Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Blog Symposium: Why FIFA's TPO ban is justified. By Prof. Dr. Christian Duve

Introduction: FIFA’s TPO ban and its compatibility with EU competition law.
Day 1: FIFA must regulate TPO, not ban it.
Day 2: Third-party entitlement to shares of transfer fees: problems and solutions
Day 3: The Impact of the TPO Ban on South American Football.
Day 4: Third Party Investment from a UK Perspective. 

Editor’s note: Finally, the last blog of our TPO ban Symposium has arrived! Due to unforeseen circumstances, FIFA had to reconsider presenting its own views on the matter. However, FIFA advised us to contact Prof. Dr. Christian Duve to author the eagerly awaited blog on their behalf. Prof. Dr. Christian Duve is a lawyer and partner with Freshfields Bruckhaus Deringer LLP and an honorary professor at the University of Heidelberg. He has been a CAS arbitrator until 2014. Thus, as planned, we will conclude this symposium with a post defending the compatibility of the TPO ban with EU law. Many thanks to Prof. Dr. Duve for having accepted this last-minute challenge! More...






Blog Symposium: Third Party Investment from a UK Perspective. By Daniel Geey

Introduction: FIFA’s TPO ban and its compatibility with EU competition law.
Day 1: FIFA must regulate TPO, not ban it.
Day 2: Third-party entitlement to shares of transfer fees: problems and solutions
Day 3: The Impact of the TPO Ban on South American Football.
Day 5: Why FIFA's TPO ban is justified.

Editor's note: In this fourth part of our blog symposium on FIFA's TPO ban Daniel Geey shares his 'UK perspective' on the ban. The English Premier League being one of the first leagues to have outlawed TPO in 2010, Daniel will outline the regulatory steps taken to do so and critically assess them. Daniel is an associate in Field Fisher Waterhouse LLP's Competition and EU Regulatory Law Group. As well as being a famous 'football law' twitterer, he has also published numerous articles and blogs on the subject.

 

What is Third Party Investment?
In brief Third Party Investment (TPI) in the football industry, is where a football club does not own, or is not entitled to, 100% of the future transfer value of a player that is registered to play for that team. There are numerous models for third party player agreements but the basic premise is that companies, businesses and/or individuals provide football clubs or players with money in return for owning a percentage of a player’s future transfer value. This transfer value is also commonly referred to as a player’s economic rights. There are instances where entities will act as speculators by purchasing a percentage share in a player directly from a club in return for a lump sum that the club can then use as it wishes. More...





Blog Symposium: The Impact of the TPO Ban on South American Football. By Ariel N. Reck

Introduction: FIFA’s TPO ban and its compatibility with EU competition law.
Day 1: FIFA must regulate TPO, not ban it.
Day 2: Third-party entitlement to shares of transfer fees: problems and solutions
Day 4: Third Party Investment from a UK Perspective.
Day 5: Why FIFA's TPO ban is justified.

Editor’s note: Ariel N. Reck is an Argentine lawyer specialized in the football industry. He is a guest professor at ISDE’s Global Executive Master in International Sports Law, at the FIFA CIES Sports law & Management course (Universidad Católica Argentina) and the Universidad Austral Sports Law diploma (Argentina) among other prestigious courses. He is a regular conference speaker and author in the field of sports law.

Being an Argentine lawyer, Ariel will focus on the impact FIFA’s TPO ban will have (and is already having) on South American football.More...





Blog Symposium: Third-party entitlement to shares of transfer fees: problems and solutions - By Dr. Raffaele Poli (Head of CIES Football Observatory)

Introduction: FIFA’s TPO ban and its compatibility with EU competition law.
Day 1: FIFA must regulate TPO, not ban it.
Day 3: The Impact of the TPO Ban on South American Football.
Day 4: Third Party Investment from a UK Perspective.
Day 5: Why FIFA's TPO ban is justified.

Editor’s note: Raffaele Poli is a human geographer. Since 2002, he has studied the labour and transfer markets of football players. Within the context of his PhD thesis on the transfer networks of African footballers, he set up the CIES Football Observatory based at the International Centre for Sports Studies (CIES) located in Neuchâtel, Switzerland. Since 2005, this research group develops original research in the area of football from a multidisciplinary perspective combining quantitative and qualitative methods. Raffaele was also involved in a recent study on TPO providing FIFA with more background information on its functioning and regulation (the executive summary is available here).

