Asser International Sports Law Blog

FIFA’s Third-Party Ownership (TPO) ban entered into force on the 1 May 2015[1]. Since then, an academic and practitioner’s debate is raging over its compatibility with EU law, and in particular the EU Free Movement rights and competition rules.

The European Commission, national courts (and probably in the end the Court of Justice of the EU) and the Court of Arbitration for Sport (CAS) will soon have to propose their interpretations of the impact of EU law on FIFA’s TPO ban. Advised by the world-famous Bosman lawyer, Jean-Louis Dupont, Doyen has decided to wage through a proxy (the Belgian club FC Seraing) a legal war against the ban. The first skirmishes have already taken place in front of the Brussels Court of first instance, which denied in July Seraing’s request for provisional measures. For its part, FIFA has already sanctioned the club for closing a TPO deal with Doyen, thus opening the way to an ultimate appeal to the CAS. In parallel, the Spanish and Portuguese leagues have lodged a complaint with the European Commission arguing that the FIFA ban is contrary to EU competition law. One academic has already published an assessment of the compatibility of the ban with EU law, and many practitioners have offered their take (see here and here for example). It is undeniable that the FIFA ban is per se restrictive of the economic freedoms of investors and can easily be constructed as a restriction on free competition. Yet, the key and core question under an EU law analysis, is not whether the ban is restrictive (any regulation inherently is), but whether it is proportionate, in other words justified.

I will first present the key arguments of the opponents of the ban, before offering my own assessment. As the reader might know, I am no friends of FIFA and a staunch critic of its bad governance syndrome. Although I am convinced that FIFA’s governance deserves a ground-up rebuilt, I also believe that FIFA’s TPO ban is justified.

I. Antithesis: FIFA’s TPO ban is contrary to EU law

The legal waters are very much chartered insofar as the question of the application of EU law to FIFA’s TPO ban is concerned.[2] The key legacy of the CJEU’s jurisprudence on sport, starting with the Bosman ruling, is that FIFA’s regulations do not escape the reach of EU law and that they must be subjected to a proportionality control of the restrictions they impose on economic freedoms. The fundamental question with respect to the TPO ban is then whether it will be deemed justified and proportionate by the national courts, the CAS, the European Commission and ultimately the CJEU.

The opponents of the FIFA ban consider first and foremost that the practice of TPO (they usually prefer to refer to as Third-Party Investments or Third-Party Entitlements) is a legitimate financial investment practice, which is needed to sustain and raise the competitiveness of certain clubs. Basically if banks are reluctant to finance those clubs, then less risk-averse investors have to step in. Thus, they support investment in the training capacity of the clubs (especially in South America) and their capacity to take their chances in the most prestigious competitions (for example FC Porto or Atlético Madrid). Hence, TPO can be seen as a legitimate investment practice and its regulation left to the contractual freedom of the parties. Such a radical libertarian view is not often supported nowadays,[3] as the potential integrity risks of TPO are widely acknowledged.[4]

Instead, if the risks connected to TPO are to be tackled, it is argued that TPO should be properly regulated. In EU law jargon, this is labelled a less restrictive alternative.[5] The existence of a less restrictive alternative would point at the disproportionate nature of the FIFA ban. For example, a bundle of regulatory measures are suggested by the Spanish league (La Liga):

· 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.

The proposed regulatory changes would undeniably be an improvement with regard to the current situation. However, I do not believe they are sufficiently credible to undermine the legality of FIFA’s TPO ban.

II. Thesis: FIFA’s TPO ban is compatible with EU law

A. The necessity to tackle the integrity risks generated by TPO

First, we need to come back to the function and functioning of TPO deals. There is a reason why banks refuse to offer loans to certain clubs. They are often in difficult financial situations, their revenues do not add up with their expenses. Investment funds fill this gap, they replace banks in financially supporting these clubs. In return, they expect a modern version of the “pound of flesh”, a share of the transfer fee attached to a specific player. For a club, the TPO investments will only be fruitful while it is successful on the pitch and lucky in picking the players it recruits. It is a very risky bet on the future. In good times everybody wins, but in bad times the club is in deep trouble (see FC Twente’s fate). The TPO system works as a devil’s circle, the club is drawn into more and more TPO deals to stay financially viable.

