On October 24^th and 25^th 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 20^th 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.

Day 1:

Opening Speech: Moya Dodd

The conference was kickstarted by Moya Dodd, a former FIFA Council member and current ICAS member, who gave an engaging presentation on her experiences as an athlete in boardrooms of FIFA. After retiring from the Australian National Team, she began to become involved in sport governance, starting as a member of the AFC Executive Committee. She eventually made her way to the FIFA Executive Committee where she made it a priority to represent groups who did not have a voice in FIFA’s governance. In this vain, she launched a task force for women, which helped spearhead reforms that brought gender issues into light. Ms. Dodd also explained how she worked hard to keep connections with persons outside of the sports governing structures in order to represent them from the inside. In the end, she explained how the experience playing sports helped develop skills that became invaluable in the boardroom. This includes, teamwork skills, constantly striving to improve oneself, valuing persons for their capabilities, and the ability to deal with setbacks. This discussion led particularly well into the first panel of the conference, which took a magnifying glass to the role of athletes in sports governance.

Panel 1: Where is the athletes’ voice? The (il)legitimacy of international sports governing bodies

Antoine Duval and Marjolaine Viret began the first panel of the conference by exploring the athletes’ voice in the fight against doping and particularly within WADA. They explained that in order for the World Anti-Doping Code (WADC) and WADA to be considered legitimate, the actors most affected by its policies, athletes, would need to be participating meaningfully and have a real input in the decision-making process. This input requires an actual reflection in the regulatory output of WADA, and it entails not only consulting with athlete stakeholders but that representatives have voting powers on both the code revision process and the administrative bodies of WADA. Their study examines to what extent the current operation of WADA is in line with these ideals by examining the role of athletes in WADA’s bodies and its actual regulatory output.

Mark Conrad studied the issue from a wider lens by explaining how the current representation of athletes in sports governing bodies is inadequate and why there needs to be a fundamental rethinking of the current athlete committee model. This model, he explains, is ineffective in truly representing athletes’ interests, since their mandates are not clearly defined and greatly rely on the good favor of the federations’ management. As an alternative model, he presented a collective bargaining approach, which already is widespread in North America, in which athlete unions would represent athletes’ interests in a bargaining process with the sports governing bodies. Such a model would give the athletes ‘real’ representation by relying on their strength in numbers and by negotiating agreements that would entitle them to specific rights. These agreements could cover salary standards, salary controls, free agency, drug testing and many other aspects of the employment relationship. He concluded by discussing the general pros and cons of such a model but that overall, since athletes would actually have an effective representation, it would overcome any of the negative effects of such a model.

Panel 2: Criminal law and sports – criminal law of sports

The day’s conversation then shifted from sports governance structures to the application of criminal law in sports. Björn Hessert kicked off the panel with a presentation on the cooperation and reporting obligations in sport investigations. He began by illustrating the catch-22 situation in which athletes may find themselves during an investigation. On the one hand, they are required to ‘cooperate fully’ with the investigation authorities, including providing self-incriminating evidence, or face sanctions. If they choose not to cooperate, then they also receive sanctions. This state of affairs may have had a direct impact on the skyrocketing number of sanctions over the past few years involving reporting and cooperation violations. Hessert argued that this situation could be significantly improved by introducing fundamental procedural rights found in criminal law systems to these investigations, such as the right to remain silent and the privilege against self-incrimination. These rights are found in article 6 (1) and (2) of the European Convention on Human Rights (ECHR). Such a regime would force sports governing bodies to be creative in finding new strategies to investigate and prosecute alleged sports rule violations.

After Hessert’s presentation on procedural rights in sports investigations, Jan Exner took the podium to discuss the proportionality of the sanctions in the anti-doping code. He began by giving an overview of the characteristics of the sanctions in the WADC, which include a fixed sanction framework and limited flexibility for panels hearing alleged doping rule violations. He explained that due to the rigid sanction framework of the WADC, panels hearing a doping dispute are unable to go below limits set therein and that in certain exceptional cases, these sanctions may be disproportionate. Exner then illustrated some of the negative effects of the current system in which CAS panels hearing similar factual circumstances end up with delivering different sanctions. Such a predicament, Exner argues, goes against any equality of outcome of the proceedings. In the end, he contended that there should be a revised sanction framework that would allow hearing panels to go below the limits set in the WADC as long as certain criteria are met in order to ensure that the sanction is proportionate to the rule violation.

