Editor's Note: Frans M. de Weger is legal counsel for the Federation of Dutch Professional Football Clubs (FBO) and CAS arbitrator. De Weger is author of the book “The Jurisprudence of the FIFA Dispute Resolution Chamber”, 2^nd edition, published by T.M.C. Asser Press in 2016. Frank John Vrolijk specialises in Sports, Labour and Company Law and is a former legal trainee of FBO and DRC Database.

In this first blog, we will try to answer some questions raised in relation to the Article 12bis procedure on overdue payables based on the jurisprudence of the DRC and the PSC during the last two years: from 1 April 2015 until 1 April 2017. [1] The awards of the Court of Arbitration for Sport (hereinafter: “the CAS”) in relation to Article 12bis that are published on CAS’s website will also be brought to the reader’s attention. In the second blog, we will focus specifically on the sanctions applied by FIFA under Article 12bis. In addition, explanatory guidelines will be offered covering the sanctions imposed during the period surveyed. A more extensive version of both blogs is pending for publication with the International Sports Law Journal (ISLJ). If necessary, and for a more detailed and extensive analysis at certain points, we will make reference to this more extensive article in the ISLJ.

In 2015, FIFA announced a very significant addition to the Regulations on the Status and Transfer of Players (hereinafter: “the RSTP”): the inclusion of a new provision on overdue payables by defaulting clubs towards players and other clubs. On 1 April 2015, the 2015 edition of the RSTP gave birth to a fast-track procedure to deal with overdue payables enshrined in Article 12bis (hereinafter: “the 12bis procedure”). In its Circular letter no. 1468, FIFA also strongly urged all of its member associations to make sure that their affiliated clubs were informed of this new provision immediately.

From Article 12bis, which is also laid down in the 2016 edition of the RSTP, it follows that clubs are required to comply with their financial obligations towards players and other clubs as per the terms stipulated in the contracts signed with their professional players and in the transfer agreements signed with other clubs. In accordance with Article 12bis FIFA is entitled to sanction clubs that have delayed a due payment for more than 30 days without a prima facie contractual basis.

It was a real thorn in the side of FIFA that too many clubs, on a worldwide level, did not comply with their financial contractual obligations without legitimate reasons.[2] With the introduction of this provision, it was not only FIFA’s aim to continue its process to further speed up its proceedings, but also to establish a stronger system regarding overdue payables towards players and clubs. FIFA stressed that it wanted to further improve efficiency and provide clear regulatory steps to deal with overdue payables from clubs to players and from clubs to other clubs.

As from 1 April 2015, the Dispute Resolution Chamber (hereinafter: “the DRC”) and the Players’ Status Committee (hereinafter: “the PSC”) are FIFA’s competent authorities to deal with claims on overdue payables in relation to Article 12bis. Both FIFA committees were given a wide scope of discretion to impose sanctions on defaulting clubs, such as fines and transfer bans. In fact, the possibility to impose sanctions is critical to support a stronger and more efficient dispute resolution system regarding overdue payables, as we will see in the second blog.

The introduction of FIFA’s 12bis procedure also gave rise to many (legal) questions. For example, are only clubs and players entitled to lodge a claim before respectively the PSC and the DRC? Or are other parties, such as coaches and national associations, also entitled to raise their claims under 12bis? Do claims for training compensation and solidarity contribution fall under 12bis? Can the 12bis procedures be considered as a real fast-track procedure? Under what circumstances can an offence be considered a repeated offence? And also, since the imposition of sanctions is key to the efficacy of the 12bis procedure, under what conditions will these sanctions be imposed? These are only a small sample of the questions that arose after the introduction of the 12bis procedure. In this first blog, we will try to answer the most important questions raised based on the jurisprudence of the DRC, PSC and CAS.

General preliminary observations

As a starting point, it must be noted that exactly 137 decisions by the DRC and the PSC regarding Article 12bis have been published by FIFA on its website between 1 April 2015 and 1 April 2017.[3] Of these 137 decisions, 99 decisions have been dealt with by the DRC, including 58 decisions issued by the DRC Single Judge. Additionally, 32 decisions were passed by a Chamber of three judges, whereas 24 of these decisions were passed by circulars and eight were passed by a decision of a sitting Chamber in Zürich, Switzerland. Only nine FIFA decisions were passed by a Chamber of five judges.   

From the 38 decisions of the PSC, 37 were issued by its Single Judge and only one[4] was issued by a Chamber of three judges via a circular. It can be noticed that in most “renouncement of right cases” (in which defaulting clubs have not replied to the claim of the claimant party), a Single Judge has dealt with the case.

Analysing the decisions, it is striking that all claimants in the 137 decisions won their cases. In other words, in none of the decisions of the DRC and the PSC it was found that a “prima facie contractual basis” existed for the respondent party, which would justify non-compliance with the original contract. A sanction was imposed in all decisions.

It can further be observed that in the great majority of the decisions, the respondent party did not reply to the claim. As we will see, the absence of a reply will generally result in more severe 12bis sanctions for the defaulting club.

The jurisprudence of FIFA also illustrates that the 12bis procedure are a step towards swifter proceedings. In the last years we have already noted a positive development with regard to the length of ‘regular’ proceedings before FIFA (not including the 12bis procedures). With regard to the 12bis procedure, FIFA stressed that it has shortened the timeframe for decisions taken on overdue payables, with decisions now being taken within eight weeks and claimants being notified of a decision within nine weeks of lodging their complete claim. After analysing the 12bis decisions of the DRC and the PSC, it is clear that FIFA actually lived up to these expectations. The average duration of a 12bis procedure is two months. It is only exceptionally that a 12bis decision lasted longer (four or ultimately five months) or even took less time (one or one and a half months).[5] As illustrated in Figure 1, approximately 67% of the PSC and the DRC procedures were concluded within eight weeks. Approximately 80% of both FIFA decisions were dealt with within 10 weeks.

Figure 1

The scope of Article 12bis

The two years of jurisprudence show that the personal scope of Article 12bis must be interpreted strictly. As follows from the text of Article 12bis(3), only players and clubs are entitled to lodge a claim before FIFA. Put another way, coaches, national associations and intermediaries do not have standing to sue in the 12bis procedure. This textual interpretation of the provision is confirmed by the jurisprudence of the DRC and the PSC. In fact, none of the reviewed decisions of the DRC or the PSC involved a party who was not a club or a player.

Additionally, it can be concluded that claims for training compensation or related to solidarity mechanism are also excluded from the scope of Article 12bis, as this opportunity is not provided in the provision. Moreover, the current jurisprudence does not leave room for any other interpretation. With regard to training compensation and solidarity mechanism, this means that FIFA gives to “overdue payables” a different meaning than the UEFA Club Licensing and Financial Fair Play Regulations, since outstanding amounts for training compensation and solidarity mechanism are considered by UEFA as overdue payables. The same is true for outstanding payments due by clubs to other (than player) club employees and debts by clubs to social/tax authorities; such outstanding amounts will not be considered by FIFA as ‘overdue’ under Article 12bis.

Generally, the DRC deals mainly with contracts signed by clubs with professional players. These include employment contracts but it is to be expected that separate agreements could also fall under the scope of Article 12bis as long as specific elements of that separate agreement suggest that it was in fact meant to be part of the actual employment relationship, as the DRC decided in many other cases (not being 12bis procedures). This is for example the DRC’s position with regard to image right contracts.^[6] Based on the jurisprudence reviewed, it follows that termination agreements fall under the scope of Article 12bis.[7] The PSC will only deal with transfer agreements, including both transfers on a definite[8] as well as on a temporary basis[9]. It is to be expected that agreements between clubs that do not concern the status of players, their eligibility to participate in organised football, and their transfer between clubs belonging to different associations, will most likely not fall under Article 12bis.[10]

Finally, it also follows from Article 12bis(3) that the creditor (player or club) must have put the debtor club in default in writing, granting a deadline of at least 10 days to comply with its financial obligations. Regarding this 10-days deadline, FIFA follows a strict interpretation, as we will see in the following paragraph.

The existence of an ‘overdue payable’ 

As follows from the wording of Article 12bis and the corresponding jurisprudence, two prerequisites must be met to establish that an overdue payable exists under Article 12bis. First, the club must have delayed a due payment for more than 30 days without a “prima facie contractual basis”. Second, the creditor (which is the player or club) must have put the debtor club in default in writing, granting a deadline of at least 10 days to comply with its financial obligations. In all the published decisions the FIFA committees verified that a 10-days deadline had been granted. We can therefore assume that this 10-days deadline is a prerequisite for the DRC and the PSC to proceed with the claim. Although Article 12bis is not entirely clear as regards the start of the “10-days deadline”, the jurisprudence shows that it runs as soon as the 30 days have elapsed.[11]

Disputes can arise with regard to the fulfilment of the “10-days deadline”. For example, in the CAS award of 9 May 2016, the player had filed a statement of claim before the DRC on 25 March 2015 and then sent a letter to the club on 30 March 2015 (i.e. five days after filing a claim at the DRC) putting the club in default for the overdue payment. The club however argued that this was a violation of Article 12bis(3) of the RSTP, edition 2015, as it did not make any legal sense whatsoever to address a default notice to a party after lodging a claim at FIFA. The CAS however stated that it was clear that the player had already given the club ample opportunity (the player stated that it had already provided three separate notices of default) to fulfil its obligations in conformity with Article 12bis.[12] The CAS therefore found it curious that the FIFA administration still requested the player to issue yet another default notice in such a situation when it was clear that the player had already given the club many opportunities to fulfil its obligations. This part of the award is interesting. On the one hand it shows that (the) FIFA (administration) obliges creditors to send a “10-days deadline” default letter under all circumstances, while on the other hand it is to be expected that the CAS might show more flexibility. Interestingly, in a case before the PSC, the claimant club put the respondent club in default of payment, starting the 10-days deadline on the exact same date of the submission. This practice was accepted by the PSC.[13] In other words, in order to gain time, claimants might be able to lodge a claim in front of FIFA before the “10-days deadline” of Article 12bis has passed.  

