The European Commission’s competition decisions in the area of sport, which set out broad principles regarding the interface between sports-related activities and EU competition law, are widely publicized. As a result of the decentralization of EU competition law enforcement, however, enforcement activity has largely shifted to the national level. Since 2004, national competition authorities (NCAs) and national courts are empowered to fully apply the EU competition rules on anti-competitive agreements (Article 101 TFEU) and abuse of a dominant position (Article 102 TFEU).

Even though NCAs and national courts have addressed a series of interesting competition cases (notably dealing with the regulatory aspects of sport) during the last ten years, the academic literature has largely overlooked these developments. This is unfortunate since all stakeholders (sports organisations, clubs, practitioners, etc.) increasingly need to learn from pressing issues arising in national cases and enforcement decisions. In a series of blog posts we will explore these unknown territories of the application of EU competition law to sport.

In this second installment of this blog series, we discuss a recent judgment of the regional court (Landgericht) of Dortmund finding that the International Handball Federation (IHF)’s mandatory release system of players for matches of national teams without compensation infringes EU and German competition law.[1] 

Background

In 2009, the Spanish Handball League (ASOBAL) and Group Club Handball (the predecessor of the Forum Club Handball (FCH); an association representing the interest of the top European handball clubs) launched a complaint with the European Commission alleging that the rules of the IHF and EHF on the mandatory release of players were in breach of Articles 101 and 102 TFEU.[2] The Commission opened a preliminary investigation. This prompted the EHF to seek an amicable solution with the complainants.

In May 2010, the EHF signed a Memorandum of Understanding with FCH, covering issues such as the terms of compensation for the release of players and the representation of clubs and other stakeholders in the bodies of the EHF:

• The EHF agreed to pay compensation to the clubs for the release of their players to the national team. Starting from the 2010 European Championship, the EHF paid a fee of 270 EUR per player per match via the national federations to the clubs (amounting to a total compensation of 400.000 EUR, i.e. 10 percent of the profits of the 2010 European Championship).[3]

The EHF agreed on the principle that “each day a player spends with the national team/selection his salary should be insured by the National Federation, EHF or IHF in case of injury in favour of the clubs”.[4]

The EHF took an important step towards more inclusive governance by creating the Professional Handball Board, a strategic platform for various stakeholders (leagues, clubs, national federations, and players). It plays an advisory role through the submission of reports and analyses to the EHF Executive Committee and contributes to the decision-making process through its chairperson (who is a full member of the Executive Committee).

Since many of the complainants’ demands were met, ASBOL and FCH withdrew their competition law complaint. Subsequently, the European Commission closed its preliminary investigation in June 2010.

The EU handball “case” is a good illustration of the remedial potential of EU competition law to strengthen good governance in sport. The mere threat of a formal investigation by the European Commission proved sufficient for the EHF to change its rules for the release of players and to establish a channel for clubs and other stakeholders to participate in its decision-making process.

In 2014, the EHF and FCH renewed the 2010 Memorandum of Understanding (MoU) until June 2018. The modified MoU, which has been the subject of negotiations for more than one year, foresees increased fees for the release of players to the European Championships.

Strengthened by the satisfactory outcome reached with the EHF in 2010, the FCH made attempts to come to a similar arrangement with the IHF. Following negotiations during the course of 2010 and 2011, the IHF for the first time in history paid compensation for the release of players to the World Championship and signed insurance for player salaries for injured players. The IHF Council also proposed to integrate the clubs as stakeholders in its bylaws. The clubs, however, did not accept with the terms and conditions of the proposal and no agreement was reached. The clubs were also dissatisfied with the amount of the compensation paid by the IHF: qualification matches were not compensated and the fee only amounted in average to 10-20 percent of the monthly salary paid by the European top clubs. The prospects of reaching an agreement between the IHF and the CFH dimmed. In March 2012, the IHF made clear that it was no longer prepared to discuss a MoU with the FCH. This prompted 30 German clubs to sue the IHF and the German Handball Federation (DHB) before the regional court of Dortmund in April 2013. 

