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

Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

The Headlines

The European Court of Justice finds that rule of a sports association excluding nationals of other Member States from domestic amateur athletics championships may be contrary to EU law

On 13 June 2019, the European Court of Justice (ECJ) delivered a preliminary ruling at the request of the Amtsgericht Darmstadt (Local Court Darmstadt, Germany) filed in the course of the proceedings involving Mr Daniele Biffi, an Italian amateur athlete residing in Germany, and his athletics club TopFit based in Berlin, on the one hand, and the German athletics association Deutscher Leichtathletikverband, on the other. The case concerned a rule adopted by the German athletics association under which nationals of other Member States are not allowed to be awarded the title of national champion in senior amateur athletics events as they may only participate in such events outside/without classification. The ECJ’s task was to decide whether or not the rule in question adheres to EU law.

The ECJ took the view that the two justifications for the rule in question put forward by the German athletics association did not appear to be founded on objective considerations and called upon the Amtsgericht Darmstadt to look for other considerations that would pursue a legitimate objective. In its judgment, the ECJ analysed several important legal questions, including amongst others the applicability of EU law to amateur sport or the horizontal applicability of European citizenship rights (for detailed analysis of the judgment, please see our blog written by Thomas Terraz).

Milan not featuring in this season’s edition of Europa League following a settlement with UEFA

On 28 June 2019, the Court of Arbitration for Sport (CAS) rendered a consent award giving effect to a settlement agreement between UEFA and the Milan Football Club, under which the Italian club agreed to serve a one-year ban from participation in UEFA club competitions as a result of its breaches of UEFA’s financial fair play regulations over the 2015/2016/2017 and the 2016/2017/2018 monitoring periods, while the European football’s governing body agreed to set aside previous decisions of the Investigatory and Adjudicatory Chamber of its Club Financial Control Body which had found Milan guilty of the respective breaches.   

This was not the first intervention of the CAS related to Milan’s (non-)compliance with UEFA’s financial fair play regulations. In July 2018, the CAS annulled the decision of the Adjudicatory Chamber of the UEFA Club Financial Control Body of 19 June 2018 which was supposed to lead to the exclusion of the Italian club from UEFA club competitions for which it would otherwise qualify in the next two seasons (i.e. 2018/2019 and 2019/2020 seasons). Following such intervention of the CAS – which concerned the 2015/2016/2017 monitoring period – it may have appeared that Milan would eventually manage to escape a ban from participation in UEFA club competitions for breaches of UEFA’s financial fair play regulations. However, Milan’s case was again referred to the Adjudicatory Chamber of the UEFA Club Financial Control Body in April 2019 – this time its alleged breaches of UEFA’s financial fair play regulations concerned the 2016/2017/2018 monitoring period – and such referral apparently forced Milan into negotiations with UEFA which led to the settlement agreement ratified by the CAS.      

Swiss Federal Tribunal gives Caster Semenya a glimmer of hope at first but then stops her from running at the IAAF World Championships in Doha

Caster Semenya’s legal team brought an appeal to the Swiss Federal Tribunal in late May against the landmark ruling of the CAS which gave the IAAF the green light to apply its highly contentious Eligibility Regulations for Female Classification (Athlete with Difference of Sexual Development) preventing female athletes with naturally elevated levels of testosterone from participating in certain athletic events unless they take medication to supress such levels of testosterone below the threshold of five nmol/L for a continuous period of at least six months. The appeal yielded some positive partial results for Caster Semenya early on as the Swiss Federal Tribunal ordered the IAAF on 3 June 2019 to suspend the implementation of the contested regulations. However, the Swiss Federal Tribunal overturned its decision at the end of July which means that Caster Semenya is no longer able to run medication-free and this will most likely be the case also when the 2019 IAAF World Athletics Championships kick off in Doha in less than one month’s time. The procedural decisions adopted by the Swiss Federal Tribunal thus far have no impact on the merits of Caster Semenya’s appeal.

Sports Law Related Decisions

• CAS – Arbitral award in the case concerning Caster Semenya
• CAS – Arbitral award in the case concerning Vitaly Mutko and the IOC
• CAS – Consent award in the case concerning AC Milan and UEFA
• European Court of Justice – Judgment in the case TopFit eV and Daniele Biffi v Deutscher Leichtathletikverband eV

