Asser International Sports Law Blog

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

ISLJ International Sports Law Conference 2019 - Conference Report - By Thomas Terraz

On October 24th and 25th 2019, the T.M.C. Asser Institute and the International Sports Law Centre hosted the International Sports Law Journal (ISLJ) Conference for a third year in a row, bringing together a group of academics and practitioners from around the world. This year’s conference celebrated the 20th year of the International Sports Law Journal, which was originally started by Robert Siekmann. Over the past 20 years, the ISLJ has aimed to be a truly international journal that addresses global topics in sports law while keeping the highest academic standards.

With this background, the conference facilitated discussions and exchanges over six differently themed panels on international sports law’s most pertinent issues and gave participants wide opportunities to engage with one another. Additionally, this year’s edition also had the great honor of hosting two distinguished keynote speakers, Moya Dodd and Ulrich Haas, who were able to share their wealth of experience and knowledge with the conference participants.

The following report aims to give an overview of the ISLJ Conference 2019 to extract and underline the fundamental ideas raised by the different speakers.More...

Caster Semenya’s Legal Battle Against Gender Stereotypes: On Nature, Law and Identity - By Sofia Balzaretti (University of Fribourg)

Editor's note: Sofia Balzaretti is a Graduate research assistant and a PhD candidate at the University of Fribourg (Switzerland) where she is writing a thesis on the Protection against Gender Stereotypes in International Law. In addition to research in human rights and feminist legal theory, she has also carried out some research in legal philosophy and on the relationship between gender and the law.

 

The International Association of Athletics Federations (IAAF), the monitoring body of track and field athletics, regularly submitted South African middle distance runner and Olympic gold medalist Mokgadi Caster Semenya to sex verification tests when it began questioning her sexual characteristics and speculating whether her body belonged on the Disorder of Sex Development (DSD) spectrum. DSD Syndrome is often defined as an “intersex condition” which affects the clear development of either/or genitalia, gonads and chromosomes into one distinctive sex or another. The spectrum of the intersex condition is particularly wide, and the disorder can sometimes be minimal - some cases of female infertility can actually be explained by an intersex condition.

The IAAF deemed the controversial sex verification tests necessary on the grounds that it was required to prove Semenya did not have a “medical condition” which could give her an “unfair advantage”. It was eventually found that, because of an intersex trait, Semenya did have abnormally high levels of testosterone for a woman, which, in the IAAF’s opinion, justified a need for regulatory hormonal adjustments in order for her to keep competing in the women’s category. The IAAF also funded research to determine how ‘hyperandrogenism’ affects athletic performance. In 2018, it issued Eligibility Regulations on Female Classification (“Athlete with Differences of Sexual Development”) for events from 400m to the mile, including 400m, hurdles races, 800m and 1’500m. The IAAF rules indicated that in case of an existing high level of testosterone, suppression or regulation by chemotherapy, hormonal castration, and/or iatrogenic irradiation was mandatory in order to take part in these events.

Semenya and her lawyers challenged the IAAF Regulations in front of the CAS, who, in a very controversial decision, deemed the Regulations a necessary, reasonable and proportionate mean “of achieving the aim of what is described as the integrity of female athletics and for the upholding of the ‘protected class’ of female athletes in certain events” (§626). More...

International and European Sports Law – Monthly Report – June and July 2019 - By Tomáš Grell

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

The European Court of Justice finds that rule of a sports association excluding nationals of other Member States from domestic amateur athletics championships may be contrary to EU law

On 13 June 2019, the European Court of Justice (ECJ) delivered a preliminary ruling at the request of the Amtsgericht Darmstadt (Local Court Darmstadt, Germany) filed in the course of the proceedings involving Mr Daniele Biffi, an Italian amateur athlete residing in Germany, and his athletics club TopFit based in Berlin, on the one hand, and the German athletics association Deutscher Leichtathletikverband, on the other. The case concerned a rule adopted by the German athletics association under which nationals of other Member States are not allowed to be awarded the title of national champion in senior amateur athletics events as they may only participate in such events outside/without classification. The ECJ’s task was to decide whether or not the rule in question adheres to EU law.

The ECJ took the view that the two justifications for the rule in question put forward by the German athletics association did not appear to be founded on objective considerations and called upon the Amtsgericht Darmstadt to look for other considerations that would pursue a legitimate objective. In its judgment, the ECJ analysed several important legal questions, including amongst others the applicability of EU law to amateur sport or the horizontal applicability of European citizenship rights (for detailed analysis of the judgment, please see our blog written by Thomas Terraz).

Milan not featuring in this season’s edition of Europa League following a settlement with UEFA

On 28 June 2019, the Court of Arbitration for Sport (CAS) rendered a consent award giving effect to a settlement agreement between UEFA and the Milan Football Club, under which the Italian club agreed to serve a one-year ban from participation in UEFA club competitions as a result of its breaches of UEFA’s financial fair play regulations over the 2015/2016/2017 and the 2016/2017/2018 monitoring periods, while the European football’s governing body agreed to set aside previous decisions of the Investigatory and Adjudicatory Chamber of its Club Financial Control Body which had found Milan guilty of the respective breaches.   

This was not the first intervention of the CAS related to Milan’s (non-)compliance with UEFA’s financial fair play regulations. In July 2018, the CAS annulled the decision of the Adjudicatory Chamber of the UEFA Club Financial Control Body of 19 June 2018 which was supposed to lead to the exclusion of the Italian club from UEFA club competitions for which it would otherwise qualify in the next two seasons (i.e. 2018/2019 and 2019/2020 seasons). Following such intervention of the CAS – which concerned the 2015/2016/2017 monitoring period – it may have appeared that Milan would eventually manage to escape a ban from participation in UEFA club competitions for breaches of UEFA’s financial fair play regulations. However, Milan’s case was again referred to the Adjudicatory Chamber of the UEFA Club Financial Control Body in April 2019 – this time its alleged breaches of UEFA’s financial fair play regulations concerned the 2016/2017/2018 monitoring period – and such referral apparently forced Milan into negotiations with UEFA which led to the settlement agreement ratified by the CAS.      

