sought purpose of eradication of doping, protection and promotion of clean athletes, fair play and integrity”. [25]

The Panel, thus, concludes “that IAAF Competition Rule 22.1(a) is valid and enforceable in the circumstances of the present dispute”. [26]

2. Is IAAF Competition Rule 22.1A valid and enforceable in the circumstances of the present dispute?

The Claimants were also challenging the validity of Rule 22.1A, as they were constructing the rule as an unforeseeable sanction against athletes who would not comply with the requirements enshrined in it. Yet, the Panel wondered from the outset “what interest the Claimants would have in seeing it set aside, given that it is a rule which allows athletes to be included, not excluded”[27]. Indeed, if the Panel “struck down Rule 22.1A, the only consequence for the Claimants would be that any athlete who made him/herself eligible pursuant to Rule 22.1A would still be ineligible: the Claimant Athletes, on the other hand, would not regain the eligibility denied by Rule 22.1(a)”[28]. The Claimants argued that both rules were intimately connected and amounted to one sanction: if one would be deemed invalid the other would fall too.[29] However, the Panel noted in response to this argument “that (i) the legality of Rule 22.1(a) and its applicability in the present circumstances has already been confirmed, as per the considerations above, [and] (ii) the Claimants’ submissions as to the legality of Rule 22.1A have no merit […]”[30]. Thus, the Panel finds Rule 22.1.A not to be inconsistent with the WADC as it does not constitute a sanction. Similarly, not being a sanction its proportionality is not into doubt, nor does it appear to be discriminatory. The Claimant Athletes could not rely on any legitimate expectations to be eligible if they met the Verification Criteria published on 11 December 2015, as “they would have also known that RusAF would have to be reinstated before they became eligible”[31]. Indeed, “Rule 22.1A did not change the way in which the Claimant Athletes could make themselves eligible”, rather “it provided another route to eligibility, one which could be pursued even though RusAF had not been reinstated in accordance with the Reinstatement Conditions”.[32]

In the end, the Panel only criticized the lack of legal certainty provided by “Rule 22.1A(b), as its terms may appear vague and retroactive in nature”[33]. Nonetheless, “no matter how concerning it may be for the Panel that the vague terms of Rule 22.1A(b) allow for retroactive application, this does not help the Claimants in having the application of this rule set aside in the given case”[34]. Even if “retroactive criteria in general are to be avoided as unfair and contrary to fundamental notions of due process and good sportsmanship” [35], the Panel notes that “Rule 22.1A is an inclusionary rule, and only created an opportunity, not a bar, for the Claimant Athletes”. [36] Hence, disapplying it “would only have the effect of harming any other Russian athlete who satisfied Rule 22.1A(b)”. [37]

3. Can the ROC nominate athletes to the Olympic Games without the assent of the IAAF?

The third question raised by the Claimants was whether the Russian Olympic Committee could bypass the IAAF’s decision and nominate athletes without its approval to participate in the Rio Olympics. Here again the Panel from the outsets finds “that, under the Olympic Charter, the ROC is not entitled to nominate athletes who are not eligible under IAAF Competition Rules 22.1(a) and 22.1A”[38]. To come to this conclusion the Panel focuses on the Olympic Charter, it notes that “Rule 40 of the Olympic Charter restricts participation in the Olympic Games to those who comply with the Olympic Charter and the WADC, including the conditions of participation established by the IOC, “as well as the rules of the relevant IF as approved by the IOC””.[39] It interprets the latter sentence as implying “mandatory compliance with IF rules”^{^[40]}. Furthermore, the Panel finds that “the Olympic Charter makes it clear that an NOC shall only enter competitors upon the recommendations for entries given by national federations (Rule 44.4), and that as a condition precedent to participation in the Olympic Games every competitor has to comply not only with the provisions of the Olympic Charter, but also with “the rules of the IF governing his sport” (Bye-law 4 to Rule 44)”^{^[41]}. It concluded that “the NOCs can only exercise their right to send personnel to the Olympic Games if they comply with the rules of the relevant International Federation (“IF”) because otherwise they would be contravening Rule 40 of the Olympic Charter”.[42] Consequently, “ROC cannot enter into the 2016 Olympic Games athletes who do not comply with the IAAF’s rules, including those athletes who are not eligible under Competition Rules 22.1(a) and 22.1A.” [43] Even in the unlikely event RusAF is deemed not to exist anymore for the purpose of the application of the Olympic Charter, and Bye-law 5 to Rule 44[44] of the Olympic Charter is deemed applicable, “the ROC would need the IAAF’s, and IOC Executive Board’s, approval to send competitors”[45].