This is the third blog of our Symposium on FIFA’s TPO ban, it is meant to provide an interdisciplinary view on the question. Therefore, it will venture beyond the purely legal aspects of the ban to introduce its social, political and economical context and the related challenges it faces. More...






Blog Symposium: FIFA must regulate TPO, not ban it. The point of view of La Liga.

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

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

INTRODUCTION

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






Blog Symposium: FIFA’s TPO ban and its compatibility with EU competition law - Introduction - Antoine Duval & Oskar van Maren

Day 1: FIFA must regulate TPO, not ban it.
Day 2: Third-party entitlement to shares of transfer fees: problems and solutions
Day 3: The Impact of the TPO Ban on South American Football.
Day 4: Third Party Investment from a UK Perspective.
Day 5: Why FIFA's TPO ban is justified.

On 22 December 2014, FIFA officially introduced an amendment to its Regulations on the Status and Transfers of Players banning third-party ownership of players’ economic rights (TPO) in football. This decision to put a definitive end to the use of TPO in football is controversial, especially in countries where TPO is a mainstream financing mechanism for clubs, and has led the Portuguese and Spanish football leagues to launch a complaint in front of the European Commission, asking it to find the FIFA ban contrary to EU competition law.

Next week, we will feature a Blog Symposium discussing the FIFA TPO ban and its compatibility with EU competition law. We are proud and honoured to welcome contributions from both the complainant (the Spanish football league, La Liga) and the defendant (FIFA) and three renowned experts on TPO matters: Daniel Geey ( Competition lawyer at Fieldfisher, aka @FootballLaw), Ariel Reck (lawyer at Reck Sports law in Argentina, aka @arielreck) and Raffaele Poli (Social scientist and head of the CIES Football Observatory). The contributions will focus on different aspects of the functioning of TPO and on the impact and consequences of the ban. More...





The CAS and Mutu - Episode 4 - Interpreting the FIFA Transfer Regulations with a little help from EU Law

On 21 January 2015, the Court of arbitration for sport (CAS) rendered its award in the latest avatar of the Mutu case, aka THE sports law case that keeps on giving (this decision might still be appealed to the Swiss Federal tribunal and a complaint by Mutu is still pending in front of the European Court of Human Right). The decision was finally published on the CAS website on Tuesday. Basically, the core question focuses on the interpretation of Article 14. 3 of the FIFA Regulations on the Status and Transfer of Players in its 2001 version. More precisely, whether, in case of a dismissal of a player (Mutu) due to a breach of the contract without just cause by the player, the new club (Juventus and/or Livorno) bears the duty to pay the compensation due by the player to his former club (Chelsea). Despite winning maybe the most high profile case in the history of the CAS, Chelsea has been desperately hunting for its money since the rendering of the award (as far as the US), but it is a daunting task. Thus, the English football club had the idea to turn against Mutu’s first employers after his dismissal in 2005, Juventus and Livorno, with success in front of the FIFA Dispute Resolution Chamber (DRC), but as we will see the CAS decided otherwise[1]. More...

The UCI Report: The new dawn of professional cycling?

The world of professional cycling and doping have been closely intertwined for many years. Cycling’s International governing Body, Union Cycliste Internationale (UCI), is currently trying to clean up the image of the sport and strengthen its credibility. In order to achieve this goal, in January 2014 the UCI established the Cycling Independent Reform Commission (CIRC) “to conduct a wide ranging independent investigation into the causes of the pattern of doping that developed within cycling and allegations which implicate the UCI and other governing bodies and officials over ineffective investigation of such doping practices.”[1] The final report was submitted to the UCI President on 26 February 2015 and published on the UCI website on 9 March 2015. The report outlines the history of the relationship between cycling and doping throughout the years. Furthermore, it scrutinizes the role of the UCI during the years in which doping usage was at its maximum and addresses the allegations made against the UCI, including allegations of corruption, bad governance, as well as failure to apply or enforce its own anti-doping rules. Finally, the report turns to the state of doping in cycling today, before listing some of the key practical recommendations.[2]

Since the day of publication, articles and commentaries (here and here) on the report have been burgeoning and many of the stakeholders have expressed their views (here and here). However, given the fact that the report is over 200 pages long, commentators could only focus on a limited number of aspects of the report, or only take into account the position of a few stakeholders. In the following two blogs we will try to give a comprehensive overview of the report in a synthetic fashion.

