The IOC has trumpeted it worldwide as a « historical milestone »: the United Nations has recognised the sacrosanct autonomy of sport. Indeed, the Resolution A/69/L.5 (see the final draft) adopted by the General Assembly on 31 October states that it  “supports the independence and autonomy of sport as well as the mission of the International Olympic Committee in leading the Olympic movement”. This is a logical conclusion to a year that has brought the two organisations closer than ever. In April, UN Secretary General Ban Ki-moon appointed former IOC President, Jacques Rogge, Special Envoy for Youth Refugees and Sport. At this occasion, the current IOC President, Thomas Bach, made an eloquent speech celebrating a “historic step forward to better accomplish our common mission for humanity” and a memorandum understanding was signed between the UN and the IOC. This is all sweet and well, but is there something new under the sun?

A beautiful friendship

As the IOC points out itself, it has always had a friendly institutional relationship with the UN. There is a good deal of solidarity of kin between the two transnational organisations. The UN has been keen on shoring up the Olympic truce. In fact, since 1993, it has adopted no less than 24 resolutions supporting sport (and the Olympic Games) as a means to promote education, health, development and peace. However, this year’s resolution goes beyond the previous resolutions. The text includes the usual references to the use of sport to foster peace and development, but it also celebrates in unequivocal terms the work and the autonomy of the Olympic movement. This is music to the IOC’s ears and resonates with its repeated calls on States to respect the autonomy of the “lex olympica”. The IOC has already stretched the interpretation of the resolution and claims “boycotts are incompatible with this UN request for respect of the values of sport”. Nevertheless, one must keep her feet on legal earth. This resolution by the General Assembly (GA) has no legally binding value on the UN Member States, it is merely encouraging them to act upon it. International legal scholars have endlessly debated the potential legal effects of UN resolutions, and they agree on one thing: Resolutions by the GA are not per se legally binding.[1] To be so, they must be capable of creating obligations on their addressees, or recognized as customary international law, both very unlikely in our case. Thus, this resolution should be interpreted as a declaration of friendship, which could have a practical impact (or not) on the work of national courts, depending on their willingness to acknowledge the UN resolution. In practice, it is just another sign (after the UEFA-EU arrangement) that international organisations tend to side politically (and usually uncritically) with the IOCs of this world.

A liaison dangereuse

Being good friends with the IOC guarantees good shots of the UN Secretary General holding the torch, but it might not be in the best interest of the UN, nor of the world’s citizens. The Olympic Games’ capacity to trigger an Olympic peace of some sort has been largely discredited by the invasion of Crimea and the proxy war fuelled by Russia in Ukraine, just days after the Winter Olympic Games in Sochi came to a close. The Secretary General of the UN himself stated in a recent (20 October 2014) report to the General Assembly that “[s]adly, there is no evidence of any initiative by warring parties either to unilaterally observe the Olympic Truce or to promote its mutual observation”. The Olympic truce myth has been a collective exercise of wishful prophesizing with no self-fulfilling effect in sight.

Furthermore, the UN General Assembly reaffirms “that any form of discrimination is incompatible with belonging to the Olympic movement”, but the latest Games in Sochi have also shown that the IOC is not sanguine, to say the least, in fighting discriminatory laws adopted by Olympic host countries. In fact, exactly on this matter, the IOC has announced already that it does not “have a mandate to impose measures on sovereign States outside its own fields”. This is surprising, as the IOC seems to consider it has a mandate to impose (via the host city contract) a string of measures on sovereign States covering core public policies (tax, infrastructure or intellectual property rights). Why does it not include the fight against all sorts of discrimination in the "fields" it deems its own? The latest draft of the Host city contract for the 2022 Winter Games comprises a reference to the “prohibition of any form of discrimination”, but it is still deprived of real legal teeth.

This relationship between the IOC and the UN is more of a liaisons dangereuse than a “beautiful friendship”. The UN should be weary to associate itself too closely with an institution characterised by a lack of transparency, internal democracy and accountability. Sure, one could hope that this friendship would lead the IOC to reform itself, but its readiness to do so is rather enhanced by public outrage and the threats of legal challenges than warm accolades. There is a regrettable paradox here: While the global citizenry is loudly contesting the IOC and FIFA, it is à la mode for international organisations to align themselves politically with them.

