Editor's note: Marine Montejo is a graduate from the College of Europe in Bruges and is currently an intern at the ASSER International Sports Law Centre.

On 3 June 2015, Sepp Blatter resigned as President of FIFA after another corruption scandal inside the world’s football governing body was brought to light by the American authorities supported by the Swiss prosecutor office. Two months after Michel Platini announced he would be a candidate for the next FIFA Presidential election, on 25 September 2015, the Swiss prosecutor opened an investigation against S. Blatter on an alleged disloyal payment he authorised to M. Platini. On 8 October 2015, the FIFA Ethics Committee announced both of them were provisionally suspended upon their hearings, a suspension that was later confirmed by CAS. In the end, M. Platini was sanctioned with an eight years ban from all football activities, later reduced to a six years ban by FIFA Appeal Commission on 24 February 2016. In the meantime, he withdrew his candidacy to become the next FIFA President. On 9 May 2016, after M. Platini appealed this sanction, the CAS confirmed the suspension but reduced it to four years, leading to his resignation from the UEFA presidency and the announcement of his intention to challenge the CAS award in front of the Swiss Federal Tribunal.

On 19 September, the CAS finally published the full text of the award in the dispute between M. Platini and FIFA. The award is in French as M. Platini requested that the procedure be conducted in that language. You will find below a summary of the ‘highlights’ of the 63-page decision. 

Facts of the case

The detailed analysis of the facts of the case by CAS is well worth reading as it contains a precise description of the developments giving rise to the dispute. It also describes the alleged work done by M. Platini for FIFA and the related payments received from the organisation that are also investigated by Swiss authorities.

The first meeting between M. Platini (the France 1998 World Cup organising committee co-President at that time) and S. Blatter (the contemporaneous FIFA Secretary General) was held in January 1998 where the latter asked M. Platini to be the next candidate for FIFA’s Presidential election. M. Platini refused the offer. They both met a few months later (no precise date was given in the award – simply “spring 1998”) and agreed that M. Platini would support S. Blatter’s candidature for the FIFA Presidency, forming a “ticket”. In the case of a successful outcome, M. Platini would become either one of FIFA’s directors or sports advisers. During this meeting, they allegedly also discussed the remuneration for M. Platini’s future work for FIFA. The former UEFA President said that he proposed 1 million per year, leaving the choice of currency to S. Blatter. During the CAS procedure, M. Platini and S. Blatter stated they had agreed (“oral agreement”) on remuneration of CHF 1 million for M. Platini’s sports or technical advisory services, which is roughly €900,000. Jacques Lambert (the former France 1998 World Cup organising committee chief executive) said before the CAS Panel that M. Platini had told him about that oral agreement, but also acknowledged that no other person was physically present during the meeting to confirm it. 

In the award, it is noted that M. Platini participated in the campaign in an informal manner and that M. Blatter, shortly after his election, publicly announced that he would be his “Foreign Affairs Minister”. As such, the exact position of M. Platini remained uncertain at that time. With regard to these findings, the award relied on former UEFA Secretary General Gerhard Aigner’s testimony during FIFA’s internal procedure. An internal note written by Mr. Aigner, dated 19 September 1998, questioned M. Platini’s future role at FIFA and the rumours circulating about his desire to be based in Paris; it also speculated that this seemed inappropriate for the position of FIFA sports director. He likewise questioned the CHF 1 million salary. This note was given to the members of the UEFA Executive Committee Board (meeting on 12 November 1998) but no official document was received by UEFA confirming M. Platini’s salary. More importantly, the note was added to a set of documents collected for a meeting between the UEFA President (and Secretary General) and individuals from FIFA’s Executive Committee. This meeting aimed to prepare for FIFA’s Executive Committee meeting (3 and 4 December 1998), but there is no certainty that the document was actually discussed during the meeting of 3 December. Amongst these documents, another, dated 29 November 1998 and addressed only to the European members of FIFA Executive Committee, reported once again the rumours surrounding M. Platini’s future job, this time referring to his role as “the head of a development programme” or as a “personal political advisor”. In a nutshell, by the end of 1998 there was no official announcement by FIFA on M. Platini’s position and remuneration except rumours.

M. Platini’s official functions for FIFA started on 1 January 1999 but, in reality, he had commenced work for FIFA in the second part of 1998. In August 1999, M. Platini asked S. Blatter to formalise their contract (“written contract”). This was signed by M. Platini and S. Blatter (as a representative of FIFA) on 25 August 1999. This contract is the first official document where M. Platini’s role is defined as the FIFA Presidential advisor on international football issues (“la [FIFA] conseiller et l’assister, en particulier son Président, pour toutes les questions relatives au football au niveau international”). A salary of CHF 300,000 is written by hand in the document and, in the annex, daily allowances in and outside Europe are also mentioned. S. Blatter and M. Platini said that they were aware of FIFA’s financial difficulties at that time and had agreed, without formally stating the amounts and conditions for payment, that the remaining money would be paid later. M. Platini worked from his office in Paris with two other persons, and all of their expenses paid by FIFA. With S. Blatter’s authorisation, M. Platini also saw the rights from his so-called benefit plan extended. The plan was set up in 2005 for members of FIFA’s Executive Committee and remained operational for more than eight years after they left. M. Platini’s rights were exceptionally extended to the years he was the FIFA Presidential advisor; thus, it also covered 1998 to 2002 when he resigned and became a full member of FIFA’s Executive Committee.

In 2010, M. Platini sought the payment of the full amount he was due in conformity with the oral agreement. He explained that FIFA was financially stable and, notably, that its executives’ salaries had been raised substantially. An invoice was sent to FIFA that requested payment of the balance for the four years, amounting to CHF 2,000,000. The CAS Panel raised an important query at that point surrounding the amount claimed – namely, for a salary of CHF 1,000,000 per year over a period of 4 years, the Panel suggested that the amount claimed ought to have been CHF 2,800,000. M. Platini waved away the divergence by saying that he thought he received CHF 500,000 p.a. from FIFA and not only CHF 300,000. However, he had previously stated that he mentioned to S. Blatter at the time the written contract was signed that the salary was less than the one they had previously agreed to, so he should have known how much he was paid. S. Blatter explained that he did not check the accuracy of the invoice and authorised the payment. The payment was included in FIFA’s 2010 account which was approved during FIFA’s Finance Commission meeting of 2 March 2011, to which M. Platini attended as the UEFA representative. During the Swiss investigation, M. Angel Villar Llona, UEFA’s Vice-President, stated that M. Julio Grondona, President of the FIFA Finance Commission at the time, told him about the payment owed to M. Platini because the full amount could not be written down for political reasons. The payment was made on 19 November 2012.