Therefore, with or without RusAF, “the ROC cannot enter athletes who are ineligible pursuant to the IAAF’s rules”[46].

4. Will the Russian athletes enjoying the exception enshrined in Rule 22.1A compete as neutral athletes?

Finally, the last interrogation posed by the claimants is whether Russian athletes regaining eligibility through Rule 22.1.A can compete as representatives of Russia. It is the only point on which the claimants are found by the Panel to prevail. Indeed, it finds “that, under the Olympic Charter, if there are any Russian track and field athletes who are eligible to compete at the 2016 Olympic Games under IAAF Competition Rule 22.1A, the ROC is entitled to enter them to compete as representatives of Russia”[47]. In its view, “under the Olympic Charter it is not for an IF to determine whether an athlete, eligible for entry to the Olympic Games, has to compete as a “neutral” athlete, or as an athlete representing the NOC that entered him or her” [48]. In other words, “athletes which are sent to the Olympic Games are not entered as neutrals, but are sent by an NOC” [49]. Moreover, “an athlete does not represent his/her national federation; the federation’s suspension does not prevent an athlete from being entered into the Olympic Games as a representative of his/her NOC” [50].

The Panel does recognize, however, that the fact “that the ROC is entitled, under the Olympic Charter, to enter into the Olympic Games as representatives of Russia any Russian track and field athletes who are eligible to compete under IAAF Competition Rule 22.1A does not mean that the IOC is bound to accept such designation as athletes representing Russia” [51]. In sum, it was not IAAF’s job to declare the athletes neutral but the IOC’s and it declined to do so.

Conclusion

The IAAF has faced a hurricane of negative news in the last two years. Its former president, Lamine Diack, is under investigation in France on corruption charges, its internal anti-doping activities have been shown to be at best inefficient and at worse corrupted, and Russia, one of its biggest suppliers of talents and legends, is exposed as engaged in a State sponsored doping programme. The least one can say is that cleaning these ‘Augean Stables’ was, and still is, an awful task. However, unlike the IOC, which has shown little willingness to seriously crack down on Russia after the scandal, the IAAF has adopted a tough line. It sidelined Russia’s athletics federation as soon as the suspicions voiced by whistle-blowers were substantiated. Furthermore, it refused to let Russian athletes participate in the Rio Olympics, thus reinforcing the anti-doping fight with a symbolically important sanction. Indeed, the world anti-doping system will remain a paper tiger if Russia’s systematic breach of anti-doping rules and spirit is not followed by truly deterrent sanctions. Surely, the system as a whole deserves a comprehensive reform addressing the massive deficiencies highlighted by the Russian scandal.

In this regard, the lessons from this CAS award rejecting the demands of the Russian athletes are threefold:

First, the athlete’s eligibility to international sporting competitions cannot be severed from the status of his or her national federation. In other words, the athletes, as members of a national federation, bear part of the responsibility for a federation’s failure to comply with, for example, its duties under the WADC. This does not preclude the introduction of mechanisms that, as the one introduced by the IAAF, would enable athletes to discharge this responsibility in specific situations.

Second, international federations can impose painful sanctions upon their affiliates in case of noncompliance with their duties under the WADC. The CAS recognized that in order to function properly the WADC needs to be supported at the local level, and to be supported at the local level noncompliance must be met with deterrent sanctions that will necessarily extend to the athletes affiliated with the noncompliant local body. Again, the athletes are not passive members of a national federation. They bear a share of the political (and in the end legal responsibility) attached to its governance.