Swiss Federal Tribunal gives Caster Semenya a glimmer of hope at first but then stops her from running at the IAAF World Championships in Doha

Caster Semenya’s legal team brought an appeal to the Swiss Federal Tribunal in late May against the landmark ruling of the CAS which gave the IAAF the green light to apply its highly contentious Eligibility Regulations for Female Classification (Athlete with Difference of Sexual Development) preventing female athletes with naturally elevated levels of testosterone from participating in certain athletic events unless they take medication to supress such levels of testosterone below the threshold of five nmol/L for a continuous period of at least six months. The appeal yielded some positive partial results for Caster Semenya early on as the Swiss Federal Tribunal ordered the IAAF on 3 June 2019 to suspend the implementation of the contested regulations. However, the Swiss Federal Tribunal overturned its decision at the end of July which means that Caster Semenya is no longer able to run medication-free and this will most likely be the case also when the 2019 IAAF World Athletics Championships kick off in Doha in less than one month’s time. The procedural decisions adopted by the Swiss Federal Tribunal thus far have no impact on the merits of Caster Semenya’s appeal.More...

Can a closed league in e-Sports survive EU competition law scrutiny? The case of LEC - By Thomas Terraz

Editor’s note: Thomas Terraz is a third year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.


1.     Introduction

The organizational structure of sports in Europe is distinguished by its pyramid structure which is marked by an open promotion and relegation system. A truly closed system, without promotion and relegation, is unknown to Europe, while it is the main structure found in North American professional sports leagues such as the NFL, NBA and the NHL. Recently, top European football clubs along with certain members of UEFA have been debating different possibilities of introducing a more closed league system to European football. Some football clubs have even wielded the threat of forming an elite closed breakaway league. Piercing through these intimidations and rumors, the question of whether a closed league system could even survive the scrutiny of EU competition law remains. It could be argued that an agreement between clubs to create a completely closed league stifles competition and would most likely trigger the application of Article 101 and 102 TFEU.[1] Interestingly, a completely closed league franchise system has already permeated the European continent. As outlined in my previous blog, the League of Legends European Championship (LEC) is a European e-sports competition that has recently rebranded and restructured this year from an open promotion and relegation system to a completely closed franchise league to model its sister competition from North America, the League Championship Series. This case is an enticing opportunity to test how EU competition law could apply to such a competition structure.

As a preliminary note, this blog does not aim to argue whether the LEC is a ‘real’ sport competition and makes the assumption that the LEC could be considered as a sports competition.[2]

More...



Book Review - Football and the Law, Edited by Nick De Marco - By Despina Mavromati (SportLegis/University of Lausanne)

 Editor's Note: Dr. Despina Mavromati, LL.M., M.B.A., FCIArb is an Attorney-at-law specialized in international sports law and arbitration (SportLegis) and a Member of the UEFA Appeals Body. She teaches sports arbitration and sports contracts at the University of Lausanne (Switzerland) and is a former Managing Counsel at the Court of Arbitration for Sport.


This comprehensive book of more than 500 pages with contributions by 53 authors and edited by Nick De Marco QC “aims to embody the main legal principles and procedures that arise in football law”. It is comprised of 29 chapters and includes an index, a table of football regulations and a helpful table of cases including CAS awards, UEFA & FIFA Disciplinary Committee decisions and Football Association, Premier League and Football League decisions. 

The 29 chapters cover a wide range of regulatory and legal issues in football, predominantly from the angle of English law. This is logical since both the editor and the vast majority of contributing authors are practitioners from England.

Apart from being of evident use to anyone involved in English football, the book offers additional basic principles that are likely to be of use also to those involved in football worldwide, including several chapters entirely dedicated to the European and International regulatory framework on football: chapter 3 (on International Federations) gives an overview of the pyramidal structure of football internationally and delineates the scope of jurisdiction among FIFA and the confederations; chapter 4 explains European law and its application on football deals mostly with competition issues and the free movement of workers; and chapter 29 deals with international football-related disputes and the Court of Arbitration for Sport (CAS).

In addition to the chapters exclusively dealing with international football matters, international perspectives and the international regulatory landscape is systematically discussed – in more or less depth, as the need might be – in several other chapters of the book, including: chapter 2 on the “Institutions” (from governing bodies to stakeholders groups in football); chapter 6 on the FIFA Regulations on the Status and Transfer of Players (RSTP); chapter 8 dealing with (national and international) player transfers; chapter 11 (on Third Party Investment) and chapter 16 on Financial Fair Play (mostly discussing the UEFA FFP Regulations); chapter 23  on disciplinary matters (very briefly discussing the disciplinary procedures under FIFA and UEFA Disciplinary rules); chapter 24 on domestic and international doping-related cases in football, with an overview of the CAS jurisprudence in this respect; and finally chapter 23 on corruption and match-fixing (with a very short description of the FIFA and UEFA regulations).

Furthermore, the book offers extensive chapters in less discussed – yet of high importance – football topics, including: chapter 13 on image rights and key clauses in image rights agreements; chapter 14 on taxation (referring also to taxation issues in image rights and intermediary fees); chapter 15 on sponsoring and commercial rights, with a guide on the principal provisions in a football sponsoring contract and various types of disputes arising out of sponsorship rights; chapter 17 on personal injury, discussing the duty of care in football cases (from the U.K.); and chapter 18 on copyright law and broadcasting (with short references to the European law and the freedom to supply football broadcasting services).

Some chapters seem to have a more general approach to the subject matter at issue without necessarily focusing on football. These include chapters 27 (on mediation) and 22 (on privacy and defamation), and even though they were drafted by reputable experts in their fields, I would still like to see chapter 27 discuss in more detail the specific aspects, constraints and potential of mediation in football-related disputes as opposed to a general overview of mediation as a dispute-resolution mechanism. The same goes for chapter 22, but this could be explained by the fact that there are not necessarily numerous football-specific cases that are publicly available. 