This first blogpost will focus on the relevant findings and recommendations of the report. In continuation, a second blogpost will address the reforms engaged by the UCI and other long and short term consequences the report could have on professional cycling. Will the recommendations lead to a different governing structure within the UCI, or will the report fundamentally change the way the UCI and other sport governing bodies deal with the doping problem? More...

Book Review - Camille Boillat & Raffaele Poli: Governance models across football associations and leagues (2014)

Camille Boillat & Raffaele Poli: Governance models across football associations and leagues (2014)

Vol. 4, Centre International d'Etude du Sport, Neuchâtel, Switzerland, softback, 114 pages, ISBN 2-940241-24-4, Price: €24




Source: http://www.cies.ch/en/cies/news/news/article/new-publication-in-the-collection-editions-cies-governance-models-across-football-associations-an/

More...




The aftermath of the Pechstein ruling: Can the Swiss Federal Tribunal save CAS arbitration? By Thalia Diathesopoulou

It took only days for the de facto immunity of the Court of Arbitration for Sport (CAS) awards from State court interference to collapse like a house of cards on the grounds of the public policy exception mandated under Article V(2)(b) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards . On 15 January 2015, the Munich Court of Appeals signalled an unprecedented turn in the longstanding legal dispute between the German speed skater, Claudia Pechstein, and the International Skating Union (ISU). It refused to recognise a CAS arbitral award, confirming the validity of a doping ban, on the grounds that it violated a core principle of German cartel law which forms part of the German public policy. A few weeks before, namely on 30 December 2014, the Court of Appeal of Bremen held a CAS award, which ordered the German Club, SV Wilhelmshaven, to pay ‘training compensation’, unenforceable for non-compliance with mandatory European Union law and, thereby, for violation of German ordre public. More...

Asser International Sports Law Blog | Reactions of International Sport Organisations to the Russian Invasion of Ukraine: An Overview - By Daniela Heerdt & Guido Battaglia

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Reactions of International Sport Organisations to the Russian Invasion of Ukraine: An Overview - By Daniela Heerdt & Guido Battaglia

Editor's note:

Daniela is a researcher at the Asser Institute in the field of sport and human rights. She has a background in public international law and human rights law and defended her PhD project entitled “Blurred Lines of Responsibility and Accountability – Human Rights Abuses at Mega-Sporting Events” in April 2021 at Tilburg University. She also works as independent consultant in the field of sport and human rights for the Centre for Sport and Human Rights, or the European Parliament among other clients from the sports ecosystem

As Head of Policy and Outreach, Guido is in charge of the Centre for Sport & Human Rights engagement with governments, international and intergovernmental organisations and sports organisations. He represents the Centre at conferences, events and bilateral dialogues to reach new audiences and partners and raise public awareness and understanding of the Centre’s work .



On February 24, 2022, the Russian military invaded Ukrainian territory. What followed was an escalation of the war, day by day, causing thousands of victims and forcing millions of people to flee. On March 2, the UN General Assembly overwhelmingly adopted a resolution deploring "in the strongest possible terms" Russia's aggression against Ukraine by a vote of 141 to 5, with 35 abstentions. On March 29, Russian and Ukrainian representatives met in Istanbul for another round of negotiations. No ceasefire has been agreed and hostilities continue.

Many states, international organizations and corporations quickly took measures in response to this invasion. Hundreds of companies decided to withdraw from Russia. Some countries decided to strengthen economic sanctions against Russia and Belarus and to provide military and economic help to Ukraine. Many civil society actors mobilised to organize and provide humanitarian support for Ukraine. Interestingly, international sports organisations like the International Olympic Committee (IOC), the Fédération Internationale de Football Association (FIFA), World Athletics and many other international federations, issued statements condemning the invasion and imposed bans and sanctions on Russian and Belarussian sports bodies and athletes.

This blog post provides an overview of the measures adopted by a number of international sports federations (IFs) that are part of the Olympic Movement since the beginning of the war and analyses how they relate to the statements issued by the IOC and other sanctions and measures taken by international sports organisations in reaction to (geo)political tensions and conflict.