The 2014 Dortmund judgment

The IHF Player Eligibility Code provides that a club having a foreign player under contract is obliged to “release such player to his National Federation if he is called up to take part in activities of that federation's national team” (Article 7.1.2). The activities include the Olympic Games, World Championships, and continental championships as well as the qualification matches and tournaments for these events. According to Article 7.2 of the Code, a club releasing a national player “shall not have any claim to compensation”. Furthermore, the club must take out insurance coverage for the player in the event of personal injury and resulting consequences for the period for which the player has been called to his federation’s activities (Article 7.3.2). A club failing to release a player that is able to play will be penalized in accordance with the IHF Regulations Concerning Penalties and Fines and the disciplinary regulations of the Continental Confederation concerned (Article 7.4.4).

The German handball clubs, supported by the FCH, argued that the rules concerning the mandatory release of players to the national team and their application by the IHF and DHB constitute an abuse of a dominant position prohibited by Article 102 TFEU and the equivalent German competition law provision (§ 19 Gesetz gegen Wettbewerbsbeschränkungen, GWB).

The regional court of Dortmund first addressed a number of procedural issues. Considering that the DHB is bound by the rules of the IHF, the court decided to join the proceedings against the IHF and DHB. Moreover, the court did not defer to the jurisdictional exclusivity claimed by the defendants. It stressed that the internal disciplinary bodies or even the Court of Arbitration could not be considered independent and impartial for the purpose of reviewing the compatibility of the mandatory player release system with competition law.[5] According to the court, neither the IHF nor the DHB regulations could prevent the clubs from seeking direct recourse to an ordinary civil court. Lastly, the court found German law to be applicable. Even though Article 7 of the IHF Player Eligibility Code affects handball clubs worldwide, its obligations also substantially affect the German market in which the claimants operate.[6] The intimate connection between the claims against the IHF and the DHB further supported the conclusion that the regional court of Dortmund was the appropriate legal venue for hearing the case.

On substance, the court found that the IHF is a monopolist on the market for the organisation of international handball events, including the World Championships and the Olympic Games (i.e. events in which national teams compete), and on a number of other separate, but closely related, commercial markets (e.g. sponsorship). Also on the markets for the organisation of European and national handball competitions, the IHF holds a dominant position (solely and together with the EHF and the national federations).[7]

Turning to the contested rule of the IHF Player Eligibility Code (Article 7), the court stressed that the obligation for clubs to release players for matches of national teams without compensation is incompatible with the civil code rule of good faith in contractual performance.[8] In any normal business, it would be unthinkable that an undertaking would provide for free a resource, its employees, to a competitor seeking to make profits from that resource.[9] At the same time, the court found that this obligation constitutes an exploitative abuse of a dominant position prohibited by § 19 GWB and Article 102 TFEU. When recruiting top foreign-raised players, clubs must take into account the costs of paying their players while they are absent and, what is more, the costs incurred if those players would get injured during an international match. As such, uncompensated player release restricts the clubs’ contractual freedom and distorts competition between the clubs.

Although Article 102 TFEU does not contain an exemption clause similar to Article 101(3) TFEU, an undertaking may escape an abuse finding by demonstrating an objective justification or efficiency defense for its conduct. The court, however, brushed aside the arguments put forward by the IHF and DHB to this end. 

First, the defendants contended that without the player release system, clubs would not be willing to release their players to national teams. The release rules would also prevent clubs from trying to weaken foreign national teams in favor of their own national team.[10] The court stressed, however, that the mandatory release of players for national teams in itself is not being contested. It also pointed to the fact that the IHF, notwithstanding Article 7.2 of the Player Eligibility Code, decided to pay compensation for the release of players to the 2011 and 2013 World Championships. This indicates that in principle a compensation would not adversely affect the sporting or other interests of the IHF. In addition, the court made numerous references to the MoU reached between the EHF and the FCH as well as to the MoU between FIFA and the European Club Association (ECA) (i.e. the deal as a result of which the Oulmers litigation was terminated, see below). These examples indeed exemplify that an uncompensated player release system cannot be considered indispensable.