As is internationally known, “football law” is male-dominated. This is also demonstrated in the fact that of the 53 contributing authors, all of them good colleagues and most of them renowned in their field, only eight are female (15%). Their opinions, however, are of great importance to the book due to the subject matter on which these women have contributed, such as player contracts (Jane Mulcahy QC), player transfers (Liz Coley), immigration issues in football (Emma Mason), broadcasting (Anita Davies) or disciplinary issues (Alice Bricogne).

The book is a success not only due to the great good work done by its editor, Nick De Marco QC but first and foremost due to its content, masterfully prepared by all 53 authors. On the one hand, the editor carefully delimited and structured the scope of each topic in a logical order and in order to avoid overlaps (a daunting task in case of edited volumes with numerous contributors like this one!), while on the other hand, all 53 authors followed a logical and consistent structure in their chapters and ensured an expert analysis that would have not been possible had this book been authored by one single person.  

Overall, I found this book to be a great initiative and a very useful and comprehensive guide written by some of the most reputable experts. The chapters are drafted in a clear and understandable way and the editor did a great job putting together some of the most relevant and topical legal and regulatory issues from the football field, thus filling a much-needed gap in the “football law” literature.

I’m A Loser Baby, So Let’s Kill Transparency – Recent Changes to the Olympic Games Host City Selection Process - By Ryan Gauthier (Thompson Rivers University)

Editor's Note: Ryan Gauthier is Assistant Professor at Thompson Rivers University in Canada. Ryan’s research addresses the governance of sports organisations, with a particular focus on international sports organisations. His PhD research examined the accountability of the International Olympic Committee for human rights violations caused by the organisation of the Olympic Games.


Big June 2019 for Olympic Hosting

On June 24, 2019, the International Olympic Committee (IOC) selected Milano-Cortina to host the 2026 Winter Olympic Games. Milano-Cortina’s victory came despite a declaration that the bid was “dead” just months prior when the Italian government refused to support the bid. Things looked even more dire for the Italians when 2006 Winter Games host Turin balked at a three-city host proposal. But, when the bid was presented to the members of the IOC Session, it was selected over Stockholm-Åre by 47 votes to 34. 

Just two days later, the IOC killed the host selection process as we know it. The IOC did this by amending two sections of the Olympic Charter in two key ways. First, the IOC amended Rule 33.2, eliminating the requirement that the Games be selected by an election seven years prior to the Games. While an election by the IOC Session is still required, the seven-years-out requirement is gone.

Second, the IOC amended Rule 32.2 to allow for a broader scope of hosts to be selected for the Olympic Games. Prior to the amendment, only cities could host the Games, with the odd event being held in another location. Now, while cities are the hosts “in principle”, the IOC had made it so: “where deemed appropriate, the IOC may elect several cities, or other entities, such as regions, states or countries, as host of the Olympic Games.”

The change to rule 33.2 risks undoing the public host selection process. The prior process included bids (generally publicly available), evaluation committee reports, and other mechanisms to make the bidding process transparent. Now, it is entirely possible that the IOC may pre-select a host, and present just that host to the IOC for an up-or-down vote. This vote may be seven years out from the Games, ten years out, or two years out. More...


International and European Sports Law – Monthly Report – April and May 2019. By Tomáš Grell

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 

Caster Semenya learns that it is not always easy for victims of discrimination to prevail in court

The world of sport held its breath as the Secretary General of the Court of Arbitration for Sport (CAS) Matthieu Reeb stood before the microphones on 1 May 2019 to announce the verdict reached by three arbitrators (one of them dissenting) in the landmark case involving the South African Olympic and world champion Caster Semenya. Somewhat surprisingly, the panel of arbitrators came to the conclusion that the IAAF’s regulations requiring female athletes with differences of sexual development to reduce their natural testosterone level below the limit of 5 nmol/L and maintain that reduced level for a continuous period of at least six months in order to be eligible to compete internationally at events between 400 metres and a mile, were necessary, reasonable and proportionate to attain the legitimate aim of ensuring fair competition in female athletics, even though the panel recognised that the regulations were clearly discriminatory. Ms Semenya’s legal team decided to file an appeal against the ruling at the Swiss Federal Tribunal. For the time being, this appears to be a good move since the tribunal ordered the IAAF at the beginning of June to suspend the application of the challenged regulations to Ms Semenya with immediate effect, which means that Ms Semenya for now continues to run medication-free.

 

Champions League ban looms on Manchester City

On 18 May 2019, Manchester City completed a historic domestic treble after defeating Watford 6-0 in the FA Cup Final. And yet there is a good reason to believe that the club’s executives did not celebrate as much as they would under normal circumstances. This is because only two days before the FA Cup Final the news broke that the chief investigator of the UEFA Club Financial Control Body (CFCB) had decided to refer Manchester City’s case concerning allegations of financial fair play irregularities to the CFCB adjudicatory chamber for a final decision. Thus, the chief investigator most likely found that Manchester City had indeed misled UEFA over the real value of its sponsorship income from the state-owned airline Etihad and other companies based in Abu Dhabi, as the leaked internal emails and other documents published by the German magazine Der Spiegel suggested. The chief investigator is also thought to have recommended that a ban on participation in the Champions League for at least one season be imposed on the English club. The club’s representatives responded to the news with fury and disbelief, insisting that the CFCB investigatory chamber had failed to take into account a comprehensive body of irrefutable evidence it had been provided with. They eventually decided not to wait for the decision of the CFCB adjudicatory chamber, which is yet to be adopted, and meanwhile took the case to the CAS, filing an appeal against the chief investigator’s referral.