To establish whether “overdue payables” exist, it is decisive that the “overdue payables” existed after 1 April 2015 (the date on which Article 12bis came into force). This is also confirmed by the CAS. In its CAS award of 17 June 2016, the Italian club Pescara referred to the fact that the agreement between Pescara and the Belgian club Standard Liège was entered into on 10 July 2012, while Article 12bis did not take effect until 1 April 2015. Pescara stated that it had no means to know that Article 12bis would be enacted nearly three years later. The Sole Arbitrator however found it decisive and stressed that the claim made by Standard Liège was made after 1 April 2015 and that Standard Liège referred clearly to the overdue payables from Pescara. At the end, all that matters, according to the CAS, was the existence of overdue payables at the assessment date and that the assessment date was after 1 April 2015.[14]

For the sake of clarity, the fact that the DRC and the PSC have decided in 12bis procedures that a defaulting club must pay to the claimant overdue payables does not touch upon the question whether the contract has been terminated with just cause. To put it bluntly, a decision in a 12bis procedure does not justify a unilateral termination based on Article 14 of the RSTP; no legal connection exists in this regard. The jurisprudence of the DRC in relation to its ‘regular’ proceedings (not being 12bis procedures) generally shows that a valid ground for unilateral termination exists only in case there is outstanding remuneration for a period of three (or sometimes two) months.[15] This means the existence of an overdue payable under Article 12bis does not automatically give the claimant the legal right to unilaterally terminate the contract with the defaulting club. It should also be noted in this regard that it follows from Article 12bis(9) that the terms of Article 12bis are without prejudice to the application of further measures derived from Article 17 RSTP in case of a unilateral termination of the contractual relationship.

In the second blog we will focus specifically on the sanctions available to FIFA under Article 12bis and will provide explanatory guidelines covering the sanctions imposed during the period surveyed.

[1] This contribution discusses the jurisprudence of the FIFA Dispute Resolution Chamber (DRC) and the Players’ Status Committee (PSC) as published on FIFA’s website in the period between 1 April 2015 and 1 April 2017. Decisions published after the date of 1 April 2017 (even if issued before this date) will fall outside the scope of this contribution. The awards of the CAS in  relation to Article 12bis will also be discussed in this contribution. However, only the awards as published on the website of CAS before 1 April 2017 will be discussed in this contribution. As far as we know, several cases regarding art. 12bis are currently also pending before CAS.

[2] As was also introduced in FIFA Circular no. 1468, dated 23 January 2015, the new Art. 12bis is added to the list of provisions that are binding at national level and must be included in the association’s regulations (cf. Art. 1(3)(a) of the RSTP.

[3] Dispute Resolution Chamber: http://www.fifa.com/governance/disciplinary/dispute-resolution-system.html. Accessed 1 April 2017. Players’ Status Committee: http://www.fifa.com/governance/disciplinary/dispute-resolution-system.html. Accessed 1 April 2017.

[4] PSC 20 June 2016, no. op0616676.

[5] See for the shorter procedures: inter alia DRC 18 May 2016, no. op0516646, DRC 29 February 2016, no. op0216229, DRC 15 July 2016, no. op0916308 and DRC 30 November 2015, no. 11151578. See for the longer procedures: inter alia DRC 3 June 2016, no. op0616046, DRC 7 April 2016, no. op04161633, DRC 15 October 2015, no. op1015914 and DRC 1 October 2015, no. 1015648.

[6] DRC 13 December 2013, no. 12131045 and DRC 17 January 2014, no. 114396. See also DRC 30 August 2013, no. 08133402, DRC 10 February 2015, no. 02151030 and DRC 28 March 2014, no. 03141211. See also CAS 2014/A/3579 Anorthosis Famagusta FC v. Emanuel Perrone, award of 11 May 2015.

[7] See inter alia DRC 26 November 2015, no. op11151356.

[8] See inter alia PSC 13 September 2016, no. op09161090.

[9] See inter alia PSC 11 June 2015, no. op0615618 and PSC 20 February 2017, no. op02172015.

[10] Art. 1(1) RSTP, edition 2016.

[11] Moreover, parties should be aware that the 30 days deadline will start to run only after the so-called “grace periods” has passed, which also explicitly follows from the applicable jurisprudence of FIFA. A grace period can be considered as the period immediately after the deadline for an obligation during which the amount due, or other action that would have been taken as a result of failing to meet the deadline, is waived provided that the obligation is satisfied during the grace period. See DRC 14 November 2016, no. 11161545-E. Also in “regular” DRC cases so-called “grace periods” are accepted. See inter alia DRC 6 November 2014, no. 11141064.

[12] See CAS 2015/A/4153 Al-Gharafa SC v. Nicolas Fedor & FIFA, award of 9 May 2016. From this award it follows that FIFA applied the incorrect version of the RSTP in its decision of 22 June 2015 as a result of which Art. 12bis was not applicable.

[13] PSC 30 November 2015, no. 10151052.

[14] Also in its award of 17 June 2016, another Sole Arbitrator stressed that as Art. 12bis has been implemented within the 2015 edition of the RSTP, FIFA has the power to impose a sanction listed in Art. 12bis(4) RSTP in that specific case. See CAS 2015/A/4310 Al Hilal Saudi Club v. Abdou Kader Mangane, award of 17 June 2016.

[15] See inter alia DRC 7 September 2011, no. 9111901 (two months) and DRC 11 May 2011, no. 129795 (three months). See also DRC 17 December 2015, no. 12151368. Please note that CAS will hold on to a period of three months in order to establish that a just cause exists; See inter alia CAS 2015/A/4158 Qingdao Zhongneng Football Club v. Blaz Sliskovic, award of 28 April 2016.

Editor’s note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we have overlooked. 

The Headlines

The McLaren Report on Russia’s State Doping System

It is difficult not to start this monthly report without referring to the never-ending Russian doping investigation that is shaking the sporting world. On 18 July, the independent investigation on Sochi 2014 winter Olympics led by Prof. McLaren, a Canadian law professor, and requested by the World Anti-Doping Agency (“WADA”), released its report. It confirmed evidence of widespread, State-sponsored doping in Russian sports and called for a full ban on the country from the next Rio Olympics. In response to the report, the International Olympic Committee (“IOC”) vowed to take the “toughest sanctions available”. However, and despite the race against time in the run-up to Rio 2016, the IOC delayed its decision for several days amid a WADA statement and several press articles calling for a ban of Russia from Rio Olympics. Meanwhile, it did open an investigation against Russia’s sports minister, Vitaly Mutko, the head official who allegedly supervised the overall doping cover up and explored all possible legal actions against Russia. On 21 July, the Court of Arbitration for Sport (“CAS”) rejected the appeal of the Russian Olympic Committee and 68 Russian athletes against the International Association of Athletics Federations (“IAAF”) decisions to suspend All Russia Athletics Federation (ARAF) from IAAF membership given the evidence of a state-sponsored doping system. As a consequence, Russian track and field athletes were also banned from Rio 2016 Olympics. With the IAAF welcoming this decision, one could think that nothing was standing in the way of a full Olympic ban for all Russian athletes. While some Russian athletes announced that they would appeal the CAS award to the Swiss Federal Court. Yelena Isinbayeva, the banned pole vault champion, even took it a step further by claiming that she would challenge the IAAF decision as far as the European Court of Human Rights. Yet, it is very improbable that any of these challenges be decided in time for the Rio Games.

On 24 July, the IOC Executive Board finally handed out its decision on the question of the participation of Russian athletes to the Rio Olympics. The decision left no one satisfied,  least of all WADA. In a nutshell, the IOC passed the buck to international federations by deciding that the evidence uncovered by the report is not sufficient to adopt a general ban of the Russian Olympic Committee. Instead, it is for every international sports federation to judge on a case-by-case fashion whether a Russian athlete is eligible to be qualified for the Olympics. Sports governing bodies have to decide following two criteria, namely whether the athlete was previously controlled by laboratories situated outside of Russia and whether he/she was never convicted of anti-doping breach in his/her career. The International swimming federation (“FINA”), for example, decided to ban seven swimmers, some of them have already announced their intention to appeal before CAS. And this is just the beginning. The IOC decision not to decide has been highly criticized (see for example here and here), but it is probably the IOC Olympic ban on Yulia Stepanova, the Russian whistle-blower through whom the scandal emerged, that was criticized the most. A global online petition was set up to draw attention to her case and athletes from around the world launched a crowdfunding appeal. For more information on this sprawling case you can read our blog.