Furthermore, TPO deals are not unlike the complex financial instruments that led to the terrible financial crisis of 2008. They give way to similar conflicts of interest. Where banks were selling derivatives based on subprime mortgages to their clients while betting against them at the same time, TPO funds might push their clients to recruit (thanks to loans they have generously provided for high interests) a mediocre player in which they already have a stake. Another option would be for a TPO fund, which is often (if not always) also acting as an agent, to force the departure of a player by triggering an offer which the club cannot refuse (or it would have to buy back the rights which is impossible due to its financial situation). The many hat(s) of TPO investment funds are extremely worrying in terms of conflicts of interest.[6] The most dangerous, though in my view less likely (but see the Tampere case), risk being that TPO investors would use their broad networks of influence to fix games. FIFA’s objective of curbing those risks is clearly a legitimate one.

The heart of the trade of TPO funds is to leverage the hubris of football clubs, to corner them into making a bad financial deal in return for a credible shot at winning a title. But once the high is over, the low starts and the awakening is rather uncomfortable. The high financial risks saddled to the club are sustainable only so long as it is a winner. As soon as its fate on the pitch turns, the bad news accumulates and not unlike a bank run the club crashes, while the investors have more often than not managed to escape before the fall. In short, unless you truly believe in the superpowers of the invisible hand of the market, this practice, as well as the financial practices that led to the financial crisis, deserves either a thorough regulation or an outright ban.

B. Is there a realistic regulatory alternative to the ban?

The key question for the assessment of the TPO ban under EU law is whether the many negative externalities triggered by the use of TPO could be tackled by the way of a less restrictive encroachment on the economic freedoms of the investors/clubs than the FIFA ban. Critics of the ban have very much insisted on the existence of less restrictive regulatory alternatives and put forward some proposals. Yet, I am of the opinion that these alternatives are generally unworkable in the present context. The main reason being that FIFA is incapable to properly regulate and control the TPO investment market. This is due to the fact that FIFA does not dispose of the legal competence needed to force investment funds to disclose information. To do so, it must be empowered by governments to be able to cease the information wanted, which is unlikely. Some would object, that this could be done via the FIFA TMS system put in place to supervise international transfers. But it would be extremely difficult for FIFA to verify any complex set of contractual information entered into the TMS. The destiny of former article 18 bis of the FIFA Regulations on the Status and Transfers of Players (see the 2014 version here) is there to prove this point. Under article 4.2 of Annexe 3 of the FIFA RSTP 2014, Clubs were already supposed to provide a “Declaration on third-party payments and influence”. Nonetheless, in previous years, FIFA was unable to charge any club (except for Tampere in a match-fixing context and due to a local police investigation) on the ground that an investor was exercising undue influence, mainly because it lacked the knowledge needed to do so. This is exemplified in the case of the ERPA signed by Doyen and FC Twente, which was only partially disclosed to the Dutch Football Association.

If FIFA is powerless, how is it supposed to enforce the ban? Well here lies the crucial difference between a ban and complex regulation. A ban is simpler to enforce, as it is merely a black-or-white matter. FIFA will be able to rely on investigative journalists unearthing investment contracts linked to transfers. The mere existence of a TPO contract will lead to a dissuasive sanction, without the need to get into the nitty-gritty details of each case. It thus makes it easier for FIFA to control the use of TPO and to force investment funds to come out in the open and take charge of the management of a club if they wish to stay active on the transfer market. The higher probability of being caught linked to the use of TPO will most likely work as a strong deterrent for clubs to engage in such a financing practice. This is undeniably a blunt instrument, and in an ideal world a true regulation of the TPO market would be put in place and enforced, but this ideal world is not compatible with the pluralist and complex transnational legal setting in which the transfer system operates. The complex regulatory schemes proposed as substitute to the ban are very well intended, but they do not take into account the extreme difficulty (and costs) linked to their implementation. The fiasco of the old FIFA Players’ Agents Regulations illustrates the practical constraints that burden any regulation of the football transfer market.