Ruby Panchal closed the panel by shining a light on match-fixing. She argued that sports governing bodies have been so concerned with doping that match fixing has not been sufficiently addressed. Much like how anti-doping rules have been significantly developed over time, anti-match-fixing laws also need to be made far more robust. Panchal explained that certain factors essential for the development of lex sportiva will be essential in the growth of this field. These factors include the validity of unilateral action clauses, a growing relationship between sports governing bodies and state courts, the creation of evidentiary processes in disciplinary proceedings, and co-operation between sports governing bodies and investigative authorities. Panchal closed her talk by examining the approach of the Convention on the Manipulation of Sports Competitions (Macolin Convention) in addressing this regulatory void. While the Convention takes a ‘hopeful approach’, the question remains open as to how effective it will be in combatting match-fixing.

Panel 3: Transfer systems in international sports

The last panel of day one of the conference took a deep dive into transfer systems in international sports. Jan Łukomski opened the panel by studying the finalization of international football transfers and professional football players’ contracts. There are many kinds of agreements that could be potentially involved in the transfer of a football player, including offers, pre-contracts, definite contracts, that have significantly different legal effects. For example, the CAS explained in CAS 2008/A/1589 MKE Ankaragücü Spor Külübü v. J. that the difference between a pre-contract and a contract ‘is that the parties to the ‘precontract’ have not agreed on the essential elements of the contract or at least the “precontract” does not reflect the final agreement’. This is just one example of a growing CAS case law on issues of contractual validity of football contracts. In the end, Łukomski explains that often times disputes on contractual validity stems from ‘mistakes’ that were made by clubs and players during the negotiation process.

Following the examination of the transfer system in football, Xavier Mansat gave the participants a small peek into the archaic transfer model currently in place in volleyball. He took the audience on a journey of the transfer of one volleyball player by emphasizing all the different steps and actors participating in the process. Mansat also elucidated the various administrative and transfer fees that are taken out at every step by the involved actors. He closed the panel by explaining that the current system is in the process of being challenged by a new stakeholder group, Association des Clubs Professionels de Volleyball (ACPV) and that it is likely that some of the components in the current transfer framework are incompliant with EU law.

Day one ended with an opportunity for the conference participants to unwind over a dinner in the charming harbor of Scheveningen.

Day 2:

Keynote lecture: Ulrich Haas

Day two of the ISLJ Conference was launched by a lecture from Ulrich Haas, who gave an in-depth lecture on the nature and function of association tribunals in international sport. Haas underlined that while association tribunals are the most important dispute resolution mechanism in practice, legal literature on them is scarce. The sheer volume of the decisions made by association tribunals is staggering. In the case of FIFA, the decisions are around 10000-11000 per year. After having demonstrated the incredible importance of association tribunals to the functioning of sports governance, he outlined their legal basis, which is based in the freedom of association (in Switzerland and Germany). Austria, on the other hand, makes association tribunals mandatory. Haas then began to unpack the differences between authoritarian decision-making, used by association tribunals, compared to other forms of alternative dispute resolution, such as mediation, conciliation, and arbitration. Interestingly, he concluded that while all these differences can serve as indications of whether a body is an association tribunal or an arbitration panel, there is no set international standard to make this determination. Hence, there is a need to refer to national law in order to fill this void. In conclusion, Haas endorsed a procedural law approach over a substantive law approach to determine the appeals status of an association body’s decision.

Panel 4: Rethinking sports arbitration

The first panel of day two of the ISLJ Conference took to rethinking the current framework of sports arbitration. Veronica Lavista was first to go and presented her findings on the influence of international dispute settlement on sports. She took an empirical approach to her study by going through CAS’ case law and placing the arbitrators in those cases into different categories based on their background, such as a sports law, corporate law, or international law specialist. Based on this determination, Lavista was then able to identify that the makeup of the panel had an appreciable influence on the extent certain legal issues were discussed in the award. Lavista also underlined some of the overlaps between international dispute resolution and the CAS, including the voluntary nature of their jurisdiction, the use of ad hoc panels, and the explosion of case law over the past few decades.