Second, the defendants argued that participation in international handball events increases the exposure and thus the value of the players, which indirectly benefits the clubs.[11] Also this argument failed to convince the court. If the IHF and DHB would be able to quantify this advantage, this could be taken into consideration when determining the compensation. Yet it could not objectively justify the denial of compensation for the release of players or for their potential injuries.

In light of these observations, the court declared the conditions for the release of players to foreign national teams, embedded in Article 7.2 and 7.3.2 of the IHF Player Eligibility Code, null and void. Interestingly, the court also suggested that the IHF would introduce a cap on the number of days an association would be entitled to call up players for the national team. 

A landmark judgment in the making?

Unsurprisingly, the IHF and the DHB lodged an appeal against the judgment before the higher regional court (Oberlandesgericht) of Düsseldorf. It is not unthinkable that eventually the case will trigger a preliminary reference to the Court of Justice and emerge as the successor of the abandoned Oulmers litigation against the FIFA player release system.

The regional court of Dortmund did not expressly rely on the Wouters proportionality test, transposed in Meca-Medina, to assess whether the IHF’s player release system constituted an abuse of a dominant position. The court’s analysis is, however, largely consistent with the analysis that the Court of Justice would follow. After having established that the contested rules emanate from an undertaking that has a dominant position, the court verified whether there are less restrictive means to achieve the objectives pursued by the IHF’s mandatory player release system. It did not call into question the necessity of a mandatory player release system for the organisation of international handball competitions, but the court did conclude that the current system – which leaves clubs uncompensated – could not be objectively justified.

For at least two reasons the Dortmund judgment, while not final yet, has potential to become an important precedent for many other sports.

First and foremost, it offers the first substantive assessment of the compatibility of player release rules with EU (and national) competition law. Particularly in the event of a preliminary reference to the Court of Justice, the case could serve as a much-needed wake up call to all international sports federations that currently operate a similar system. Arguably, federations could assert that the compensation should not cover all the costs incurred by the clubs. Indirect benefits to the clubs could be discounted. Yet it appears undeniable that the imposition of the burden on clubs to supply players without allowing them a fair share of the resulting benefits constitutes an abuse prohibited by Article 102 TFEU.

Second, even though sports federations usually have practical monopolies in a given sport, the remedial potential of Article 102 TFEU to tackle abusive conduct remains underexplored. This case, and even the earlier competition law complaint lodged against the EHF, reveals that it offers a powerful instrument to steer sports federations into the direction of better governance. Eventually the IHF will have to follow the path that others (e.g. EHF, FIFA) have traveled. After all, the determination of a fair compensation for player release necessitates a consensual strategy that balances the needs of stakeholders, in this case the clubs, with the needs of the federation.

We continue to follow this case closely, so stay tuned.

[1] Landgericht Dortmund, Urteil vom 14.05.2014, 8 O 46/13.

[2] Cases COMP/39659 ASOBAL v handball federations and COMP/39669 Group Club Handball v handball federations.

[3] Forum Club Handball, EHF pays compensation to the clubs, 28 February 2010.

[4] Forum Club Handball, Insurance of player salaries in case of injury, 15 June 2010.

[5] Landgericht Dortmund, Urteil vom 14.05.2014, 8 O 46/13, paras. 104-114.

[6] Idem, para. 118.

[7] Idem, paras. 121-122.

[8] German Civil Code, Section 242 (“An obligor has a duty to perform according to the requirements of good faith, taking customary practice into consideration”).

[9] Landgericht Dortmund, Urteil vom 14.05.2014, 8 O 46/13, para. 129.

[10] Idem, para. 130.

[11] Idem, para. 132.

Yesterday, the European Commission stunned the European Sports Law world when it announced unexpectedly that it had signed a “partnership agreement” with UEFA named (creatively): ‘The Arrangement for Cooperation between the European Commission and the Union of European Football Associations (UEFA)’. The press release indicates that this agreement is to “commit the two institutions to working together regularly in a tangible and constructive way on matters of shared interest”. The agreement was negotiated (as far as we know) secretly with UEFA. Despite recent meetings between EU Commissioner for sport Vassiliou and UEFA President Platini, the eventuality of such an outcome was never evoked. It is very unlikely that third-interested-parties (FIFPro, ECA, Supporters Direct etc.) were consulted in the process of drafting this Arrangement. This surprising move by an outgoing Commission will be analysed in a three-ponged approach. First, we will discuss the substance of the Arrangement (I). Thereafter, we will consider its potential legal value under EU law (II). Finally, and maybe more importantly, we will confront the political relevance of the agreement (III).  