The CAS award then discussed the presidential atmosphere around FIFA and the opening of the Swiss investigation as well as the procedure before FIFA against M. Platini. As a reminder, let’s recall that the former UEFA President was first sentenced to an eight year ban by the Adjudicatory Chamber of the FIFA Ethics Committee for several breaches of the FIFA Code of Ethics (“CEF”). This sanction was later reduced to a six year suspension by the FIFA Appeal Committee.

Substance of the case

The CAS Panel first rejected the alleged procedural wrongs raised by M. Platini’s defence after the disciplinary proceedings before FIFA. The arbitrators recalled that the Panel shall have the full power to review the facts and the law.[1] As such the appeal cures any procedural breaches that might have occurred earlier. The arbitrators also spent some time on the legal debate around the notion of proof. This discussion concerned whether FIFA needed to prove that M. Platini violated the CEF as the payment he received was without any basis and that M. Platini bears the burden to prove that such grounds existed.

- Concerning the violation of article 20 CEF (“Offering and accepting gifts and other benefits”), the FIFA Appeal Committee decision concluded that M. Platini received a CHF 2,000,000 payment in 2011 that could not be based on a contractual agreement. Consequently, this payment was said to be undue and constituted an infringement of article 20 CEF. The CAS Panel likewise came to the conclusion that there wasn’t sufficient proof to establish the existence of an oral agreement. As a consequence, the amount was paid pursuant to a non-existent legal obligation, which constituted a breach of article 20 CEF. The CAS Panel even went a step further and found that the extension of the benefit plan was also a breach of that same provision.

First, with regard to the oral agreement, the CAS award highlights that there is no direct or contemporaneous proof that such an agreement was made.[2] The only and closest element of proof the CAS Panel could find is the written contract of August 1999, which establishes the CHF 300,000 salary for M. Platini as FIFA advisor. The arbitrators also stated that this contract constitutes unambiguous proof that there was not, unless otherwise proven, another contract that stipulated a CHF 1,000,000 salary.[3] As such, the CAS Panel ruled out M. Lambert’s testimony as it is indirect and cannot constitute proof that such an agreement was legally concluded. Moreover, the Panel noted that he had first mentioned this agreement in 2015. It also did the same with the two notes coming from UEFA and M. Villar Llona’s testimony, finding that they were only proof that negotiations were ongoing at the time for M. Platini to become an advisor at FIFA; they could not constitute an actual official confirmation of the alleged remuneration. Furthermore, the CAS Panel[4] put forward that M. Blatter, during his audition before CAS, said that the oral contract was a “gentlemen’s agreement” and, as such, not legally binding. Additionally, he stated that he was not sure he had the sole competence at the time, as FIFA’s Secretary General, to negotiate such an agreement. The CAS Panel then drew the conclusion that at no point was a clear commitment given by M. Blatter regarding the alleged remuneration. The Panel also considered that the fact that FIFA paid M. Platini is not a proof that the oral agreement existed. It highlights Blatter’s “centralised and old fashioned” [5] management and concluded that the other executives at FIFA did not have any option other than to execute the orders, namely the payment of M. Platini’s bill.

Subsequently, the CAS moved to apply Swiss national law (article 55 of the Swiss Civil Code). M. Platini said that M. Blatter acted on behalf of FIFA. The Panel firmly disagreed with him: firstly, by saying that M. Platini had not acted in good faith as he knew the written contract did not disclose the full amount he supposedly was due after the oral agreement; and, secondly, the Panel discussed the possible abuse of power by M. Blatter as he supposedly gave authorisation for remuneration that was even higher than his own and the Secretary General’s, concluding that he probably diverged from the normal course of business[6] and, as such, could not have represented FIFA’s will. As a consequence, the only valid agreement was the written contract of August 1999. Furthermore, the arbitrators could not find any proof of the alleged deferment of the final amount payable in that oral agreement and held that the only remuneration M. Platini was due was the one in the written contract. The CAS Panel was even more severe with M. Platini, of whom it found was not an “athlete without experience” but an “experienced manager in football” who should have known the importance of such a contract; this tended to demonstrate that there wasn’t any oral agreement.[7] The CAS Panel insisted that M. Platini’s claim that he waited until 2010 to ask for the full payment because of FIFA’s bad financial situation was contradicted by the facts. Moreover, M. Platini’s claims that FIFA’s executives received bonuses without justification meant that he did not act in the interest of FIFA but only in his own.[8] Finally, concerning the fact that M. Platini allegedly miscalculated the rest of his salary (CHF 500,000 per year instead of CHF 700,000) the Panel was, to say the least, not convinced by his explanation and concluded that both incoherencies on the amount and on the date of the invoice contradict M. Platini’s position.

Finally, regarding the extension of the benefit plan, the CAS Panel was straightforward by finding that M. Platini was not entitled to it during his years as FIFA’s Presidential advisor because this plan is only for members of the Executive Committee. This extension only occurred due to S. Blatter’s decision.[9] Even though no payment has been made yet as a result of this plan, the extension was also held to be a breach of article 20 CEF. 

- With regard to the violation of article 19 CEF (“Conflicts of interest”), the FIFA Appeal Committee decision concluded that M. Platini was in a situation of conflict of interest when he signed M. Blatter’s statement of support in May 2011 after he received the contested payment. He also participated in a meeting of FIFA’s Finance Commission without notifying the organisers that he was personally affected by the payment inserted into the agenda of the meeting.

On the topic of M. Blatter’s statement of support, the CAS Panel outlined that the declaration was signed by M. Platini as UEFA President and not as a FIFA official. As a consequence, article 19 CEF cannot apply in that case. However, the CAS Panel was, once again, severe with M. Platini by stating that, even though article 19 CEF cannot apply in these circumstances, there was nonetheless a conflict of interest in this case, albeit to UEFA’s disadvantage in this instance.[10]

To support his participation at FIFA’s Finance Commission in March 2011, M. Platini argued he had to replace the UEFA executive that fell sick (M. Marios Lefkaritis, UEFA treasurer). The CAS Panel concluded that M. Platini was in a situation of conflict of interest when he took part in the meeting that approved the 2010 annual report containing the CHF 2,000,000 payment he was not entitled to received. Even though the payment did not appear individually on the document, M. Platini should have disclosed during the meeting that he was personally affected. Hence, the CAS Panel stated that M. Platini could not act with integrity, independence and determination as a member of FIFA’s Finance Commission, because he had a personal interest in obfuscating that payment and making sure that FIFA’s 2010 account were adopted .[11] 

- With regard to the violation of articles 13 CEF (“General rules of conduct”) and 15 CEF (“Loyalty”), the CAS Panel did not follow the FIFA Appeal Committee decision. The arbitrators used the lex specialis derogat generali principle through which, if a behaviour falls under a general and a specific rule, only the latter rule will apply. Both provisions were applied because the acts in breach of articles 19 and 20 (specific provisions) and were not separate facts falling under articles 13 and 15 (general provisions). As a consequence, the CAS Panel concluded that there were no breaches of articles 13 and 15, but it did not spare M. Platini – it specifically stated that the Panel didn’t condone M. Platini’s behaviour nor were the former UEFA President’s actions ethical or loyal (§328 and §335). 