Unprecedented Action: An Overview

The table (pages 9-11), updated by the Centre for Sport and Human Rights on March 30, shows that eight different kinds of measures and decisions have been taken by a number of international sports federations:

  1. Condemnation of the invasion

On the day the invasion and attack started, the IOC issued a statement condemning the Russian invasion of Ukraine as a breach of the Olympic Truce. The same day, World Athletics and the Union of European Football Associations (UEFA) issued similar statements. Almost all IFs have issued such statements by now, although with notable differences in language. While most of them condemned the invasion (see World Triathlon or World Rugby), some expressed concern for the situation hoping for a rapid peaceful resolution (see International Ski Federation or International Table Tennis Federation).

  1. Cancellation and relocation of events from Russia and Belarus

On the following day, February 25, the IOC published a new statement, in which it recommended to international federations to cancel or relocate sport events that were supposed to take place in Russia or Belarus. This triggered all IFs that had events planned in those countries to cancel or relocate these. Events like the International Volleyball Federation Men’s World Championship were removed from Russia. Moreover, some IFs that had no events planned yet committed to not including Russia or Belarus as candidates for any future events (see World Skate).

  1. Participation of Russian and Belarussian teams and athletes

On February 28, “to protect the integrity of global sports competitions and for the safety of all the participants”, the IOC issued new recommendations, this time concerning the prevention of participation of Russian and Belarussian athletes and officials in international tournaments, and where that is not possible anymore, making clear that they can only participate if no association with their country is being made. At least 39 federations followed this recommendation and issued a ban or a partial ban of Russian and Belarussian athletes, among them the Union Cycliste Internationale, the World Curling Federation, the International Handball Federation, and the International Gymnastics Federation (FIG).

The International Paralympic Committee (IPC) had initially decided to allow Russian and Belarussian Paralympians to participate in the Beijing 2022 Winter Paralympic Games of as neutrals. Threats of boycott from other nations and escalating tension in the athletes' village in Beijing led the IPC to issue a new statement 24 hours after the first one denying entry to the Paralympic Games to Russian and Belarussian Paralympians. Similar pressures were observed in football, as a number of players and Football Associations publicly stated they would refuse to play against Russia in 2022 World Cup playoffs. Subsequently, FIFA and UEFA suspended Russian clubs and national teams from all competitions on February 28. It is also worth noting here that FIFA’s and UEFA’s statements so far have not mentioned Belarus nor Belarussian athletes.

The International Judo Federation decided to provide Russian athletes with the opportunity to participate in its events only under the IJF flag, logo and anthem. Nevertheless, the Russian Judo Federation announced its withdrawal from all international events due to safety reasons.

  1. Suspension of Russian and Belarussian federations

Some IFs went beyond those recommendations and took additional actions. Five organizations, the International Tennis Federation, World Athletics, World Rugby, the International Biathlon Union and the International Bobsleigh and Skeleton Federation suspended or expressed the intention to suspend Russian and Belarussian membership, without this being recommended by the IOC. Organisations like World Triathlon had similar measures already in place due to the previous doping scandal with Russia. Even the International Paralympic Committee expressed the intention to discuss the suspension of the National Paralympic Committees of Russia and Belarus at their next general assembly.

  1. Suspension of Russian and/or Belarussian leadership representation in federation’s government structures

A handful of IFs also suspended Russian individuals that held leadership positions in their governance structures, such as the International Automobile Federation, or the International Canoe Federation, whereas the International Luge Federation suspended all Russian representatives that held functions in the organization’s Executive Board, Commissions, or Working Groups. All these decisions went beyond what was recommended by the IOC. Alisher Usmanov, the Russian President of the International Fencing Federation, was added to the UK and US sanctions list and decided to suspend exercise of his duties.

  1. Suspension and/or cancellation of sponsorship contracts

On February 28, UEFA decided to terminate all agreements with the state-owned Russian energy company Gazprom across all competitions, including the UEFA Champions League, UEFA national team competitions and the EURO 2024. This termination came only one year after it had renewed the sponsorship agreement. So far UEFA seems to be the only sport organization that took measures in relation to their sponsorship deals.

