The rise of Dutee Chand, India’s 100 and 200-meter champion in the under 18-category, was astonishing. Her achievements were more than promising: after only two years, she broke the 100m and 200m national junior records, competed in the 100m final at the World Youth Athletics Championships in Donetsk and collected two gold medals in the Asian Junior Championships in Chinese Taipei. But, in July 2014, this steady rise was abruptly halted. Following a request from the Athletics Federation of India (AFI), the Sports Authority of India (SAI) conducted blood tests on the Indian sprinters. Dutee was detected with female hyperandrogenism, i.e a condition where the female body produces high levels of testosterone. As a result, a few days before the Commonwealth Games in Glasgow, the AFI declared Dutee ineligible to compete under the IAAF Regulations and prevented her from competing in future national and international events in the female category. Pursuant to the IAAF ‘Hyperandrogenism Policy’, the AFI would allow Dutee to return to competition only if she lowers her testosterone level beneath the male range by means of medical or surgical treatment.[1] On 25 September 2014, Dutee filed an appeal before the CAS, seeking to overturn the AFI’s decision and declare IAAF and IOC’s hyperandrogenism regulations null and void. She is defending her right to compete the way she actually is: a woman with high levels of testosterone. Interestingly enough, albeit a respondent, AFI supports her case.

IAAF and IOC rules set limits to female hyperandrogenism, which is deemed an unfair advantage that erodes female sports integrity. While these rules have been contested with regard to their scientific and ethical aspects, this is the first time that they will be debated in court. This appeal could have far-reaching ramifications for the sports world. It does not only seek to pave the way for a better ‘deal’ for female athletes with hyperandrogenism, who are coerced into hormonal treatment and even surgeries to ‘normalise’ themselves as women[2], but it rather brings the CAS, for the first time, before the thorny question:

How to strike a right balance between the core principle of ‘fair play’ and norms of non-discrimination, in cases where a determination of who qualifies as a ‘woman’ for the purposes of sport has to be made? 

‘Prove your gender!’

The separation between women and men in athletic competitions has been paradigmatic. Considering the sex-based physiological differences, which in case of a mixed competition would lead to virtually no women participation, the separation opened the door for women to compete at the highest levels. Nevertheless, the determination on the eligibility of women athletes to participate in the female category has become a source of controversies. So far, as decades of flawed IOC policies have demonstrated, it has not been clarified ‘who is woman’ for the purposes of sport.

The idea of ‘sex testing’ in sports dates back to 1960s and even preceded doping tests. The first gender test introduced by the IOC is nowadays laughable: nude parades of female competitors before a panel of judges in charge to verify the presence of female genitals and other sex characteristics.[3] Soon, this test was proven unworkable, since in intersex conditions, where people are born with both male and female genitalia, the outside did not match the inside.

The next test introduced was dubbed ‘chromosome testing’, which was based on the assumption that chromosomes are the key factor in determining sex, i.e. XY for male and XX for female. However, this test overlooked natural situations, where males have an extra X chromosome or females are missing one and was, therefore, soon abandoned. Thereafter, the SRY (i.e. the gene that triggers male sex determination) gene detection test was introduced, but the Olympics Games in Atlanta 1996 proved its deficiency:  eight women were tested positive for it and all were finally cleared for competition. Following this series of gender policies, which were deemed particularly discriminatory towards women with sexual development disorders, the IOC removed gender verification tests in June 1999.

It was not before 2009, in the wake of the Caster Semenya case, involving the South African 800m and 1500m runner and world champion, that an urgent need for reconsidering sex determination policies was brought into surface. Semenya’s masculine appearance, unusual muscle build and, foremost, her outstanding victory in the 2009 World Championships 800m race, fuelled a frenzy of suspicions on her gender. Following her victory, in an unprecedented breach of confidentiality and privacy rules, the IAAF leaked that Semenya had undergone tests to determine whether she had an unfair advantage as compared with other women. For three years, Semenya was not allowed to participate in events as her gender was still under investigation. In 2012, she was cleared by the gender testing committee and she began racing again. The story of Semenya, who suffered from humiliation and castigation by athletics officials and the media, unveiled IAAF’s incompetency in handling complex gender-related issues.

As a reply, in an attempt to establish an unambiguous, objective and scientifically based policy, IAAF and IOC, in 2011 and 2012 respectively, released new regulations. In that context, the focus shifted from sex testing to endogenous testosterone testing. The natural levels of testosterone have become the new golden rule: the purpose is not to determine ‘who is woman’, but rather ‘what makes a woman a woman’. Both policies are based on the assumption that testosterone is a key factor for men’s often superior strength and speed and, as a result, women with testosterone levels typical for males have an ‘unfair’ advantage. Therefore, according to the new regulations, if a female athlete has androgen levels higher than the normal male range, she is deemed ineligible to compete in women’s competition and will only be considered able to compete again if she lowers her testosterone level by means of medical or surgical treatment.

Despite IAAF’s protest to the contrary, this is the recent re-incarnation of ‘sex testing’.[4] The real import of these rules has been illustrated by the Dutee’s case. With Dutee’s appeal pending before the CAS, the legality of IAAF and IOC’s current gender policy needs to be scrutinized.

The unfair results of ‘fairness in sports’: The dark side of IAAF’s and IOC’s gender policy

Fair competition, which provides a fair opportunity to compete and prohibits athletes from competing with unfair advantages, has been widely accepted as a value integral to sports.[5] In this light, considering hyperandrogenism as an uncommon athletic capacity in relation to other female competitors, IAAF and IOC introduced the ineligibility of female athletes with hyperandrogenism in order to preserve the ‘sacrosanct’ competitive equality in the female category. However, it is our opinion that the current policy is on the borderline of what is fair for the following reasons: 

1. The ‘testosterone’ criterion as yardstick to determine eligibility?

According to the IAAF androgen policy, a general scientific consensus on naturally occurring testosterone as a relevant physical characteristic to separate athletes into different competition classes exists. The first problem is that this argument relies on the flawed assumption that a bright line between male and female can be drawn, not acknowledging situations of an ‘intersex’ status. As David Epstein, reporter and author of “The Sports Gene”, puts it clearly “neither body parts nor for the chromosome within them unequivocally differentiate male from female athletes”. Furthermore, while IAAF relies on a binary perception of biological sex in order to identify the gender of athletes, gender, in fact, is a social construction, which does not correspond to the complexities of biological sex. Secondly, it relies on the assumption that testosterone levels in the human body have limited variability within the sexes. Nevertheless, recent studies have found a complete overlap between testosterone levels in elite men and women, ripping apart testosterone levels as a reliable factor for separating between sexes.  The third problem is the lack of supporting scientific evidence that a competitive advantage can derive from high natural levels of testosterone.[6] Indeed, the scientific understanding of testosterone receptors is far from comprehensive. A recent research supported by the Swiss WADA laboratory added to the uncertainty: “Unfortunately, and to the best of our knowledge, there are neither available data on serum androgen levels nor reliable statistics on the so-called hyperandrogenism among a large and high-level female athletes’ population”.