Next up, Daniela Mirante and Artur Flaminio da Silva offered a case study in the Portuguese context of sports arbitration to argue that perhaps switching to a mandatory arbitration scheme would alleviate many of the issues currently present in the ‘voluntary’ arbitration model. Portugal created a permanent sport arbitration center in the Portuguese Court of Arbitration for Sport (TAD), which has a mandatory jurisdiction for ‘all sports disputes related to administrative law’. After underlining many of the issues plaguing the TAD, such as institutional independence and arbitrators’ impartiality, the confidentiality of the awards, and the high costs of arbitration, they explained the advantages of mandatory sports arbitration. First, it would get rid of the concept of consent, which they argue is a fiction since athletes must consent to arbitration or else not be able to participate in the sport. It would also reduce the time needed to render a decision since there would be less room for parties to challenge the jurisdiction of arbitration panels. They concluded that mandatory arbitration definitely could be a future path for sports arbitration but that it would have to follow a different path than the current Portuguese model.

To close the panel, Massimiliano Trovato brought forth his three ‘radical’ proposals to ensure the legitimacy of the CAS. Before unveiling the three proposals, Trovato gave a brief historical overview of the CAS and its relationship with the Olympic Movement to contextualize his arguments. He highlighted the interactions between the two and how certain individuals have held top positions in the CAS bodies and other sports governing bodies, like the IOC, leading to potential conflicts of interest. At this point, Trovato revealed his first proposal that article S4 and S6 of the CAS Statutes be amended to make the ICAS into a body ran by the arbitrators themselves, since they have both the ability and expertise to run the CAS for the interests of all the parties involved. Second, Trovato argued that the closed-list system of arbitrators be abolished under article S14 and move towards an open system. The quality of the arbitrators, Trovato explained, could still be assured by introducing certain minimum eligibility requirements for the arbitrators. The third proposal Trovato presented was that Article R65 be altered to make sports governing bodies responsible for the costs of arbitration, not the parties.  Shifting the burden would make sports governing bodies more disciplined and would help compensate for the fact that athletes are essentially forced into arbitration.

Book L(a)unch: The Court of Arbitration for Sport and its Jurisprudence: An Empirical Inquiry Into Lex Sportiva by Johan Lindholm

During lunchtime, the conference participants were treated to a very special book launch from the ISLJ’s chief editor, Johan Lindholm. His book, The Court of Arbitration for Sport and its Jurisprudence: An Empirical Inquiry Into Lex Sportiva, is an exhaustive and thorough empirical study into the CAS’ jurisprudence, its arbitrators, and its parties. Covering a period of 30 years (1984-2014), the book tries to unpack some of the most often raised arguments against the CAS and puts these claims to the ultimate test. For example, whether particular arbitrators are more likely to be chosen by certain parties. Furthermore, the book, through impressive data visualization graphics, illustrates a variety of intriguing data samples, including what kind of cases the CAS has deliberated and to what extent the CAS can call itself a global international sports tribunal.

Panel 5: Revisiting the (in)dependence and transparency of the CAS

Following the book l(a)unch, the next panel treated conference participants to a fascinating debate on the (in)dependence and transparency of the CAS. Velislava Hristova launched the panel by exploring the intersection between human rights and sports arbitration and in particular, the right to a public hearing in sport cases. She used the ECtHR case of Mutu and Pechstein v. Switzerland to illustrate the topic. Before jumping into the legal issues, Hristova gave an overview of the nearly 10-year legal history of the Pechstein Saga. She explained that the case boiled down to four main issues: whether Article 6 (1) ECHR (right to a fair and public hearing) could be applicable to sports arbitration, whether Pechstein waived this right, whether the CAS is sufficiently independent and impartial, and whether the lack of a public hearing in this case actually violated Article 6 (1). Next, Hristova analyzed the findings of the ECtHR on these four issues and explained how the ECtHR concluded that while the right to a public hearing is not absolute, the lack of a public hearing in Pechstein’s case was a violation because of the compulsory nature of sports arbitration, the fact that a public hearing was requested, the ‘nature and complexity’ of the case, and since the factual background had been contested. In the end, athletes, arbitrators and the CAS will have to take this landmark ruling into account moving forward.