- Concerning the sanction. The Panel reduced the sanction to a three year suspension for the breach of article 20 CEF because of a number of mitigating circumstances. These include the added value M. Platini has given over the years to football, his cooperation in the procedure before the Panel and the fact that he is at the end of his career. The CAS Panel also took into account the fact that FIFA already knew about the undue payment in 2011 but did not start an investigation until 2015.[12]

By contrast, the CAS Panel found that the high level positions M. Platini occupied in football constituted an aggravating factor for the sanction. Likewise, the fact that he did not express any regret was also counted against him.[13] He was also sanctioned by a one year suspension for the breach of article 19 CEF which brings the total suspended period to four years (as from 8 October 2015) and a CHF 60,000 fine.

Conclusion

The arbitral award is very detailed and the justifications given by M. Platini, S. Blatter and their lawyers were examined at great length by the arbitrators. The description of the facts and the discussion of the grounds of the decision are precise and meticulous. It is striking how M. Platini’s defence appears to be the one of someone who was not very well informed about his own financial affairs. He extensively said that he was not a man of means and his arguments portrayed him as careless, negligent or even indifferent, which does not sit well with a former UEFA President. The arbitrators are not buying any of it and are severe, to say the least, in their appreciation. In particular, regarding the breach of article 20 CEF for which they highlighted that it was the most serious offense of M. Platini. However, the arbitrators, at the sanctioning stage, found mitigating factors to reduce the sanction that are surprising. Finally, after a third examination of its case, M. Platini’s sanction seems to keep on reducing whereas the offenses identified remained more or less the same.

[1] §223. « … la Formation rappelle qu’en vertu de l’article R57 du Code, le TAS jouit d’un plein pouvoir d’examen en fait et en droit… » §224. « Ainsi, la procédure devant le TAS guérit toutes les violations procédurales qui auraient pu être commises par les instances précédentes. »

[2] §234. « …qu’il n’existe aucune preuve directe et contemporaine de la conclusion dudit accord. »

[3] §235. « … Devant cet élément indiscutable, la Formation examinera ci-dessous si des éléments de preuve supplémentaires pourraient venir appuyer les explications de M. Platini et pourraient renverser la preuve résultant du texte univoque de la Convention écrite. »

[4] §253. « … au vu du style de management centralisateur et à l’ancienne de M. Blatter, les autres intervenants au sein de la FIFA n’avaient que peu de marge de manœuvre face à une instruction de ce dernier… ».

[5] §238 and 239

[6] §257. « … un contrat du type de celui de l’Accord oral dépasserait le cadre des affaires que peut conclure un représentant diligent d’une personne morale ».

[7] §274. « … puisqu’au moment des faits… [M. Platini] n’était pas un jeune athlète sans expérience, mais un ancien footballeur de très haut niveau, ancien sélectionneur de l’Equipe de France et ancien co-Président du comité d’organisation de la Coupe du Monde FIFA en France, c’est-à-dire un dirigeant expérimenté dans le domaine du football, qui devait savoir qu’un contrat de l’importance de celui qu’il prétend avoir conclu devait être couché sur papier… Ceci démontre encore l’invraisemblance de l’Accord oral. »

[8] §276. « … En faisant cette déclaration, M. Platini semble sous-entendre que constatant que d’autres dirigeants avaient obtenu des paiements sans justification particulière, il avait lui aussi tenté de le faire. Ce faisant, il ne démontre pas avoir agi dans l’intérêt de la FIFA, dont il était membre du Comité exécutif, mais uniquement dans son intérêt personnel. »

[9] §293. « … Les courriers de M. Valcke et M. Kattner de 2009 font clairement apparaître que l’inclusion des années 1998 à mi-2002 était inhabituelle et résultait de la seule décision de M. Blatter. »

[10]§304. « … le conflit d’intérêt (qui existait bien, de l’avis de la Formation) … ».

[11] §311. « Il est ainsi évident que M. Platini ne pouvait agir avec intégrité, indépendance et détermination en tant que membre de la Commission des finances, puisqu’il avait un intérêt personnel à cacher l’existence du paiement de CHF 2'000 000 dont il avait bénéficié, afin que les comptes 2010 soient adoptés sans que ce paiement soit évoqué. »

[12] §358. « … Enfin, la Formation prend également en compte le fait que la FIFA n’a débuté l’investigation contre M. Platini qu’en 2015, et de surcroît uniquement après que l’enquête du MPC a débuté, alors qu’elle avait connaissance du paiement concerné en 2011 (même si elle ignorait à ce moment-là le véritable motif du paiement). »

[13] §359. « En revanche, la Formation considère comme facteurs aggravants le fait que M. Platini a exercé des fonctions très élevées tant à la FIFA qu’à l’UEFA et qu’il avait donc un devoir accru de respecter les règles internes de ces organisations. De surcroît, il n’a manifesté aucun repentir.

In autumn 2011, the Finnish cross-country skier Juha Lalluka, known as a “lone-wolf” because of his training habit, showed an adverse analytical finding with regard to human growth hormone (hGH). The timing was ideal. As the FINADA Supervisory Body in view of the A and B positive samples initiated disciplinary proceedings against Lalluka for violation of anti-doping rules, the Veerpalu case was pending before the CAS. At the athlete’s request, the Supervisory Board postponed the proceedings until the CAS rendered the award in the Veerpalu case. Indeed, on 25 March 2013, the CAS shook the anti-doping order: it cleared Andrus Veerpalu of an anti-doping rule violation for recombinant hGH (rhGH) on the grounds that the decision limits set by WADA to define the ratio beyond which the laboratories should report the presence of rhGH had not proven scientifically reliable.

The Veerpalu precedent has become a rallying flag for athletes suspected of use of hGH and confirmed some concerns raised about the application of the hGH test. Not surprisingly, Sinkewitz and Lallukka followed the road that Veerpalu paved and sought to overturn their doping ban by alleging the scientific unreliability of the hGH decisions limits. Without success, however. With the full text of the CAS award on the Lallukka case released a few weeks ago[1] and the new rules of the 2015 WADA Code coming into force, we grasp the opportunity to outline the ambiguous approach of CAS on the validity of the hGH test. In short: Should the Veerpalu case and its claim that doping sanctions should rely on scientifically well founded assessments be considered as a fundamental precedent or as a mere exception?