IAAF policy, in overall, seems to create an absurd result: instead of introducing an objective criterion-if any- for separating between men and women, it rather suggests a classification of athletes between ‘high testosterone’ and ‘low testosterone’. However, ‘High-T’ and ‘Low-T’ categories of competition are not on the agenda.  

2. IAAF policy fosters discrimination

The current policy suggests a discriminatory treatment: it targets only women suspected for hyperandrogenism due to their physical appearance and high levels of performance. Women are asked to prove that they are female, while there is no such a requirement or restriction for men.

Furthermore, the fundament itself of the androgen policy is discriminatory against women who do not conform to traditional notions of femininity. Indeed, it lays on the physiological superiority of men in terms of endurance and strength as compared to women, perpetuating the long-established perception that an intrinsic link between manliness and sport exists, while femininity is associated with more gentle exercise.[7] In IAAF’s view, ‘too masculine women’ do not belong to the female category. It seems that under a scientifically based guise, IAAF seeks to impose a preference for certain social norms regarding what constitutes femininity in a woman’s appearance as criteria for participation.[8]

However, in order to perceive the level of discrimination, the most important question to be addressed is how you qualify an athlete. Hyperandrogenism is a rare biological characteristic and according to IAAF regulations and controversial scientific evidence, it gives female athletes a natural advantage that other female athletes do not have. Similarly, long limbs, broad wingspan for swimmers and height for basketball players are natural advantages.[9] Nevertheless, the later ones, but for hyperandrogenism, have never been considered as unfair. Indeed, the quintessence of elite sports lays on the participation of individuals with rare biological characteristics. In this light, the inevitable question arises: Why should female athletes like Dutee be obliged to reduce or eliminate an inherent advantage that they are born with? Why is then nobody asking a swimmer like Phelps to operate his double-jointed ankles? Or as SAI director-general Juji Thomson remarked: “ Just because Usain Bolt's height is to his advantage will the international authorities want his legs chopped off to ensure a level-playing field?” In other words, why hyperandrogenism has been viewed as different to other biological advantages broadly accepted in some elite athletes? The answer is simple: IAAF’s policy reflects the well-established public perception of femininity and female athletes who do not conform to this norm have to be excluded or ‘feminise’ themselves.

Thereby, IAAF and IOC policy exacerbate bullying and marginalization of women in sports putting their physical difference under unethical and humiliating scrutiny. Semenya had been intruded into the toilets by competitors seeking to check whether she really was a girl. While, after a race in Berlin, her competitor Mariya Savinova sneered “just look at her” when she was asked whether Semenya was a man. Similarly, the most talented female athletes, such as Serena Williams, Martina Navratilova, WNBA player Brittney Griner– and the catalogue is really long-, have been accused of not really being female. This play is up again with IAAF’s ‘are you woman enough to compete as female?’ policy seeking to confer legality to discrimination.

What should not be overlooked, finally, is the bitter truth that the current IAAF policy inevitably targets in priority women from developing countries. Athletes like Semenya or Dutee never perceived their difference, until they appeared on track field courts, where this difference has been flagged in the most humiliating way as abnormality. In sharp contrast to IOC’s declarations on eliminating any kind of discrimination in sports, IAAF and IOC gender policy achieves the most undesirable result: sex and social discrimination ‘all-in-one’. 

3. The disproportionate results of IAAF’s policy: To undergo treatment or not? This is not a question!

Female athletes with hyperandrogenism are faced with two choices: undergo medical treatment to fit the IAAF ‘Procrustean bed’ or abandon female competitions. The disproportionate and unfair consequences are evident.

As Katrina Karkazis, pioneer of Dutee’s motion against IAAF, remarks, the IAAF and IOC treat a physical difference as an illness, which requires a medical response. However, the necessity of such an invasive medical, or surgical, intervention is highly questionable. The suggested treatment does not stop at lowering female athletes’ testosterone level below IAAF’s limit of 10nmol/liter, but it rather aims to eliminate hyperandrogenism. In this sense, sharing IAAF’s assumption that testosterone is the key to performance, such treatment will render athletes like Dutee less competitive than other women who do not have hyperandrogenism or whose hyperandrogenism is below the cut-off. Thereby, IAAF policy, albeit mandating fairness in competition, puts a disproportionate burden on female athletes with hyperandrogenism.

Furthermore, concerns have been raised about the medical effects of the treatment suggested. In fact, it has been argued that long-term hormone therapy can have devastating results on female athletes’ health. Dutee’s denial to undergo this treatment is far from a ‘caprice’. A study published in 2013 revealed the cases of four female athletes identified as having hyperandrogenism, who were sent to a clinic in France. It was reported that those athletes also had medical procedures that had nothing to do with lowering their testosterone levels for sports: a reduction to the size of their clitorises, feminizing plastic surgery and oestrogen replacement therapy. It seems that the IAAF is pulling the trigger on female athletes’ head, who are ready to accept any treatment- even the most questionable ones- in order to keep competing.

On the other hand, the ineligibility sanction leads to a further disproportionate result: If Dutee is considered too masculine to compete in the female category, does she qualify for the male category? Can the mere presence of higher testosterone levels in a female athlete’s body presume that she can compete as a man? The answer has to be answered in negative, notwithstanding the ‘fair play’ issues that may arise. IAAF and IOC rules are cruelly disproportionate: athletes like Dutee who refuse to undergo this questionable treatment are effectively left without a forum to display their talent.

Do it like Pistorius

So far, the IAAF and IOC policy have been shown scientifically shaky, discriminatory and disproportionate. In parallel with these arguments, Dutee has also a very important precedent to rely upon: the CAS ruling in the Pistorius case.

In 2008, Oscar Pistorius, the South African double amputee runner, challenged IAAF rules that prohibited competitive running on ‘cheetah’ legs in international IAAF-sanctioned events alongside able-bodied athlete as being in breach of its commitment to non-discrimination. In that case, the fundamental rights of disabled athletes to be adequately accommodated and have genuinely equal opportunity to compete were at issue. Pistorius had to prove that he gained no advantage from using the prostheses. Reviewing scientific testing and analysis, the CAS concluded that ‘Cheetah’ legs did not give Pistorius an overall advantage.