Official Documents and Press Releases

CAS

• CAS – Consent award issued by the Court of Arbitration for Sport (CAS) in the arbitration procedure between AC Milan S.P.A. and UEFA
• CAS – The Court of Arbitration for Sport (CAS) annuls the decision of the CAF Executive Committee
• CAS – The Court of Arbitration for Sport (CAS) declares the appeals filed by the Comoros Football Federation inadmissible
• CAS – The Court of Arbitration for Sport (CAS) dismisses the appeal filed by KS Skenderbeu
• CAS – The Court of Arbitration for Sport (CAS) dismisses the appeal filed by the Gambia Football Federation
• CAS – The Court of Arbitration for Sport (CAS) dismisses the appeal filed by the president of the Palestine FA against the Federation Internationale de Football Association (FIFA)
• CAS – The Court of Arbitration for Sport (CAS) dismisses the appeal of Turkish football club Trabzonspor Kulubu Dernegi
• CAS – The Court of Arbitration for Sport (CAS) registers an appeal filed by the agent Carmine ‘Mino’ Raiola – urgent request for a stay granted – expedited CAS procedure ongoing
• CAS – Manchester City Football Club files an appeal at the Court of Arbitration for Sport (CAS)

FIFA 

• FIFA – Adjudicatory chamber of the independent Ethics Committee sanctions Mr Keramuudin Karim
• FIFA – FIFA and AFD sign landmark cooperation agreement to promote women’s football and develop school football in Africa
• FIFA – FIFA Council unanimously approves expanded 32-team field for FIFA Women’s World Cup
• FIFA – FIFA Disciplinary Committee sanctions Macau Football Association
• FIFA – FIFA introduces innovative approach with launch of new Disciplinary Code
• FIFA – FIFA makes important updates to Code of Ethics
• FIFA – FIFA statement on recent comments made relating to sexual abuse cases in Afghanistan
• FIFA – Gianni Infantino is re-elected as FIFA President until 2023
• FIFA – Joint statement from FIFA and CAF
• FIFA – Normalisation committee appointed for the Pakistan Football Federation
• FIFA – Road map for cooperation between FIFA and CAF
• FIFA – Worldwide suspensions of intermediaries Carmine and Vincenzo Raiola lifted

IAAF

• IAAF – IAAF approves the application of Russia’s Ekaterina Starygina to compete internationally as a neutral athlete
• IAAF – IAAF approves the application of 14 Russians to compete internationally as neutral athletes
• IAAF – IAAF approves the application of 37 Russians to compete internationally as neutral ahtletes
• IAAF – IAAF Council approves out of competition drug testing funding scheme for road races
• IAAF – IAAF response to IWG, WSI and IAPESGW
• IAAF – IAAF response to Swiss Federal Tribunal order regarding DSD regulations
• IAAF – IAAF statement in response to release of full CAS award
• IAAF – IAAF submits response to Swiss Federal Tribunal
• IAAF – IAAF response to Swiss Federal Tribunal’s decision

IOC

• IOC – Evolution of the revolution: IOC transforms future Olympic Games elections
• IOC – IOC lifts suspension of Kuwait Olympic Committee
• IOC – The IOC publishes its 2018 Annual Report and Financial Statements
• IOC – IOC sanctions one athlete for failing anti-doping tests at London 2012
• IOC – IOC sanctions one athlete for failing anti-doping tests at London 2012
• IOC – IOC Session elects two Executive Board members and ten new IOC members

UEFA

• UEFA – Joint statement by FIFA, the AFC, UEFA, the Bundesliga, LaLiga, the Premier League and Lega Serie A regarding the activities of beoutQ in Saudi Arabia
• UEFA – UEFA and Sport Integrity Global Alliance sign cooperation agreement

WADA

• WADA – WADA and iNADO reaffirm strong relationship for good of clean sport
• WADA – WADA Compliance Review Committee update
• WADA – WADA introduces standard analyser at all laboratories approved for ABP controls
• WADA – WADA posts IOC’s Anti-Doping Rules for Lausanne and Tokyo 2020
• WADA – WADA provides International Federations with first batch of cases in Russia investigation
• WADA – WADA publishes latest draft versions of the 2021 Code and International Standards
• WADA – WADA removes Democratic People’s Republic of Korea Anti-Doping Committee from non-compliant list
• WADA – WADA statement on Operation Viribus

Other

• AIU (Athletics Integrity Unit) – Athletics Integrity Unit confirms receipt of Moscow Laboratory data
• European Commission – Report from the Commission to the European Parliament and the Council on the assessment of the risk of money laundering and terrorist financing affecting the internal market and relating to cross-border activities
• Europol – Keeping sport safe and fair: 3.8 million doping substances and fake medicines seized worldwide
• The International Working Group (IWG) on Women & Sport – Caster Semenya: IWG, WSI & IAPESWG write to IAAF
• IBU (International Biathlon Union) – IBU renders decision on two Russian biathletes
•  TIU (Tennis Integirty Unit) – Bulgarian brothers Karen and Yuri Khachatyran provisionally suspended by independent Anti-Corruption Hearing Officer
• TIU (Tennis Integrity Unit) – Nigerian tennis player Henry Atseye suspended and fined after admitting to match-fixing offences
• TIU (Tennis Integrity Unit) – Youssef Hossam provisionally suspended by independent Anti-Corruption Hearing Officer