C. TPO is not compatible with the 2001 agreement between the European Commission and FIFA

There is a final argument in favour of the compatibility of the TPO ban with EU law, which is grounded in the 2001 agreement between FIFA, UEFA and the European Commission. As should be obvious by now, the existence of TPO is dependent on the existence of the FIFA transfer system. Such a transfer system is unknown in other industries (though one could very well imagine a transfer system for academics for example). In turn, the FIFA transfer system restricts the economic freedom of both clubs and players. The European Commission highlighted these restrictions during its investigation of the FIFA transfer system in the early 2000s. However, the Commission signed an agreement with FIFA and UEFA signalizing its support for a new (the current) FIFA transfer system in 2001 and put an end to its investigation. This support was conditioned on the idea that a form of transfer system was needed to maintain the contractual stability necessary to the existence of stable and successful teams.[7] This is the fundamental assumption that underlies the compatibility with EU law of the FIFA transfer system, and therefore the sheer existence of TPO. Yet, TPO as a practice is per se promoting contractual instability. Players have to change clubs for TPO investors to cash in on their investments. It is perfectly logical for TPO contracts to include various clauses strongly incentivizing clubs to sell their players. If not, they will have to bear the costs, for example, of paying a fee (usually the invested amount plus a healthy interest) in case the player leaves the club on a free transfer, or forcing the club to buy back at market rate the investors’ shares in the economic right of a player in case of an offer above a minimum price. For a cash-strapped club, e.g. a club that lost access to the banking system and has to turn to TPO investors, this is usually impossible and means that it will be forced to sell-on the player. In a way, TPO is a radical perversion of the deal stroke by FIFA/UEFA and the Commission. The transfer system was meant to ensure that contractual stability is secured in football, not to enhance contractual instability. This contradiction between TPO and the rationale conditioning the legality under EU law of the FIFA transfer system will necessarily bear on the EU Commission’s analysis of FIFA’s TPO ban.

Conclusion: TPO is a symptom, the transfer system is the problem

20 years of the Bosman case oblige, the case has been back in the news cycle this week (see here, here, and here). It is widely credited, or rather blamed, for having changed football for bad, turning it into some kind of commercial monster. I very much doubt this storytelling is right. It is based on a collective misreading of the case. Bosman took stock of a contemporary development in football at that time: the eagerness of the ��football family” to commercialize its activities by primarily selling TV rights in a monopoly position. What Bosman is about, then, it is the regulation of this economic activity. Central questions are: How should the proceeds be distributed and especially who should bear the costs of ensuring competitive balance amongst the teams? Until Bosman the players were the main losers, they could not move freely across Europe and in some countries they could not transfer for free even after the end of their contracts. This situation was deemed an unjustified restriction on the player’s freedom by the Court. Nevertheless, and this is widely forgotten, Bosman is not about dogmatically ensuring that economic freedoms and a deregulated market always prevail. In fact, Advocate General Lenz was advocating as an alternative to the transfer system that the economic revenues derived from TV rights be shared more equally to ensure competitive balance.[8] This is obviously an important restriction on the economic freedom of clubs and leagues, yet the Court endorsed it as viable alternative.[9] Since then, the Court has repeatedly approved various type of sporting regulations restricting the economic freedoms of athletes or clubs.[10] After Bosman, FIFA and UEFA (supported by many clubs) insisted on maintaining a transfer system instead of the alternative suggested by Lenz and the Court. Despite the Commission’s aforementioned challenge of the legality of the FIFA transfer system, FIFA and UEFA were able to marshal the political support of the most influential Member States (France, Germany and the UK) in their bid to save the transfer system.[11] This led to the 2001 agreement and to the survival of the transfer system in its current form.