  1. Withdrawing sport-related orders of honours

The February 28 recommendations of the IOC also included a decision to “withdraw the Olympic Order from all persons who currently have an important function in the government of the Russian Federation or other government-related high-ranking position”. Three Orders were withdrawn by the IOC, from Vladimir Putin, President of the Russian Federation, Dmitry Chernyshenko, Deputy Prime Minister of the Russian Federation, and Dmitry Kozak, Deputy Chief of Staff of the Presidential Executive Office. The International Swimming Federation and World Taekwondo immediately followed this recommendation, while the International Judo Federation and United World Wrestling had already taken these measures before the IOC issued their statement. Also, the IPC withdrew the Paralympic Honour from Vladimir Putin and the Paralympic Order from four other Russian government representatives.

      8. Fundraising/Donating for Ukraine

Finally on March 3, the IOC published a letter from the IOC’s president Thomas Bach calling upon the Olympic Movement to engage in humanitarian support for Ukraine through fundraising and donating. At least 15 federations followed this call, or had already set up such measures. The International Luge Federation set up an emergency aid fund for Ukraine and called upon its National Federations to donate. The International Biathlon Union launched a solidarity programme for Ukrainian biathlon, by hosting training camps for Ukrainian athletes and teams. The International Ice Hockey Federation is supporting efforts that were initiated from their national federations. Some of these efforts are dedicated to Ukrainian people in general, while others are focussing on Ukrainian athletes and teams.


A look at the Past

The unprecedented nature of these actions becomes clear when looking at other situations in which international sports issued similar sanctions and measures against national federations for their government’s political decisions and actions, or did not take any actions. When the apartheid system started in South Africa in 1948, it took the IOC 16 years to exclude South Africa from the Olympic Games and only in 1970 was the South African National Olympic Committee expelled. Another 18 years later the IOC adopted a declaration against apartheid in sports. During the Balkan war, what then was known as Yugoslavia was banned from all international events following a UN Security Council resolution, and consequently the Yugoslavian football team was prevented from participating in the Euro 1992 European Football Championships , while athletes from Yugoslavia could only compete as “Independent Olympic Participants” at the 1992 Summer Olympic Games and were not allowed to compete at the 1994 Winter Olympic Games. This is the precedent that comes closest to the current situation both in terms of its factual context and of the consequences faced by the athletes and sports organisations of the state concerned. However, unlike with the current actions of Russia, the UN Security Council had then adopted a binding resolution requiring states to bar athletes and clubs from Yugoslavia from international sporting competitions taking place on their territory. At the time, unlike now, the IOC negotiated (successfully) with the UN Security Council to allow the Yugoslav athletes to take part in the 1992 Olympics as neutral athletes.

Sadly, situations of war and conflict are currently happening in many areas of the world, particularly in the Middle East, Asia and Sub-Saharan Africa. The war in Yemen, for example, has been going on for seven years now, causing what has been referred to by the UN as the largest humanitarian crisis ever. To our knowledge, no action has been taken by the IOC or any other sport body in reaction to this war. While one should be cautious to compare situations of war and conflict, as they all are different and come with unique political dynamics and challenges, this brief historical overview and comparison shows that the sport bodies have acted in similar ways in some similar situations (the Yugoslav case), however not in all situations. It also shows that in the past, the IOC’s decisions took significantly longer, and were responding to a binding request from the UN. This is not the case in this specific conflict, where the decisions were taken with unprecedented speed and without an express UN resolution on the subject. Moreover, while in previous situations it was mainly national sport’s bodies directly impacted by the conflict that took certain measures individually, on this occasion international federations followed the IOC’s authoritative guidance and rapidly took decisions and issued sanctions.


What’s next?

Some commentators argued that these measures were exclusively taken in response to geopolitical and public pressure and thereby challenge the constant claim that sport is neutral and does not get involved in politics. The IOC and other sport bodies in return explained that these measures were adopted in response to the Russian violation of the Olympic truce, to protect the integrity, fairness and safety of competitions and athletes. According to Thomas Bach, “we (the IOC) will not fall into the trap of the cheap argument that this would be a politicisation of sport”.

Whatever the motivation for these actions may be, their long-term effect still remains to be observed. Some of them are currently being challenged before the Court of Arbitration for Sport, which may or may not result in the invalidation of some of these measures. At the same time, new (unprecedented) measures could follow.

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