Source: http://ec.europa.eu/avservices/photo/photoDetails.cfm?sitelang=en&ref=026448#13

The substance of the “Arrangement” between UEFA and the European Commission

What’s in the Arrangement? In short, a lot of random considerations, very little concrete commitments, and an administrative structure for future dialogue.

The “basis” for the cooperation between UEFA and the European Commission is a mixed bag of shared concerns and common views. Both institutions are keen on strengthening their dialogue “in the interests of the long-term development and societal role of sport in general and football in particular” (Article 2.1. of the Arrangement), especially in the light of the societal value of sport (Article 2.2.) and the many challenges and risks it is facing (Article 2.3.). Therefore, they “endeavour to strengthen policies designed to encourage the local training and education of athletes” (Article 2.4.). The parties share the view that “appropriate solutions are to be found in order to ensure that athletes are available to play for their national teams” (Article 2.5.), but also that “redistribution mechanisms concerning, for example, audiovisual media revenues and training compensation fees should be recommended” (Article 2.6.). Furthermore, they acknowledge that “[F]inancial stability, transparency and better governance within sport can be pursued through responsible self-regulation”. For example, “measures to encourage greater rationality and discipline in club finances with a focus on the long-term as opposed to the short-term, such as Financial Fair Play initiative, contribute to the sustainable development and healthy growth of sport in Europe” (Article 2.7.).  

The parties also agree that the “health and human dignity of athletes must be protected from abusive and unethical practices”. In this regard, “[I]t is important that […] so-called third-party ownership of the “economic rights” of player, do not threaten the integrity of sporting competition or undermine the relationship of trust and mutual respect that should exist in any relationship of employment” (Article 2.8.). More broadly, the parties recognise the need for social dialogue, protecting fundamental rights, promoting gender equality and to fight all forms of racism, xenophobia, homophobia and discrimination (Article 2.9.). It is recognized that “[t]o improve good governance standards, UEFA can also play a prominent role in seeking appropriate solutions on issues pertaining to players’ transfers and agents at European level” (Article 2.10.). Concerning match-fixing, the parties acknowledge that close cooperation is needed (2.11). 

The Arrangement calls for an “effective protection of intellectual property rights”, as their exploitation “represents an important source of income for professional football” (Article 2.12.). It also favours “the reinforcement of the Council of Europe convention on spectator violence” (Article 2.13.). In a very important holding, arbitration is recognised as “an important voluntary tool for settling disputes in sport and ensuring that sporting rules are applied, interpreted and enforced in an effective and uniform manner, while also ensuring respect of the applicable legal norms and procedural safeguards within and outside of the EU” (Article 2.14.). Finally, “the European Commission and UEFA will collaborate in the context of the planned European Week of Sport, using football to promote healthy physical activity” (Article 2.15).

This collection of, more or less, random thoughts collated in the Arrangement lead to two broad objectives: “to promote cooperation and strengthen relations between the European Commission and UEFA in the interests of the sustainable development of football” (Article 3.1.1.) and “to exchange information, knowledge and good-practice on matters of common interest” (Article 3.1.2). These objectives are to be implemented through a “policy dialogue” between the Secretary General of UEFA and the Director General responsible for Sport in the EC (Article 4.1, 4.2, 4.4, & 4,5). The implementation will also involve “Regular and ad hoc meetings […] between officials of the Sides […]” (Article 4.3.).

The Arrangement will start on the date of the signature [14 October 2014] and is to last until 31 December 2017 (Article 5.1.). The Sides to the Arrangement are free to amend it (Article 5.2). While, each side “can, at any time discontinue the application of this Arrangement, but should endeavour to provide a three-month notice of such discontinuation to the other Side” (Article 5.3.). Finally, both sides acknowledge that the “Arrangement does not create rights or obligations under international, EU or domestic law” (Article 5.4.).   