 

The Brussels Court of Appeal dismisses Striani’s appeal on jurisdictional grounds

The player agent Daniele Striani failed to convince the Brussels Court of Appeal that it had jurisdiction to entertain his case targeting UEFA’s financial fair play regulations. On 11 April 2019, the respective court dismissed his appeal against the judgment of the first-instance court without pronouncing itself on the question of compatibility of UEFA’s financial fair play regulations with EU law. The court held that it was not competent to hear the case because the link between the regulations and their effect on Mr Striani as a player agent, as well as the link between the regulations and the role of the Royal Belgian Football Association in their adoption and enforcement, was too remote (for a more detailed analysis of the decision, see Antoine’s blog here). The Brussels Court of Appeal thus joined the European Court of Justice and the European Commission as both these institutions had likewise rejected to assess the case on its merits in the past.

 

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A New Chapter for EU Sports Law and European Citizenship Rights? The TopFit Decision - By Thomas Terraz

Editor’s note: Thomas Terraz is a third year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.

 

1.     Introduction

Christmas has come very early this year for the EU sports law world in the form of the Court of Justice of the European Union’s (CJEU) judgment in TopFit eV, Daniele Biffi v Deutscher Leichtathletikverband eV by exclusively analyzing the case on the basis of European citizenship rights and its application to rules of sports governing bodies that limit their exercise. The case concerned an Italian national, Daniele Biffi, who has been residing in Germany for over 15 years and participates in athletic competitions in the senior category, including the German national championships. In 2016, the Deutscher Leichtathletikverband (DLV), the German Athletics Federation, decided to omit a paragraph in its rules that allowed the participation of EU nationals in national championships on the same footing as German citizens. As a result, participation in the national championship was subject to prior authorization of the organizers of the event, and even if participation was granted, the athlete may only compete outside of classification and may not participate in the final heat of the competition. After having been required to compete out of classification for one national championship and even dismissed from participating in another, Mr. Biffi and TopFit, his athletics club based in Berlin, brought proceedings to a German national court. The national court submitted a request for a preliminary ruling to the CJEU in which it asked essentially whether the rules of the DLV, which may preclude or at least require a non-national to compete outside classification and the final heat, are contrary to Articles 18, 21 and 165 TFEU. Articles 18 and 21 TFEU, read together, preclude discrimination on the basis of nationality against European citizens exercising their free movement. The underlying (massive) question here is whether these provisions can be relied on by an amateur athlete against a private body, the DLV.

Covered in a previous blog, the Advocate General’s (AG) opinion addressed the case from an entirely different angle. Instead of tackling the potentially sensitive questions attached with interpreting the scope of European citizenship rights, the opinion focused on the application of the freedom of establishment because the AG found that participation in the national championships was sufficiently connected to the fact Mr. Biffi was a professional trainer who advertised his achievements in those competitions on his website. Thus, according to the AG, there was a sufficient economic factor to review the case under a market freedom. The CJEU, in its decision, sidelined this approach and took the application of European citizenship rights head on.

The following will dissect the Court’s decision by examining the three central legal moves of the ruling: the general applicability of EU law to amateur sport, the horizontal applicability of European citizenship rights, and justifications and proportionality requirements of access restrictions to national competitions. More...

League of Legends European Championships - Challenging the Boundaries of Sport in EU Law - By Thomas Terraz

Editor’s note: Thomas Terraz is a third year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.


1.     Introduction

The surge of e-sports has stimulated a lively discussion on the essential characteristics of sport and whether e-sports, in general, can be considered a sport. However, one should not overlook the fact that e-sports encompass a broad range of video games that fundamentally differ from one another. Thus, as one commentator recently underlined, “the position of video games and the e-sport competitions based on them should be analysed on a case-by-case basis.”[1] In this spirit, this blog aims to provide a concise analysis of one of these e-sports, League of Legends (LoL), and one of its main competitions, the League of Legends European Championship (LEC), to assess whether it could be considered a sport in the sense of EU law. The LEC offers a fascinating opportunity to examine this issue especially since the previous European League of Legends Championship Series (EU LCS) was rebranded and restructured this year into the LEC. More...



Will the World Cup 2022 Expansion Mark the Beginning of the End of FIFA’s Human Rights Journey? - By Daniela Heerdt

Editor's note: Daniela Heerdt is a PhD candidate at Tilburg Law School in the Netherlands. Her PhD research deals with the establishment of responsibility and accountability for adverse human rights impacts of mega-sporting events, with a focus on FIFA World Cups and Olympic Games.


About three years ago, the Fédération Internationale de Football Association (FIFA) adopted a new version of its Statutes, including a statutory commitment to respect internationally recognized human rights. Since then, FIFA undertook a human rights journey that has been praised by various stakeholders in the sports and human rights field. In early June, the FIFA Congress is scheduled to take a decision that could potentially undo all positive efforts taken thus far.

FIFA already decided in January 2017 to increase the number of teams participating in the 2026 World Cup from 32 to 48. Shortly after, discussions began on the possibility to also expand the number of teams for the 2022 World Cup hosted in Qatar. Subsequently, FIFA conducted a feasibility study, which revealed that the expansion would be feasible but require a number of matches to be hosted in neighbouring countries, explicitly mentioning Bahrain, Kuwait, Oman, Saudi Arabia and the United Arab Emirates (UAE). One does not have to be a human rights expert to be highly alarmed by this list of potential co-hosting countries. Nevertheless, the FIFA Council approved of the possibility to expand in March 2019, paving the way for the FIFA Congress to take a decision on the matter. Obviously, the advancement of the expansion decision raises serious doubts over the sincerity of FIFA’s reforms and human rights commitments. More...



Asser International Sports Law Blog | The New FIFA Intermediaries Regulations under EU Law Fire in Germany. By Tine Misic

Asser International Sports Law Blog

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

The New FIFA Intermediaries Regulations under EU Law Fire in Germany. By Tine Misic

I'm sure that in 1985, plutonium is available in every corner drugstore, but in 1955, it's a little hard to come by.” (Dr. Emmett L. Brown)[1]


Back to the future?