Starting with the basics: the Human Growth Hormone (hGH) Test and the scientific controversies

The hGH is a hormone synthesized and secreted by cells in the anterior pituitary gland located at the base of the brain.[2] It is an endogenous substance, i.e. naturally produced in humans such as testosterone, and is necessary for skeletal growth, recovering cell and tissue damage. When released by the liver, hGH bonds to receptors in targeted cells to stimulate an increase in the levels of insulin growth factors, which stimulate growth and development of the cells.[3] It is noteworthy that the level of total hGH concentration varies in a human’s blood naturally and substantially over the course of the day.[4] High concentrations of hGH are considered abnormal and associated with anabolic substances.

Although there is no scientific consensus on whether higher levels of hGH actually enhance performance[5], anti-doping authorities have long been trying to detect and prevent the use of rhGH. The first blood test for hGH was introduced only at the 2004 Olympic Games in Athens. The major challenge in developing a doping test for hGH has been the uncertainty and variability in data used to establish the so called decision limits, namely a cut-point to assess whether an athlete’s blood higher hGH levels are natural or a result of doping. In 2010, the World Anti-Doping Agency (WADA) published its guidelines for the hGH test, including the test’s decision limits.[6] The testing is done through the use of two distinct sets of reactive tubes coated with two combinations of antibodies, which are referred to as Kit1 and Kit2.[7] The ratio of concentration of rhGH versus other natural derived isoforms of hGH are measured with the Kits which are developed to detect the administration of exogenous hGH. Under the 2010 Guidelines, the decision limit values as regards to male athletes are 1.81 for Kit 1 and 1.68 for Kit 2. Any value above these limits triggers the report by the laboratory of a positive test.

Nevertheless, since its introduction, the WADA hGH test has raised multiple concerns in the scientific community with regard to the lack of reliable and valid scientific knowledge about factors other than doping that might affect the relationships upon which the test relies.[8] The varying levels of all types of hGH make it difficult to establish an accurate baseline measurement for natural hGH values and rations. For instance, hGH can be affected by factors such as gender, age, exercise, body consumption, time of day and stress. Also psychological or pathological factors may affect the ratio. In view of the lack of significant knowledge with regard to the factors that may result in suspicious hGH values, it is highly possible that athletes are mistakenly labelled as ‘cheaters’.

Although the decision limits of hGH tests are still being debated, in the last few years, the CAS has been called to strike the right balance between the need for fairness in sport and the risk of devastating an athlete’s life, career and reputation on the basis of unsound scientific assessments. Crucially, it will be demonstrated that the CAS panels adopted a rather erratic approach when interpreting the hGH decision limits, adding legal uncertainty to the current scientific uncertainty.

The Veerpalu ‘no doping sanction in absence of scientific validity’ threshold

On 14 February 2011, Andrus Veerpalu, the Estonian Olympic Gold Medalist in cross-country skiing, was tested positive for hGH. On 12 September 2011, he appealed the three-year doping ban for use of hGH imposed by the International Ski Federation (FIS) and he became the first to challenge the validity of hGH tests before the CAS. With its decision on 25 March 2013, the CAS stunned the anti-doping world: it overturned Veerpalu’s drug suspension on the grounds that the decision limits of the hGH test could not be reliably verified.

But, how did the CAS reach this striking ruling? First and foremost, the CAS did not question the hGH test itself, nor the scientific validity of the analytical method used to detect rhGH. The Court’s criticism rather focused on the lack of sufficient scientific validity in defining the decision limits set by WADA beyond which laboratories should report the presence of rhGH.[9] Namely, the Court questioned the use of statistics in interpreting the hGH test results and detected three procedural flaws: (1) inconsistencies in the studies conducted, (2) the lack of peer review on WADA hGH studies and (3) the insufficient evidence submitted during the proceedings.[10] In particular, as the studies on hGH are concerned, the panel concluded that the population study that had been conducted to establish the decision limits of the hGH test was inadequate.[11] In view of the procedural flaws detected in the statistical analysis conducted by WADA to establish the hGH baseline, the panel did not consider itself comfortably satisfied as to the reliability of the decision limits for the hGH test, and acquitted Veerpalu.[12]

To reverse a doping case and openly question WADA’s hGH test decision limits was an unprecedented move in light of the CAS’ usual hands-off approach when dealing with WADA policies. The Veerpalu award was not only a huge blow to WADA hGH tests, but it also triggered significant rethinking of the standards applicable in the anti-doping fight. As an immediate consequence of the award, all reporting of adverse analytical findings for rhGH were frozen pending the completion of new studies on the determination of hGH test decision limits based on a bigger population-based study. Secondly, a new rebuttable presumption of the scientific validity of the analytical methods and decision limits for rhGH was introduced in the revised WADC 2015 at Article 3.2.1. [13] The new rule shifts the burden of establishing flaws in the scientific validity of analytical tools on the athlete’s shoulders.[14] Interestingly enough, the presumption applies only to methods and decisions limits that are scientifically reliable, meaning they must have been approved by WADA after consultation with the relevant scientific community and subject to peer review.[15] At the same time, the provision intends to set new procedural requirements in the judicial review of the analytical methods or decision limits used by WADA. Such a review is subject (1) to a mandatory notice to WADA of the challenge and (2) to the right for WADA to intervene in the CAS proceedings and request from the CAS to appoint an appropriate scientific expert to assist the panel in the evaluation of the challenge.[16]

More importantly, the Veerpalu award sets an important threshold in doping cases – as well as in every case where the CAS has to deal with scientific evidence: the need for scientific validity and systematic transparency before the imposition of any sanction. This development in conjunction with the new rule of evidence of Article 3.2.1 WADC 2015 can be considered as paving the way for a fairer and more realistic chance for Athletes to successfully rebut a doping sanction.[17]

Sinkewitz hGH case: A surprising twist to the Veerpalu saga

The Veerpalu case soon inspired athletes facing anti-doping sanctions. The German cyclist Patrik Sinkewitz and Lallukka, two athletes detected positive for rhGH, attempted to overturn their doping ban based on the Veerpalu precedent. However, the CAS begged to differ.