The legal value of the “Arrangement” under EU law

This is not a memorandum of understanding, a gentleman’s agreement between UEFA and the Commission, or a simple political declaration; this Arrangement is formally approved by a binding decision of the European Commission, to which it is attached. This decision could not be based on Article 165 paragraph 4 of the TFEU (the sports legal basis), as it does not confer to the European Commission the power to adopt such a decision. Hence, the Commission needed to rely on its general competence derived from Article 17 TEU.[1] Already, this is cause for legal concern; for example one could question the legitimacy of the circumvention of the limits set expressively in Article 165 TFEU and the recourse to Article 17 TEU to stretch the Commission’s competences. Ultimately, it could lead to a legal challenge against the decision, based on the European Commission’s lack of competence to adopt it. In any way, this is unlikely to happen, as it would require an EU Institution (the Council or the European Parliament), or a Member State to do so. 

What does the fact that the Arrangement is enshrined in a European Commission decision mean in legal terms? As specified in Article 288 TFEU: “A decision shall be binding in its entirety”. This is a legally binding document, in theory reviewable by Courts and potentially capable of generating rights and legitimate expectations for a third party (most probably UEFA). The Commission was apparently very weary of dodging this possibility. Therefore, it kept the wording of its commitments relatively vague and introduced many references to the primacy of EU Competition law and the EU acquis in the text. Moreover, article 5.4 of the Arrangement stipulates that it “does not create rights or obligations under international, EU or domestic law”. This makes it very difficult to envisage a possibility for UEFA to claim that it has concrete legitimate expectations arising from this Arrangement.[2] Consequently, in practice, this Arrangement is very much a soft legal instrument in the guise of hard law administrative decision. Nevertheless, the law is not always only about the law and such soft legal documents might have hard political and legal consequences. 

The hard political (and legal) reality of a soft legal “Arrangement”

The legal theoretical debate over the nature and function of soft law instruments has been on-going for more than 20 years now.[3] But, one thing seems to be more or less certain, soft legal mechanisms matter.[4] They matter politically, as they shape the perception of public opinion and play a role in public discourse. Sometimes they might also matter legally, especially when legal standards based on the substantial balancing of values (or risks) are used, as for example the proportionality principle. Therefore, the European Commission should be very weary of using such soft instruments in a blunt fashion. 

In our view, this Arrangement between UEFA and the European Commission is a misguided soft law instrument. Indeed, despite its willingness not to get into an agreement creating legal rights for UEFA, the European Commission will be haunted (politically and legally) by it for the years to come. For example, it will be very difficult for the European Commission to consider that UEFA’s Financial Fair Play regulations are disproportionate in the sense of the Meca-Medina test, after recognizing that it contributes to “the sustainable development and healthy growth of sport in Europe”. The Commission also adds that this recognition is “subject to compliance with competition law”. Thus, it remains in theory possible for the DG Competition to consider FFP incompatible with EU Competition law. However, one need not be a political wizard to understand the difficulty to do so after having enshrined such a statement in an official decision (UEFA is already claiming that the Commission “fully supports” the “implementation of Financial Fair Play”). UEFA would easily point at the obvious contradiction and the European public would rightly blame the European Commission for its inconsistency.                                                                                            

Unfortunately, this Arrangement is not only about UEFA’s FFP regulations; instead, the European Commission is signing on a set of very controversial statements. Indeed, by qualifying sporting Arbitration as “an important voluntary tool for settling disputes in sport” and “ensuring respect of the applicable legal norms and procedural safeguards within and outside of the EU” it indirectly recognizes the legitimacy of the Court of Arbitration for Sport. This is notwithstanding the very acute doubts about the “voluntary” nature of this arbitration[5], as well as potential concerns related to its independence. In this context, one can only be perplexed by the willingness of the European Commission to throw caution to the wind. The CAS might be a useful tool for sports governing bodies trying to evade the purview of national courts; it might even be necessary to avoid the fragmentation of the global anti-doping regime or to offer a quick and clean dispute resolution mechanisms in certain disciplinary or commercial cases. However, its legitimacy and its capacity to safeguard the fundamental rights of athletes is not a given and the European Commission would have been well advised to show considerable restraint in weighing in on this question. This lack of caution is generally true for other very complex socio-economic issues tackled en passant in the Arrangement, and in which UEFA had a keen (economic) interest to defend: the release of players for the national teams, the intellectual property rights over football and the regulation of the transfer system. 