Availing oneself of EU law in the ambit of sports in 1995 must have felt a bit like digging for plutonium, but following the landmark ruling of the European Court of Justice (ECJ) in the Bosman case[2], 20 years later, with all the buzz surrounding several cases where EU law is being used as an efficient ammunition for shelling various sports governing or organising bodies, one may wonder if in 2015 EU law is to be “found in every drug store” and the recent cases (see inter alia Heinz Müller v 1. FSV Mainz 05, Daniel Striani ao v UEFA, Doyen Sports ao v URBSFA, FIFA, UEFA) [3] cannot but invitingly evoke the spirit of 1995.

One of the aforementioned cases that also stands out pertains to the injunction decision[4] issued on 29 April 2015 by the Regional Court (Landesgericht) in Frankfurt am Main (hereinafter: the Court) in the dispute between the intermediary company Firma Rogon Sportmanagement (hereinafter: the claimant) and the German Football Federation (Deutschen Fußball-Bund, DFB), where the claimant challenged the provisions of the newly adopted DFB Regulations on Intermediaries (hereinafter: DFB Regulations)[5] for being incompatible with Articles 101 and 102 TFEU.[6] The Court, by acknowledging the urgency of the matter stemming from the upcoming transfer window and the potential loss of clients, deemed a couple of shells directed at the DFB Regulations to be well-aimed, and granted an injunction due to breach of Article 101 TFEU.


(Un)harnessing the brokerage in football

The recently adopted FIFA Regulations on Working with Intermediaries (hereinafter: FIFA Regulations)[7] arguably represent the biggest turning point in the regulation of player and club representation in the history of professional football.[8] While some will argue that by implementing these Regulations, FIFA has thrown in the towel on regulating the ambit of representation in football altogether, it could be said that by steering away from controlling the access to the activity and switching the onus on regulating it, FIFA has not deregulated the activity, but rather shifted the scope of the regulation itself.[9] It has been anticipated that the implementation process would expose several contentious issues (e.g. recommended commission cap, duty of disclosure, representation of minors, suitability of intermediaries, etc.),[10] and the DFB’s adoption of the new Regulation has been no exception in that regard.[11]

The DFB, pursuant to Article 1(2) of FIFA Regulations,[12] and following a rather lengthy exchange of information with the German Football League (Deutsche Fußballliga GmbH, DFL) and the German Association of Players’ Agents (Deutschen Fußballspieler-Vertmittlervereinigung, DFVV),[13] adopted the new DFB Regulations on 13 March 2015. By availing itself of the discretion embedded in Article 1(3) of FIFA Regulations,[14] the DFB tailor-made its regulations, which entered into force on 1 April 2015, to a certain extent, which shall be elaborated upon further below. 

Since the new DFB Regulations by virtue of paragraphs 2 and 3 of Article 3[15] indirectly bound the intermediary agencies through binding players and clubs when entering employment or transfer contracts,[16] which had not been the case with the pre-existent norms, the claimant first unsuccessfully sought the annulment of the Regulations directly from DFB. Subsequently, the claimant sought relief in the form of a temporary injunction from the Court, based upon the pending imminent danger stemming from the abuse of the DFB’s dominant position. Such behaviour, according to the claimant, limited the free choice of profession. Furthermore, according to the claimant, the obligatory disclosure of the remuneration amounts and the prohibition of representation remuneration when the player concerned is a minor went way beyond the borders of necessity and were thus unjustified.[17] The DFB, on the other hand, by rejecting the existence of a pending danger since the claimant had allegedly known of the FIFA Regulations for almost a year, deemed the claim inadmissible due to wrongful recourse to the urgent procedure (Eilverfahren), and additionally claimed the Articles 101 and 102 TFEU to be inapplicable, since the addressed provisions did not restrict competition, but au contraire prevented its distortion (i.e. by prohibiting the abuse of  the intermediary activity, providing for the independence of clubs and players, and guaranteeing transparency and contractual stability, hence bringing their scope within the borders of proportionality).[18]


Intermediaries v DFB: 1-0

The DFB’s guerrilla tactics of throwing the sink back at the claimant screaming for inadmissibility proved rather futile. The Court deemed the claim to be admissible and also found a large portion of the claimant’s arguments in the form of EU law-shaped shells to be well-founded. Subsequently, it granted an injunction as sought from the claimant. It addressed the issue through the prism of the Article 101 TFEU, and specific steps in the reasoning shall be dealt with separately below.

Admissibility as a non-issue

The DFB argued that such a claim could not be made in the urgent procedure, since the issue would pertain to the main cause. However, the Court pointed out that such a claim would be possible under Article 33 of the Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen, GWB).[19] Refusal of such a claim would deprive the claimant of its rights and legal remedies, particularly in the light of the pending danger of losing potential customers (clubs and players), bound directly by the DFB Regulations.[20] The Court also rejected the claim that the issue pertained to an internal decision-making process of the DFB, and said that the adoption of the Regulations had an externally oriented scope and effect.[21]


DFB Regulations are an inter-state trade restricting decision of an association of undertakings

The DFB asserted that it could not be seen as an association of undertakings in the sense of Article 101(1) TFEU considering that it also includes members with an amateur status. By referring to Piau,[22] the Court removed any ambiguity pertaining to the status of the DFB saying that: “...the mere fact that a sports association or federation unilaterally classifies sportsmen or clubs as 'amateur' does not in itself mean that they do not engage in economic activities within the meaning of Article 2 EC.”[23] Furthermore, strengthening its reasoning by first quoting Frubo,[24] stating that: ”Article 101 TFEU applies to associations in so far as their own activities of those of the undertakings belonging to them are calculated to produce the results to which it refers”,[25] and then BNIC,[26] it seemingly left no doubt as to the passive standing of DFB.