In the Sinkewitz case, the panel justified its deviation from the Veerpalu award by introducing the ‘borderline’ criterion. Unlike Veerpalu, Sinkewitz’s samples were far higher than the WADA decision limits and, as a result, he could not benefit from the uncertainty of a borderline situation.[18] In view of this, Sinkewitz was found ineligible for 8 years, since it was his second anti-doping rules violation. More importantly, the panel relied on a different evaluation of the hGH test, contradicting thereby the Veerpalu reasoning. According to the Sinkewitz panel, the decision limits defined in WADA Guidelines represent mere means of evidence and can serve as a recommendation to the laboratories, without being, however, mandatory and decisive for determining whether an anti-doping rule violation occurred.[19] This practically means that even in the instance of a ratio below the decision limits or in a borderline situation like the Veerpalu one, the panel could be ‘comfortably satisfied’ by expert evidence identifying rhGH irrespectively of the validity of the decision limits.[20] Contrary to the Veerpalu panel which seemed to rely on a perception of the hGH test as a quantitative analysis applicable to Threshold Substances covered by the Technical Document on Decision limits, the Sinkewitz panel - by characterizing the decision limits as a mere technical criterion for the identification of rhGH - seemed to perceive the hGH test analysis as a qualitative one, implying that more criteria are taken into account.[21]

Lallukka hGH case: Reconciling a conflicting jurisprudence ?

The Sinkewitz panel’s pattern with regard to the hGH tests decision limits was later followed by the Lallukka panel. The latter validated the Sinkewitz conclusion that the decision limits have no legal status and it further used this argument in order to rebut Lallukka’s objection about the retroactive application of legal rules. Since decision limits are not rules as such, but rather means of evidence figured as ‘guidelines’, the rule against retroactivity cannot apply to evidentiary matters.[22] However, it can me remarked that as in the Sinkewitz case the CAS chose to abstain from any criticism with regard to WADA’s practice to incorporate the decision limits into guidelines, instead of enshrining them directly in a mandatory document.[23]

Furthermore, the deviation from the Veerpalu precedent was based on the evidence provided in two independent studies mandated by WADA, i.e. the Mc Gill Study and a study from Prof Jean-Christophe Thalabard, which were merged into a peer- reviewed joint publication paper. According to the panel, the studies responded adequately to the concerns expressed in the Veerpalu case and established the decision limits with a 99.99% specificity. As a result, the panel was comfortably satisfied as regards the reliability of the hGH tests decision limits and Lalluka could not benefit from the Veerpalu precedent.[24]

Nevertheless, although at a first glance being in line with the Sinkewitz award, the Lallukka award added an interesting twist regarding the starting point of the athlete’s suspension. In fact, the panel by reference to the principle of fairness concluded that the athlete’s disqualification would start only from June 2014 onwards, when WADA was in a position to answer in a documented manner, i.e. through the peer-reviewed joint publication paper, the issues raised in the Veerpalu case.[25] Thus, the panel seems to apply the ‘golden rule’ established in the Veerpalu case that a doping sanction could be imposed only on the basis of reliable scientific knowledge. Thereby, creating a sort of legal bridge between the competing lines of CAS jurisprudence and paving the road to a fair reconciliation preserving the rights of the athletes.

Conclusion: Should Veerpalu Stand?

The Veerpalu ruling was a landmark case for the CAS in doping matters and particularly concerning the hGH test. It set a clear standard for future CAS panels: when exercising their daunting task of reviewing decisions based on complex scientific assessments, they need to ensure that these assessments rely on transparent and rigorous scientific practice of the highest quality. The Sinkewitz and Lallukka cases, however, unveiled an unfortunate (partial) retreat from this position. This is not without consequence regarding the credibility of the CAS and the anti-doping fight. The fight for clean sport must be based on the safest scientific standards possible and, to this end, these standards should stay subjected to full CAS scrutiny. With the new WADC 2015 and the rebuttable presumption of scientific validity for analytical methods and decision limits it enshrines, more intriguing legal challenges against the hGH tests are likely to be brought before the CAS. One may wonder whether this new regime will be advantageous for athletes or whether it is an ‘illusion of fairness’, since it seems highly unlikely that athletes without WADA’s extensive network of laboratories and resources can prove the unreliability of the hGH ratios.[26] Whatever the future brings, one thing remains certain in the anti-doping landscape: the CAS’ absolute reluctance to openly question WADA rules belongs to the past.

[1] CAS 2014/A/3488, World Anti-Doping Agency v. Mr Juha Lallukka (20 November 2014)

[2] CAS. 2011/A/2566, Veerpalu v. FIS, 25 March 2013, para 83

[3] J Coleman and J Levien, ‘ The burden of proof in endogenous substance cases’ in M McNamee and V Moller (eds) Doping and Anti-Doping Policy in Sport- Ethical, legal and social perspectives (Routledge 2011) 27-49, 37.

[4] K Fischer and  D Berry, ‘Statisticians introduce science to International Doping Agency: The Andrus Veerpalu case’ , 5

[5] For a critical approach on hGH effect on an athlete’s performance, see A Hoffman and others ‘Systematic review: the effects of growth hormone on athletic performance’ (2008) Annals of Internal Medicine, 747-758

[6] To be noted that there is no material change to this approach in the 2014 Guidelines.

[7] CAS 2014/A/3488, World Anti-Doping Agency v. Mr Juha Lallukka, para 9

[8] J Coleman and J Levien (n 3), 39.

[9] 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>

[10]  CAS. 2011/A/2566, Veerpalu v. FIS (n 2), paras 204-206.

[11] Ibid, para 206.

[12] Ibid

[13] WADC 2015, Article 3.2.1: “Analytical methods or decision limits approved by WADA after consultation within the relevant scientific community and which have been the subject of peer review are presumed to be scientifically valid. Any Athlete or other Person seeking to rebut this presumption of scientific validity shall, as a condition precedent to any such challenge, first notify WADA of the challenge and the basis of the challenge. CAS, on its own initiative, may also inform WADA of any such challenge. At WADA’s request, the CAS panel shall appoint an appropriate scientific expert to assist the panel in its evaluation of the challenge. Within 10 days of WADA ’s receipt of such notice, and WADA ’s receipt of the CAS file, WADA shall also have the right to intervene as a party, appear amicus curiae or otherwise provide evidence in such proceeding.”

[14] M Viret, ‘How to make science and law work hand in hand in anti-doping’ (2014) Causa Sport : die Sport-Zeitschrift für nationales und internationales Recht sowie für Wirtschaft, Issue 2, 106

[15] WADC 2015, Article 3.2.1 (n 13)

[16] Ibid

[17] A Rigozzi, M Viret and E Wisnosky  ‘Does the World Anti-Doping Code Revision Live up to its Promises? – A preliminary survey in the main changes in the final draft of the 2015 WADA Code, Jusletter of 11  November 2013

[18] CAS 2012/A/2857 Nationale Anti-Doping Agentur Deutschland v. Patrick Sinkewitz (24 February 2014), para 204.

[19] Ibid, para 192

[20] WADC, Article 3.2: “Facts related to anti-doping rule violations may be established by any reliable means, including admissions.”

[21] M Viret and E Wisnosky (n 9)

[22]CAS 2014/A/3488, World Anti-Doping Agency v. Mr Juha Lallukka, paras 112-116

[23] M Viret and E Wisnosky (n 9)

[24]CAS 2014/A/3488, World Anti-Doping Agency v. Mr Juha Lallukka, paras 98-99

[25] Ibid, para 137

[26] J Coleman and J Levien (n 3), 39.