The CAS before German courts

The next very salient sports law issue of the month is the ongoing challenges against CAS awards and their enforcement in Germany. Early July, Claudia Pechstein announced that she would be challenging BGH ruling in front of the German constitutional Court around two main arguments, namely, the access to justice and the freedom to exercise her profession. On 7 June the highest German civil court ruled that CAS was sufficiently independent and that an arbitration agreement in favour of CAS was legal under German civil and competition law (see our blog). CAS swiftly published an English version of the judgment (though we are still waiting for the official translation of the previous OLG München decision) that you can find here. Another important case, but this time concerning the application of EU free movement law in the framework of the enforcement of a CAS award, is the BGH ruling in the SV Wilhemshaven case. The BGH announced early July that it would release its judgment on 27 September. As a quick reminder, this case is concerning an Argentinian-Italian football player transferred to a German club. The latter is refusing to pay training compensations imposed by the FIFA Regulations for the Status and Transfer of Players and challenged the enforceability of the CAS award in this case (see our blog).

EU Commission State Aid Decisions

The other big sports law story of this month was the long awaited European Commission decisions on State aid granted in favour of Spanish professional football clubs. The Commission decided that public support measures granted by Spain to seven football clubs gave those clubs an unfair advantage leading to distorted competition and, as a consequence, the amounts at stake have to be recovered (i.e.: for example, Real Madrid - €18.4 million and FC Valencia - €20.4 million). For a full commentary on the “Spanish recovery decisions” see our blog. On the exact same day, the European Commission also cleared municipal support measures for five professional football clubs in the Netherlands (FC Den Bosch, MVV Maastricht, NEC Nijmegen, PSV Eindhoven, and Willem II in Tilburg). In the case of PSV, the Commission determined that the municipality’s purchase of the land on which the PSV stadium stands, and the subsequent lease-back agreement, was in line with the so-called “Market Economy Investor Principle”. The measure, therefore, did not constitute State aid. The remaining Dutch football clubs did receive State aid, according to the Commission. However, these measures were granted in accordance with the Community Guidelines on State aid for rescue and restructuring firms in difficulty, and were consequently regarded as compatible State aid. Notwithstanding these eight State aid decisions, it also became apparent that the Commission does not foresee other State aid investigations on EU football clubs at this point.

Case law

The Court of Arbitration for Sport (“CAS”) released two decisions on Rio 2016 selections. The first one concerns Australian trap shooter Mitchell Iles (CAS A1/2016) challenging the Australian men’s trap shooting selection for Rio 2016 and, ultimately, his non-selection. The arbitrator has found that the Appeals Tribunal of Shooting Australia rejecting the athlete’s appeal had erred in a question of law. CAS upheld the appeal, set aside the decision taken by the Appeals Tribunal of Shooting Australia, and referred the case of Mitchell Iles back to Shooting Australia.

In the second case CAS has upheld a request for provisional measures filed by Korean swimmer Tae Hwan Park. The swimmer was sanctioned by FINA for an anti-doping breach (sanction that ended on 2 March), but was prevented from participating in Rio 2016 by Korean Sport and Olympic Committee regulations imposing a three-year ban from national teams after the completion of a doping sanction. CAS ruled that Tae Hwan Park is eligible for selection for the Korean national team for Rio 2016.

CAS also delivered its award concerning Norwegian cross country skier Martin Johnsrud (CAS 2015/A/4233). The International Ski Federation’s (“FIS”) Doping panel did not sanction the skier after two in-competition doping controls that revealed levels exceeding the applicable limits for salbutamol. The WADA referred the case to CAS. The arbitrators found that use of a substance beyond the applicable limit without a Therapeutic Use Exemption was a breach of anti-doping rules. They sanctioned the skier with a two-month period of ineligibility and disqualification for the competitions concerned as there were medical justifications in that case.

Official Documents and Press Releases

• European Commission Decision on the State aid measure implemented by the Netherlands with regard to the professional football club PSV in Eindhoven
• European Commission Decision on the State aid measure implemented by the Netherlands in favour of the professional football club Willem II in Tilburg
• European Commission Decision on the State aid measure implemented by the Netherlands in favour of the professional football club MVV in Maastricht
• European Commission - Press release - State aid: Commission clears support measures for certain football clubs in the Netherlands
• European Commission - Press release - State aid: Commission decides Spanish professional football clubs have to pay back incompatible aid
• European Commission refers Austria to CJEU over restrictions on foreign ski instructors
• FIFA extends match-manipulation sanction against vice-president of Equatorial Guinea FA
• FIFA overhauls development scheme that served as corruption vehicle in the past
• INTERPOL – Euro 2016 / operation targeting Asian illegal gambling networks
• IOC sanctions Ukrainian weightlifter for failing anti-doping test at London2012 Olympics
• Italian Tennis Federation gambling/match-fixing report
• UEFA Football and Social Responsibility Report 2014/2015
• WADA Statement on “Operation Puerto” Athlete Blood Bags
• WADA reinstates Rio Laboratory accreditation in time for the Rio Games

In the news

Football

• Ken Belson and Jamie Trecker – British soccer teams brace for the impact of ‘Brexit
• Willem Feenstra and Mark Misérus – FIFA president Infantino violated code of ethics with voting advice
• Thomas Hastings, Lionel’s messy tax affairs are part of a bigger problem in football

Doping

• AP – 2 Russian weightlifters banned for doping
• AP – Ex-WADA president says Russia should not go to Rio Olympics
• Rachel Axon – System fails to address state-sponsored doping
• Vilhelm Carlström – Finland's anti-doping authority just dealt Norwegian skiers a huge blow
• Karen Crouse – Clean Athletes, and Olympic Glory Lost in the Doping Era

Match-fixing

• Olivier Dickson Jefford – Marco Cecchinato banned for 18 months for "Illegal Behaviour"

Olympics 

• Andre Lowe – Morgan heading to CAS to appeal omission from Jamaica Olympic Team
• Chris Yuscavage – Drug Dealers in Rio Use Olympic Rings on Cocaine Baggies to Help Push Product

Academic materials

• Despina Mavromati, The Rules of the CAS Anti-Doping Division and the CAS Ad Hoc Division at the Olympic Games
• The International Sports Law Journal, Volume 16, July 2016, Issue 1-2, Pages 1-127

Blogs

• James Bunting, Applying team sanctions for doping: what Essendon has told us about the use of evidence at CAS
• Sean Cottrell, Key legal issues ahead of the Rio Olympic and Paralympic Games
• Tom Cripps, Ground sharing arrangements in the Premier League and Premiership: Regulations
• Jon Elphick, Playing the game: The UK’s approach to taxing sports stars
• Nick De Marco, The dichotomy and future of sports arbitration - Appointment of arbitrators (part 1)
• Nick De Marco, The dichotomy and future of sports arbitration - Appointment of arbitrators (part 2)
• Nick De Marco, The dichotomy and future of sports arbitration - Appointment of arbitrators (part 3)
• Nick De Marco, The dichotomy and future of sports arbitration - Appointment of arbitrators (part 4)
• Antoine Duval, The rules of the game: The need for transparency in sports governance
• Antoine Duval, Kester Mekenkamp and Oskar van Maren, With or without them? Russia’s State doping system and the Olympic fate of Russian athletes
• Pete Hackleton, The current legal status of image rights companies in football
• Joseph M. Hanna, Major League Baseball considers action against the Cardinals over database hack
• Nandan Kamath, Fighting sports corruption in India: A review of the National Sports Ethics Commission Bill 2016
• Benoît Keane, State aid in European football: A review of the EC’s ruling on Real Madrid, FC Barcelona and Valencia CF
• Charles Maurice and Tom Collins, Why football players and managers should own their own trade marks
• Despina Mavromati, The Legality of the Arbitration Agreements in favour of CAS (Pechstein) Part 1
• Despina Mavromati, The Legality of the Arbitration Agreements in favour of CAS (Pechstein) Part 2
• Marine Montejo, Brexit and EU law: Beyond the Premier League (Part 1)
• Marine Montejo, Brexit and EU law: Beyond the Premier League (Part 2)
• Nicola Parkinson, 7 key tax law issues affecting sports today
• Ariel Reck, A review of Argentina’s new sports training-compensation law
• Tom Rudkin, Maria Sharapova: Key facts of the ITF doping decision and her chances on appeal
• Hugh Southey, Road to Rio: Immigration and Sport
• Oskar van Maren, The EU State aid and sport saga: The Showdown
• Jeremy Whiteson, Football Creditors Rule: Is The Football League’s new insolvency policy a step in the right direction?

Books

• Antoine Duval, Ben Van Rompuy (ed.), The Legacy of Bosman, Revisiting the Relationship Between EU Law and Sport
• Marjolaine Viret, Evidence in Anti-Doping at the Intersection of Science & Law

Upcoming Events September

• 2 & 3 September - International Sport Arbitration 6th Conference CAS & SAV, The Court of Arbitration for Sport (CAS), the Swiss Bar Association (SAV / FSA) and the Swiss Arbitration Association (ASA), Lausanne Switzerland
• 16 September - The future of the ‘legal autonomy’ of sport, Anglia Ruskin University, Cambridge, UK
•  26 September - Soccerex - Global Convention 2016, Manchester, UK

Editor’s note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

The Headlines

September hosted the very last bit of the sport summer 2016, most notably in the form of the Rio Paralympic Games. Next to the spectacular achievements displayed during these games, in the realm of sports law similar thrilling developments hit town. The first very much expected #Sportslaw highlight was the decision by the German Bundesgerichtshof in the case concerning SV Wilhelmshaven. The second major (less expected) story was the Statement of Objections issued by the European Commission against the International Skating Union.