Finally, UEFA will now enjoy privileged access to the highest level of the EU’s executive branch. This is akin to an ‘all you can eat’ lobbying ticket to defend its interests and views. UEFA may have a central function in the organization of European football, but, it is not the UN, States have no say in its policies, nor have the people which are directly affected by them.[6] There is no good reason to confer a special political status to UEFA, especially taking into account that, as a private government, it refuses to give a real institutional voice to some of its most prominent “citizens”: the players, the clubs or the fans. By doing so, the Commission risks cutting itself from the other legitimate voices of football and losing sights of its duty to defend the European general interest as a whole. 

Did the outgoing European Commission rush to cash-in on a visual accolade from Michel Platini? One is left to wonder. For all these substantial political concessions, the European Commission won only the meagre promise that “UEFA will collaborate in the context of the planned European Week of Sport, using football to promote healthy physical activity”. Such an Arrangement could have potentially made sense, if the European Commission would have imposed in return certain governance standards on UEFA (real stakeholders participation, transparency requirements etc…), or conditioned its signature to the full implementation of the recently agreed (and not even mentioned in the Arrangement) European social dialogue agreement for professional football players. 

In short, with this Arrangement the European Commission capitulated politically in front of UEFA. Such a capitulation need not take a legally binding form; its political meaning is enough. It is a sad day for European Sports Law and for those keen on democratizing the governance of football and on subjecting it to the rule of law. One can only hope that, as it has done in the past, the Court of Justice will be willing to supplant the Commission in defending the European general interest and the rights of athletes.

[1] Article 17(1) TEU reads as follows: “The Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union. It shall execute the budget and manage programmes. It shall exercise coordinating, executive and management functions, as laid down in the Treaties. With the exception of the common foreign and security policy, and other cases provided for in the Treaties, it shall ensure the Union's external representation. It shall initiate the Union's annual and multiannual programming with a view to achieving interinstitutional agreements.”

[2] On the scope of the notion of « Legitimate expectations » in EU administrative Law, see P. Craig, EU Administrative Law, OUP, 2012, pp. 567-570

[3] For an early discussion of soft law in the framework of EU law see : F. Snyder, ‘The effectiveness of European Community Law : Institutions, Processes, Tools and Techniques’, Modern Law Review, vol.56, 1993, 19-56, p.32-35

[4] L. Senden, Soft law in European Community Law, Hart Publishing, 2004 ; O. Stefan, Soft Law in Court : Competition Law, State Aid and the Court of Justice of the EU, Kluwer, 2013.

[5] The recent Pechstein decision by the Landgericht München highlighted this lack of consent from the part of the athlete. See the decision at www.openjur.de/u/678775.html

[6] On the need to distinguish between its factual capacity to create legal rules and its legitimacy to do so, see A. Duval, ‘Lex Sportiva : A playground for transnational law’ available at http://ssrn.com/abstract=2317826

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 end of governance reforms at FIFA?

The main sports governance story that surfaced in the press (see here and here) during the last month is related to significant personal changes made by the FIFA Council within the organization’s institutional structure. In particular, the FIFA Council dismissed the heads of the investigatory (Mr Cornel Borbély) and adjudicatory (Mr Hans-Joachim Eckert) chambers of the Independent Ethics Committee, as well as the Head (Mr Miguel Maduro) of the Governance and Review Committee. The decision to remove Mr Maduro was taken arguably in response to his active role in barring Mr Vitaly Mutko, a Deputy Prime Minister of Russia, from sitting on the FIFA Council due to an imminent conflict of interests. These events constitute a major setback to governance reforms initiated by the football’s world governing body in 2015. For a more detailed insight into the governance reforms at FIFA, we invite you to read the recent blog written by our senior researcher Mr Antoine Duval.