It is certainly ironical that the transfer system is based on the same legal principles denounced by UEFA and FIFA officials when they talk of slavery regarding TPO. This hypocrisy, rightly pointed out by the critics of the ban,[12] does not entail that the TPO ban is contrary to EU law, as they in turn seem to assume. However, it does imply that TPO as a practice is just the tip of the iceberg. In fact, it is a symptom, as well as the murky world of agents, of a global transfer market gone rogue. This is due mainly to the insistence of FIFA in transforming players into moveable assets included on the balance sheets of clubs. The transfer system is certainly not about contractual stability or the financing of training facilities. Indeed, FIFA is trumpeting the growing number of transfers each year (see this year’s celebratory press release here) and is very much dragging its feet as far as enforcing training compensations and solidarity payments is concerned.[13] Undoubtedly, there is some doublespeak going on. If clubs are forced to turn to TPO investors it is mainly because FIFA and UEFA (and the big clubs) have refused to put in place the necessary redistributive mechanisms to ensure a minimum of competitive balance as was advocated by the CJEU in the Bosman ruling 20 years ago (and by the EU Commission recently). Instead, they have put their faith into a transfer system that is neither correcting competitive imbalances nor guaranteeing contractual stability (a view supported by Stefan Szymanski on behalf of FIFPro). FIFA has lost control over its Frankenstein-like transfer system and it is desperately trying to rein its negative externalities with regulatory patches (e.g. UEFA’s Financial Fair-play Rules or FIFA’s TPO ban). In this regard, the TPO ban is unlikely to contravene EU law, but it is also unlikely to be a solution to the many problems caused by FIFA and UEFA’s handling of the post-Bosman football era.

[1] See FIFA Circular no. 1464 announcing the ban.

[2] This is well done by Johan Lindholm in his article: Can I please have a slice of Ronaldo? The legality of FIFA’s ban on third-party ownership under European union law.

[3] The Spanish Competition Authority comes close to such a view in its advisory opinion criticizing FIFA’s TPO ban. It states at page 6 (in Spanish): “Se ha de partir del hecho de que si el mercado ha facilitado la aparición de estas operaciones es porque una multitud de agentes (tanto clubs como jugadores), actuando de manera descentralizada, han considerado que es lo mejor para sus intereses. Por tanto, la prohibición del TPO resulta en una limitación de la capacidad de obrar y de la libertad de empresa, restringiendo el uso de una conducta que en principio es maximizadora de beneficios (o minimizadora de pérdidas).”

[4] Even though very reluctantly by the Spanish Competition Authority, see p.9-10.

[5] This is also the view of Johan Lindholm, he considers that “regulation is likely a legally more successful response to the perceived ills of TPO”.

[6] This is also true for other types of third party funding, for example in arbitration.

[7] This is in essence the meaning of paragraph 57 of the EU Commission’s rejection decision in the Affaire IV/36 583-SETCA-FGTB/FIFA. The paragraph states : « La protection des contrats pendant une période de durée limitée qui se traduit par des sanctions correspondant notamment à la suspension du joueur pendant une période de 4 mois à 6 mois (dans des cas de récidives) semble indispensable pour garantir la construction d’une équipe. Un club a besoin d’un temps minimum pour construire son équipe. Si un joueur pouvait rompre unilatéralement son contrat dès la première année et être transféré à la fin de la saison vers un autre club, sans aucune sanction autre que la compensation financière, son club d’origine n’aurait pas de possibilité de construire convenablement son équipe. Les sanctions visent donc à démotiver les joueurs de rompre unilatéralement leurs contrats pendant les deux premières années pour permettre l’existence d’équipes stables. En raison des spécificités du secteur en cause la durée de la période protégée et des sanctions semble être proportionnée aux objectifs légitimes quelles visent à atteindre. »

[8] See in particular paragraphs 218-234 of his Opinion.

[9] See para. 110 of the Bosman ruling.

[10] For example: Selection rules in Deliège; Transfer windows in Lehtonen; FIFA’s agent regulation in Piau; Doping sanctions in Meca-Medina; Training compensations in Bernard. The European Commission also recognised the legality of UEFA’s rule limiting the multiple ownership of clubs in ENIC.

[11] On this episode see Borja Garcia’s article, ‘The 2001 informal agreement on the international transfer system’.

[12] In his article Johan Lindholm criticizes this moral posture taken by FIFA and UEFA. He rightly points at its hypocrisy: “[…] a third party owning fifty percent of the economic rights to a player is the very height of moral corruption, but a club owning one hundred percent of the same right is not only perfectly acceptable but also applauded”.

[13] A recent study commissioned by the European Clubs Association (ECA) on the transfer market, shows (at page 88) that the solidarity payments are way below the 5% threshold imposed by the FIFA RSTP (reaching instead only 1,15% of the transfer fees).