Having established the DFB’s status as per Article 101(1) TFEU, the Court moved to the DFB Regulations, and by drawing from Bosman,[27] Lehtonen,[28] and most importantly Piau,[29] qualified them as a decision of an association of undertakings, since they entail the regulation of the economic activity of intermediaries, whereby it is clear “...that the purpose of the occupation of players' agent, under the very wording of the amended regulations, is 'for a fee, on a regular basis [to introduce] a player to a club with a view to employment or [to introduce] two clubs to one another with a view to concluding a transfer contract'...”,[30] and therefore this economic activity cannot be qualified as one of a purely sporting nature.[31]

Albeit steering clear of an explicit reference to CJEU’s vast jurisprudence, the Court deemed the relevant market to be the one of intermediary services where the clubs and the players represented the customers and the intermediaries the providers,[32] hence following to a large extent the pre-established path in Piau.[33] It also pointed out that pursuant the provisions of Article 101(1) TFEU the core of the restriction of competition lied within an agreement (or a decision) which hampered the independence of economic decision making of the companies involved in a particular activity. The present case would prove as no exception since the intermediaries’ ability to provide services would take toll by the eventual non-submission of the signed declaration when entering an agreement with a player or a club upon whom loomed the eventual DFB sanctions. In other words, refusal to declare, which at the same time brought the intermediaries within the scope of DFB norms, limited the intermediaries’ economic freedom to be engaged by players or clubs.[34]

Moreover, the Court had little doubts about the Regulations affecting the inter-State trade. With Bundesliga alone representing the third largest national club football competition in Europe, the size of the market itself leads to the conclusion that the decision in question could have a negative impact on an actual or potential, direct or indirect inter-State provision of intermediary services, all the more so, since it lead to partitioning of markets on a territorial basis. In fact, by invoking Wouters,[35] the Court stressed that: “...it is sufficient to observe that an agreement, decision or concerted practice extending over the whole of the territory of a Member State has, by its very nature, the effect of reinforcing the partitioning of markets on a national basis, thereby holding up the economic interpretation which the Treaty is designed to bring about...[36]


Possible justifications

Having brought the Regulations within the scope of Article 101(1) TFEU, the Court promptly looked at the available justifications, either within the ambit of Article 101(1) TFEU pursuant to the relevant ECJ jurisprudence, or as one of the explicit Treaty exceptions embedded within Article 101(3) TFEU. In light of the former provision it is worth pointing out that the notion of inherence to legitimate (sporting) purposes is crucial in this ambit, since certain potentially restrictive behaviours (e.g. adoption of transfer rules), may be, although caught by Articles 101 and 102 TFEU respectively, exempted from their scope due to their necessity in pursuance of such objectives. Such an inherent necessity must, however, be assessed on a case-to-case basis. Following such reasoning, and by referring to the landmark Meca-Medina case,[37] the Court invoked an almost blasphemous notion in the ambit of EU competition law by stating that such assessment of legitimate goals under Article 101(1) TFEU was to be addressed through the “rule of reason” doctrine.[38]

As an alternative route stemming explicitly from the Treaty, by referring back to Piau, the Court identified the provisions of Article 101(3) TFEU, which envisage that the Regulations “might enjoy an exemption on the basis of this provision if it were established that they contribute to promoting economic progress, allow consumers a fair share of the resulting benefit, do not impose restrictions which are not indispensable to the attainment of these objectives, and do not eliminate competition.” [39]

Summing up, the Court rather curiously, and perhaps simplistically, pointed out that the common denominator of both approaches entailed three key components; namely the Regulations would have to pursue a legitimate goal, and they would have to be necessary and proportionate. As one such legitimate goal, the Court recognised the issue of necessity to level the playing field in football competitions through a transfer system and thereof stemming regulation of the activity of intermediaries in order to prevent eventual abuses in the form of coerced transfers, and, even more importantly, to protect the minors involved in the process.[40] Both parties recognised the existence of past abusive practices that needed to be eradicated. Regardless of the legitimacy of the majority of the aims pursued, the Court established that certain provisions lacked the needed necessity and were disproportionate, as shall be addressed below.[41]


Individual (un)successful claims

Firstly, the Court deemed the registration obligation for clubs and players, which would bring the intermediaries within the scope of DFB and FIFA rules, to be disproportionate. While the registration and declaration obligations as such could be justified, the same could not be said for the pertaining subsumption of the intermediary service under the overarching umbrella of the DFB rules. The disproportionate full submission to DFB rules, which would strip the intermediaries of their possibility of recourse to ordinary justice, could be just as effectively replaced by a proper enforcement by the DFB of the registration rules themselves. Moreover, the Court found it unclear why the DFB would not be able to safeguard the goals pursued by the DFB Regulations before ordinary courts. [42]

Unlike the registration obligation, the duty to submit a criminal record along with the duty to pay a registration fee were seen as justified and thus proportionate in the eyes of the Court. Due to a potentially large impact of the intermediary activity on competition stemming from the potential influence on players and clubs, no less restrictive measure other than a registration duty could be put in place in order to safeguard the transparency of the football leagues. Moreover, considering the utmost necessity to protect the minors, the duty to submit a criminal record is clearly justified. Since the intermediaries financially benefit from their activity, the pertaining registration fee could also be deemed as a proportionate measure.[43]

The third addressed measure, i.e. the remuneration disclosure requirement, was also seen as justified by the Court. The legitimate aims set out in the previous paragraph were also to be pursued through the disclosure of agreements entered into and remuneration paid to the intermediaries. Such measures represented suitable means for controlling the intermediaries’ behaviour and were thus necessary and proportionate.[44]

The same can be said of the prohibition of acceptance of intermediary transfer fees for future transfers. In this context, the premature termination of contracts between clubs and players represented a major incentive for the intermediaries and at the same time a major source of revenue for clubs. The possibility of claiming a share of the transfer fees would therefore draw the intermediaries into seeking actively an early contract termination, as the new Regulations’ provisions were aimed at preventing such external influence, they are considered justified and proportionate.[45]