Although the ‘tailor-made’ effect of the award could raise serious criticism[10], the Pistorius case has been landmark from a twofold point of view. Firstly, the CAS did not hesitate to challenge the indeterminacy of scientific analysis and developed the ‘net advantage’ approach, which stipulates that both the benefits and burdens have to be taken into consideration in determining whether a device provides an advantage to an athlete who uses it.[11] A similar approach has been adopted in the Veerpalu doping case, where the CAS questioned the scientific reliability of the limits applied for the WADA human growth hormone test (HGH).[12] Pistorius and Veerpalu cases have set an important threshold: international sports governing bodies, when it comes to enforce scientific- related sanctions, should rely on scientifically well-founded assessments.

Secondly, the CAS took an extraordinary step. It sent a clear message to international federations that they must address the eligibility criteria surrounding disabled athletes in a transparent and impartial manner.[13] There is no reason why the CAS in the Dutee case would do it differently. After all, sporting rules that seek to ensure fair competition and prevent a competitor from obtaining an unfair advantage have at least to be proportionate and non-discriminatory. 

Let Dutee Run?

The lines between male and female are blurring. As Fausto-Sterling has observed “the reason sports federations can’t get this right is because there is no right”.[14] Sports governing bodies may never be able to ensure fair competition without reaching absurd results.[15] In its daunting task to legally enforce controversial science related and ethical issues, CAS is facing a double challenge. It has the opportunity to set fair and accurate eligibility rules based on objective criteria, which will also preserve the essence of sports. Undoubtedly, sports governing bodies have the authority to establish their eligibility rules. However, self-regulation does not come without limits: sports federations’ rules have to comply with the non-discrimination clauses included in their statutes[16] and the IOC charter. The role of the CAS in monitoring the compliance of these regulations with non-discrimination norms is essential. Therefore, in some cases, CAS has to leave its ‘comfort-zone’: it has to deviate from its well-established practice to provide a significant degree of deference to sports governing bodies with regard to their authority to establish the eligibility rules and rather applies a ‘fairness’ requirement on a case-by-case basis, such as in the Pistorius case.

More importantly, CAS has the chance to finally flesh out the toothless IAAF and IOC commitments to gender equality. Dutee’s case is a fertile ground for an interpretation in the light and purpose of the recent UN resolution on sport and the proclaimed values underpinning the Olympic 2020 Agenda. After all, what is the point of trumpeting non-discrimination in sports, if, in 2014, a female athlete is deemed ‘not woman enough’ to compete with women?

Whatever the CAS decides, one thing remains certain: discrimination against women with sexual development specificities will not anymore be in the blind spot of the law. Dutee showed the way.

[1] IAAF Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition - In force as from 1st May 2011 ,  Article 6.8 <http://www.iaaf.org/about-iaaf/documents/medical >

[2] Dr Ben Koh, Daryl Adair and  Peter Sonksen OBE, ‘Testosterone, sex and gender differentiation in sport – where science and sports law meet’ (14 October 2014) <http://www.lawinsport.com/articles/item/testosterone-sex-and-gender-differentiation-in-sport-where-science-and-sports-law-meet>

[3]  J Ellison, ‘Caster Semenya And The IOC’s Olympics Gender Bender’ (26 July 2012) <http://www.thedailybeast.com/articles/2012/07/26/caster-semenya-and-the-ioc-s-olympics-gender-bender.html>

[4] R Pielke, ‘Dutee Chand, science and the spirit of sport: why IAAF policy is deeply flawed’ (20 October 2014) <http://www.sportingintelligence.com/2014/10/20/dutee-chand-science-and-the-spirit-of-sport-why-iaaf-policy-is-deeply-flawed-201001/>

[5] P Zettler, ‘Is It Cheating to Use the Cheetahs? The Implications of Technologically Innovative Prostheses for Sports Values and Rules’ (2009) 27 Boston University International Law Journal, 389.

[6] M Naimark, ‘A New Study Supports Female Athletes Unfairly Excluded From Sport’ (12 September 2014) <http://www.slate.com/blogs/outward/2014/09/12/sex_verification_in_sports_a_new_study_supports_unfairly_excluded_female.html>

[7] Dr Ben Koh,Daryl Adair and  Peter Sonksen OBE (n 2)

[8] R Pielke (n 4)

[9] For a very interesting comparison of the physiques between athletes from a wide range of different sports and competitions, see Howard Schatz’s Athlete series.

[10] CAS 2008/A/1480 Pistorius v/ IAAF (16 May 2008), para 56.

[11] CAS 2008/A/1480 Pistorius v/ IAAF (16 May 2008), para 36.

[12] M Viret and E Wisnosky, ‘Sinkewitz v. Veerpalu: Struggling to fit anti-doping science into a legal framework’ (19 March 2014) < http://wadc-commentary.com/wp-content/uploads/2014/04/WADC_COMMENTARY_Sinkewitz-Blog.pdf>

[13] Cornelius, 236

[14] J Ellison (n 3).

[15] P Zettler (n 5), 394.

[16] For instance, IAAF Constitution 2011, Art 3: “The Objects of IAAF are (…) 4. To strive to ensure that no gender, race, religious, political or other kind of unfair discrimination exists, continues to exist, or is allowed to develop in Athletics in any form, and that all may participate in Athletics regardless of their gender, race, religious or political views or any other irrelevant factor.”

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: Thomas Terraz is a third year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.

1.     Introduction

To many it may seem obvious that athletes in a national championship should only be able to participate if they have the nationality of the relevant state. The Dutch Road Cycling National Championships should have Dutch cyclists, and the German Athletics Championships should have German athletes and so forth. However, in reality, foreign competitors are allowed to participate in many national championships in the EU, and there is a wide discrepancy between the rules of national sport governing bodies on this issue. There is no unified practice when investigating this point by country or by sport, and rules on participation range from a complete ban on foreign competitors to absolutely no mention of foreign athletes.[1] Thus, the question arises: should foreign athletes be able to participate in national sport championships?

The Court of Justice of the European Union (CJEU) will soon be required to provide an, at least partial, answer to this dilemma as a result of an application for a preliminary ruling.  A German Court has referred three questions to the CJEU on the case TopFit e.V. Daniele Biffi v Deutscher Leichtathletikverband e.V. (DLV) which in essence ask whether EU citizenship rights and in particular, the requirement of non-discrimination on the basis of nationality, should be applied to non-nationals wishing to participate in an athletics national championship in Germany. In the meantime, the Advocate General (AG), who provides a non-binding opinion to the Court before a decision is delivered, Evgeni Tanchev has delivered an interesting opinion on the case. It addresses the claims from the applicants based on EU citizenship rights and urges the CJEU to instead review the case on the basis of the freedom of establishment.