The Bundesgerichtshof’s ruling in the SV Wilhelmshaven case

On Tuesday 20 September, Germany’s highest court, the Bundesgerichtshof (BGH), sided with the German (now) amateur football club SV Wilhelmshaven in its fight against a forced relegation at the end of the 2013/2014 season, ordered by FIFA and effectuated by the North German Football Federation. This relegation was the ultimate result of the non-payment of training compensation fees owed by SV Wilhelmshaven to two Argentinian Clubs under the FIFA training compensation system. For the ins and outs of the story leading up to the BGH’s decision, please read our earlier blog post ‘SV Wilhelmshaven: a Rebel with a cause!’.

In short, the current ruling annulled the relegation, because of the unclear nature of the North German Football Federation’s statutes. A disciplinary measure can only be applied when it derives from the federation’s statutes. The BGH found that the penalty in the form of a forced relegation could not be inferred from the statutes. It was not foreseeable for SV Wilhelmshaven that their non-payment of the imposed trainings fees would lead to this dire consequence. Unfortunately, the BGH did not answer the question whether the forced relegation infringed the free movement rights of football players under Article 45 TFEU. Thus ignoring the criticisms raised by the Bremen court in earlier instance. Henceforth, the ruling constitutes an important blow for the German football federations and a relatively harmless defeat for FIFA.

The EU Commission’s Statement of objections to ISU

On the morning of 27 September, for the first time nearly 20 years(!), the European Commission issued a Statement of Objections (SO) in the field of sport. The SO was addressed to the International Skating Union (ISU) in relation to its eligibility rules. The ASSER Institute (via Ben Van Rompuy and Antoine Duval) was at the origin of the complaint and was representing the skaters along the proceedings. The SO concluded the first phase of the Commission’s investigation that was opened in October 2015 following a complaint by two Dutch professional speed skaters, Mark Tuitert and Niels Kerstholt.

The preliminary view of the Commission is that the ISU breaches EU competition law through its rules under which athletes can be severely penalized (i.e. a ban from the Olympic Games or the World Championship, and possibly even life time bans) for their participation in speed skating events not authorised by the ISU. The commercial freedom of athletes is ‘unduly’ restricted by these rules, which ultimately leads to preventing new entrants on the market of speed skating events, as these organizers are not able to attract the top athletes. Commissioner Vestager expressed the concerns that ‘the penalties the ISU imposes on skaters through its eligibility rules are not aimed at preserving high standards in sport but rather serve to maintain the ISU's control over speed skating’. The length of the possible penalties (leading up to a ban for life) are, considered the short time span of a professional athlete’s career, extremely harmful and potentially career ending. The Commission is thus concerned that these ISU eligibility rules are ‘disproportionately punitive’ and, as such, may breach Article 101 TFEU.

In a defensive response, the ISU declared that it believes the European Commission’s allegations are unfounded. The ‘surprised’ ISU stressed that the SO is merely a one of the stages in a Commission antitrust investigation and ‘does not imply that the ISU is responsible or liable for any violation of EU antitrust legislation’. Striking was the claim stating that any such allegations appear ‘to be based on a misplaced understanding of the governance structure of sport and the Olympic movement’ together with the reference to the wore-out life buoy of the ‘autonomous governance structure of sport’.

In any case, the mere fact that the Commission decided to issue an SO is a strong indicator of its grave concerns regarding the (bad) governance of global sport and the tendency of the Sports Governing Bodies (SGBs) to abuse their monopoly position for the sole sake of making more money for themselves. That, or Margrethe Vestager has a secret passion for ice skating.

Other headlines

The month of September also saw the publication of the Spanish Tribunal Supremo’s ruling of 28 July 2016 concerning the legality of the whereabouts requirement imposed on athletes in the fight against doping. The case dates back to 2013 when the Spanish High Council for Sports adopted resolution 1648/2013 providing two forms (Annex I and Annex II) for athletes to complete in order to fulfil their whereabouts requirements. In June 2014, the Adiencia Nacional (an Exceptional High Court) considered that the resolution was contrary to the right to privacy and was going beyond the wording enshrined Spain’s anti-doping laws. It consequently declared the whereabouts requirement null and void. For more information on the Audiencia Nacional’s judgment, see our Blog from July 2014. In cassation, the Supreme Court agreed with the Audiencia Nacional and deemed the whereabouts requirement to be disproportionate and contrary to the right to privacy. According to the Court, the general policy (objective) of a (global) fight against doping cannot be considered a sufficient justification for limiting a person’s freedom too such an extent.

As regards the aftermath of the Rio Olympics, the CAS Ad Hoc Division proved to have a rather busy schedule during and after these games. One of the main reasons for this was the ‘willingness’ of Russian athletes to challenge the ban imposed on them by the IAAF. Even though these decisions have been rendered in August, we published a five-part blog by Antoine Duval this month, which analyses the published CAS awards related to Russian athletes: Act I: Saved by the Osaka déjà-vu, Act II: On being implicated, Act III: On being sufficiently tested, Act IV: On bringing a sport into disrepute and Act V: Saving the Last (Russian) Woman Standing. 

Case law

CAS

• TAS 2016/A/4474 Michel Platini c. Fédération Internationale de Football Association

CAS Request for stay filed by Real Madrid CF granted by the CAS

EU commission Spanish State Aid decisions

• Commission Decision of 4.7.2016 on the State Aid SA.29769 (2013/C) (ex 2013/NN), implemented by Spain for certain football clubs

Commission Decision of 4.7.2016 on the State Aid SA.33754 (2013/C) (ex 2013/NN), implemented by Spain for Real Madrid CF

EU commission Dutch State Aid decisions

• Commission Decision of 4.7.2016 on the Measures SA.41614 - 2015/C (ex SA.33584 - 2013/C (ex 2011/NN)), implemented by the Netherlands in favour of the professional football club FC Den Bosch in 's-Hertogenbosch

Commission Decision of 4.7.2016 on the State Aid SA.41617 - 2015/C (ex SA.33584 (2013/C) (ex 2011/NN)), implemented by the Netherlands in favour of the professional football club NEC in Nijmegen

Commission Decision of 4.7.2016 on the State Aid SA.41612 - 2015/C (ex SA.33584 (2013/C) (ex 2011/NN)), implemented by the Netherlands in favour of the professional football club MVV in Maastricht

Commission Decision of 4.7.2016 on the State Aid SA.40168 - 2015/C (ex SA.33584 - 2013/C (ex 2011/NN)), implemented by the Netherlands in favour of the professional football club Willem II in Tilburg

Commission Decision of 4.7.2016 on the Measure SA.41613 - 2015/C (ex SA.33584 - 2013/C (ex 2011/NN)), implemented by the Netherlands with regard to the professional football club PSV in Eindhoven

Wilhelmshaven

• Bundesgerichtshof entscheidet über den vom Norddeutschen Fußballverband e.V. verhängten Zwangsabstieg des SV Wilhelmshaven e.V. aus der Regionalliga Nord, Urteil vom 20. September 2016 – II ZR 25/15 

Other

• Arbeitsgericht Düsseldorf - Kein Schadensersatz für Eishockey-Profi wegen unberechtigter Dopingsperre

FIFA rejects appeals of Atlético de Madrid and Real Madrid in relation to transfers of minors

IOC Sanctions Three Athletes for Betting on Olympic Competitions in Rio

Landgericht Bonn - Keine Teilnahme an Paralympics 2016 für russische Sportler

TRIBUNAL SUPREMO Sala de lo Contencioso-Administrativo Sección Cuarta Sentencia núm. 1995/2016

Official documents and Press releases

• ASSER Institute policy brief 02, September 2016, Tackling Doping Seriously

 Reforming the World Anti-Doping System after the Russian Scandal

CAS decision in the case of Maria Sharapova to be issued in the first week of October 2016

CAS upcoming hearings in October and November

CIES Football Observatory Monthly Report n°17 - September 2016: Transfer fees: monetary flows in European football

European Commission - Press release Antitrust: Commission sends Statement of Objections to International Skating Union on its eligibility rules

EU Athletes statement on ISU Statement of objections

FIFA Circular no. 1555 FIFA on Anti-Doping Regulations

FIFA The Bureau of the FIFA Council takes a series of decisions concerning member associations

Monopolkommission Pressemitteilung Monopolkommission untersucht Bundesliga-Zentralvermarktung

Recovery order decree city of Madrid directed at Real Madrid (in Spanish)

WADA annual report 2015 ‘Shaping the Future for Clean Sport’

WADA Confirms Attack by Russian Cyber Espionage Group

WADA Holds First in Series of Multi-Stakeholder Think Tanks

WADA Independent Opinion from WADA’s TUE Expert Group

WADA Summary of Major Modifications and Explanatory Notes 2017 Prohibited List

In the news

Cycling

• Paul Kimmage - So many questions not asked, so many questions remain unanswered

  
  

Doping

• Nick Butler - Howman fearful of IOC plans for future of anti-doping amid criticism of Russian response

Nick Butler - Pound doubtful Olympic Summit of "usual suspects" will fully solve global anti-doping problems

Michael Pavitt - Ninth place weightlifter from London 2012 in line for bronze after Moldovan tests positive in retests

Play the Game, Antoine Duval - The rules of the game: Tackling Doping Seriously

Dan Roan - 'World sport - and the fight to ensure it is clean - is approaching a decisive moment'

Hein Verbruggen - WADA Should be Independent, Not Almighty and Unaccountable

Football

• Murad Ahmed and Lucinda Elliott - Champions League rival wins backing of La Liga chief

DW - German amateur club Wilhelmshaven beat FIFA in court

ESPN FC - Mino Raiola: Europe's major clubs must 'break away from UEFA'