[1] On this question in general, see K. Hailbronner and E. Klein, Commentary of Article 10 of the UN Charter in B. Simma (ed.), The Charter of the United Nations : A Commentary, Oxford University Press, 2002, p.257-275

The summer saga surrounding Luis Suarez’s vampire instincts is long forgotten, even though it might still play a role in his surprisingly muted football debut in FC Barcelona’s magic triangle. However, the full text of the CAS award in the Suarez case has recently be made available on CAS’s website and we want to grasp this opportunity to offer a close reading of its holdings. In this regard, one has to keep in mind that “the object of the appeal is not to request the complete annulment of the sanction imposed on the Player” (par.33). Instead, Suarez and Barcelona were seeking to reduce the sanction imposed by FIFA. In their eyes, the four-month ban handed out by FIFA extending to all football-related activities and to the access to football stadiums was excessive and disproportionate. Accordingly, the case offered a great opportunity for CAS to discuss and analyse the proportionality of disciplinary sanctions based on the FIFA Disciplinary Code (FIFA DC). 

I.               Admissibility: Can FC Barcelona join the appeal?

As a preliminary matter, FIFA was contesting the right of FC Barcelona to take part in the appeal against the decision. The Panel judged that “in light of the specific circumstances of the case, taking into account the impact of the specific sanction imposed, the Panel finds that the Club is sufficiently affected by the Appealed Decision and that the Club has a tangible interest of financial and sporting nature at stake” (par. 47). In other words, “in a case where the FIFA authorities are issuing a sanction against a player and such sanction affects direct financial interests of a club, such club must have the possibility to appeal (within the applicable deadline) such decision in order to be able to protect its legal interests, even if this interests became actual after the challenged decision was issued” (par.48). In short, the right to appeal to CAS is extended to the club of the player, even when he is not party to the original proceedings.

II.             Merits: Is it the right sanction?

a.     The applicability of Art. 57 FIFA DC

The first problem raised was “whether the actions of the Player at the Match constitute […] an unsporting behaviour to be sanctioned […] under art. 57 FIFA DC” (par.69). The club and the player were invoking various well-known principles of criminal law (ne bis in idem and nulla poena sine lege certa) against it, but the arbitrators decided to reject these objections (par.70-74). Interestingly, the Panel held that “it is not necessary for the principles of predictability and legality to be respected that the football player should know, in advance of his infringement, the exact rule he may infringe, as well as the measure and kind of sanction he is liable to incur because of the infringement”. Furthermore, “[t]he fact that the competent body applying the FIFA DC has the discretion to adjust the sanction mentioned in the rules deemed applicable to the individual behaviour of a player breaching such rules is not inconsistent with those principles” (par.73). Yet, the Panel was also of the opinion that “the wording of art. 57 FIFA DC shows that this provision contains a mere general clause, trying to cover all possible conducts against fair play, which are not yet covered by other articles, or “consumed” by the application of any other provision, of the FIFA DC”. Hence, “to the extent the action of biting (in the circumstances in which it occurred at the Match) falls within the scope of art. 48 par. 1 lit. d) FIFA DC (as all the parties concede), since the kinds of “assaulting” therein described (“elbowing, punching, kicking”) are expressly not exhaustive (“... etc.”), the same action could not be comprised in the scope of art. 57 FIFA DC, even though the Player’s assaulting in the case at hand, being a misconduct, is also against fair play”. Thus, “the punishment of the Player is already and fully covered by the application of art. 48 par. 1 lit. d) FIFA DC – with no room left for art. 57 FIFA DC, wrongly applied by the FIFA disciplinary bodies” (par.77). In short, article 48 par. 1 lit. d) FIFA DC is deemed the lex specialis to art. 57 FIFA DC. Therefore, “any sanction going beyond those allowed by art. 48 par. 1 lit. d) FIFA DC would be inappropriate to the peculiarities of the case and would be disproportionate” (par.78).