The CAS denial of the urgent request for provisional measures filed by the Legia Warszawa SA in the course of its appeal against the UEFA Appeals Body Decision of 13 August 2014 put a premature end to Legia’s participation in the play-offs of the UEFA Champion’s League (CL) 2014/2015. Legia’s fans- and fans of Polish football - will now have to wait at least one more year to watch a Polish team playing in the CL group stage for the first time since 1996.

While the CAS proceedings for the appeal filed by Legia against UEFA and Celtic FC are pending and the grounds of dismissal by the CAS of the application for provisional measures have not been publicly known, the CAS is called to rule on the interpretation of the proportionality principle with regard to the application of the 3-0 defeat sanction against a club that fielded an ineligible player. The cornerstone question is whether the final award on the merits will be in line with UEFA and CAS jurisprudence suggesting a literal interpretation of Article 21.2 of the UEFA Disciplinary Regulations (UEFA DR) or whether the CAS will allow for a broader interpretation of the proportionality principle in case of mere technical administrative errors.

Background and facts of the case

Legia’s adventures began when Legia’s player, Bartosz Bereszynski, was sent off in their final Europa League tie of last season against Apollon Limassol FC and was sanctioned by the UEFA Control and Disciplinary Body decision of 13 February 2014 with three-match suspension. UEFA regulations are clear in that a ban applies to a player if he is listed in a club’s squad for matches. Bereszynski did not play in Legia’s games with St Patrick’s Athletics and in the first leg against Celtics FC. However, due to a technical error of Legia’s administrator, which was to prove fatal, the player was not registered in the squad list for the St Patrick’s tie and the first two games of his suspension were never properly recognized. As a result of the player’s failure to serve the suspension, Bereszynski’s participation in the second leg against Celtics FC as a 86^th minute substitute triggered the application of Article 18 of the Regulations of the UEFA Champions League 2012-2015 and Article 21.2 of the UEFA DR and Legia was to be sanctioned for fielding a suspended player. Therefore, the match was declared forfeited; for UEFA’s purposes, Legia lost the game 3-0 and the initial 6-1 aggregate defeat for Celtic was reversed to a 4-4 aggregate score, opening the door for Celtic to progress in UEFA CL play-offs on away goals.

The Legia case in the light of UEFA jurisprudence

At a first glance, the case at issue seems to present several factual similarities with the Bowyer and Matoukou cases brought before UEFA’s Control and Disciplinary Body, which, however, have never been appealed before the CAS.

In the first case, similarly to the Legia case, due to an administrative error of Newcastle United FC, Bowyer had not been registered as ‘eligible to play’ in the six UEFA matches in 2004. As a result, UEFA’s Control and Disciplinary body, applying UEFA Regulations, decided that Bowyer had not served the suspension carried over from his days as a Leeds United player and was banned for the next six European matches. This decision was challenged by Newcastle and the English Football Association (FA) before the UEFA’s Appeal Body, which upheld the initial decision. It is remarkable that the FA supported Newcastle’s appeal, expressing its concerns with regard to the ambiguous language of the rules on players’ eligibility.

In the second case, Matoukou while playing for KRC Genk against FC Porto on 19 August 2010 in a UEFA Europa League qualifier, received a red card and as a consequence was sanctioned with a two-match suspension. Matoukou sat out the second leg of that tie and, after Genk’s elimination, played no further European games for Genk. On 2 August 2012, Matoukou, as a player of Arsenal Kiev FC, scored against ND Mura 05. However, Matoukou had not served the second part of his suspension before taking part to this game. As a result of his ineligibility, UEFA’s Control and Disciplinary Body declared the match forfeited. Although there is no doubt that the player did not serve the two-match suspension, this case illustrates the most recent example of the clear-cut application of Disciplinary Regulations by UEFA.

A similar example is the harsh sanction of 3-0 defeat applied against PAOK Saloniki in 2004 for fielding the suspended player, Laisis Louca, in the first leg of the CL third qualifying round against Maccabi Tel Aviv. NK Zepce was also punished with the same severity in 2005 for fielding a suspended player in the first half of their match against FK Baskimi. The inevitable conclusion of this brief overview of UEFA jurisprudence is that UEFA’s practice has been consistent; UEFA Regulations on players’ eligibility are sufficiently clear and they give no room for a different interpretation. However, it should be noted that the UEFA decisions can be appealed before the CAS. Therefore, the CAS jurisprudence needs to be examined in order to assess whether the CAS in interpreting UEFA Regulations has deviated from this rather simplistic clear-cut approach of UEFA.