Josimar - The President’s Man

Steve Menary - Integrity in football needs compliance and collaboration

Oskar Van Maren - Clave para el fútbol español

Olympic and Paralympic Games

• Nick Butler - Olympic bidding process requires simple steps rather than sweeping reforms 

Other

• Rob Harris - Fifa disbands anti-racism task force declaring its work 'completely fulfilled'

Karim Zidan - Sports diplomacy: Bahrain’s martial arts venture distracts from human rights abuses

Academic materials

• Antoine Duval, Tackling Doping Seriously - Reforming the World Anti-Doping System after the Russian Scandal

John T. Holden, Ryan M. Rodenberg and Anastasios Kaburakis, Esports Corruption: Gambling, Doping, and Global Governance

Despina Mavromati, Res Judicata in Sports Disputes and Decisions Rendered by Sports Federations in Switzerland

Books

• Frans de Weger, The Jurisprudence of the FIFA Dispute Resolution Chamber - 2nd Edition - ASSER International Sports Law Series

Ulrich Haas and Deborah Healey, Doping in Sport and the Law

Adam Lewis, Jonathan Taylor, Nick De Marco and James Segan, Challenging Sports Governing Bodies

Thomas H. Murray and Voo Teck Chuan (Eds), The Ethics of Sports Technologies and Human Enhancement

Württembergischer Fußballverband, 40 Jahre wfv-Sportrechtsseminare: 1975-2015 - Nationales und internationales Sportrecht im Überblick

Bulletin TAS/CAS Bulletin 2016/1

 Blogs

• Nick De Marco, “Football for Sale” What is the problem, and what are the solutions?

Antoine Duval, The Russian Ballet at the CAS Ad Hoc Division in Rio - Act I: Saved by the Osaka Déjà-Vu

Antoine Duval, The Russian Ballet at the CAS Ad Hoc Division in Rio - Act II: On being implicated

Antoine Duval, The Russian Ballet at the CAS Ad Hoc Division in Rio - Act III: On being sufficiently tested

Antoine Duval, The Russian Ballet at the CAS Ad Hoc Division in Rio - Act IV: On Bringing a sport into disrepute

Antoine Duval, The Russian Ballet at the CAS Ad Hoc Division in Rio - Act V: Saving the last (Russian) woman standing: The Klishina miracle

Mark Hovell, The effects of providing substantial assistance in doping investigations: A review of the Bernice Wilson case

Alex Kelham, The winning formula for a successful sports brand: five key points

Ilya Kokorin, Russian Rio 2016 Saga: Lex Sportiva in Action

Ryan Lake, How salary arbitration works in the National Hockey League (NHL)

Marine Montejo, Sports arbitration and EU Competition law: the Belgian competition authority enters the arena

Marine Montejo, Case note: TAS 2016/A/4474 Michel Platini c. Fédération Internationale de Football Association

The Swiss Ramble, Manchester United - Power In The Darkness

Video

Anti-doping in the wake of the Meldonium cases by Dr. Marjolaine Viret

Upcoming events

13 October – ‘British Association for Sport and Law Annual Conference 2016’, Olympic Stadium, London, UK

28 October – ‘The Wilhelmshaven case: Challenging FIFA and the CAS’, FBO, Zeist, the Netherlands

4 November – ‘Contemporary Issues in Sports Law and Practice 2016’, De Montfort University, Leicester, UK

I think we would all agree that the reputation of players’ agents, nowadays called intermediaries, has never been a good one for plenty of reasons. But the truth is their presence in the football industry is much needed and probably most of the transfers would never take place if these outcast members of the self-proclaimed football family were not there to ensure a fluid and smooth communication between all parties involved.

For us, sports lawyers, intermediaries are also important clients as they often need our advice to structure the deals in which they take part. One of the most recurrent situations faced by intermediaries and agents operating off-the-radar (i.e. not registered in any football association member of FIFA) is the risk of entering in a so-called multiparty or dual representation and the potential risks associated with such a situation.

The representation of the interests of multiple parties in football intermediation can take place for instance when the agent represents the selling club, the buying club and/or the player in the same transfer, or when the agent is remunerated by multiple parties, and in general when the agent incurs the risk of jeopardizing the trust deposited upon him/her by the principal. The situations are multiple and can manifest in different manners.

This article will briefly outline the regulatory framework regarding multiparty representation applicable to registered intermediaries. It will then focus on provisions of Swiss law and the identification of the limits of dual representation in the light of the CAS jurisprudence and some relevant decisions of the Swiss Federal Tribunal.

A)   Regulatory framework:

Those agents acting in the market as registered intermediaries will necessarily be subjected to the specific football regulations enacted by FIFA and the national associations in which they operate. The answer as to the possibility to represent more than one party to a deal will therefore, be necessarily found in internal rules of each association. 

As opposed to the obsolete FIFA Players’ Agent Regulations[1], the FIFA Regulations on Working with Intermediaries (RWWI) allow intermediaries to represent more than one party in a transaction. Pursuant to the definition of intermediary[2] in combination with Article 8 RWWI, the only substantive requirement to intermediaries willing to act for multiple parties is that they obtain prior written consent and confirmation in writing on which party (i.e. the player and/or the club) will remunerate the services of the intermediary. The regulations, therefore, prioritize transparency over the question of who pays for the services of the intermediary. Consequently, it is not forbidden for an intermediary to represent and be paid by multiple parties to a transaction, as long as they all know and agree to it in advance.  

At a national level, most FIFA member associations[3] have followed the solution adopted in the RWWI and have transposed ad literam the right of intermediaries to multiparty representation as long as the transparency and information requirements are met (i.e. any potential conflict of interest is disclosed to the parties in advance, and subject to the prior written consent of the parties to the transaction).

However, there are still many agents that prefer to operate off-the-radar of organized football and its regulations. For these ‘rogue’ agents, the scenario is different and the question of the legality of multiparty representation will ultimately depend on the applicable law chosen by the parties[4]. Based on my personal experience, off-the-radar agents often end up acting through very rudimentary authorizations subject to the ordinary jurisdiction of the CAS. For this reason, I chose to dissect in this paper the limits of multiparty representation according to Swiss law, for based on article XY of the CAS Code of Sports Arbitration it represents the applicable law to ordinary disputes before the CAS when parties fail to make a particular choice of law.

The provisions of the contract of brokerage (“contrat de courtage”) in Articles 412-418 of the Swiss Code of Obligations (CO) are of relevance in this regard. The cornerstone provision concerning conflict of interest is found in Article 415 CO[5] whose English translation reads as follows:

“Where the broker acts in the interests of a third party in breach of the contract or procures a promise of remuneration from such party in circumstances tantamount to bad faith, he forfeits his right to a fee and to any reimbursement of expenses”.

The article differentiates between two non-cumulative hypothetical situations where the broker (i.e. agent) may be in a position of conflict of interests.

• First: the broker “Acts in the interest of a third party in breach of the contract”.
• Second: the broker “Procures a promise of remuneration from such party in bad faith”.

The first hypothesis establishes the prohibition of the broker to act in the interest of a third party if the obligations towards his client are breached. Accordingly, an agent representing a player is prevented from assisting the players’ contracting club to negotiate the terms of his employment contract, as he would be defending irreconcilable interests (i.e. the interest of the club to pay the lowest salary possible v/ the interest of the player to obtain the highest possible salary). Conversely, the same agent could be hired by the club in a different transaction without incurring a conflict of interest with the player. The condition triggering this first hypothesis will be thus, whether the agent acting for the third party is in breach of his contractual obligations.

It is important to note that the published English translation of the CO differs slightly from the original text of the code[6]. While the English translation refers to the breach of the “contract”, the original French version refers instead to a breach of the “obligations” which has obviously a broader scope, covering a wider range of situations than a contract might include.

This linguistic difference can be misleading as the obligations emanating from the CO may go beyond the obligations set forth in a simple authorization or a brokerage contract. By way of example, think of a very simple “Authorization” that does not explicitly prohibit the agent of the player to simultaneously act for the club. Sticking to literal text of the English translation, one could be tempted to believe that the agent was not acting in breach of the contract. However, the same situation seen under the lens of the legal obligations would imply that the agent could still be infringing the obligation of loyalty and trust stemming from the CO.

In view of the above, a correct evaluation of the first hypothesis will necessarily account for the legal obligations inherent to the brokerage contract, the scope of which might go beyond the obligations stipulated in the contract. Amongst these, the obligation of loyalty, the obligation to safeguard the interest of the client by not entering into conflictive situations, and the obligation of transparency and information.

The second hypothesis covers the prohibition in Swiss law of dual representation by procuring a promise of payment from third parties to the relationship broker/principal, if such a promise amounts to bad faith.

It needs to be underlined that this provision does not exclude dual payment, but subjects it to a certain limit, i.e. not incurring in bad faith. Delineating bad faith can turn out to be a difficult task as the concept itself has an inevitable component of subjectivity and, as opposed to good faith which is legally presumed (cf. Article 3 of the Swiss Civil Code), bad faith must always be proven by the party claiming it, who ultimately bears the burden of proof[7]. 

Applied to football agents, it can be safely assumed that an agent acting in good faith towards his client would necessarily act in a transparent way and inform his client that he is simultaneously acting for the other contracting party. Not disclosing such information in the context of negotiations can serve as indication of bad faith when combined with other elements. However, to prove the presence of bad faith will still require sufficient material evidence in order to discharge the burden of proof, since the simple negligence of the broker would not be sufficient to fall under the scope of the article.