Third, and finally, the CAS has demonstrated that there was no fatality in taking a lenient road to deal with the Russian State doping scandal. The Panel even left open the possibility for the IOC to decide that Russian athletes would have to compete under a neutral flag. This is a good reminder that the IOC’s decisions to let the Russians compete at the Rio Olympics, and thus dilute the negative effects of being caught organizing a comprehensive State doping system (as was very recently evidenced by the second McLaren Report) was not a legally mandated decision but a political choice that deserves critical scrutiny. The precedent force of this award is even greater in the light of its endorsement by the Swiss Federal Tribunal, which rejected in early August the Claimants request for provisory measures against it.

[1] The rule reads as follows:

1A. Notwithstanding Rule 22.1(a), upon application, the Council (or its delegate(s)) may exceptionally grant eligibility for some or all International Competitions, under conditions defined by the Council (or its delegate(s)), to an athlete whose National Federation is currently suspended by the IAAF, if (and only if) the athlete is able to demonstrate to the comfortable satisfaction of the Council that:

(a) the suspension of the National Federation was not due in any way to its failure to protect and promote clean athletes, fair play, and the integrity and authenticity of the sport; or

(b) if the suspension of the National Federation was due in any way to its failure to put in place adequate systems to protect and promote clean athletes, fair play, and the integrity and authenticity of the sport, (i) that failure does not affect or taint the athlete in any way, because he was subject to other, fully adequate, systems outside of the country of the National Federation for a sufficiently long period to provide substantial objective assurance of integrity; and (ii) in particular the athlete has for such period been subject to fully compliant drug-testing in- and out-of-competition equivalent in quality to the testing to which his competitors in the International Competition(s) in question are subject; or

(c) that the athlete has made a truly exceptional contribution to the protection and promotion of clean athletes, fair play, and the integrity and authenticity of the sport.

The more important the International Competition in question, the more corroborating evidence the athlete must provide in order to be granted special eligibility under this Rule 22.1A. Where such eligibility is granted, the athlete shall not represent the suspended National Federation in the International Competition(s) in question, but rather shall compete in an individual capacity, as a 'Neutral Athlete'.

[2] CAS 2016/O/4684 The Russian Olympic Committee (“ROC”) et al v. The International Association of Athletics Federations (IAAF), 21 July 2016, para.115. [where I use Para in the following footnotes I refer to this award]

[3] para.117

[4] Para.118

[5] Ibid.

[6] Para 119.

[7] Ibid.

[8] Para 120.

[9] Para 121.

[10] Ibid.

[11] See CAS 2011/O/2422 United States Olympic Committee (USOC) v. International Olympic Committee (IOC), 4 October 2011.

[12] Para.122-124

[13] Para. 124.

[14] Ibid.

[15] Para.125-127

[16] Para. 126.

[17] Para. 127.

[18] Para.128

[19] Para. 129.

[20] Para. 131.

[21] Ibid.

[22] Ibid.

[23] Ibid.

[24] Para. 132.

[25] Ibid.

[26] Para. 136.

[27] Para.137.

[28] Ibid.

[29] Para.138

[30] Para.140

[31] Para. 151

[32] Para.152

[33] Para.143

[34] Para. 146

[35] Para. 146.

[36] Para. 147.

[37] Ibid.

[38] Para. 155

[39] Para. 157

[40] Para. 157

[41] Para. 158

[42] Para. 159

[43] Para. 161

[44] Stating : “Should there be no national federation for a particular sport in a country which has a recognised NOC, the latter may enter competitors individually in such sport in the Olympic Games subject to the approval of the IOC Executive Board and the IF governing such sport”

[45] para.164

[46] para.165

[47] para.167

[48] para.168

[49] para.170

[50] Ibid.

[51] ibid.

Introduction: FIFA’s TPO ban and its compatibility with EU competition law.
Day 2: Third-party entitlement to shares of transfer fees: problems and solutions
Day 3: The Impact of the TPO Ban on South American Football.
Day 4: Third Party Investment from a UK Perspective.
Day 5: Why FIFA's TPO ban is justified.