In the news

Doping 

• Andy Brown Romanian NADO instructed lab to cover up positive tests
• Paul Byrne Mamadou Sakho suing WADA for £13m over drug test blunder that ruined Liverpool career
• Daniel Etchells Froome awarded 2011 Vuelta a Espana as Cobo stripped of title
• Daniel Etchells International Biathlon Union makes move to help tackle doping
• Daniel Etchells Olympic gold medallist steps down as first vice-president of Russian Athletics Federation while facing doping case
• Daniel Etchells Recovering Froome set to be awarded 2011 Vuelta a Espana title after winner Cobo found guilty of doping
• Daniel Etchells Russian long-distance runner Nurgaliyev given two-year doping ban
• Daniel Etchells Russian weightlifter Lomova handed four-year ban
• Daniel Etchells Two Russian biathletes given four-year bans for doping based on evidence from Moscow Laboratory
• Daniel Etchells WADA recommends dismissal of two Romanian National Anti-Doping Agency officials after finding doping cover-up
• Paul MacInnes Greg Rutherford and Dawn Fraser back swimmers over Sun Yang protests

Football

• David Conn African football president under questioning over corruption allegations
• David Conn Bahrain-Merida cycling team being used to ‘sportswash’, campaigners say
• David Conn England and Germany ‘will block European Super League’
• David Conn Gianni Infantino trumpets ‘new FIFA’s’ vast wealth at unopposed re-election
• David Conn Manchester City lodge appeal with CAS over UEFA’s FFP referral
• David Conn Manchester City’s CAS appeal against UEFA FFP referral likely to fail
• David Conn Michel Platini rages from the sidelines as Infantino stands to keep FIFA crown
• David Conn Michel Platini detained over award of 2022 World Cup to Qatar
• David Conn A Sarkozy lunch, PSG and beIN sports: questions for Platini over Qatar 2022
• David Conn Top clubs accused over ‘dangerous’ plans to reshape Champions League
• Daniel Etchells Argentine Football Association President stripped of FIFA Council seat after criticising Copa America referees
• Daniel Etchells Consensus that women’s football is in ‘best position’ as inaugural FIFA Convention on female game begins
• Rob Harris FIFA says wrong to stop Iran activists in World Cup stadiums
• Rob Harris Man City asks court to block UEFA case
• Anthony Harwood FIFA President Gianni Infantino opted against expanding the World Cup to 48 teams because of human rights concerns
• Sean Ingle PSG president Nasser al-Khelaifi in spotlight over Pastore transfer
• Sean Ingle World Cup prompts unprecedented global explosion for women’s football
• Jada Loutoo Jack Warner loses extradition challenge in Appeal Court
• Tariq Panja Match-fixing at women’s World Cup? As game grows, officials are on alert
• Aaron Walawalkar Women’s World Cup: Unequal prize money ‘a human rights breach’ say lawyers
• Suzanne Wrack FIFA aware of Afghanistan sexual abuse allegations two years ago, according to emails

Other

• Ben Bloom IAAF fail in initial bid to prevent Caster Semenya defending world 800m title
• Sibilla Bondolfi Why Swiss judges ruled on the Caster Semenya case
• Daniel Etchells FairSport slams CAS decision to uphold Mutko appeal against lifetime Olympic ban
• Daniel Etchells Malaysian badminton players lose appeals against career-ending bans for match-fixing
• Sean Ingle British Olympians call for IOC to shelve ‘unfair’ transgender guidelines
• Sean Ingle Caster Semenya able to run medication-free for now as Swiss court floors IAAF
• Sean Ingle Caster Semenya accuses IAAF of using her as a ‘guinea pig experiment’
• Sean Ingle How can we end the current impasse over transgender athletes?
• Sean Ingle IAAF agent ‘asked Qatari royal’ for $5m in bid for sporting events
• Sean Ingle Lamine Diack to stand trial for money laundering and corruption
• Sean Ingle IOC investigates allegations of bribery over Rio’s 2016 Olympic bid
• Sean Ingle Tokyo 2020: U-turn as hotels agree to wheelchair rooms for Paralympics
• Rory Jiwani Swiss Supreme Court upholds ruling in favour of Caster Semenya
• Lars Jorgensen EOC defends placing the European Games in Belarus
• Paul MacInnes Caster Semenya blocked from competing at world championships
• Ned Payne South African star Semenya set to miss IAAF World Championships after court ruling

Academic Materials

Books

•  Johan Lindholm The Court of Arbitration for Sport and its Jurisprudence: An Empirical Inquiry into Lex Sportiva

International Sports Law Journal

•  Rusa Agafonova International Skating Union versus European Commission: Is the European Sports Model under Threat?