This blog will dissect the AG’s opinion to assess the main arguments put forward in relation to freedom of establishment and EU citizenship. Furthermore, it will weigh the ramifications this case may have on the boundaries of EU law in relation to sport. To fully appreciate the AG’s opinion, it is necessary to first discuss the intriguing factual and legal background colouring this case. After all, this will not be the first time the CJEU faces thorny issues concerning discrimination on the basis of nationality and sport.

2.     Factual Background of TopFit e.V. Daniele Biffi v Deutscher Leichtathletikverband e.V. (DLV)

The second applicant in this case, Mr. Biffi, is an Italian resident in Germany since 2003. He works professionally as a personal trainer and coach and has a website which advertises his services. He has been a member of the Berlin-based athletics club TopFit (the first applicant) and has competed in athletics competitions including German national championships within the senior category of athletes above the age of 35. In these national competitions, he had his placings recorded and published his results on his website. In 2016, the DLV changed its rules on non-nationals participating in national championships across all age categories without notice or transitional period. The rules were changed to only allow German nationals to compete for the national title while non-nationals could only participate outside classification with the permission of the organisers. As a result, Mr. Biffi was even denied the ability to participate in one of the championships in which he previously participated without raising a brow. The applicants challenged the DLV rule on the basis that it is in contravention to the prohibition of discrimination on the basis of nationality under EU citizenship. 

3.     European Sports Law and Nationality Based Discrimination

Generally, sport governing bodies aim to have the maximum autonomy possible to formulate and apply their rules. In the EU, they have attempted and ultimately failed at securing an absolute autonomy.[2] The current relationship between the sport governing bodies and the EU has been described as a ‘conditional autonomy’ where sport governing bodies may exercise their discretion in formulating and applying their rules so long as they do not conflict with EU law.[3] It should be noted that the CJEU has mainly scrutinized rules from sport governing bodies which affect economic interests of the parties in the context of free movement and competition law. Evidently, this relationship has resulted in a struggle between sport governing bodies and the EU over a number of topics including non-discrimination on the basis of nationality.

Traditionally, the CJEU has addressed issues of non-discrimination on the basis of nationality in sports cases from a free movement perspective in ensuring that sport rules do not disrupt the EU’s internal market. For example, when a rule from the Union Cycliste Internationale (UCI) required that a pacemaker be the same nationality as the cyclist in the UCI Motor-paced World Championships, the CJEU rendered its ruling on the basis of the provisions establishing the free movement of workers and service providers. Moreover, the Union of European Football Associations’ (UEFA) 3 plus 2 rule which allowed football clubs to limit the number of foreign players who could play in a match to three players plus two more players who had been ‘assimilated’ by having played a certain amount of years in the concerned national football association were found in the famous Bosman case to be in contravention of the free movement of workers provisions.

In the present case, the parties have argued the case on the basis of the prohibition on the discrimination of nationality flowing from EU citizenship rights. Based on Article 9 of the Treaty on European Union, all nationals of an EU member state automatically have EU citizenship. However, these rights are only triggered when other more specific rights, such as free movement rights, are not activated first. Put differently, if the facts of a case fall within a free movement right, then the case can only be inspected in light of the relevant free movement provision; hence, EU citizenship rights may only be invoked where free movement rights are not applicable.

Interestingly enough, as the AG points out in his opinion, the facts of this case could also be framed as a restriction to freedom of establishment. In any event, the CJEU has yet to address sport rules which concern non-discrimination on the basis of freedom of establishment or EU citizenship.

So how should the CJEU address this issue? Freedom of establishment or EU citizenship rights?

4.     Analysing AG Tanchev’s Opinion: Freedom of Establishment or EU Citizenship Rights?

4.1.Scope of the Freedom of Establishment

Very early on in the opinion, AG Tanchev unambiguously expresses his preference for analysing the present case through a free movement lens.[4] He explains that Mr. Biffi is self-employed as a personal trainer and coach on a continuous and stable manner in Germany which amounts to an economic activity connected to his sporting pursuits.[5] Therefore, AG Tanchev believes the analysis should be pursued under the freedom of establishment provisions. For this view to be endorsed, it is essential that Mr. Biffi’s economic activity is sufficiently connected to his sporting endeavours.

In this context, AG Tanchev recalls the Deliège case which concerned a Judoka, who argued that a national sport governing body’s refusal to select her for an international competition was a violation of her freedom to provide services. The Court in that case had to determine whether she was engaged in an economic activity in order for the fundamental freedom to apply. In doing so, the Court unequivocally states that simply because a sport governing body labels its athlete an amateur, it does not mean that they are automatically disengaged from economic activity, and economic activities in the context of free movement of services should not be interpreted restrictively.[6] Therefore, the Court in the Deliège case focused on the judoka’s sponsorships deals and grants to conclude that she was engaged in economic activities.[7] AG Tanchev, in examining the Deliège case’s relevance, explains that this demonstrates EU law’s flexibility in finding a link between sporting and economic activities, and that even if the DLV’s rules only have an ‘indirect impact’ on Mr. Biffi’s economic activities, it should fall within the scope of the freedom of establishment.[8]

4.2.Restriction on the Freedom of Establishment and Justifications

The opinion then goes on to find that there has been a restriction of Mr. Biffi’s freedom of establishment because the DLV rule puts Mr. Biffi ‘at a disadvantage when compared with German nationals engaged in the provision of athletic training services’ because he is unable ‘to make reference to his achievements in national sporting championships in order to attract business.’ Furthermore, he states that consumers are ‘more likely to be drawn to an athletics coach advertising on-going excellence … in the national athletics championships.’[9] Given that the DLV rule is directly discriminatory, EU law only allows justification under the express derogations enshrined in the Treaty on the Functioning of the European Union (TFEU). The DLV would have had a larger window to defend their rules if they were indirectly discriminatory since the CJEU accepts both express derogations and justifications which have been developed by its own case law.

AG Tanchev readily finds that the DLV’s rules fall under the public policy derogation by aiming to ensure that the winner of the national title has a ‘sufficiently strong link’ with the country organising the championship and to ensure that the national selection of athletes for international competitions is not disrupted. It could be argued that these aims have been too easily advanced as public policy objectives. The CJEU has never accepted the former as a derogation or a justification, and concerning the latter, the CJEU has accepted objectives which ensure national representation in international competitions only as justifications. Since justifications developed by the CJEU generally are not applicable to cases of direct discrimination, such as the present case, it can be said that the opinion perhaps too quickly embraces these pursued aims as public policy objectives. This being said, sport already enjoyed a special treatment in the past as the CJEU has been open to consider justifications for directly discriminatory measures in the Bosman case.