b.     The existence of mitigating factors and aggravating circumstances

The claimants argued that the FIFA disciplinary bodies did not take in account the mitigating factors and wrongfully assumed aggravating circumstances. The Panel rebuts this line of thinking. Indeed, regarding “the question of the relevance to be given to the Player’s remorse as a mitigating factor, the Panel, looking at the non-contested facts and the Parties’ allegations, finds that the margin of discretion the FIFA Appeal Committee had to judge this case was not exceeded, and that it was correctly exercised” (par.81). The arbitrators find that “the remorse of an offender can hardly be given any weight when the same offender had in precedent occasions committed the same infringement and in those occasions had already expressed its remorse and pledged not to repeat that infringement” (par.83). Moreover, “the remorse and apologies shown by the Player after having already been sanctioned cannot have the same impact as a remorse expressed immediately after the event and before any disciplinary proceeding is started and/or sanction is imposed” (par.83). Additionally, “the disciplinary bodies could take into account the fact that the Player had already committed in two preceding occasions the very same infringement, and irrespective of the level (national) of the competition in which they had occurred” (par.87). Thus, the Panel is of the view that the discretion granted to the FIFA Appeal Committee by art.39 par. 4 FIFA DC in weighing the mitigating factors and aggravating circumstances was properly exercised (par.90). The sanction against Luis Suarez is not based on an erroneous analysis of the factual situation. Indeed, remorse can only come into play if immediately voiced, while the concept of recidivism should be interpreted widely as including a similar wrongdoing in the framework of any football competition. 

c.      The proportionality of the ban

The key argument raised by the appellants against the length (and nature) of the FIFA sanctions imposed on Luis Suarez concerned the proportionality of the sanctions (par.91-108). In that regard, FC Barcelona and Suarez argued that “the biting of the Player is not an act of extreme violence and that there was no damage or injury caused to the opposing player, as he was able to continue to play without medical assistance” (par.93), while FIFA dismissively stated that “CAS should not correct any of its decisions if it is not considered to be “evidently and grossly disproportionate to the offence”” (par.94). The Panel rejected both analyses. On the one hand, it held that “biting is absolutely foreign to football and therefore to be considered as a sort of aggravated assault” and “the fact that the opposing player was not injured could not be considered a mitigating factor in the case at hand “(par.95). However, on the other hand, it also held that “the Player is responsible (only) for the violation of art. 48 par. 1 lit. d) FIFA DC” (par.96). Therefore, “the four (4) month ban on taking part in any football-related activity and the prohibition of entering the confines of any stadiums, not allowed for a violation of art. 48 par. 1 lit. d) FIFA DC, could not be applied” (par.96). Nevertheless, due to its specific nature as an intentional assault, the biting “deserves a sanction well above the minimum level of a two match suspension and a fine indicated as such in art. 48 FIFA DC” (par.97).

In conclusion, “the Panel finds that the four (4) month ban of the Player on taking part in any football-related activity and the prohibition of entering the confines of any stadiums are not contemplated by art. 48 par. 1 lit. d) FIFA DC, and are also not appropriate to the infringement committed by the Player on the pitch” (par.104). Moreover, “the FIFA Disciplinary Committee and the FIFA Appeals Committee did not take into consideration that with the four (4) months ban of the Player on taking part in any football-related activity and from entering the confines of any stadiums, the Player actually was prohibited to train with a team and keep his fitness in order to be ready to start playing for the Club after and above this four (4) month ban” (par.105). Furthermore, “this prohibition appears to impact, without any legitimate justification in the case at hand, on the general possibility for the Player to derive profits from his image as football player – beyond the simple participation in football matches” (par.105). Besides, “no justification was offered in the Appealed Decision (beyond a generic reference to the gravity of his actions) in support of the specific sanction of the stadium ban– a measure usually imposed to hooligans, which in the case of the Player does not seem to pursue any legitimate purpose” (par.106). In light of all of this, the Panel decides “to replace the sanction of the prohibition on exercising any football-related activity for four (4) months with the sanction of a match ban (applicable to official matches played at any level) for the same period” (par.107). 

Conclusion

Luis Suarez is long back on the pitch and the practical relevance of this discussion is very limited for his future career. Yet, interesting insights can be derived from this award. Litigants in disciplinary cases involving FIFA will be interested to know that a Club, even if it is not directly part to a dispute in front of FIFA’s disciplinary bodies, might have a legitimate right to appeal a decision rendered against one of its players. More importantly, the systematic interaction between article 48 and 57 FIFA DC has been clarified. Article 48 FIFA DC constitutes a lex specialis to article 57 FIFA DC and, thus, both cannot be applied cumulatively to sanction a player more heavily. This is not to say that a very peculiar offense, like the one at hand, will not face a tough sanction. Nonetheless, a sanction imposing a drastic stadium or football-related activity ban, threatening the player’s ability to derive any revenues from his work, will be deemed disproportionate unless it is thoroughly justified. This is a clear warning not only to FIFA’s disciplinary bodies but also to any Sports Governing Body: the harsher you get, the stronger the supporting reasoning must be.

Editor's note: Ben Van Rompuy, Head of the ASSER International Sports Law Centre, was recently interviewed by LexisNexis UK for their in-house adviser service. With kind permission from LexisNexis we reproduce the interview on our blog in its entirety. 