The CAS award in Real Madrid CF v. FIFA

At the end of the month, the CAS finally published its award delivered in the arbitration procedure between the Spanish club Real Madrid CF and FIFA regarding the transfer of minor football players. Mr Michele Bernasconi, sitting as a Sole Arbitrator, partially upheld the appeal filed by Real Madrid CF against the decision rendered by the FIFA Appeal Committee on 8 April 2016. The Sole Arbitrator reduced the ban (registering new players both on a national and international level) imposed on the Spanish club by the FIFA Appeal Committee from two to one entire transfer period. Moreover, Real Madrid CF is now obliged to pay CHF 240,000 instead of the original fine amounting to CHF 360,000. 

UEFA incorporates human rights and anti-corruption criteria into bidding requirements

UEFA has recently made available the Bid Dossier Template for the 2024 European Championship that will be held either in Germany or Turkey. Amongst other things, the two remaining candidates shall describe in their bid dossiers a global strategy for integrating the United Nations Guiding Principles on Business and Human Rights in order to protect, respect and fulfil universal human rights, including child rights and the rights of workers. On this occasion, UEFA President Mr Aleksander Čeferin stated that ‘it was imperative […] to introduce specific articles on the respect and protection of human rights in the bidding requirements for all our competitions.’ By incorporating human rights criteria into bidding requirements, UEFA joins the International Olympic Committee and FIFA in their efforts to tackle human rights abuses associated with mega sporting events.

The return of Claudia Pechstein: Bundesverfassungsgericht edition

Claudia Pechstein is back! For those who have already forgotten the case, this is a dispute involving a German Speed Skater and Olympic gold medallist challenging the validity of a CAS award imposing a doping ban (for greater detail see our previous blogs here and here, and the article by Antoine Duval and Ben van Rompuy). Nothing less than the survival of the CAS, at least as we know it, is at stake. While Claudia Pechstein lost in front of the Bundesgerichtshof, the decision was harshly criticized (here and here) and she decided to challenge the ruling in front of the German Bundesverfassungsgericht (constitutional court). Since last month, we know that the Bundesverfassungsgericht will hear and decide the claim, this as such is already a sign that the judges deem the case worthy of consideration and should be cause for concern for those wishing to keep the CAS as it currently is. The silver lining for CAS might be in the Bundesverfassungsgericht’s Solange jurisprudence, which could find a new expression in this peculiar context (as suggested here), it would preserve the CAS’s existence while forcing it to change.

Sports Law Related Decisions

• CAS – Award delivered in the arbitration between Arijan Ademi and UEFA
• CAS – Award delivered in the arbitration between IAAF and All Russia Athletics Federation & Vladimir Mokhnev
• CAS – Award delivered in the arbitration between Real Madrid and FIFA
• Supreme Court of Spain – Decision concerning the Spanish cyclist Roberto Heras

Official Documents and Press Releases

• CAS – CAS maintains the temporary bans imposed on six Russian athletes until 31 October 2017, at the latest
• CAS – CAS reduces the sanctions of football players Enrique Luis Triverio and Pablo Cesar Aguilar Benitez
• European Commission – State Aid: Commission approves Slovak support of EUR 36 million for the construction of the national football stadium in Bratislava
• European Commission – The Council approves the new work plan for sport
• Federal Constitutional Court of Germany – Pechstein's constitutional complaint to be heard in 2017
• FIBA – FIBA’s mid-term congress ratifies new headgear rule
• FIFA – Circular no. 1583: Amendment to Article 78 of the FIFA Disciplinary Code
• FIFA – FIFA welcomes outcome of NCP mediation process on workers’ welfare in Qatar
•  FIFA – Member associations release reports on intermediaries
• FIFA – Outcome of second meeting of Governance Committee
• FIFA – Suspension of the Malian FA lifted
•  IOC – Joint statement following the meeting of IOC President, Professor Richard McLaren and WADA President
• Tennis Integrity Unit – Junn Mitsuhashi banned for life for match-fixing offences
• UEFA – Bid Dossier Template for EURO 2024
• WADA – WADA Foundation Board takes decisive action on the Way Forward for the Agency and for Clean Sport