• Stephanie De Dycker Good Governance in Sport: Comparative Law Aspects

• Jan Exner Fixed Sanction Framework in the World Anti-Doping Code: Can Hearing Panels Go Below the Limits in the Pursuit of Proportionate Sanctions?

• Paul Greene and Matthew Kaiser How Athletes’ Rights Can Be Better Protected When It Comes to Retroactive Therapeutic Use Exemptions

Other

•  Antoine Duval What Lex Sportiva Tells You About Transnational Law

Blog

Verfassungsblog: FIFA and human rights symposium

• Antoine Duval and Daniela Heerdt FIFA and human rights: Introduction to the symposium
• Eleanor Drywood ‘We need to talk about the kids’: FIFA’s children’s rights obligations
• Bodo P. Butzler and Lisa Schoddert FIFA’s Eigen-constitutionalisation and its limits
• Raquel Regueiro Dubra Shared international responsibility for human rights violations: The 2022 World Cup in Qatar
• Wojciech Lewandowski Is Bauer the new Bosman? The implications of the recent jurisprudence of the Court of Justice of the European Union for FIFA
• Daniel Rietiker The European Court of Human Rights and FIFA: Current issues and potential challenges
• Michele Krech FIFA for women or women for FIFA? The inherent tensions of FIFA’s Women’s Football Strategy
• Jan Lukomski The protection of labour rights in professional football under the ICESCR

Asser International Sports Law Blog

• Thomas Terraz A New Chapter for EU Sports Law and European Citizenship Rights? The TopFit Decision

Law in Sport

• Philippe Vladimir Boss Tackling match-fixing in Switzerland: The new duties on international sports federations to monitor and report suspected match manipulations
• Gavin Brogan The role and extent of criminal sanctions in sport
• Nikki Dryden When can IOC investigate National Olympic Committees?
• Tiran Gunawardena and Rustam Sethna An overview of the new FIFA Disciplinary Code
• Kei Ikuta Plans underway for pro bono legal services for the 2020 Tokyo Olympic and Paralympic Games
• Susie Jarrold How sports clubs are investing into tech start-ups
• Despina Mavromati and Jake Cohen International transfer of minors in football: Key takeaways and procedural issues from Chelsea & The FA v. FIFA
• Adam Powell Stadium naming deals: Why clubs and sponsors should always consider their termination rights
• Rustam Sethna A data analysis of the arbitrators, cases and sports at the Court of Arbitration for Sport
• Gavin Stenton and Jaya Bajaj Registering an EU trade mark in bad faith: Lessons from the ‘Neymar’ decision
• Serhat Yilmaz Re-regulating football agents: Would FIFA’s proposed commission cap and prohibition on dual representation work in practice?

Other

• Soren Bang, Christina Friis-Johansen and Jens Alm Victims or winners: Why children’s rights should be the next big issue for sport
• European Leagues Legal Newsletter: June 2019
• Marina Hyde FIFA’s dirty laundry does not cause such a stench in murky times of today
• Marina Hyde Women’s World Cup captured public’s imagination despite FIFA’s worst efforts
• Alex Kelham Rule 40: Olympian ‘business as usual’ ads OK
• Despina Mavromati Jerome Valcke v. FIFA – domestic vs international arbitration: distinction and consequences
• Despina Mavromati and Charles Poncet Application of equity instead of a particular set of rules not a ground for annulment of the arbitral award under Art. 190(2)(b) PILA
• The New Yorker Sunday reading: The women reshaping professional sports
• Keith Rathbone The gender pay gap for the FIFA World Cup is USD 370 million. It’s time for equity
• Roy Tomizawa The dark side of the Tokyo 2020 Summer Olympics: Claims that construction workers are understaffed, underpaid and underprotected
•  Minky Worden Women soccer players’ biggest challenge is changing FIFA itself

Upcoming Events

• 27-28 September – 8^th International Congress on Football Law, Madrid, Spain
• 13-16 October – Play the Game 2019: Athlete Power on the Rise, Colorado Springs, USA
• 24-25 October – Third Annual International Sports Law Conference of the International Sports Law Journal, T.M.C. Asser Institute, The Hague, Netherlands
• 1 November – The Future of Sports Law and Business, Etihad Stadium, Manchester, UK
• 14-15 November – 3^rd WISLaw Annual Conference & General Assembly, Zurich, Switzerland
• 26-27 March 2020 – 14^th Conference of the PSA Sport & Politics Group, Etihad Stadium, Manchester, UK