How does competition law affect the sports sector?  

The application of EU competition law to the sports sector is a fairly recent and still unfolding development. It was only in the mid-1990s, due to the growing commercialization of professional sport, that there emerged a need to address competition issues in relation to, for instance, ticketing arrangements or the sale of media rights.  

Apart from the evident link between competition law and commercial activities related to sport, competition law also has a vital role to play in relation to the regulatory aspects of sport. Most markets for the organization of sports events are a textbook example of monopolistic markets. As a result, sports associations exercise pure monopsony power: athletes have no choice but to accept unilaterally imposed restrictions. Albeit limited to case-by-case inquiry, competition law is thus a meaningful instrument to curb the otherwise unfettered private regulatory power of sports associations. Unfortunately, it remains underutilized. Only a handful of international sports federations have truly experienced the “Bosman effect” and faced scrutiny of their regulatory activity under the EU antitrust rules.   

Have there been any important sports-related antitrust cases in recent years? 

Not at the EU level. Regarding commercial activities, the latest case dates from 2006, namely the Commission’s commitment decision on the joint selling of the Premier League media rights. And after some politically difficult uphill battles around the 2000s against FIFA and the International Automobile Federation the European Commission has been extremely reluctant to intervene in regulatory matters. Lasts year’s rejection of the complaint against UEFA’s Financial Fair Play Rules was the latest “achievement”. In the last few months, however, the Commission has received a number of new interesting complaints. 

Since the decentralization of EU antitrust enforcement in 2004, National Competition Authorities have addressed more than 40 decisions concerning the joint selling of sports media rights. For the most part, the remedy package designed by the Commission has been replicated, but there are some differences: the more widespread use of a “no single buyer” obligation and the acceptance of exclusive rights contracts exceeding three years. 

Regarding regulatory aspects, a string of recent national cases have challenged rules that disproportionally restrict athlete participation in events not organized and promoted by the official federation, notably in smaller sports such as motor sport, horseracing and bodybuilding (Ireland, Italy, Sweden). What characterizes these cases is that the remedial action was purely national in scope. In Germany, by contrast, two exploitative abuse cases are making their way up through the courts that have the potential of becoming important EU-wide precedents. Both are concerned with unfair trading conditions – a rarity these days: mandatory arbitration clauses (International Skating Union) and rules concerning the mandatory release of players to the national team without compensation (International Handball Federation).  

What other aspects of competition law are important in the sporting context? 

The State aid rules are the last unexplored frontier. For decades, national and regional public authorities have directly or indirectly financed sports organisations, sports infrastructure or individual clubs, but these measures have blissfully remained under the radar of EU State aid control. Yet in the last four years, the number of complaints against alleged unlawful State aid to professional sport, mostly football clubs, has been rising. Interestingly, citizens filed most of these complaints. 

With the enactment of the new Block Exemption Regulation and several formal decisions on for instance Belgian, French, German, and Swedish State aid for the construction and renovation of stadiums, the Commission has developed a coherent set of principles for infrastructure funding. The most complex cases are still pending. They concern land swaps/sale of State property (Spain, the Netherlands), tax advantages (Spain), and bank loans, guarantees or debt waivers (Spain, the Netherlands). The beneficiaries include top clubs like Real Madrid and Barcelona so the decisions are bound to attract huge media interest. 

Are there likely to be any developments in the future? 

Competition problems related to the sale of sports media rights will continue to arise at the national level. Public authorities will inevitably face stricter State aid control when supporting professional sports. State aid control could also be an effective instrument to put an end to the practice that selective tax exemptions for UEFA, FIFA, the IOC, etc. are a condition for applications to host international sporting events. 

The European Commission is currently examining a new complaint against FIFA’s ban on third-party ownership of players’ economic rights (TPO) in football and one concerning FIFA’s new regulations for player’s agents. These could result in high-profile cases. 

I do hope that the Commission will reclaim its responsibility for ensuring that rules and practices of international sports associations comply with EU competition law, particularly when athletes lodge complaints. National competition authorities lack the political power to confront international federations. And for most athletes, the possibility of private enforcement is not a real alternative given clauses barring access to national courts, the costs and the length of proceedings. For example, I am currently advising two Dutch Olympic speed skaters whose faith lies entirely in the hands of the Commission. They filed a complaint against the International Skating Union, who threatens them with a lifelong ban if they would participate in lucrative events outside the official calendar. The European Parliament has urged the Commission to open a formal investigation so we are optimistic that the Commission will take its responsibility and handle this case.  