4.3.Is the DLV’s measure proportionate?

Assuming that these aims are accepted as express derogations, the DLV measures must then pass proportionality requirements which in EU law require a measure to be suitable for the pursued aim and necessary to achieve those aims. In the sporting context, the CJEU has explained that in order for a sporting rule to be proportionate it must be limited to its proper objective and it must be inherent to the organization of the sport event.[10] AG Tanchev affirms that the measure is disproportionate because the rule disallows Mr. Biffi from competing for the national title and precludes classification in such a competition when for many years he had been allowed to compete and be classified as any other German athlete.[11] Furthermore, given he had this pre-existing right, the DLV’s failure to take any transitional measures or give sufficient notice of this change violates the legitimate expectations of Mr. Biffi who exercised his free movement in reliance of this established regime and infringes the general principle of acquired rights.[12] Thus, it can be inferred that in AG Tanchev’s view, the measure could have been proportionate had there been sufficient transitional measures in place. Such a broad interpretation of proportionality by including the non-national's right to compete for the national title, would greatly restrict the options of a sport governing body wanting to change a rule that could negatively affect the participation of non-nationals in their national competitions.

If this broad approach is not accepted, AG Tanchev contends the measure is still disproportionate since the DLV’s rules potentially exclude non-national participants from competing at all in the national championships. Such a measure could only be legitimate in ‘unusual circumstances.’ In this vein, the opinion suggests less restrictive rules which instead limit the number of non-classified athletes.[13]

Other alternative models have been suggested which are much more likely to pass the proportionality test. One commentator has suggested that non-nationals should be allowed to compete in national championships while perhaps only restricting their ability to actually win the title.[14] If applied to this case, this model would allow Mr. Biffi to participate with classification in the national championships, but if he (or other non-national) were to take the first place, the national title would be given to the highest classified German athlete in the competition. Another model put forward in a recent study suggests that a non-national can only compete in the national championship after having been resident or being member of a local club for a certain period of time. All of these suggestions show that there are a multitude of less restrictive ways to protect the organisation of national championships and the selection process of national athletes for international competitions. An outright ban on participation or only allowing participation outside of classification is remarkably restrictive and has very little chance of passing the necessity requirements under proportionality.

Overall, the argument that this case should be analysed from the freedom of establishment perspective is rather convincing because the economic dimension is clearly present. However, there is still a possibility that the CJEU will follow the line of arguments brought by the applicants based on EU citizenship rights addressed at the end of AG Tanchev’s opinion.

4.4.EU Citizenship Rights

AG Tanchev begins by explaining that even if non-discrimination on the basis of nationality deriving from EU citizenship are applied, the result of the case should be the same because the stated aims of the DLV simply do not meet the proportionality requirements.[15]  However, the opinion goes on to firmly oppose the application of EU citizenship rights in this context.

In its submissions, the Commission had strongly endorsed a view that access to leisure activities should always fall within the scope of EU citizenship rights. AG Tanchev disagrees with such a wide-ranging interpretation because it would be a huge ‘constitutional step’ to give Article 21 TFEU horizontal direct effect, meaning a private party could invoke this provision in a national court against another private party. He maintains that this provision is meant to only have vertical direct effect, where a private party may invoke this provision in a national court against the state. He explains that extending horizontal direct effect to this rather open-ended provision would have a capricious effect that would damage legal certainty because Article 21 TFEU ‘comes into play in the broad and unpredictable range of circumstances’ where applicants are ‘unable to show a link between what is in issue and economic activities’ or ‘fall outside of EU legislation concerning freedom of movement.’[16] On the other hand, one could argue the very purpose of this Article is to provide EU citizens with other means to dispute measures which harm their free movement, and such a restricted interpretation would damage l’effet utile of this provision.   

While it is probably the case that Mr. Biffi’s circumstances fall within the scope of his free movement rights, imagine if he did not have any economic interest, and instead of a coach and personal trainer, he was an accountant or car mechanic. If AG Tanchev’s approach were to be taken in such a case, Mr. Biffi would have absolutely no recourse under EU law to challenge such a discriminatory rule. If Article 18 and 21 TFEU were to be interpreted so restrictively, private monopolistic actors who exercise powers that resemble those of a state (such as many sport governing bodies) could make the exercise of the European citizenship less attractive by limiting the participation of non-nationals in certain leisure activities. The Commission is right in taking a broad approach on this issue, although in the end it found the DLV’s rule to be proportionate, especially since Article 18 and 21 TFEU makes no express reservations against the applicability of these provisions on private parties.[17] A wide interpretation would completely fit the ‘conditional autonomy’ model in which sport rules fall within the scope of EU law, and it is for the sport governing bodies to explain how and why the rule is necessary or ‘inherent’ to the conduct of sports.

5.     Conclusion

If the CJEU finds this case to fall under the scope of the freedom of establishment, it is likely the DLV’s rules will fail to be justified or crumble under the proportionality requirements. Likewise, the outcome is likely to be the same in the improbable case that EU citizenship rights are applied. However, it truly would be a ‘constitutional step’, as AG Tanchev asserted, by greatly widening the possibility of using EU citizenship rights to challenge nationality discrimination in even amateur and leisure sport. Moreover, solidifying horizontal direct effect of the EU citizenship rights would have an impact way beyond sport related cases.

Regardless, even if Mr. Biffi’s case is examined from the freedom of establishment, it will be a momentous occasion for the CJEU to further elucidate the boundaries of the application of EU law to sport. In this respect, AG Tanchev’s opinion provides an excellent analysis of the legal issues arising from the free movement perspective and picks up on the most evident detail that all the parties in the case seemed to have glanced over: Mr. Biffi has an economic interest which is tied to his sporting activities. In the long run, the application of EU citizenship rights to sports seems inevitable, but TopFit e.V. Daniele Biffi most likely does not provide the CJEU with a golden opportunity to express itself on this matter.

[1] T.M.C. Asser Institute Report, ‘Study on the Equal Treatment of Non-Nationals in Individual Sports Competitions’ (2010).

[2] Case 36-74 B.N.O. Walrave and L.J.N. Koch v Association Union cycliste internationale, Koninklijke Nederlandsche Wielren Unie and Federación Española Ciclismo [1974] ECR 1974 –01405; Case C-415/93 Union royale belge des sociétés de football association ASBL v Jean-Marc Bosman, Royal club liégeois SA v Jean-Marc Bosman and others and Union des associations européennes de football (UEFA) v Jean-Marc Bosman [1995] ECR I-04921.