Dear Reader,

Today the ASSER International Sports Law Centre is very pleased to unveil its new blog. Not so surprisingly, it will cover everything you need to know on International Sports Law: Cases, Events, Publications. It will also feature short academic commentaries on "hot topics".

This is an interactive universe. You, reader, are more than welcome to engage with us via your comments on the posts, or a message through the contact form (we will answer ASAP).

This is an exciting development for the Centre, a new dynamic way to showcase our scholarly output and to engage with the sports law world. We hope you will enjoy it and that it will push you to come and visit us on our own playing field in The Hague.

With sporting regards,

The Editors

Editor’s note: Rhys Lenarduzzi is a final semester Bachelor of Law (LL.B) and Bachelor of Philosophy (B.Phil.) student, at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.

Having considered the history and justifications for the FIFA training compensation and solidarity mechanisms in my previous blog, I will now consider these systems in the African context. This appears to be a worthwhile undertaking given these global mechanisms were largely a result of European influence, so understanding their (extraterritorial) impact beyond the EU seems particularly important. Moreover, much has been written about the “muscle drain” affecting African football and the need for such drain to either be brought to a halt, or, more likely and perhaps more practical, to put in place an adequate system of redistribution to ensure the flourishing of African football that has essentially acted as a nursery for European football for at least a century. In the present blog, I intend to draw on my experiences as a football agent to expand on how FIFA’s redistributive mechanisms function in practice when an African player signs in Europe via one of the many kinds of entities that develop or purport to develop talent in Africa. I will throughout address the question of whether these mechanisms are effective in a general sense and more specifically in relation to their operation in Africa.

1.     The context: African players’ pattern of migration to Europe

There is a substantial body of work on player migration from Africa to Europe. The history of this movement is important context but just one element to the composition of this blog, so for a more comprehensive unpacking I recommend turning to Darby and Poli’s work. Briefly though, much of the movement began in the early 1900s, with an axiomatic nexus between African countries and their colonial ruler. These connections and channels live on and as one author noted, old colonial ties continue to structure the flow’.[1] This is of little surprise given the language advantages, cultural and economic connections between countries already in place, though some other explanations for the ongoing and evidently near exclusively one way flow are at play.

Economic prosperity has always been the drawcard for African footballers pursuing the European dream, though as Ungruhe submits, in modernity there is an additionally strong pull and distortion at play.[2] Here Ungruhe apportions considerable blame on Africans and the media painting a picture of football in Europe through the lives of players like Didier Drogba and Samuel Eto’o. The result for young African footballers is a ‘dream of being part of an imagined Euro-American modernity and aspirations of a good life as well as socio-cultural demands of ‘becoming a somebody’ in society.’[3] These dreams don’t always align with the realities and come at the cost of other educational or career pursuits.

Further and perhaps more obvious reasons for the movement is the relatively cheap labour costs an African player presents in opposition to the European player of equivalent footballing quality. Transfer fees, or more relevant to this blog, training compensation, is commonly waived (often in exchange for a less than ideal future sell-on arrangement) making the African player attractive in an economical sense. The way Africa acts as a nursery to European football clubs has been analogised by Darby to the mining of the imperialist colonial period, where the ‘sourcing, refinement, and export of raw materials’ can be compared to the ‘mining and export of indigenous football talent for consumption on the European football market.’[4] Though as has been noted above, this is ongoing and the movement continues to be one way, seemingly pointing to a neo-colonialist dimension to player movement, a term famously used in a Sepp Blatter interview (2003), along with such practice being labelled ‘social and economic rape’.

Though much is made of the movement being nearly exclusively one-directional historically and in a contemporary transfer market, the movement and environment surrounding such transfers might be more defensible if FIFA’s redistributive mechanisms were effective.

2.     Statistics of concern: FIFA redistribution mechanisms and Africa

Quantitative data in this space has historically been hard to come by. In fact, a breakdown of the parties that paid the due training compensation and solidarity contributions, a breakdown of those that did not meet their payment obligations, and the confederations in which the paying and the owing entities sit would be instructive but is currently missing. Nevertheless, the recently published Players’ Status Department Report and Global Transfer Market Report 2019 provide some interesting insights. For instance, the Players’ Status Department Report shows inter alia that clubs from CAF are very rarely a respondent in training compensation and solidarity mechanism claims,[5] the rather obvious result of being largely an export rather than import market. If we focus on 2018-2019 transfers to UEFA clubs (see fig.12), most transfers to these clubs are from within UEFA (8,108), whereas CONMEBOL to UEFA is second (836), then CAF to UEFA (581). Despite there being a gap between CONMEBOL and CAF transfers to UEFA, it is not nearly as significant as the gap between claims brought and resolved at FIFA, for both solidarity contributions and the training compensation mechanism. For instance, the solidarity contribution mechanism claims brought and resolved where CONMEBOL is the claimant and UEFA in the respondent (304) is approximately double that of CAF as claimant and UEFA as respondent (144) (see fig.12). The number of resolved claims with UEFA as respondent for training compensation disputes is again, approximately double, with CONMEBOL (131) and CAF (70). (see fig.19) This disproportionality between total transfers and disputes brought and resolved on the redistributive mechanisms, may point to African clubs being either unaware of their rights under these mechanisms or rendering themselves unable of achieving a remedy when falling victim to a more powerful club from Europe.

In 2018, it was reported that just USD$67.7m of the USD$351.5m due to be distributed in solidarity contributions, was actually paid. That is a mere 19.3% of what should have trickled down and perhaps just as alarming is that this percentage has been worsening. Africa, as a poorer continent than most and certainly a poorer continent than Europe to which it provides football talent more than it provides any other confederation, is arguably hurt most from this non-payment. Furthermore, the 2019 FIFA Global Transfer Market Report stated that USD$12.2 million in training compensation was paid,[6] which is a considerable distance from what was paid in solidarity contributions and light-years from what was supposed to be paid in solidarity contributions. So what might this say about these mechanisms in general and in the African context specifically, if one is to conclude that Africa provides a wealth of talent for Europe and other confederations and is hence in most need of redistribution for fulfilling the role of talent nursery?

3.     The Operation of Training Compensation in the African Context

More than any other confederation, Africa has found itself with an array of different entities undertaking football training and education, most commonly referred to as academies. Not all have questionable intentions, however this range of non-conventional arrangements of registering or attaching young players to a particular entity is usually for profit. This often results in some regulatory gymnastics, and particularly in relation to both the training compensation and solidarity mechanisms when profit is on the line.  I will borrow Darby’s four categories of training structures in Africa and apply my understanding of the industry. I would submit that we can look at these arrangements and form conclusions on how training compensation may operate in each scenario if a young player from either of these environments is recruited to Europe. I will keep the players and clubs involved in the following anecdotes anonymous, in the interest of confidentiality and professionalism. I will pay particular attention to scenarios (1) and (3) as what takes place in practice behind the scenes in these categories can be less obvious and perhaps more interesting for the purpose of this blog.