The Legia case in the light of CAS jurisprudence

The Sion[1] case has been the CAS landmark case with regard to the proportionality of the sanction of forfeiture for clubs fielding ineligible players. In this case, the CAS confirmed that FC Sion was banned from registering five new players in the summer transfer period of 2011/12 pursuant to the FIFA decision and was excluded from UEFA Europa League. Funnily enough, Celtic was also back then the lucky club, which enjoyed a ‘second bite of the cherry’. While this case presents only few factual similarities with the Legia case, its importance lies in that the CAS had to rule whether a club’s exclusion mandated by UEFA Regulations is in conformity with Swiss antitrust law and the proportionality principle.

The CAS confirmed that UEFA is an undertaking enjoying a dominant position on the market of international football competitions.[2] However, according to the CAS, Article 18 of the UEFA Regulations authorizing UEFA to sanction clubs which field ineligible players does not constitute an abuse of its dominant position, but rather ‘guarantees the efficiency and equal treatment of the clubs’[3]. Relying on its mandate to establish uniform regulations applicable equally to all clubs and to guarantee legal certainty in sports competitions, the CAS found that the sanction of forfeiture for clubs fielding ineligible players is an appropriate, necessary and proportionate measure.[4] To reach this conclusion, the CAS applied a twofold test for the proportionality principle to be enforced: (1) the capacity of the sanction of forfeiture to achieve the aim it pursues, i.e. to ensure the equal treatment of the clubs; and (2) the necessity of the sanction, i.e. the absence of alternative measures, since during the qualification phase of the tournament other sanctions such as the deduction of points are not possible.

In this case, the CAS deviated from the strict literal interpretation of Article 21.2 of UEFA Disciplinary Regulations and elaborated an interpretation of the forfeiture sanction in the light of the proportionality principle, applying the twofold test. It is highly likely that the CAS in the Legia case will follow this interpretation, relying on the necessity of the sanction, i.e. because of the absence of alternative measures, and its mandate to protect the equal treatment of the clubs and will confirm, therefore, the conformity of the UEFA decision with Article 21.2. However, it is the suggestion of this case commentary that a different interpretation of Article 21.2 in the light of the proportionality principle could also be elaborated on.

Mapping an alternative interpretation of Article 21.2 of UEFA Disciplinary Regulations

In this attempt to elaborate a different interpretation of Article 21.2 in the light of the proportionality principle, this article will use as a benchmark the CAS finding that ‘other elements such as the systematic context, the purpose and history of the rule may contribute to the correct understanding of the meaning of the rule’[5]. Although the wording of Article 21.2 is clear and seems to create a lex specialis rule with regard to the forfeiture sanction in case of a player’s ineligibility, it is suggested that a different interpretation of Article 21 can be envisaged if it is examined in conjunction with the General Principles laid down in Article 17.1 of the UEFA Disciplinary Regulation.

Specifically, Article 17.1 states that the disciplinary body determines the type and extent of the disciplinary measures to be imposed in accordance with the objective and subjective elements of the offence, taking account of both aggravating and mitigating circumstances.[6] This means that a sanction may be scaled down when proper consideration is given to the specific circumstances. This provision is in line with the well-established in Swiss law, EU law and CAS jurisprudence[7] proportionality principle, namely that in disciplinary matters a reasonable balance must be struck between the violation and the sanction.

Therefore, in the case at issue the question could be articulated as such: Could an interpretation of Article 21.2 in the context of Article17.1 and the proportionality principle result in a different sanction than forfeiture?

In the light of Article 17.1, an argument deriving from the specific ‘aggravating and mitigating’ circumstances of Article 17.1 could be that the ineligible player did actually abstain from three matches and it was due to a mere technical error that the player did not serve his suspension correctly. It could be suggested, therefore, that the forfeiture sanction is too harsh, since Legia acted in good faith and it was only because of this administrative error that the player was considered ineligible.