[3] Stephen Weatherill, Principles and Practice in EU Sports Law (1^st edn, Oxford University Press 2017) 71.

[4] Case C-22/18 TopFit e.V. Daniele Biffi v Deutscher Leichtathletikverband e.V. [2019] ECLI:EU:C:2019:181, Opinion of AG Tanchev, para 48.

[5] ibid para 55.

[6] Joined Cases C-51/96 and C-191/97 Christelle Deliège v Ligue francophone de judo et disciplines associées ASBL, Ligue belge de judo ASBL, Union européenne de judo [2000] ECR I-02549 para 46.

[7] ibid paras 51-53.

[8] TopFit, Opinion of AG Tanchev (n 4) para 62.

[9] ibid para 70.

[10] Walrave (n 2) para 9; Deliège (n 6) para 64.

[11] TopFit, Opinion of AG Tanchev (n 4) paras 80, 88.

[12] ibid para 83.

[13] ibid paras 92-93.

[14] Weatherill (n 3) 203.

[15] TopFit, Opinion of AG Tanchev (n 4) para 97.

[16] ibid para 103.

[17] ibid paras 37-40.

…and everything under the sun is in tune,

but the sun is eclipsed by the moon…[1] 

The issue

Ruffling a few feathers, on 30 May 2015 the FIFA Executive Committee rather unsurprisingly, considering the previous warnings,[2] adopted a decision to suspend with immediate effect the Indonesian Football Federation (PSSI) until such time as PSSI is able to comply with its obligations under Articles 13 and 17 of the FIFA Statutes.[3] Stripping PSSI of its membership rights, the decision results in a prohibition of all Indonesian teams (national or club) from having any international sporting contact. In other words, the decision precludes all Indonesian teams from participating in any competition organised by either FIFA or the Asian Football Confederation (AFC). In addition, the suspension of rights also precludes all PSSI members and officials from benefits of any FIFA or AFC development programme, course or training during the term of suspension. This decision coincides with a very recent award by the Court of Arbitration for Sport (CAS) in this ambit, which shall be discussed further below.[4]

The former decision, substantiated upon the alleged governmental infringement of the independence of PSSI, is the latest in a line of similar decisions adopted by FIFA in recent years. It succeeds inter alia the suspension of the Nigerian Football Federation and subsequent non-recognition of its General Assembly decisions,[5] and the suspensions of the Cameroonian Football Association[6], the Football Federation of Belize,[7] the Kenya Football Federation,[8] and the Islamic Republic of Iran Football Federation.[9]

The common denominator of all these decisions is the alleged impediment of third parties, usually governments or their related bodies, in the affairs of national football associations. In the Indonesian case, the trigger was the imposition of additional licensing criteria for football clubs by BOPI, an agency of the Indonesian Ministry of Youth and Sports, which resulted in two clubs (Arema and Persebaya) being precluded from competing in the Indonesian Super League (ISL) and subsequent measures adopted by the ministry aimed at relieving PSSI of all of its responsibilities.[10] While in the Nigerian case, an initial High Court injunction prevented the elected Executive Committee from taking office, and a later intervention from the Nigerian Department of State Security Service (SSS), resulted in the suspension of the Nigerian Football Federation[11] and subsequently in the non-recognition of its General Assembly decisions,[12] the other cited cases include violations in the form of, among others, “blatant government interference”,[13] non-provision of security services from government forces,[14] and violation of the independence of the decision-making process of the national football governing body.[15] 

Grounds for intervention by FIFA

The normative basis for the aforementioned interventions lies primarily within Articles 13, 14 and 17 of the FIFA Statutes.[16] The Members’ obligation of an independent management of their affairs is embedded in Article 13(1)(i), which states that: ”Members have the following obligations... to manage their affairs independently and ensure that their own affairs are not influenced by any third parties...” Strengthening that notion, Article 17(1) provides that: “Each Member shall manage its affairs independently and with no influence from third parties.” Furthermore, the second paragraph of Article 17 explicitly points out that all the bodies need to be elected or appointed within each respective Member, which prima facie appears even more stringent than Article 7 bis of the UEFA Statutes, that constitutes:”...their executive body is freely elected and that their other bodies are elected or appointed in a completely independent way.”[17]

Enjoying full discretion that stems from its Statutes, FIFA acts upon information received about the alleged violations, usually from the Members themselves. Prior to the adoption of a decision, a “prevention” phase takes place, during which FIFA, through means of correspondence with respective Members or/and third parties involved, addresses the alleged infringements and usually allows for a deference period for compliance with specific conditions. Members and/or third parties are warned that non-compliance may result in possible sanctions. Article 13(2) of the Statutes expressly provides that: “Violation of the above-mentioned obligations by any Member may lead to sanctions provided for in these Statutes.”

One of the most daunting repercussions FIFA may avail itself of is the suspension of a Member. In accordance with Article 14(1) of the Statutes, the primary responsibility for suspending a Member lies with the Congress. However, and as seen in the cases cited above, when violations are deemed to be so serious to require prompt attention, the Executive Committee or even the Emergency Committee may step in and adopt the relevant decision.[18] If not lifted beforehand, such a decision must be confirmed by a three-quarter majority at the next Congress, otherwise it is automatically lifted. A suspension leads to a loss of all membership rights, which effectively prevents other Members from entertaining any sporting contact with the suspended Member. Moreover, the suspension does not preclude the Disciplinary Committee from imposing further sanctions (e.g. fines, return of awards, deduction of points, etc.).[19]

Another measure for addressing an eventual non-compliance with the obligation of independent management of affairs is the non-recognition of wrongfully elected bodies or decisions passed by such bodies in accordance with Article 17(2) of the Statutes. In other words, FIFA has the authority not to recognize an election of a body of one of its Members, if such an election lacks uncompromised independence vis-à-vis third parties, as was the case with the Nigerian Football Federation.

Lastly, it is also worth mentioning that sanctions may be imposed regardless of the grounds and fault for interference of third parties since Article 13(3) of the Statutes, by going beyond the actual interference, provides that: “Violations of par. 1(i) may also lead to sanctions even if the third-party influence was not the fault of the Member concerned.” This basically means that FIFA shall not entertain explanations of third party interventions that may possibly even be justified under the provisions of national law. 

To comply, or not to comply – the CAS escape route

Since a suspension decision virtually ostracises and isolates a Member, a valid point to raise is, whether apart from yielding and fulfilling the imposed conditions, other means remain available to the disgraced Member to challenge such a decision. The same could be said for the situation pertaining to the non-recognition of elected bodies of particular Members.