Darby’s four categories of training structures in Africa are; ^[7]

1)    African academies, organized and run by African club sides or African national federations

2)    Afro-European academies, which involve either a partnership between an existing academy and a European club or an arrangement whereby a European club takes a controlling interest in an African club[8]

3)    Private or corporate-sponsored academies, which have well-established foundations and operate with the support and sponsorship of private individuals

4)     Non-affiliated, improvised academies, which are set up on an ad hoc basis and involve poorly qualified staff and lack proper facilities[9]

3.1. Scenario 1: Training compensation and African club academies

In my experience as a football agent and that of my colleagues and competitors that I’ve spoken with on the topic, scenario (1) is the most likely to result in some redistribution, though it is still not always commonplace for clubs to stand their ground and demand training compensation. Instead, what regularly happens is a gamble of sorts, where African clubs waive their right to training compensation initially, in exchange for a percentage of future sell-on value. This can be pitched by a new club to be an amount that would be greater than what a club would receive in training compensation, but is simultaneously often a condition of a “take it or leave it” offer from a buying club, meaning that the player will no longer be of interest if they are not free. This “fee” or piece of future sell-on value is then at times contingent on things such as the new club’s success or first team appearances of the player in question. Unfortunately with the latter, there have been instances when clubs have stopped selecting the player in question when his number of appearances is coming close to the threshold of that clause.  

Scenario (1) type clubs can appear to be the most legitimate entities of the four categories to claim training compensation, though perhaps the following two anecdotes taken from my practice will shed light on how the mechanism operates in practice, with particular attention to it’s waiver and the ‘hindrance effect’[10] it might have. For instance, a former youth national team captain from Ghana had been on the edge of a transfer to a myriad of small-medium size clubs in Europe. The interest had been intense since his 16^th birthday and the plan was for him to move at 18 when the regulations permitted. However, due to a short-term injury around age 18, the interest for an immediate transfer diminished. The player recovered and struggled to generate the same interest in Europe as before, but became of interest in Australia, where the strategy would have been to play at a club within a country that was arguably a better stepping stone to Europe than his current club. When the interest was from Europe, his club was open to waiving training compensation in exchange for a future sell-on benefit and saw this as a safer bet. However,when the interested club was an Australian one, the training club saw the chances of the player moving on to Europe as less likely and the chance to profit substantially from future sell on fees unlikely, hence it refused to waive the training compensation. The player is still at the same club years later, in his mid-twenties and with little prospects of playing outside of his home nation. The result in this instance is that the player's career was strongly affected by the training compensation mechanism, his training clubs and community will never be the beneficiaries of redistribution, and the Australian club who was only interested if the player was free missed out on a player who wanted to come to the club. Can such a strong restriction on a player’s ability to move to seek employment as a professional player outside of his home country really be justified by the redistributive goal of the training compensation mechanism? Especially, when in many cases this mechanism is being waived and perhaps not considered necessary by FIFA itself. 

In another example of a scenario (1) legitimate club with a youth academy involving the ‘hindrance effect’, an arguably unfortunate outcome can result if a training club refuses to waive its rights to training compensation. Indeed, often only a small group of big clubs with well above average financial resources can afford the entire bill for compensation between the ages of 12 and 21.  I recall a top youth prospect from Mali who had attracted lots of interest from clubs in Europe following strong performances at both the under 17 and the under 20 World Cup. Yet, training compensation due had acted as a hindrance until he had a strong season around age 20. The player’s training club(s) in Mali had stood their ground and insisted training compensation be paid if the player was to transfer. Here, it took a relatively big club that regularly plays Champions League or Europa League football with the financial resources to pay it.  The club has an enormous squad, many international players, and would not generally be thought of as an ideal destination for a youth prospect as they have a history of parking players. Since his signing, the player has played little football as loan options have fallen through and he has been unable to find himself in the first team. In this case the player's development has stagnated, having ended up at a big club, and not at other more suitable destinations despite interest and offers, nearly exclusively because training compensation acted as a barrier for him to be signed by a club that most would deem a more appropriate stepping stone.

3.2. Scenario 3: Training compensation and African private academies

Scenario (3) has become an incredibly common environment for young African footballers to find themselves in, given the abundance of these academies throughout the continent.  Players enter these entities either by paying their way if they have the means and aspirations but lack the talent or having been scouted for their above average potential. This creates for an interesting dynamic come transfer time and considerable controversy. These academies are generally created for profit but are of course non-FIFA entities, requiring they get creative if a player becomes the subject of interest from Europe. Some less than ideal sequences of events can follow from this arrangement.  Examples include academies affiliating themselves with clubs through ‘under the table’ arrangements, handing the player back to a FIFA recognised club before transferring, or having the player registered at that club for the duration of their stay with the academy to simplify a transfer if it eventuates, perhaps then attracting training compensation to the club but more likely arranging an agreement like those alluded to above, where compensation for training a player will only be realised down the track on future sell-on fees. Academies want immediate money as well though so there are instances where a club will pay to have the players current registration and share a percentage of future sell on fees with the academy.  There are a number of other arrangements however one can probably get the picture, that the FIFA training compensation mechanism is regularly being circumvented or tweaked significantly so as to make a deal happen, rather than having it fall through. In this instance, the academies are paid in some form now or later, as well as the clubs that help them facilitate the transfer.

For instance, a star of a recent under 17s World Cup from Nigeria had spent the majority of his youth at one of the more famous scenario (3) type academies. When interest flooded in following the World Cup, there was nearly a year worth of assessing what would be the best move for the player.  A lot of the interest was from medium sized clubs and from destinations outside of the big 5 leagues, and these destinations were arguably a better stepping-stone. However, most of these preferable destinations demanded the player be free or they would not make an offer and some of this interest hinged on an assumption the player would be free given he was the product of a private academy and not a FIFA recognised club.[11] After much dispute and controversy with the academy trying to get in the way of a deal or be the beneficiaries of such a deal, the player managed to get away free from the academy and sign for free with a club. It is difficult to emphasise how tricky it was to fend off attempts from this academy to stop the deal or be a part of it, as well as how important it was that the player be free for a more suitable deal to eventuate. The player has already transferred again within Europe to a bigger club, as he was able to get plenty of first team football to display his abilities. This can sound great for the player and the clubs, but what about the far-reaching societal benefits that training compensation and solidarity is geared towards achieving? In many, perhaps most, analogous cases, the academy would have successfully got in the way of the deal or benefitted from it. In both cases, the deal that happened, or the scenario that usually happens as unpacked above, the objectives of the redistributive mechanisms are bypassed. The ‘hindrance effect’ would have almost certainly played a part in this players journey had compensation been due, or a big club that could afford compensation may have come forward, though it would then have been unlikely that the player would have played first team football to the same extent, and his career might have faltered.