Editor's note: This is the first blog of our symposium on FIFA's TPO ban, it features the position of La Liga regarding the ban and especially highlights some alternative regulatory measures it would favour. La Liga has launched a complaint in front of the European Commission challenging the compatibility of the ban with EU law, its ability to show that realistic less restrictive alternatives were available is key to winning this challenge. We wish to thank La Liga for sharing its legal (and political) analysis of FIFA's TPO ban with us.

INTRODUCTION

The Spanish Football League (La Liga) has argued for months that the funding of clubs through the conveyance of part of players' economic rights (TPO) is a useful practice for clubs. However, it also recognized that the practice must be strictly regulated. In July 2014, it approved a provisional regulation that was sent to many of the relevant stakeholders, including FIFA’s Legal Affairs Department.

Although initially we felt that FIFA would focus on strict regulation, FIFA finally tilted the balance towards the idea of an absolute ban. FIFA even put an end to the working parties it had put in place to regulate this issue. After verbal and written notices, La Liga has filed a complaint with the Competition Authorities of the European Union, since the prohibition of TPO violates the EU competition rules. In our view, apart from breaching the Treaty on the Functioning of the European Union, it also violates the rules on competition in place in other countries, such as Argentina and Brazil.

La Liga has raised the following arguments to show the disproportion of the absolute prohibition of TPO:

FIFA now prohibits undue third-party influence on a team and on players' agents' economic rights.
The UEFA now regulates the financial aspects of TPO in its Financial Fair Play Regulations.
Only three professional leagues worldwide have banned TPO.
The two independent studies commissioned by FIFA do not support the prohibition of TPO.
The General Assembly of FIFA concluded that TPO is a complex issue that must continue to be studied in detail.
The FIFA Working Party on TPO held only one meeting before it was banned and adapted no specific recommendations.
The FIFA Executive Committee agreed to ban TPO with no supporting report or internal proposal.
FIFA has not consulted governments, authorities or, in particular, the European Commission before adopting the ban.
The arguments used to ban TPO reveal the lack of proportionality of the measure.
Independent experts have denounced the lack of proportionality of a TPO ban.

The lack of proportionality of the measure

FIFA’s main argument is that TPO threatens the integrity of sporting competitions. In La Liga’s view, both the integrity of the competition and, where appropriate, footballers' independence could be protected by measures that do not require the full prohibition of TPO. For example, it could limit third-party economic rights to a minority percentage (>50%) together with other measures, such as limiting the number of players from the same club in which a third-party has minority economic rights.[1] Indeed, in its ENIC/UEFA decision, the European Commission took into account that the UEFA rule only prohibits the control of multiple clubs, but not the acquisition of minority stakes in them ("(T)he UEFA rule does not limit the freedom of action of investors that have shares in clubs below the level that gives them control over the club, because clubs with such ownership structure remain free to play in the same UEFA competition”).

Consideration must also be given to the fact that the risk to the integrity of competitions is much greater when two teams controlled by the same investor play against each other compared to when a certain number of players over whom a third party holds economic rights play each other. In the former case, the owner or investor of the clubs may want a team to lose if they can avoid relegation, win the championship or qualify for an international competition. In the latter case, a third-party investor's interest is for players to play as well as possible to increase their economic value, regardless of the result of the match. In fact, there is an increased risk of conflict of interest if a player has been loaned by one club to another and has to play against the club that holds the economic rights. It should be highlighted that neither FIFA nor UEFA have taken steps to regulate loans of players between clubs, despite the fact that loans account for a significant part of player transfer[2] and that independent experts recommend more restrictive regulations for loans.[3] Similarly, we fail to understand why FIFA, prohibits TPO when it is considering deregulating the profession of player agent and accepts that only a few agents represent and share economic interests with star football players.[4]

FIFA further argues that banning TPO will avoid speculation and inflation of transfer costs, preserve economic flows within football clubs, protect players' human dignity, combat economic crime, etc. La Liga is of the opinion that these arguments violate even further the principle of proportionality and are of questionable legitimacy. Therefore, they should be rejected from the outset.

POLITICAL ASPECTS

As the Association of Spanish Football Clubs, we first and foremost defend a regulation of TPO. Banning it would be denying a fundamental tool for our clubs' funding and competitiveness

Based on the current socio-economic context of the football sector and its practical reality, it seems particularly inappropriate to reject a source of external funding used in every sector of the economy and which, when appropriately regulated, could create greater legal certainty for all concerned.