In accordance with Article 66 of the Statutes any dispute arising between FIFA and its Members shall be resolved by CAS applying the relevant FIFA regulations and subsidiarily Swiss law. The exclusive jurisdiction of CAS is further strengthened in Article 67 of the Statutes which also outlines the procedural requirements for an appeal against a final decision passed by one of the FIFA bodies. Moreover, the Members explicitly agree not to avail themselves of recourse to ordinary courts of law, which significantly narrows their options down.[20]

Given that jurisprudence in named cases is relatively scarce, it is worth having a closer look at the above mentioned award rendered by CAS in the joined cases brought before it by the Nigerian Football Federation.[21] Notwithstanding the previous FIFA decision to suspend the appellant, which was later lifted, the form of relief sought with the appeal was the annulment of two decisions in the form of letters, addressed at the appellant by FIFA. Considering the Court’s conclusion, stemming from the relevant CAS jurisprudence,[22] to dismiss the appeal against the second letter because it did not constitute an appealable decision since it did not contain a ruling affecting the rights of the appellant, hence lacking the animus decidendi,[23] the onus of the award was on the first challenged letter.

In its preliminary remarks the Panel narrowed down the subjective and the objective scope of the review saying that it:”...may only assess de novo, putting itself in FIFA’s place, whether FIFA had sufficient factual and legal grounds, in terms of Article 17 of its Statutes, to adopt the decisions allegedly set forth in the letters challenged by the Appellant.”[24] By abstaining from assessing the eventual legality of the third party infringement, and despite harbouring some doubts about the (non)compliance of the elections with the national law, it further stated that:”...this Panel may not assess the validity of the various NFF elections on the basis of the NFF rules or of Nigerian law, because such appraisal falls outside the scope of FIFA’s authority under Article 17 of its Statutes and, thus, falls outside of the Panel’s scope of review.”[25]

By observing that none of the parties challenged the Court’s jurisdiction, applying the FIFA regulations and additionally Swiss law pursuant to Article R58 of the CAS Code, and by dismissing the Respondent’s arguments pertaining to the admissibility and the Appellant’s active standing, the Panel addressed the legitimacy of FIFA’s non-recognition of the elections pursuant to Article 17 of the Statutes in the merits of the award.[26]

As per the legal grounds of the decision, the Panel stressed that: “The purpose of Article 17 is to grant FIFA the power to not recognize an election where the member association’s electoral process does not guarantee the complete independence of the election.”[27] It went further saying: “...the Panel is of the view that the requirement of “complete independence” found in para. 2 must be understood in the light of para. 1 of Article 17, forbidding “influence from third parties”. Accordingly, an electoral process does not guarantee such complete independence where the election is not managed in a totally independent manner and, in particular, where it is influenced by third parties of any kind (e.g. government officials or bodies).”[28]

Having established FIFA’s authority, the Panel subsequently assessed the relevant evidence submitted by the parties. After determining the relevant factual circumstances, the Panel noted that the intervention from the State Security Services (SSS) influenced the unfolding of the election and consequently of the General Assembly itself, constituting a manifest insufficiency of the independence of the election from the influence of third parties pursuant to Article 17 of the Statutes.[29] The appeal was thus duly dismissed on merits as well.

By dismissing the appeal, and in spite of recognizing the connection of the dispute with “a longstanding struggle occurring in Nigerian football between different personalities and factions fighting for leadership within the NFF”,[30] the Court, by setting a precedent to a certain extent, distanced itself from assessing the compliance of the interference with national law, hence virtually affirming FIFA’s discretion in the evaluation of the circumstances leading to its intervention, which appears to leave an eventual appeal by the Indonesian Football Federation with very slim chances of success. 

Quis custodiet ipsos custodes?[31]

When it comes to independence and third party influence issue, the Members are subject to instant scrutiny from FIFA and are swiftly held accountable, even when they hold no responsibility for a third party intervention, as may be seen in the above cited cases. The same cannot be said when the situation is reversed. FIFA is often not submitted to the same levels of accountability checks as those who are affected by its decisions.[32]

While in some instances FIFA’s prompt intervention appears well-grounded, since interference from a third party is manifestly ill-founded, as may be seen in the case of the Nigerian Football Federation (interventions from State Security Forces and unidentified armed individuals seem to go way beyond the borders of necessity, and can hence hardly be justified), other cases, namely the latest suspension of the PSSI, show that FIFA may have been slightly too quick when pulling the trigger. All the more so, given the circumstantial background of the case (e.g. pressing issues related inter alia to financial, tax and ownership issues of the clubs participating in national leagues which the PSSI, despite previous warnings, was unable or unwilling to cope with, and which in some extreme cases resulted in players losing their lives due to lack of medical care owed to arrears of health care contributions by the clubs), and the government’s intervention could arguably to a certain extent be seen as necessary.[33]

However, as seen above, under the existing rules FIFA is not inclined to look beyond the mere interference of third parties and verify whether such actions might be justified, thus possibly breaching the principle of proportionality which is recognized as a general principle by CAS.[34] Since such discretion seems to have been condoned by the latest CAS decision,[35] one may wonder whether there is actually any room for a more thorough and systematic factual assessment of the background of such interferences in the light of a possible justification, which inevitably raises questions of the eventual (over)restrictive nature of the relevant Statutes provisions themselves. Furthermore, the fact that any government intervention, regardless of the eventual acceptability and consideration of local specificities of each respective Member, is to be seen as a punishable infringement, puts the issue within the frame of the perpetual conundrum of the legitimate boundaries of the lex sportiva.

Since FIFA is virtually accountable to no-one from the hierarchical point of view, and given that governments, with the exception of the Swiss government, have no supervisory powers over it (some would argue that FIFA may itself be seen as a government),[36] the only plausible route for the assessment of the proportionality of the Statutes would seem to be through the legal accountability channel, using EU law, especially its provisions on competition and internal market.[37] In fact, given the precedents (e.g. Charleroi)[38] and the recent legal challenge of FIFA’s decision to ban Third-Party Ownership,[39] these rules appear to have become an increasingly important tool to hold the organization accountable, regardless of the latest developments regarding the prosecution of its officials.[40] A further analysis as to whether such a route remains available to potential appellants from outside of the European Union would, however, go beyond the scope of this paper. 

Conclusion

As presented throughout this brief overview, FIFA has seemingly developed a zero-tolerance policy for any governmental interference regarding the affairs of its Members, thus arguably safeguarding their independence. It has consistently availed itself of one of the most stringent corrective measures for alleged violations envisaged by its Statutes, suspending the non-compliant Members, hence often provoking strong emotional response within the pertinent countries.[41] Whereby such sanctions might be deemed necessary in certain cases, non-consideration of factual background and eventual justifications in others has led to accusations of double standards,[42] and raised questions of proportionality of the relevant Statutes provisions and the borders of the rules governing “purely sporting issues”.