The consequence for a broker (i.e. football agent) infringing the prohibition of dual representation in he hypotheses described in article 415 CO is the nullity of the contract and the forfeiture of the right to be remunerated, or the obligation to reimburse the amounts received if the infringement is ascertained after the realization of the contract and payment of the fee (“quod nullum est nullum producit effectum”).  

With the above premises in mind, a detailed look into the CAS and the Swiss Federal Tribunal jurisprudence regarding Article 415 CO will help identifying the scope of the legal obligations of a football agent towards his client (i.e. club and/or player), as well as the mechanisms used by the decision-making bodies to determine the existence of bad faith.

B)   Jurisprudence:

One of the very few CAS cases dealing with Article 415 CO in the context of football agents' relationships with clubs is the CAS award  2012/A/2988 PFC CSKA Sofia v. Loic Bensaid.

In short, the dispute opposed the flagship Bulgarian football club CSKA Sofia against a French football agent and revolved around the right of the latter to be remunerated by the club, considering he had acted simultaneously in representation of the player in the signature of the employment contract.

One of the many arguments used by the club in support of its alleged right not to pay the agent was based on Article 415 CO. The club asserted that the agent acted in violation of his obligations for having represented both parties. On the merits, the Sole Arbitrator concluded, nevertheless, that the agent had fulfilled the obligations of transparency and information as the Club was aware at all times that the agent also acted for the player and knew about the existence of the representation contract with the player[8]. The full knowledge and acceptance of the situation impeded the club to contend, at a later stage, the violation of the duty of loyalty and transparency.

Secondly, adhering to the grounds of the supporting FIFA decision, the Sole Arbitrator also remarked that the mandate between the Agent and the player did not contain any obligation to remunerate the services of the agent. The prohibition of agents to be remunerated twice for their services has been traditionally a key element in previous FIFA decisions where dual representation was at the center of the dispute[9]. This fact possibly led the Sole Arbitrator to also highlight this circumstance when assessing the behavior of the agent. However, the Sole Arbitrator further stated that, even if the mandate would have provided for a remuneration in favor of the agent (quod non), Article 415 CO would still not have been violated as the club failed to discharge the burden of proof as to the existence of bad faith, reinforcing with it that dual representation is only forbidden to the extent the agent acts in bad faith[10].

This final remark of the Sole Arbitrator is crucial as it evidences, in my view, that whether the player and the agent agreed upon a remuneration, remains in the end irrelevant for the evaluation of a possible violation of Article 415 CO. Indeed, pursuant to the CAS arbitrator’s interpretation of the article, the agent can be remunerated twice, as it is the disregard of the obligations inherent to the contract and in particular for the second hypothesis acting in bad faith that determines compliance with Article 415 CO.

To better illustrate the irrelevance of the “double remuneration” discussion, think for a moment of a brokerage contract where there is no explicit reference to the remuneration. Does such a lacuna in the contract imply that the brokerage is necessarily, pro bono? The answer is no, for as a general rule, mandates given in the context of professional relationships are presumed to be lucrative (see Art. 394(3) CO). That is precisely the case of football agents when they contract with players or clubs. This circumstance renders the reference to a remuneration in the contract a secondary element, or at least not an essential one. The former FIFA PAR (Ed. 2008[11]) followed this ratio legis when explicitly providing for a default remuneration of 3% of the players’ basic income where the parties cannot agree on the remuneration.

Beyond the specific CAS awards, some decisions of the Swiss Tribunal Federal help getting the full perspective on dual representation in the context of disputes subject to Swiss law. Although these do not refer to football agents, the similarities that exist with real estate and/or corporate brokers allow to derive important conclusions that can be applied to football agents.

A first decision worth mentioning is no. 4A_214/2014 of 15 December 2014. The case concerned a classic real estate intermediation where the agent agreed a commission from both the seller and the buyer involved in the transaction. The agent also failed to inform the seller of the existence of a better buying offer from a third potential buyer. In this context, after concluding the deal, the buyer refused to pay the agent, invoking Article 415 CO.

This case is important because it reveals the existence of two types of brokerage contracts under Swiss law (i.e. “courtage de negotiation” and the “courtage d’indication”). Whereas in a brokerage of negotiation the broker is entrusted by his client to negotiate the conditions of the transaction, in a brokerage of indication, the broker is simply called to indicate the possibility to conclude a transaction, with no negotiation duties involved. Furthermore, according to the doctrine cited in the decision, both types of contract are treated differently under Article 415 CO.

In casu, the Federal Tribunal qualified the contracts signed by the agent with the buyer and the seller as “courtage de negotiation” as he was entrusted with conducting all aspects related to the transaction. The agent was required to obtain the best possible conditions for his clients (e.g. the best buying and selling price respectively) and this circumstance directly generated an irremediable conflict of interest (i.e. the negotiation was either benefitting the financial interests of seller or the buyer) infringing the obligation of loyalty inherent to the brokerage contracts with the parties.

All in all, the Federal Tribunal rejected the appeal submitted by the real estate agent and confirmed the nullity of both contracts for violating Article 415 CO. The Federal Tribunal followed a strict interpretation of Article 415 CO according to which “no one can serve two masters” and thus, dual representation would only be possible (if so) in simple intermediations where no negotiation from the broker is required[12], in other words in “courtage d’indication”. In addition, in this case the agent also acted in bad faith for failing to disclose the existence of a more favorable offer to the detriment of the seller.

The main lesson that can be learnt from this decision is that Article 415 CO must be interpreted restrictively and that it has to be distinguished between those intermediation contracts that imply an active involvement of the agent (i.e. the agent is contractually required to negotiate the terms of a transaction for the player and/or the club) and those contracts of intermediation where the agent is called to simply indicate the possible opportunity for his client to conclude a deal with no other involvement in the transaction. In this last case, dual representation could be allowed for there would be no conflict of interests, and therefore, no infringement of the obligations under the brokerage contract. The specific contractual clauses are therefore crucial as they ultimately reveal the extent of the role assumed by the agent.

The second important decision by the SFT is more recent, no. 4A_529/2015 of 4 March 2016. The factual background of this dispute is extremely complex. In brief, the case revolved around the selling and buying of the shares of a company exploiting a luxurious Hotel located in Switzerland. The seller and the broker entered into a negotiation brokerage contract whereby the latter was entrusted to find a buyer of the company against the payment of remuneration. The principal had to agree with the final potential buyer. In the end, it was proved that the broker misled the principal about the true identity of the final buyer (to whom the principal expressly refused to sell), with whom the broker had also agreed remuneration. On the basis of these facts, the principal refused to pay the broker. 

The Federal Tribunal confirmed again that Article 415 CO is always interpreted strictly, and considered that by allowing the banned buyer to indirectly acquire the company, the broker acted in the interest of a third party against the obligation of loyalty. What is most significant about this decision is that the court delimitates very clearly the scope of the obligation of loyalty. It is described as a double-edged sword, implying on the one side: a positive obligation consisting of actively safeguarding and defending the interest of the principal; and on the other side: a negative obligation, consisting of abstaining from any conduct that could harm the interests of the client.  

In particular, the fact that the principal had not objected to a previous e-mail sent by the broker where he expressly indicated that the potential buyer was “C or any company indicated by it” was also irrelevant for the principal could not expect in ‘good faith’ that the buyer would make use of this substitution prerogative in favor of the real buyer. The arguments of the broker according to which it was not important for the principal to know who the buyer was and that he suffered no damage, were also dismissed.   

Finally, the argument of the broker according to which the remuneration to be received from the buyer was agreed after the transaction took place was also irrelevant in the eyes of the court.

With these cases in mind, when applying the holding of the SFT above to football agents' professional relationships, it follows that the scope of the obligation of loyalty will be significantly wider for football agents entrusted with negotiations than for agents simply tasked with identifying possible opportunities to close a deal.

Likewise, in order to determine the existence of a violation of the obligations assumed by the agent, it will not be enough to demonstrate that there has been no threat to the interests of the client or that the agent has not actively engaged in a conduct against those interests. Indeed, a simple passive conduct with the potential of jeopardizing the interests of the principal, such as failing to disclose relevant information, can be sufficient to violate the obligation of loyalty and deprive the agent from the right to be remunerated.

To this effect, the correct identification of the interest pursued by the client will ultimately determine the infringement by the agent of his obligations under the representation contract. In the end, the agent will only violate his obligation of loyalty as long as his behavior damages the interests of his client. These interests will vary depending on whether the principal is a football club or a player. If a club is trying to transfer or recruit a player, the interests will in most cases be of a financial nature. If instead, the principal is a football player terminating or signing a contract with a club, he might have non-economic interests (e.g. willing to play in a different championship, lack of integration of the family in the country etc.). Furthermore, the moment in which the remuneration is agreed is not relevant to establish the violation of the obligation of loyalty.

In conclusion, the contract of representation and its clauses in combination with the particular circumstances of each case will be fundamental to establish compliance with Article 415 CO when multiple representation takes place.   Football agents pretending to be remunerated by both contracting parties simultaneously without risking to violate their obligations must either enter into simple brokerage contracts with no negotiation attributions, or, when acting through a negotiation brokerage, always inform all parties in complete transparency. 

[1] See Article 19.8 FIFA PAR.