What should lawyers in this field advise their clients? 

It is all about justifications. What you often see is that, in an attempt to shield certain practices from competition law scrutiny, much effort is put into arguments that, for example, sports associations or clubs are not “undertakings”. And only when these fail, recourse is made to underdeveloped arguments about the specificity of sport. Yet the true test lies here: are the restrictive effects reasonably necessary for the organization and proper conduct of sport? This obviously necessitates a good understanding of the sports sector and its internal dynamics. Even more so because competition authorities and courts typically give considerable deference to the legitimate role and expertise of sports associations in regulating their competitions.  

Given that most sports-related antitrust cases are now being addressed at the national level, there is a strong need to learn and draw from this decisional practice and case law. I am currently developing a database that reports and comments on all these cases, which should be a useful resource for those advising clients in the sports world.

Yesterday, the press revealed that the European Commission decided to reject the complaint filed by Jean-Louis Dupont, the former lawyer of Bosman, on behalf of a player agent Striani, against the UEFA Financial Fair Play (FFP) Regulations. The rejection as such is not a surprise. The Commission had repeatedly expressed support of the principles underlying the UEFA FFP. While these statements were drafted vaguely and with enough heavy caveats to protect the Commission from prejudicing a proper legal assessment, the withdrawal of its support would have been politically embarrassing.

Contrary to what is now widely assumed, this decision does not entail that UEFA FFP regulations are compatible with EU Competition Law. UEFA is clearly the big victor, but the legal reality is more complicated as it looks.

UEFA’s Austerlitz

UEFA, which most probably leaked the decision to the press, must have been enchanted by it. At a time when Europe is buzzing with rumours on the potential illegality of the UEFA FFP Regulations, it is fully vindicated by this decision. Indeed, at least in the short run, the UEFA FFP regulations will not be legally threatened anymore. Basically, for the time being, FFP is here to stay.

The European Commission’s Death Sentence to the Striani complaint

The Commission’s decision to reject the complaint is less far-reaching than one would think. The decision does not enter into the substance of the compatibility of the UEFA FFP regulations with EU Competition law. Rather, the EC has chosen the easy way out of what it must have perceived as a toxic case, with much political capital to lose for a single player agent. The elegant way out of a potential mess was to consider Striani not directly affected by the UEFA FFP Regulations. We can gather from the press reports that the Commission argued that Striani as a Player Agent was not an addressee of the FFP rules and was not substantially affected by them (as he was claiming only a symbolic euro of damages in front of the Belgian Courts), thus leaving him with no legitimate interest. Moreover, the fact that the UEFA FFP Regulations were welcomed by diverse groups of stakeholders (ECA, FIFPro) corroborates in the eyes of the Commission that there is no interest for it to act ex officio in light of such a consensus. This decision can now be contested in front of the EU General Court. However, the European Commission enjoys, in light of its very limited resources, a wide discretion in deciding which cases deserve to be investigated. Hence, it is very unlikely that the Court would annul this decision. But is it the end of the legal war?

Is a Waterloo still possible for UEFA?

After Austerlitz, came the Berezina and finally Waterloo: the war over the UEFA FFP regulations is far from done. The European Commission has not pronounced itself on the substantial merit of the claim and Dupont has still a case ongoing in front of the Belgium Courts. If it goes all the way up the legal ladder, it will most probably be referred, via the preliminary reference procedure, to the EU Court of Justice, giving it the opportunity to address the merits of the case. However, it is obvious that Player agents are perceived as the dark sheep of the football family. This is not a Bosman-like situation with a player barred from exercising his job because of a European-wide boycott and rules discriminating expressly on the ground of nationality. Therefore, we doubt that Striani will be more successful in front of the Courts. Nevertheless, if the players, for example via FIFPro, or the clubs decided to go after the UEFA FFP regulations (for now FIFPro and ECA are officially supporting FFP) it would be a completely different story. Such a complaint would be difficult to disregard by the Commission.

The Commission is certainly the guardian of Treaty, but not its interpreter. One would be ill-advised to throw caution to the wind and assume that the UEFA FFP regulations are definitely compatible with EU law. The European Commission conveniently avoided deciding on this matter. But, as Bosman reminded us, the Commission can also err in its evaluation of EU law’s bite and nothing precludes the Judges in Luxembourg from assessing the compatibility with EU law in a different way.

UEFA may have won a crucial battle, but there is still a legal war to fight.