The outcome of the deadlock in the latest case of PSSI remains to be seen, with the government’s intention to thoroughly reform the Indonesian football suggesting that a swift solution might not quite lie around the corner.[43] Given that compliance with the imposed conditions appears to be the route that will be taken in this case, and as long as provisions of the Statutes are not submitted to scrutiny of a competent judicial body, arguably in the form of the European Court of Justice, any future third party interferences shall most likely continue to be dealt with strictly by FIFA and the non-compliant Members will keep finding themselves “on the dark side of the moon”.[44]

[1] Pink Floyd, Eclipse (Dark Side of the Moon, EMI, 1973).

[2] Letter of FIFA to the Republic of Indonesia Minister of Youth and Sports, written in Zurich and sent on 10 April 2015.

[3] Decision of the FIFA Executive Committee: Suspension of the Indonesian Football Federation (PSSI), adopted in Zurich on 30 May 2015.

[4] Joined cases CAS 2014/A/3744 and CAS 2014/A/3766 Nigerian Football Federation v. FIFA, award of 18 May 2015.

[5] Decision of the FIFA Emergency Committee: Suspension of the Nigerian Football Federation (NFF), adopted in Zurich on 9 July 2014.

[6] Decision of the FIFA Emergency Committee: Suspension of the Cameroonian Football Association, adopted in Zurich on 4 July 2013 (FIFA Circular no. 1367, Zurich, 4 July 2013).

[7] Decision of the FIFA Emergency Committee: Suspension of the Football Federation of Belize, adopted in Zurich on 17 June 2011.

[8] Decision of the FIFA Emergency Committee: Suspension of the Kenya Football Federation, adopted in Zurich on 2 June 2004.

[9] Decision of the FIFA Emergency Committee: Suspension of the Islamic Republic of Iran Football Federation (IRIFF), adopted in Zurich on 23 November 2006.

[10] FIFA Decision of 30 May 2015, cited supra note 3.

[11] FIFA Decision of 9 July 2014, cited supra note 5.

[12] Letter of FIFA to Nigerian Football Federation (NFF), written in Zurich and sent on 29 August 2014.

[13] FIFA Decision of 2 June 2004, cited supra note 8.

[14] FIFA Decision of 17 June 2011, cited supra note 7.

[15] FIFA Decision of 23 November 2006, cited supra note 9.

[16] FIFA Statutes (Regulations Governing the Application of the Statutes, Standing Orders of the Congress), adopted in São Paulo on 11 June 2014.

[17] UEFA Statutes (Rules of Procedure of the UEFA, Congress Regulations governing the Implementation of the UEFA Statutes), adopted in Astana on 24 March 2014.

[18] FIFA Statutes, cited supra note 16, Art. 33.

[19] Ibid., Arts. 63, 65.

[20] Ibid., Art. 68.

[21] Nigerian Football Federation v. FIFA, cited supra note 4.

[22] Case CAS 2005/A/899 FC Aris Thessaloniki v. FIFA & New Panionios N.F.C., award of 15 July 2005, para. 12; Case CAS 2004/A/659 Galatasaray SK v. Fédération Internationale de Football Association (FIFA) & Club Regatas Vasco da Gama & F. J., award of 17 March 2005, paras. 23-25.

[23] Nigerian Football Federation v. FIFA, cited supra note 4, paras. 192,196.

[24] Ibid., para. 160.

[25] Ibid., para 160.

[26] Ibid., paras. 160-182.

[27] Ibid., para. 200.

[28] Ibid., para. 200.

[29] Ibid., paras. 203-211.

[30] Ibid., para. 213.

[31] “Who guards the guardians?” (translation mine); Juvenal, Satires, (Book II, Satire VI, 1st and early 2nd centuries AD), lines 347–8.

[32] R. Pielke Jr., How can FIFA be held accountable? (Sport Management Review, Issue 16, 2013), pp. 258.

[33] FIFPro, Death of Mendieta must be the turning point for Indonesia, http://www.fifpro.org/en/news/death-of-mendieta-must-be-turning-point-for-indonesia (last visited 28 June 2015).

[34] See inter alia Cases CAS Arbitration CAS 2005/A/830 S. v. FINA, award of 15 July 2005, CAS 2009/A/2012 Doping Authority Netherlands v. N., award of 11 June 2010, CAS 2012/A/2740 Marcelo Carracedo v. Fédération Internationale de Football Association (FIFA), award of 18 April 2013.

[35] Nigerian Football Fedration v. FIFA, cited supra note 4.

[36]S. Bradley, FIFA reforms face resistance – and huge support (swissinfo.ch, 5 December 2012), http://www.swissinfo.ch/eng/football-scandals_fifa-reforms-face-resistance---and-huge-support/34067104 (last visited 28 June 2015).

[37] R. Pielke, cited supra note 32, pp. 259-262.

[38] Case A/05/03843, SA Sporting du Pays de Charleroi ao v FIFA, Tribunal de Commerce de Charleroi, 15 May 2006 (Case was referred to the European Court of Justice, but did not reach a judgment since the parties reached a settlement out of court),

[39] A. Duff, Portugal, Spain Said to Complain to EU on Soccer Finance Rules (BloombergBusiness, 4 February 2015), http://www.bloomberg.com/news/articles/2015-02-04/portugal-spain-said-to-complain-to-eu-on-soccer-finance-ban (last visited 28 June 2015).

[40] BBC News, Fifa corruption inquiries: Officials arrested in Zurich (bbc.com, 27 May 2015), http://www.bbc.com/news/world-europe-32895048 (last visited 28 June 2015).

[41] ESPN, Iranian Federation suspended by FIFA (espn.com, 23 November 2006), http://www.espnfc.com/story/393454/iranian-federation-suspended-by-fifa (last visited 28 June 2015).

[42] M. Zandi, Is FIFA's Decision in the Best Interest of Football (Association Internationale De La Presse Sportive),http://www.aipsmedia.com/index.php?cod=551&page=news&tp=n#.VZAhwRuqqko (last visited 28 June 2015).

[43] Reuters, Indonesia government takes responsibility for ban (uk.reuters.com, 31 May 2015), http://uk.reuters.com/article/2015/05/31/uk-soccer-fifa-indonesia-idUKKBN0OG03920150531 (last visited 28 June 2015).

[44] Pink Floyd, Brain Damage (Dark Side of the Moon, EMI, 1973).