More specifically, from a political point of view, it is essential to design the regulation of TPO so that La Liga and its clubs maintain or even increase their current competitiveness.

Indeed, there is no doubt about the benefits provided by TPO/TPI since many clubs are in the position to sign players who they otherwise could not afford. Moreover, clubs also profit from the ability to anticipate revenue by selling the rights of the squad players in their team. Thus, in terms of the competitive balance, the use of TPO enables small/medium-sized clubs to maintain their competitiveness against their "bigger" rivals. For example, winning the Spanish league and reaching the Champions League final in the 2013/14 season is an achievement Atlético Madrid would probably not have reached without having recourse to TPO. Furthermore, it makes it possible to increase investment in sports facilities for better training and the development of young players.

The above shows that the private investor also "shares" a risk with the club: when investing in a specific player, the investor also assumes the negative results of the potential investment, which is then shared between the club and the investor, greatly reducing the negative impact on the accounts of the club in question.

And finally, taking into account the economic and financial difficulties currently affecting football clubs, it is necessary to support appropriate financing mechanisms in football to foster investment in the sector, since, at present, most clubs would not be able to survive on their current sources of income.

Should the absolute prohibition of TPO/TPI be maintained, as intended by FIFA and UEFA, it will be very difficult to keep the constellation of star players in our affiliated Clubs. They will most certainly leave their respective clubs for other competitions and clubs that have greater financial resources. It is clear that a large number of Spanish teams will see their competitiveness reduced and, at the same time, the competitiveness of and interest in our competition will plummet.

In addition, proper regulation of this issue would avoid the risk of compromising the integrity of competitions, since it would provide greater legal certainty for all the involved parties. Instead, the absolute ban imposed by FIFA will lead to the creation of a "black market” that would be out of regulatory control and would therefore endanger the very integrity of the competitions. Thus, it is absolutely necessary to regulate the matter appropriately.

LEGAL ASPECTS:

In line with the aforementioned political aspects, from a strictly legal perspective, regulating TPO is particularly advisable since:

a. It is a common practice in the football sector and it is a source of funding that promotes the competitiveness of clubs. Moreover, it stimulates competition and allows clubs to attract and retain top-level players.

In recent years, the number of investments in football players has increased. These investments were sought by Spanish clubs in order to finance the registration of the players’ federative rights. Furthermore, the investor’s remuneration is (wholly or partially) calculated depending on the positive economic results that may be obtained through future transfers of the player’s federative rights by the club that received the investment money.

La Liga believes that investments of this nature can constitute a useful alternative source of financing for clubs and investment for funds, especially now that the Spanish financial sector and the Spanish professional football sector are undergoing a profound financial crisis. Accordingly, these investments may foster the competitiveness of Spanish professional football clubs in Spain and outside. Indeed, the signing and retention of players’ federative rights cannot be secured without third-party investments.

b. TPO requires an adequate regulatory framework to ensure legal certainty and promote the integrity of professional football competitions.

Based on the widespread use of TPO in practice, La Liga considers it appropriate to introduce certain rules and provide legal certainty to both the clubs as well as the investors. This would require imposing reasonable limitations and duties, and providing for the transparency of the TPO transactions, to protect good sportsmanship and the integrity of competitions.

La Liga’s proposal for a regulatory framework is based on the following basic principle:

Compliance with FIFA’s rules on the influence of third parties in clubs, according to which no club may enter into a contract whereby any party to said contract or third party may assume a position that could influence labour issues and transfers in relation to the independence, policies or actions taken by the teams of any club.

Based on this principle, the following regulatory measures are suggested:

prohibition of certain transactions based on the player's age;
maximum percentage of participation in the "economic rights";
quantitative limitations on the maximum number of players per club;
maximum remuneration for the investor;
prohibition of certain clauses that may limit the independence and autonomy of the clubs; and
prohibition of transactions depending on the investor's particular status or business (or participation in the same) such as shareholders, directors and managers of the clubs.

This regulatory framework would provide transparency through duties of information and registration of the investors (including full identification of the real owners) and the financial transactions themselves.