Antonio Rigozzi further delved into the issue of the (in)dependence of the CAS by not only looking at the Pechstein case but also the Swiss Federal Tribunal’s (SFT) decision in the Seraing case and how these rulings could potentially impact the CAS. Concerning the Seraing case, he explained how the SFT had to determine whether the CAS is structurally independent, which differs from the Lazutina case because the SFT had to determine whether it was independent from FIFA, not the IOC. In the end, the SFT did not find it necessary to depart from its analysis in the Lazutina case and deemed the CAS to be independent so long there were no overriding reasons indicating that FIFA is given special treatment. Furthermore, the SFT noted that the CAS had made significant efforts to strengthen its independence by improving its structure and functioning. Rigozzi finished by drawing some conclusions from the Pechstein and Seraing cases. First, the Pechstein case has made public hearings at the CAS an inevitability now that Article 6 (1) ECHR is fully applicable to its proceedings, and the CAS will have to improve the optics concerning its rules on the appointment of the president of the panel. Secondly, the SFT in the Seraing made clear that while CAS could be further ‘perfected’, it was not the proper institution to take on such a project. Instead, it placed the responsibility in the hands of the Swiss legislator, and it is yet to be seen whether they will actually take the initiative to introduce change.

The panel was brought to a close by Tom Seamer, who plunged into the issue of the independence and impartiality of CAS arbitrators. He argued that there could be two main areas of improvement in this regard, the ICAS and the appointment of arbitrators. Concerning the ICAS, only minor changes would be necessary to drastically improve the status quo, such as ensuring that its president be neutral and has no connections with any sports governing body, athlete or clubs. Secondly, Seamer supported the contention that certain arbitrators are repeatedly nominated by the same parties and often make decisions in favor of that particular party. He explained that in order to test this theory, one must only look at the period in which the particular arbitrator was on the approved CAS list and then determine the proportion of cases they were called upon by a particular party during that same period. Seamer closed by asserting more needed to be done in order to tackle these issues, while acknowledging some of the challenges ahead.

Panel 6: The future of sports: sports law of the future

The last panel of the conference took the opportunity to look forward into the future of sports law and discussed the growing fields of e-sports and extreme sports. On e-sports, Cedric Aghey tackled the issue of e-sports governance and how it could be potentially integrated into the current sports governing structures, since currently there is an unharmonized e-sport structure. At the moment, e-sports relies on a variety of stakeholders operating at different levels, such as games publishers, e-sports governing bodies, and investors. In order to address this situation, Aghey argued that the e-sports definition should be narrowed only to video games that seek to emulate ‘traditional’ sports. This would allow for a rather seamless integration of these e-sports into the already existing sports federations. For example, FIFA would absorb its FIFA e-sport counterpart.

Nick Poggenklaas also presented on e-sports but instead took a wider definition of e-sports by not only limiting e-sports to games based on ‘traditional’ sports. He contended that the current regulatory framework present in e-sports is inadequate to sufficiently protect minors from the negative aspects of sport. This issue is particularly pertinent, since minors make an exceptionally large share of the e-sport athletes, which is especially worrying since there have been cases of doping and sexual and financial abuse. Such cases question whether enough is being done to really combat these problems. Thus, Poggenklaas put forth several proposals that could substantially improve the situation of minor’s rights in e-sports. He submitted that by creating an overarching e-sport governing body that would manage an abuse hotline, minors would be subject to a more rigid regulatory regime that would at least provide them with the opportunity and means to raise their concerns. Furthermore, Poggenklaas believes that the creation of players unions and further parent involvement would also help to ensure that minors’ interests are sufficiently protected.

Lastly, Angela Busacca examined extreme sports and the kind of civil liability applicable to these activities. She first described the elements and different classifications of extreme sports under Italian law. For instance, extreme sports have a component of risk and require a certain interaction with nature. They can also be placed on a scale ranging from sports that have a set of pre-defined rules to those where there are no pre-defined rules and consequently giving a free range for the athlete’s actions. In addition, extreme sports are categorized by those that have a clear governance organizational structure to those who do not have a defined structure. All these aforementioned components can have an impact on the establishment of civil liability and whom is responsible in case of an accident.

Conclusion

After two intense days of discussion and debate of international sports law’s most pressing topics through six differently themed panels, two keynote lectures, eighteen invited speakers, and many other highlights, the ISLJ Conference 2019 came to a close. The Asser International Sports Law Centre was honored to have been able to host another successful edition. On behalf of the organizers, we would like to thank all the speakers and participants who made this conference such a success and look forward to seeing you all back at the Institute soon!

“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.