My experience shows that the fact that training compensation can be waived has turned it into a subject of speculation and market negotiation between the more powerful European club and the economically vulnerable African club. The latter are often happy to forego their claim for training compensation if it is necessary to close a deal that would include some future potential benefit. Thus, it can hardly be said that African clubs can rely on this right to training compensation to guarantee stable funding to support their investment in educating players. Furthermore, while being relatively ineffective as a mechanism of redistribution, it nevertheless acts as a hindrance on the movement of African football players. Hence, the continent experiences the worst of both worlds, limited training compensation for its clubs and limited freedom of movement for its players.

4.     Africa’s missing solidarity contributions

The solidarity mechanism is mandatory and cannot be waived like the training compensation mechanism, though as is clear from the gap between what is paid and what ought to have been, there are issues with regard to its implementation. In the African context, there are a number of reasons why payments are not made. On the one hand, it is clear that the differing capacity of administration and the quality of legal advice accessible to African clubs plays a role. Sometimes African clubs are simply unaware that they are even owed solidarity. Further, if they are aware, the task of taking on a European club in a legal battle can be too expensive or too daunting to pursue, ultimately rendering this an access to justice issue as well.

On the other hand, as is true of both solidarity and training compensation mechanisms, funds are channelled through the national association and this has been problematic on occasions. I was once involved in a situation with a club within an African league with a notoriously controversial national body. The club was due to receive solidarity contributions given a player it had registered between the ages of 12 and 21 had signed with a club from one of the big 5 leagues for a fee into the tens of millions of euros. The African club had changed names but remained the same legal entity between the time the player had been at the club and his subsequent transfer. This was common knowledge to the football community within this African country and the national federation. It appeared on this occasion that the national governing body was attempting to argue the club ‘ceased to participate in organised football’ per Annex 5(2)3 of the RSTP which outlines that an association is entitled to receive the proportion of solidarity contribution, though it shall be reserved for youth football development programmes in the association. Given this particular associations track record, suspicions linger as to what the money would have been used for.

It is clear that in general a lot of solidarity money is lost or not paid, and it ultimately does not reach the African grassroots where it is needed most. It seems some, if not most, of this loss can be attributed to the costs attached to the process of obtaining this solidarity funds. If FIFA were serious about redistribution, it would ensure that solidarity transfers be almost automatic. Otherwise all the talk about solidarity is hypocritical at best, as those who need it the most are the least likely to enjoy it.

5.     Concluding remarks

This blog has highlighted various issues that surface in the African context with regard to FIFA’s redistributive systems. While on the face of it solidarity between the richest European football clubs and African training clubs can only be applauded, it remains to be seen whether the current regulatory set-up achieves the desired solidarity.

I have seen first-hand that training compensation acts as a real hindrance for the professional career of African footballers. Players suffer from being unable to go to clubs of suitability, and it is clear that the mechanism has become a regular bargaining chip in the wider transfer market, where a waiver in exchange for a future sell-on fee  may be as common an occurrence as actual payment of a training compensation. In practice and because it can be waived, the training compensation is part and parcel of a speculative transfer market rather than an effective instrument of solidarity between clubs. Moreover, insofar as the solidarity mechanism is concerned, its effectiveness seems to be blunted by the administrative burden that comes with its implementation. All too commonly, African clubs have simply too little means to be able to ensure the rights they should derive from it. Ultimately, from the training compensation mechanism arises a transactional dilemma, whilst in the event of non-payment of solidarity contributions, arises an administrative predicament.

There is a neo-colonial flavour to the fact that the training compensation can be waived. Indeed, (European) buyers are often in a strong bargaining position, as they can (collectively) put pressure on training clubs with ‘take it or leave it’ options. In doing so, they shift some of the risks related to the future development of the player back onto the shoulders of African clubs. Instead of getting an immediate fee for training the player, the African clubs get only a potential opportunity of a future fee that will be dependent on a player’s capacity to adapt to his new club and a myriad of other factors. One could see this as a free choice, yet, such a view would paper over the massive power imbalance between European clubs and African ones. If the objective of FIFA’s regulations is truly to foster solidarity and redistribution then they ought to be devised in a way that takes better account of this power imbalance between clubs from different parts of the world. African clubs must be able to systematically claim their training compensation fee without fearing to miss out on a transfer entirely, and to seamlessly receive the solidarity contributions owed. If not, it becomes extremely hard to justify burdening the (African) players’ right to move and take employment around the world. Indeed, one is left to wonder whether FIFA’s redistributive mechanisms could not be entirely uncoupled from the players’ movement and from the transfer market.

[1] Raffaele Poli, ‘Migrations and Trade of African Football Players: Historic, Geographical and Cultural Aspects’ (2006) Vol. 41, No. 3 The Other Game: The Politics of Football in Africa, at 409.

[2] Christian Ungruhe, 'Mobilities At Play: The Local Embedding Of Transnational Connections In West African Football Migration' (2016) 33 The International Journal of the History of Sport.

[3] Ibid 1770.

[4] Paul Darby, 'Out of Africa: The Exodus of Elite African Football Talent to Europe' (2007) 10 WorkingUSA 445-446.

[5] CAF was not even listed in Fig.11 of the report “Confederation of respondent club for claims resolved in 2019/2020”.

[6] 2019 FIFA Global Transfer Market Report, 12.

[7] Paul Darby, et al, Football Academies and the Migration of African Football Labor to Europe (2007) 31 Journal of Sport & Social Issues, 149-150.

[8] Scenario (2) is ultimately an example of European clubs being commercially savvy and the entire arrangement is to avoid costs or fees like training compensation.  This probably needs little more explanation as one can see that a European club may essentially be paying themselves if they are the main stakeholder in the African club or academy from which their new player has graduated.

[9] Scenario (4) academies are arguably the most detrimental in terms of their societal effects. They often purport to be a channel for ambitious players but lack the quality of facility and coaching, let alone contacts or ability to spring board players onto bigger and better things. They are never the recipient of redistribution given they are not FIFA recognised yet take money for their services and cannot fulfil promises.

[10] Jakub Laskowski, 'Solidarity Compensation Framework In Football Revisited' (2018) 18 The International Sports Law Journal, 168, 178, 182.

[11] The player spent a small amounts of time registered to a club to be eligible for the national team.