Fifthly, the imposition of flat-rate transfer fees was deemed unjustified by the Court, since it prohibited the agreed fee to be expressed in percentage pertaining to the cumulative transfer sum. This reinforced doubts that had previously been expressed about the proportionality of the parent FIFA Regulations provision, namely Article 7. Contrary to DFB’s arguments that such a scheme only required an a priori determination of the fee, the Court was not of the opinion that such a restrictive interpretation was appropriate, and that it could also lead to interpreting the provision in the way to detach the flat-rate fee entirely from the transfer sum. In other words, clubs would only be allowed to pay a prefixed amount that could not be expressed in percentage of the entire transfer sum. The Court also had doubts as to how such a restriction would serve the previously mentioned purposes.[46]

Last but not least, the Court also found the prohibition of remuneration of intermediaries of minors having the status of licensed players to be unjustified and disproportionate. By refusing the DFB’s argument to draw parallels with legal representation, the Court rather focused on the potential vulnerability of minors and their susceptibility to influence from the intermediaries, making this the crucial argument for (non)justification of the prohibition.[47] Stressing the legitimacy of a special protection of minors, who would due to their age and consequent inexperience rely heavily on the advice of the intermediaries, it also drew the line between the players plying their trade in the first and second league (licensed players) and others who participated in lower leagues. In the latter case a particular attention ought to have been given to minors brought to Germany from abroad.[48] It was only obvious, according to the Court, that minors playing in the lower leagues should benefit from a higher level of protection due to their stronger economic dependency to the intermediaries and hence susceptibility to their instructions. Minor licensed players, however, due to their market position alone warrant no such protection. Moreover, the significant disproportion of the amount of money spent on transfer fees for licensed minors makes such a prohibition in this ambit even more restrictive.[49]

Summed up, the Court deemed three out of six of the claimant’s legal missiles to have hit their target. First, the intermediaries may still be registered with the DFB without subjecting to its authority. Second, the prohibition of flat-rate transfer fees was unjustified, and third, the prohibition of remuneration of intermediaries of licensed minor players also exceeded the borders of necessity.[50] Since an injunction decision required an imminent and pending danger to be substantiated, as anticipated above, the Court circumvented the DFB’s argument that the claimant had almost a year, hence enough time, to get acquainted with the Regulations, by saying that Article 1(2) of the FIFA Regulations merely provided a minimum compulsory basis to be implemented, and that the DFB adopted substantially different Regulations pursuant Article 1(3) of the FIFA Regulations, leaving significantly less time for the claimant to comply.[51] The reference to previous FIFA Regulations met the same end, since the former pertained only to natural and not to legal persons.[52] 


Side-stepping Article 102 TFEU?

While the Court went to significant depths when analysing the case through the prism of Article 101 TFEU, it quite surprisingly almost completely refused to be drawn into the assessment of the matter through Article 102 TFEU, despite admitting, hence quite possibly just elegantly restating Piau,[53] to a possible existence of a collective dominant position by the DFB and its related associations on the market of intermediary service provision.[54] It merely concluded that there was no abuse in the sense of Article 102 TFEU.[55] One may find this curious at the very least, since the Court itself stated that DFB imposed its rules on non-members, intermediaries in this case, through economic pressure stemming from its monopolistic position on the market in question, which could to a certain extent at least be deemed as abusive.[56]


The epilogue or merely the end of Round One?

With the battle dust temporarily subsided, the DFB has seemingly complied with the Court’s injunction decision by issuing a note in which it restated the judgment’s tenor and informed the interested parties (intermediaries) of an ongoing possibility of a non-binding registration with DFB. The truce may only be a temporary one though, since the DFB has through its president already announced to pursue the matter in the main proceedings and a battle won does not necessarily mean that the war has been won.[57] Regardless of the outcome in Germany though, the issue carries a larger relevance. Since some of the DFB Regulations provisions, addressed in the hitherto analyzed injunction decision, resemble to a large extent if not entirely those embedded in the FIFA Regulations (e.g. the suspended Article 7(7) of DFB Regulations and Article 7(8) of FIFA Regulations),[58] one may wonder if, considering the already pending complaint of the of the Association of Football Agents (AFA) to the Commission,[59] legal challenges of the intermediaries regulations in other countries may only be a matter of time. Especially, since apparently these days EU law conveniently happens to be “available in every drug store”.




[1] R. Zemeckis, B. Gale, Back to the Future (Universal Pictures, 1985).

[2] Case C-415/93, Union royale belge des sociétés de football association ASBL v Jean-Marc Bosman ao, [1995] ECR I-04921.

[3] See inter alia Case AZ: 3 Ca 1197/14, Heinz Müller v 1. FSV Mainz 05, Arbeitsgericht Mainz, 19 March 2015 ; Case 2013/11524/A, Daniel Striani ao v UEFA, Tribunal de première instance francophone de Bruxelles, Section Civile, 29 May 2015.

[4] Case Az. 2-06 O 142/15*, Firma Rogon Sportmanagement v Deutschen Fußball-Bund (DFB), Landgericht Frankfurt am Main, 29 April 2015.

[5] DFB-Reglement für Spielvermittlung, adopted on 13 March 2015.

[6] Treaty on the Functioning of the European Union (TFEU), Consolidated Version, O.J. 2012, C326, 26 October 2012 and as amended by the Croatian Accession Treaty, O.J. 2012, L112/1.

[7] FIFA Regulations on Working with Intermediaries, adopted in Zürich on 21 March 2014.

[8] D. Lowen, A guide to the FA’s Regulations on Working with Intermediaries (www.lawinsport.com, 17 February 2015), <http://www.lawinsport.com/articles/item/a-guide-to-the-fa-s-regulations-on-working-with-intermediaries>.

[9] D. Lowen, FIFA’s Regulation on Working with Intermediaries (T.M.C. Asser Instituut – Summer Programme, 30 June 2015), pp. 2.

[10] N. De Marco, The new FA Intermediaries Regulations & disputes likely to arise (www.lawinsport.com, 31 March 2015), <http://www.lawinsport.com/articles/item/the-new-fa-intermediaries-regulations-disputes-likely-to-arise>.