Furthermore, in the same spirit, Legia could claim that the sanction should be scaled down given that the player in question played for only four minutes as a substitute with the aggregate score of 6-1 in Legia’s favour. Considering that the ineligible player did not have any considerable impact on the tie[8], Legia could claim that the forfeiture sanction is too harsh as compared to the violation committed by the club. In a similar case, in 2010, UEFA fined Debrecen VSC for fielding in a good faith an ineligible player, instead of declaring the match forfeit: UEFA considered that Debrecen ‘had no interest in fielding this player for the three last minutes of additional time, when the score was so clearly in its favour’. It should be pointed out that in the Debrecen case the ineligible player was free to play if registered and, as a result, Article 21.3 applied. By contrast, in the Legia case the player was suspended and therefore excluded from the competition.

However, it could be argued that UEFA’s decision in the Debrecen case could serve as a guideline for a more flexible interpretation of Article 21.2. While the wording of Article 21.3 itself gives enough room for discretion to UEFA to declare a match forfeit (‘a match may be declared forfeit’), an interpretation of Article 21.2 in the light and purpose of Articles 17.1 and 21.3 could lead to a less draconian sanction, taking into consideration the specific circumstances of the case. Although the difference in the wording between Articles 21.2 (‘a match is declared’) and 21.3 draws a clear distinction between the consequences of fielding a suspended player and an ineligible player, it is the suggestion of this commentary that this distinction is at odds with the proportionality principle. Considering the proportionality’s principle status as a ‘general principle of law governing the imposition of sanctions of any disciplinary body’[9], it is surprising that Article 21.2 imposes the forfeiture sanction, without any reference to the proportionality of the sanction as compared to the violation committed. In this sense, the sanction of forfeiture leading to Legia’s exclusion from UEFA CL – and to the enormous economic loss for the club that this exclusion entails- seems disproportionate in the light of the specific circumstances of the case. In other words, a literal interpretation of Article 21.2, even in cases where the violation is the result of a mere technical error and the fact that the Club had no interest in fielding the suspended player, seems to overturn the reasonable balance between the violation and the sanction.

Conclusive remarks

Until today, in the name of legal certainty, UEFA and the CAS have applied in a consistent way a literal interpretation of Article 21.2 of UEFA Disciplinary Regulations. While legal certainty is the ratio legis and justification of the sanctions imposed by UEFA[10], this commentary argued that the ‘without-exemption’ application of the forfeiture sanction can undermine the proportionality principle, which is also a fundamental principle recognized by the CAS jurisprudence. In this light, it has been demonstrated that a flexible interpretation of Article 21.2 in the context of the general provisions of Article 17.1, i.e. an interpretation which would render the act of fielding a suspended player subject to the full scale of disciplinary measures and would leave sufficient room for discretion to UEFA disciplinary body and to the CAS, would be in compliance with the proportionality principle. To this extent, construing a method for interpretation of Article 21.2 in conjunction with Articles17.1 and 21.3 is an important step to arrive at a better evaluation of the existing regime and to clarify the complex and still unsettled interplay between the intensity of the violation and the sanction.

Therefore, it remains to be seen whether the CAS will follow the path -strikingly consistent until now- of a literal interpretation of Article 21.2 or whether it will opt for a tailored sanction, which would be in compliance with the proportionality principle.

[1] CAS 2011/O/2574 UEFA v. Olympique des Alpes SA/FC Sion

[2] CAS 2011/O/2574 (n 5), para 115.

[3] Ibid, paras 124 & 130.

[4] Ibid, para 135.

[5] CAS 2007/A/1363 TTF Liebherr Ochsenhausen v/ETTU, award of 5 October 2007, para 12

[6] Article 17.1 (n 1).

[7] CAS 2001/A/330 R. v. Fédération Internationale des Sociétés d'Aviron (FISA), Award of 23 Nov 2001

[8] By contrast, see Sion case (n5) where Pascal Feindouno, one of Sion’s ineligible players, scored against Celtic.

[9] G. Kaufmann-Kohler and A. Rigozzi, ‘Legal Opinion on the Conformity of Article 10.6 of the 2007 Draft WADA Code with the Fundamental Rights of Athletes’, 42.

[10] CAS 2007/A/1278&1279, para 131.

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