[2] “Definition of an intermediary

A natural or legal person who, for a fee or free of charge, represents players and/or clubs in negotiations with a view to concluding an employment contract or represents clubs in negotiations with a view to concluding a transfer agreement.” [Emphasis added]

[3] Only the FFF (France), the RFU (RUSSIA), the BFU (Bulgaria) the JFA (Japan) have explicitly adopted stricter rules prohibiting any conflict of interest. See Comparative Table of “The FIFA Regulations on Working with Intermediaries Implementation at a national level” (Ed. Michele Colucci).

[4] E.g. Arbitrage TAS 2007/O/1310 Bruno Heiderscheid c. Franck Ribéry.

[5] See article R45 of the CAS Code (ed. 2017).

[6] Art. 415. III. Déchéance:

“Le courtier perd son droit au salaire et au remboursement de ses dépenses, s'il agit dans l'intérêt du tiers contractant au mépris de ses obligations, ou s'il se fait promettre par lui une rémunération dans des circonstances où les règles de la bonne foi s'y opposaient.”

https://www.admin.ch/opc/fr/classified-compilation/19110009/index.html

[7] See. Decision of the SFT 131 III 511 para. 3.2.2 of  http://relevancy.bger.ch/php/clir/http/index.php?highlight_docid=atf%3A%2F%2F131-III-511%3Ade&lang=de&type=show_document

[8] See para. 118.

[9] E.g. Decision of the Single Judge of the PSC of 12 January 2012: “12. In view of the above, the Single Judge formed the view that, although the Claimant appears to have represented the Respondent and the player in the same transaction, the documentary evidence contained in the file clearly demonstrates that the Claimant could not have possibly been remunerated twice for his services. Consequently, and in accordance with the general principles of bona fide and pacta sunt servanda the Single Judge decided that the Respondent must fulfill the obligation it voluntarily entered into with the Claimant by means of the representation agreement concluded between the parties, and therefore, the Respondent must pay the Claimant for the services he rendered in connection with the transfer of the player to the Respondent.”

[10] See also para. 118.

[11] See i.c. article 20 para. 4 FIFA PAR (ed. 2008).

[12] See para. 1.1.3 of the SFT decision. An example of a courtage d’indication would be the brokerage of insurances, where the broker, acting for the policy-holder, is paid instead, by the insurance company.

On Wednesday 31 March 2021 from 16.00-17.30 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret (University of Lausanne), is organising its fourth Zoom In webinar on the recent developments arising from the decision of the Swiss Federal Tribunal (SFT) in the case Caster Semenya v. International Association of Athletics Federations (now World Athletics), delivered on 25 August 2020.

Background
The participation of athletes with biological sex differences to international competitions is one of the most controversial issues in transnational sports law. In particular, since 2019, Caster Semenya, an Olympic champion from South-Africa has been challenging the World Athletics eligibility rules for Athletes with Differences of Sex Development (DSD Regulation), which would currently bar her from accessing international competitions (such as the Tokyo Olympics) unless she accepts to undergo medical treatment aimed at reducing her testosterone levels. In April 2019, the Court of Arbitration for Sport rejected her challenge against the DSD Regulation in a lengthy award. In response, Caster Semenya and the South African Athletics Federation filed an application to set aside the award before the Swiss Federal Tribunal. In August 2020, the SFT released its decision rejecting Semenya’s challenge of the award (for an extensive commentary of the ruling see Marjolaine Viret’s article on the Asser International Sports Law Blog).

Recently, on 25 February 2021, Caster Semenya announced her decision to lodge an application at the European Court of Human Rights (ECtHR) against Switzerland on the basis of this judgment. In this context, we thought it important to organise a Zoom In webinar around the decision of the SFT and the pending case before the ECtHR. Indeed, should the ECtHR accept the case, it will be in a position to provide a definitive assessment of the human rights compatibility of the DSD Regulation. Moreover, this decision could have important consequences on the role played by human rights in the review of the private regulations and decisions of international sports governing bodies.

Speakers

• Michele Krech (New York University)
• Lena Holzer (Graduate Institute of International and Development Studies)
• Prof. Frédéric Bernard (University of Geneva)
• Prof. Antonio Rigozzi (University of Neuchâtel/Lévy Kaufmann-Kohler)

Participation is free, register HERE.

The editor’s note:

Two weeks ago we received the unpublished CAS award rendered in the Eskişehirspor case and decided to comment on it. In this post Thalia Diathesopoulou (Intern at the ASSER International Sports Law Centre) analyses the legal steps followed and interpretations adopted by CAS panels in this case and in a series of other Turkish match-fixing cases. The first part of the post will deal with the question of the legal nature of the ineligibility decision opposed by UEFA to clubs involved in one way or another into match-fixing and with the personal and material scope of UEFA’s rule on which this ineligibility is based. The second part is dedicated to the procedural rules applied in match-fixing cases.

Introduction

The unpredictability of the outcome is a sine qua non feature of sports. It is this inherent uncertainty that draws the line between sports and entertainment and triggers the interest of spectators, broadcasters and sponsors. Thus, match-fixing by jeopardising the integrity and unpredictability of sporting outcomes has been described, along with doping, as one of the major threats to modern sport.[1] 

It does not come as a surprise, therefore, that the fight against match-fixing has been elevated over the past years to a general interest issue, being also included in European Commission’s Agenda on sports as a priority. The urge to protect the integrity of sport, has stimulated the adoption by sports-governing bodies, and especially UEFA and FIFA, of regulations specifically intended to combat match-fixing. The evolution of UEFA Disciplinary Regulations (UEFA DR) in the last 10 years has been remarkable: it follows a path from a broad capture of match-fixing conduct by reference to the general values of loyalty, integrity and sportsmanship[2] in the 2004 version, to the explicit - first ever- reference to the offence of match-fixing in the revised 2013 edition.[3]

In this context, the CAS has been called to implement these rules in a series of match-fixing cases. Especially Turkey’s unprecedented match-fixing scandal in 2011 led to a series of important CAS awards tackling match-fixing. The latest episode of this Turkish series was written on 2 September 2014: following Fenerbahçe and Besiktas, it was Eskişehirspor’s turn to face a CAS ruling on a match-fixing related case.

CAS jurisprudence on match-fixing being in its infancy, the approach of the CAS panels towards procedural, evidentiary and matters of substance in match-fixing disputes is still uncertain. Considering the magnitude of the match-fixing threat and the CAS role as a ‘cartographer’ of the so called lex sportiva, it is worthwhile to monitor the emerging trends of CAS on these integrity-related issues. This blog series will, therefore, use the Turkish cases as a vehicle in order to build a legal roadmap in match-fixing cases and shed light on four issues that have been extensively addressed in recent CAS jurisprudence: the qualification of the legal nature of the measure of ineligibility as a result of a Club’s involvement in match-fixing, the scope of application of this measure, the standard of proof to be applied and, finally, the admissibility of evidence in match-fixing cases

Particularly, two substantial problems that emerged in match-fixing disputes, i.e. the legal qualification of the match-fixing related measure of ineligibility under Article 2.08 of the UEL Regulations as administrative or disciplinary measure (1) and the scope of application of Article 2.08 (2), will constitute the axes of this first blog series. 

The 2011 Turkish match-fixing series in brief

In the summer of 2011, following Turkish’s police investigation into 19 football matches suspected of being fixed, 61 individuals were arrested, including club managers and Turkish national players. Fenerbahçe, Besiktas and Eskişehirspor were connected with match-fixing allegations in domestic tournaments in 2011.

Istanbul giant Fenerbahçe was at the epicentre of this match-fixing scandal, with its Chairman, Aziz Yildirim, being convicted by Istanbul’s 16^th High Criminal Court of establishing and leading a criminal organisation, which rigged four games and offered payments to players or rival clubs to fix three others. Particularly, among other matches, it was found that under the leadership of the then President of Fenerbahçe, match-fixing agreements were made for the matches of Eskişehirspor against Fenerbahçe and Eskişehirspor against Trabzonspor dating from 9 April 2011 and 22 April 2011 respectively. The Eskişehirspor head coach and the player were found guilty for match-fixing in the match with Trabzonspor and were sentenced to imprisonment. Furthermore, the High Criminal Court convicted Besiktas’ Officials of match-fixing activities with regard to the Final Cup played between Besiktas and Istanbul BB on 11 May 2011.

As a result of this alleged match-fixing involvement Fenerbahçe was banned by the Turkish Football Federation (TFF) from participating in the 2011-2012 CL. Later on, the 25 July 2013, Fenerbahçe was found ineligible by the UEFA Appeals Body (UAB) to participate in the next two UEFA club competitions including the 2013/14 UEFA CL, since it could not comply with the UEFA Champions League (UEL) admission requirements. Similarly, Besiktas and Eskişehirspor, in 2013 and 2014 respectively, were considered by the UAB ineligible to participate in the next UEL season, on the grounds of a breach of the UEL admission criteria and particularly of Article 2.08.

A next round of proceedings was brought before the CAS. On 28 and 30 August 2013, the CAS rejected Fenerbahçe’s and Besictas’ appeals.[4] One year later, on 2 September 2014, Eskişehirspor faced the same fate. Interestingly enough, the Eskişehirspor panel was the first CAS panel to deal with the sanction of a club victim of a match-fixing arrangement.

The outcome of the Turkish cases is not necessarily surprising. The CAS practice has been consistently embracing the UEFA zero tolerance policy against match-fixing. However, the legal reasoning followed by CAS to reach a similar outcome differs significantly fostering legal uncertainty in the match-fixing context. At this point, therefore, this blog post will attempt to map the reasoning of the CAS over the following thorny issues which were particularly raised in the Turkish cases: the legal nature of the measure of ineligibility under Article 2.08 of the UEL Regulations (1) and the scope of application of Article 2.08 (2).   