CONCLUSION

There is no doubt that the use of TPO/TPI needs to be regulated in Spanish professional football. However, it is also necessary to acknowledge that the full prohibition of TPO by FIFA will only trigger a search for "creative" alternatives to fulfil the same purpose, using fraud and/or other contractual fictions. Furthermore, the prohibition of TPO will be very difficult to enforce and it will generate a great deal of conflicts, which is obviously not a desirable outcome. This is also without prejudice to the considerable loss of competitiveness and footballing talent for our clubs and our competitions.

Thus, it is necessary to devise an alternative approach to the issue by means of a specific regulation. Indeed, we consider that third-party investment in football is a legitimate financing vehicle for clubs, based on risk-sharing and productive investments through private funds. However, there are also obvious threats that need to be tackled. Therefore, in the view of La Liga, it is necessary to establish a sustainable, secure and transparent regulatory system that encourages sound investment in the sector and provides for a better control of the investors.

The benefits to be gained from regulating TPO/TPI are more than evident and would be shared by all the stakeholders that make up the ‘football family’. We believe that an adequate regulation in this area would pave the way for a secure, reliable and transparent system, allowing the ‘football family’ to safely enjoy the benefits TPO can provide.

[1] See, for example, alternatives to the total ban proposed by Luís Villas-Boas Pires, "Third Party Ownership- To ban or not to ban?, LawInSport,10.12.2013: http://www.lawinsport.com/articles/regulation-a-governance/item/third-party-ownership-to-ban-or-not-to-ban.

[2] The Economic and Legal Aspects of Transfers of Players”, KEA-CDES, December 2013, p. 193: “These operations involve a large number of transfers in Europe – 21% i.e. 1333 in 2011, according to TMS”.

[3] The Economic and Legal Aspects of Transfers of Players”, KEA-CDES, December 2013, study performed for the European Commission, pp. 253-254: "Proposal 4:Regulate the loan transfer

Abusive loan transfer practices contribute to competitive imbalance and unfairness of the competitions. We suggest regulation to limit or prevent such abusive practices. This could encompass:

- Limiting the number of loans by the lending clubs

- Limiting to xx the number of loans to the beneficiary clubs

- Regulating loan contracts between clubs which pose a risk to the integrity of competition (for instance: a contractual clause that prevents a player from participating in a certain competition or a given match). Main stakeholders: International federations, national federations and leagues.”

[4] The Economic and Legal Aspects of Transfers of Players”, KEA-CDES, December 2013, pp. 128-129:

“The second feature of the upper primary segment is the concentration of superstars in the hands of a few agents (individual or agencies). It is a question of knowing what the actual market power of these agents is and what can be done to regulate their actions. For example, let us note that Gestifute, the Portuguese agency led by Jorge Mendes, has in its portfolio José Mourinho, Cristiano Ronaldo, Nani, Anderson, Pepe, Ricardo Carvalho, Raul Meireles and Miguel Veloso. This agency has generated €369.85m in transfer rights (Poli, 2012). The role of the major sporting agents should be better known, in order to assess whether they are responsible for an increase in the dualisation of the labour market and, therefore, for a deterioration in competitive balance. Small championships can no longer hang on to their stars and the major championships are competing to attract them, thus contributing to the inflation of speculative bubbles regarding the salaries and transfer fees of these stars.

In the lower primary market, as in the higher primary market, the role of agents is decisive in transactions and we once more find the same recommendations:

An analysis of the concentration of wage

- bills.

- An analysis of the concentration of transactions at the agent level.”

Andy Brown
4/16/2015 12:25:31 PM |

Couldn't agree more. I also think that this is part of a larger movement by Europe's bigger clubs to ensure their financial hegemony in the market. With FFPR, TPO bans and the way in which the world's biggest clubs are abusing immigration regulations to amass players and then loan them out overseas, there is no room for the smaller clubs to break into the big time any more. But then again, AFC Bournemouth may prove me wrong. More on how the TPO ban could actually present a risk to integrity here: icss-journal.newsdeskmedia.com/Third-party-ownership-a-risk-to-integrity

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