[11] Focus, Streit mit DFB: Gericht gibt Spielervermittler in Teilen Recht (www.focus.de, 30 April 2015), <http://www.focus.de/regional/frankfurt-am-main/fussball-streit-mit-dfb-gericht-gibt-spielervermittler-in-teilen-recht_id_4650008.html>.

[12] Article 1(2) FIFA Regulations, cited supra note 7: ”Associations are required to implement and enforce at least these minimum standards/requirements in accordance with the duties assigned in these regulations, subject to the mandatory laws and any other mandatory national legislative norms applicable to the associations. Associations shall draw up regulations that shall incorporate the principles established in these provisions.

[13] Rogon v DFB, cited supra note 4, paras. 15-16.

[14] Article 1(3) FIFA Regulations, cited supra note 7: “The right of associations to go beyond these minimum standards/requirements is preserved.

[15] Arts. 3(2), 3(3) DFB-Reglement für Spielvermittlung, cited supra note 5.

[16] Rogon v DFB, cited supra note 4, paras. 16-17: “Mit dieser Erklärung erkennt der Vermittler das Reglement auch für sich als verbindlich an und unterwirft sich damit der Verbandshoheit des Antragsgegners einschliesslich der Sportgerichtsbarkeit.”

[17] Ibid., para. 19.

[18] Ibid., paras. 32-39.

[19] Gesetz gegen Wettbewerbsbeschränkungen (GWB), (BGBl. I S. 1554), 26.07.2011.

[20] Rogon v DFB, cited supra note 4, paras. 43-45.

[21] Ibid., para. 46.

[22] Case T-193/02, Laurent Piau v Commission, [2005] ECR II-00209, para. 70.

[23] Rogon v DFB, cited supra note 4, para. 50.

[24] Case 71/74, Nederlandse Vereniging voor de fruit- en groentenimporthandel, Nederlandse Bond van grossiers in zuidvruchten en ander geimporteerd fruit "Frubo" v Commission, [1975] ECR 00563, para. 17.

[25] Rogon v DFB, cited supra note 4, para. 51.

[26] Case 123/83, Bureau national interprofessionnel du cognac (BNIC) v Guy Clair, [1985] ECR 00391, para. 17.

[27] Bosman, cited supra note 2, para. 127.

[28] Case C-176/96, Jyri Lehtonen and Castors Canada Dry Namur-Braine ASBL v Fédération royale belge des sociétés de basket-ball ASBL (FRBSB), [2000] ECR I-02681, paras. 53-60.

[29] Piau, cited supra note 22, para. 73: “As regards, second, the concept of a decision by an association of undertakings...This is therefore an economic activity involving the provision of services, which does not fall within the scope of the specific nature of sport, as defined by the case-law.”

[30] Ibid.

[31] Rogon v DFB, cited supra note 4, paras. 52-53.

[32] Ibid., para. 55.

[33] Piau, cited supra note 22, paras. 112-115.

[34] Rogon v DFB, cited supra note 4, paras. 57-58.

[35] Case C-309/99, J.C.J. Wouters ao v Algemene Raad van de Nederlandse Orde van Advocaten, [2002] I-01577, para. 95.

[36] Rogon v DFB, cited supra note 4, paras. 59-61.

[37] Case C-519/04 P, David Meca-Medina and Igor Majcen v Commission, [2006] ECR I-06991.

[38] Rogon v DFB, cited supra note 4, paras. 63-64.

[39] Piau, cited supra note 22, paras. 100-104.

[40] Rogon v DFB, cited supra note 4, paras. 66-68.

[41] Ibid., paras. 69-70.

[42] Ibid., paras. 72-73.

[43] Ibid., paras. 75-78.

[44] Ibid., para. 80.

[45] Ibid., paras. 83-84.

[46] Ibid., paras. 86-87.

[47] Ibid., paras. 89-91.

[48] Ibid., para. 93.

[49] Ibid., para. 94: “Für die Vermittlung von Lizenzspielern ist eine derartige Beschränkung allerdings unverhältnismäÿig. Lizenzspieler der ersten und zweiten Bundesliga sind nicht in dem Masse schutzbedürftig wie Vertragsspieler der unteren Ligen.

[50] Handelsblatt, Gericht gibt Spielervermittler teils recht (www.handelsblatt.com, 30 April 2015),<http://www.handelsblatt.com/sport/fussball/streit-mit-dfb-gericht-gibt spielervermittler-teils recht/11716170.html>.

[51] Rogon v DFB, cited supra note 4, para. 104.

[52] Ibid., para. 105.

[53] Piau, cited supra note 22, paras. 117-118

[54] Rogon v DFB, cited supra note 4, paras. 98-99.

[55] Rogon v DFB, cited supra note 4, para. 100.

[56] Ibid., para. 96: “Hier geht es jedoch darum, dass die Antragsgegnerin aufgrund ihrer Monopolstellung Dritte faktisch in die Verbandsherrschaft zwingt, indem sie Verbandsangehörige mit Sanktionen bedroht, sollten diese nicht auf die Antragstellerin im Sinne einer Zustimmung zur Vermittlererklärung einwirken. Insofern fehlt es an der freiwilligen Unterwerfung; es handelt sich vielmehr um eine durch wirtschaftlichen Druck erzwungene Unterwerfung eines nicht verbandsangehörigen Dritten.”

[57] Hamburger Abendblatt, Landgericht bestätigt teilweise neue Spielerberater-Regeln (www.abendblatt.de, 30 April 2015), <http://www.abendblatt.de/sport/article205286615/Landgericht-bestaetigt-teilweise-neue-Spielerberater-Regeln.html>.

[58] Article 7(8) FIFA Regulations, cited supra note 7: “Players and/or clubs that engage the services of an intermediary when negotiating an employment contract and/or a transfer agreement are prohibited from making any payments to such intermediary if the player concerned is a minor ...

[59] D. Lowen, cited supra, note 8.

 

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