Qualifying Article 2.08 UEL Regulations: administrative measure or disciplinary sanction?

At a first glance, the question of the legal nature of the ineligibility measure of Article 2.08 is rather theoretical, but it also bears important practical implications. The identification of the legal nature of Article 2.08 as administrative or disciplinary determines ‘how this measure shall be applied and under which legal principles’.[5] In other words, the characterization of the measure of Article 2.08 as a disciplinary one may trigger the application of UEFA Disciplinary regulations, including the strict liability principle and the possibility of issuance of a probationary period. Before proceeding with our analysis, it should be pointed out that the Fenerbahçe case, deals with the legal nature of Article 2.05 UEFA Champions League Regulations (UCLR). However, since the wording of Article 2.05 UCLR and Article 2.08 UELR is exactly the same, the panel’s findings are transposable.

When qualifying the legal nature of the ineligibility measure in match-fixing disputes, the Fenerbahçe,Besiktas and Eskişehirspor panels used as a landmark the well-established distinction between administrative acts and disciplinary measures.[6] This is the common point of reference for the three cases, which thereafter differentiates in the interpretation of the ineligibility measure.

In the first case, the Fenerbahçe panel introduced the idea of a ‘two stage process’ in match-fixing disputes: the first stage encompasses an administrative measure, akin to a preliminary minimum sanction, while the second stage is a disciplinary measure, imposing an additional sanction. Thereafter, in a surprising twist the CAS declared the inherent disciplinary nature of the administrative measure of ineligibility, since the subject matter of Article 2.08 is ‘the imposition of a sanction’. According to this panel, the minimum sanction serves the legitimate interest of UEFA to exclude a club from European competitions with immediate effect, while additional sanctions can be imposed if the circumstances so justify. However, this interpretation creates a paradox in that it blurs the lines between acts of administrative and disciplinary nature, a distinction well entrenched in CAS case law.

The Besiktas case adds to the legal uncertainty with regard to the legal nature of the ineligibility measure. According to this panel and contrary to the assessment in the Fenerbahçe case, Article 2.08 UELR does not have a sanctioning character, even if it excludes a club from UEFA competition. This argument is based on the wording of Article 50 (3) UEFA Statutes which, by referring to the ineligibility measure as a measure imposed ‘without prejudice to any possible disciplinary measures’, implicitly excludes its sanctioning nature.

This contradictory interpretation of the ineligibility measure by the previous panels triggered the concerns of the Eskişehirspor panel, which aimed to put an end to the legal uncertainty surrounding the definition of the legal nature of Article 2.08. Therefore, the CAS proceeded for the first time with an extensive analysis of the legal nature of Article 2.08. First of all, the CAS recognized the existence of a double regulatory regime in match-fixing cases: an administrative measure aiming at preventing match-fixing, laid down in Articles 2.05 UCL or 2.07, 2.08 of UEL Regulations and Article 50.3 of the UEFA Statutes 2008, and a disciplinary measure enshrined in the Disciplinary Regulations, specifically at Art 5.2j of the UEFA Disciplinary Regulations (DR) 2008. While this distinction seems to be inspired by the ‘two stage process’ elaborated in the Fenerbahçe case, this panel went a step further by drawing a clear line between measures of administrative and disciplinary character. After having clarified this distinction between measures of different legal nature and effect, the panel concluded that the measure of ineligibility of Article 2.08 is of a purely administrative nature. This assessment is based on an interpretation of Articles 2.09 UEL Regulations and Article 50.3 of the UEFA Statutes 2008 similar to the one adopted in the Besiktas case: both provisions refer to the automatic administrative application of the measure of ineligibility, leaving the door open for potential additional disciplinary measures ‘if the circumstances so justify’. Furthermore, the CAS noted that the administrative measure of Article 2.08 has a broad scope of application encompassing ‘any activity aimed at arranging or influencing the outcome of the match’, as compared to the disciplinary offence which in line with its sanctioning character is more restrictive.

Thereafter, the panel highlighted the consequences to be drawn from this qualification. As a result of the pure administrative nature of Article 2.08, the legal principles usually applicable to disciplinary measures are considered irrelevant. In practice, this means that the CAS excludes the application of: a) Articles 5.2 .j. and 17.1 of UEFA DR about the evaluation of mitigating circumstances when disciplinary measures are imposed; b) Article 6 of UEFA DR imposing a strict liability system; c) Article 11 of UEFA DR about the elimination of the ineligibility measure or the issuance of a probationary period; and finally, d) the ‘nulla poena sine culpa’ principle recognized in criminal law.

This straightforward position of the CAS in the Eskişehirspor case reflects its intention to put a provisory end to the legal uncertainty with regard to the legal nature of Article 2.08 and the legal consequences it entails. Borrowing elements from the previous Turkish cases, the CAS came up with a more sophisticated and coherent interpretation of the legal nature of the ineligibility measure, an interpretation that may serve as a reliable guideline for subsequent arbitral panels dealing with match-fixing. 

The scope of application of Article 2.08 UEL Regulations

Article 2.08 UEL Regulations does not define precisely the activities of a club that is directly or indirectly involvement in match-fixing. In match-fixing disputes, therefore, the CAS has a decisive role in clarifying the scope of application of the ineligibility measure.

As far as the scope ratione materiae is concerned, the Fenerbahçe and Besiktas panels converged in a broad understanding of the scope of Article 2.08. Indeed, based on the ordinary meaning of Article 2.08 which encompasses ‘any activity aimed at arranging or influencing the outcome of a match at a national or international level’ in conjunction with the ratio legis of this provision, which reflects the zero tolerance policy of UEFA against match-fixing, the CAS considered that Article 2.08 targets not only activities directly intending to fix the outcome of a game, but also activities that may have an unlawful influence on it. In this sense, for instance, the fact that Eskişehirspor accepted a bonus from a third party, i.e. Fenerbahçe, for winning, even though it cannot be qualified as match-fixing, is influencing the outcome of the match and, therefore, falls within the scope of Article 2.08. Furthermore, the Besiktas panel offered a broad interpretation of the wording ‘aimed at’ suggesting that not only the act of match-fixing, but also an attempt falls within the broad scope of Article 2.08. Hence, the Turkish cases establish an important finding with regard to the scope of application of the ineligibility measure in match-fixing disputes: a broad interpretation of Article 2.08 is in line with UEFA’s statutory objectives and, therefore, has to be adopted.

On the other hand, with regard to the scope ratione personae of Article 2.08, the CAS panels have been inconsistent. In order to identify whose actions are attributable to the club, the Besiktas panel applied the strict liability principle enshrined in Article 6 of the 2008 UEFA Disciplinary Regulations (DR). Here, the application of UEFA DR seems to be at odds with the previous characterization of Article 2.08 as an administrative measure. By contrast, in the Eskişehirspor case, where the issue whether the actions of a coach, who is a mere employee, can be attributed to the club is raised. In that case, the panel relying on the pure administrative character of Article 2.08, rejected the application of the strict liability principle. The Eskişehirspor panel, insisting on the qualification of the measure of ineligibility as an administrative measure, suggested an entirely different, but equally broad, interpretation of the ratione personae scope of article 2.08. Indeed, it suggests a broad interpretation of the term ‘official’, an interpretation that would capture ‘every board member ….coach, trainer and any other person responsible for technical, (…) as well as other persons obliged to comply with the UEFA Statutes’. In other words, the coach has to be considered as an official in the sense of Article 2.08 and his actions were, thus, attributable to the club.

To conclude, it seems that whatever the interpretative road chosen, the scope of application rationae personae and materiae of article 2.08 will be understood broadly. Nevertheless, it would be more coherent to have such a broad interpretation rely on a stabilized legal practice and the Eskişehirspor award provides an interesting first step in this direction.

The series of Turkish cases has provided the CAS with the opportunity to frame a consistent approach in substantive matters linked to match-fixing cases. In the Eskişehirspor case, the CAS attempts to clarify its approach to match-fixing in football. Two important conclusions can be drawn: the ineligibility measure imposed by Article 2.08 UELR has a broad scope of application and, secondly, it should be qualified as having an administrative nature. As a result, disciplinary rules do not apply to match-fixing disputes involving the eligibility of a club to European competitions. Regarding certain procedural matters, however, disciplinary standards and rules do apply. This is the real Achilles’ heel of the CAS approach in match-fixing cases: how can the application of rules of different nature to substantial and procedural matters in an identical match-fixing dispute be explained? 

(To be continued)

[1] Match-fixing in sport-A mapping of criminal law provisions in EU 27,  (http://ec.europa.eu/sport/library/studies/study-sports-fraud-final-version_en.pdf), 14.

[2] CAS 2009/A/1920 FK Pobeda, Aleksandar Zabrcanec, Nikolce Zdraveski v/ UEFA, para 78.

[3] UEFA Disciplinary Regulations 2013, Article 12 ‘Integrity of matches and competitions and match-fixing’ (http://www.ecaeurope.com/Legal/UEFA%20Documents/2013_0241_Disciplinary%20Regulations%202013.pdf)

[4] CAS 2013/A/3256 Fenerbahçe Spor Kubülü v UEFA & CAS 2013/A/3258 Besiktas Jimnastik Kulübü v. UEFA

[5] CAS 2014/A/3628 Eskişehirspor Kulübü v UEFA, para 98.

[6] CAS 2007/A/1381 & CAS 2008/A/1583