In the news

Doping

• Andy Brown Russia’s National Anti-Doping Plan denies institutional doping
• Andy Brown Spanish police dismantle new sports doping ring
• Michael Pavitt Russia in danger of missing Pyeongchang 2018 as International Paralympic Committee maintain suspension
• Michael Pavitt Russian race walker Trofimov handed four-year ban
  

Football

• Murad Ahmed FIFA ousts governance chief in ‘night of long knives’
• The Associated Press FIFA says blackface in Sochi parade was ‘inappropriate’
• BBC Sport Gothenburg v AIK: ‘Match-fixing attempt’ leads to Swedish fixture postponement
• Simon Bradley FIFA chief Infantino seeks ‘absolute power’ after ousting ethics heads
• Children Win UEFA incorporates human rights and anti-corruption criteria into bidding requirements
• Simon Evans FIFA’s chief ethics investigator and ethics judge replaced
• Graham Dunbar Two more members leave FIFA governance panel
• Nizaar Kinsella The laws of the transfer market could be rewritten with landmark court case in Italy
• James Lynch FIFA’s chance to show they put people ahead of money is now
•  Francine McKenna Will PwC throw the red card on its Swiss firm over FIFA
• Liam Morgan Palestine threaten to take FIFA to CAS after ‘illegal’ postponement of vote by Infantino
• Tariq Panja and Gaspard Sebag Soccer star homes raided in money-laundering investigation

Other

• Amnesty International Qatar: Abuse of migrant workers remains widespread as World Cup stadium hosts first match
• Graham Dunbar Swim body monitoring VP’s alleged role in FIFA bribery case
• Daniel Etchells American tennis player Kryvonos given 10-year ban for match-fixing
• Richard Martin Cycling: Authorities ordered to pay Heras compensation after appeal fails
• Dave Zirin and Jules Boykoff Los Angeles residents start to organize against the Olympic bid

Academic Materials

• Mark James Sports Law 3^rd edition
• Nancy Leong Against Women’s Sports

Blogs

Asser International Sports Law Blog

• Antoine Duval The Reform of FIFA: Plus ça change, moins ça change?
• Serhat Yilmaz and Antoine Duval What Pogba’s transfer tells us about the (de)regulation of intermediaries in football
• Branislav Hock Nudging, not crushing, private orders: Private ordering in sports and the role of States
• Saverio Spera Exploring the Validity of Unilateral Extension Options in Football – Part 2: The view of the DRC and the CAS

Law in Sport

• Phil Bonner Are England’s current home grown player requirements sufficient to produce an elite national team?
• William Clerk The rebalancing of power: The need for greater transparency in sports tribunals
• Daniel Geey What a hard ‘red, white and blue’ Brexit may mean for domestic football
• Philip Hutchinson and Tiran Gunawardena Betting in football: Was the FA’s decision on Joey Barton a fair one?
• Stephen Ridgway The 4 key issues facing sports media rights lawyers in 2017: From Head Counsel, Sky Sports
• Lucien Valloni and Stéphanie Oneyser Player contracts: How contractual stability can override a liquidated damages clause
  

Others

• Andy Brown Pressure builds to secure fair athlete rights and representation
• Matt Hart ‘This does not sound legal’: Inside Nike’s Oregon project
• Bonita Mersiades The past is not another country for FIFA
• Léonard Stoyanov Switzerland to become more attractive for international arbitration

Upcoming Events

• 29-30 June – Sport & EU 12^th Annual Conference, Molde University College, Molde, Norway
• 31 August-1 September – EU Sports Law and Policy Summer School, Business and Law Building, Edge Hill University, Ormskirk, the United Kingdom
• 26-27 October – ISLJ Annual Conference on International Sports Law, T.M.C. Asser Institute, The Hague, the Netherlands (Registration is now open here!)
• 26-30 November – Play the Game 2017: Riding Waves of Change, Eindhoven, the Netherlands