FIFA’s Third-Party Ownership (TPO)
ban entered into force on the 1 May 2015.
Since then, an academic and practitioner’s debate is raging over its compatibility with EU law,
and in particular the EU Free Movement rights and competition rules.
The European Commission, national
courts (and probably in the end the Court of Justice of the EU) and the Court
of Arbitration for Sport (CAS) will soon have to propose their interpretations
of the impact of EU law on FIFA’s TPO ban. Advised by the world-famous Bosman lawyer, Jean-Louis Dupont, Doyen
has decided to wage through a proxy (the Belgian club FC Seraing) a legal war
against the ban. The first skirmishes have already taken place in front of the
Brussels Court of first instance, which denied in July Seraing’s request for provisional
measures. For its part, FIFA has already sanctioned the club for closing a TPO deal
with Doyen, thus opening the way to an ultimate appeal to the CAS. In parallel,
the Spanish and Portuguese leagues have lodged a complaint with the European
Commission arguing that the FIFA ban is contrary to EU competition law. One
academic has already published an assessment of the compatibility of the ban
with EU law, and many practitioners have offered their take (see here and here for example). It is undeniable that the FIFA
ban is per se restrictive of the
economic freedoms of investors and can easily be constructed as a restriction
on free competition. Yet, the key and core question under an EU law analysis,
is not whether the ban is restrictive (any regulation inherently is), but
whether it is proportionate, in other words justified. More...
Zlatka Koleva is a graduate from the Erasmus University Rotterdam and is currently an Intern at the ASSER International Sports Law Centre.
The decision on appeal in the case
of O’Bannon v. NCAA seems,
at first sight, to deliver answers right on time regarding the unpaid use of
names, images and likenesses (NILs) of amateur college athletes, which has been
an ongoing debate in the US after last year’s district court decision that
amateur players in the college games deserve to receive compensation for their
The ongoing struggle for compensation in exchange for NILs used in TV
broadcasts and video games in the US has reached a turning point and many have
waited impatiently for the final say of the Court of Appeal for the 9th
circuit. The court’s ruling on appeal for the 9th circuit, however,
raises more legitimate concerns for amateur sports in general than it offers
consolation to unprofessional college sportsmen. While the appellate court
agreed with the district court that NCAA should provide scholarships amounting
to the full cost of college attendance to student athletes, the former rejected
deferred payment to students of up to 5,000 dollars for NILs rights. The
conclusions reached in the case relate to the central antitrust concerns raised
by NCAA, namely the preservation of consumer demand for amateur sports and how
these interests can be best protected under antitrust law. More...
In June 2014, two prominent Dutch speed skaters, Mark Tuitert
(Olympic Champion 1500m) and Niels Kerstholt
(World Champion short track), filed a competition law complaint against the
International Skating Union (ISU) with the European Commission.
European Commission announced that it has opened a
formal antitrust investigation into International Skating Union (ISU) rules
that permanently ban skaters from competitions such as the Winter Olympics and
the ISU World and European Championships if they take part in events not organised
or promoted by the ISU. The Commissioner for Competition, Margrethe Vestager, stated that the Commission "will
investigate if such rules are being abused to enforce a monopoly over the
organisation of sporting events or otherwise restrict competition. Athletes can
only compete at the highest level for a limited number of years, so there must
be good reasons for preventing them to take part in events."
the case originates from legal advice provided by the ASSER International
Sports Law Centre, we thought it would be helpful to provide some
clarifications on the background of the case and the main legal issues at
Wil is working as a lawyer since 1980. He
started his legal career at Rechtshulp Rotterdam. Later on he worked for the
Dutch national trade union FNV and law firm Varrolaan Advocaten. Currently he
is participating in the Labour Law Section of lawfirm MHZ-advocaten in Schiedam
in the Netherlands. He is also a member of a joint committee advising the government
in labour issues.
Since 1991 he is dealing with the labour issues
of the trade union for professional football players VVCS and cyclists’ union
VVBW. Since 2002, he works for FIFPro, the worldwide union for professional
football players based in Hoofddorp in the Netherlands. He is involved in many
international football cases and provides legal support for FIFPro members all
over the world. Wil was also involved in the FIFPro Black Book campaign on
match fixing and corruption in Eastern Europe. More...
Star Lawyer Jean-Louis Dupont is almost
a monopolist as far as high profile EU law and football cases are concerned.
This year, besides a mediatised challenge against UEFA’s FFP regulations, he
is going after FIFA’s TPO ban on behalf of the Spanish and
in front of the EU Commission, but also before the Brussels First Instance
Court defending the infamous Malta-based football
investment firm Doyen Sport. FIFA and UEFA’s archenemy,
probably electrified by the 20 years of the Bosman ruling, is emphatically trying to
reproduce his world-famous legal prowess. Despite a first spark at a success in
the FFP case against UEFA with the Court of first instance of Brussels sending
a preliminary reference to the Court of Justice of the EU (CJEU), this has
proven to be a mirage as the CJEU refused, as foretold, to answer the questions of the Brussels Court,
while the provisory measures ordered by the judge have been suspended due to
UEFA’s appeal. But, there was still hope, the case against FIFA’s TPO ban, also
involving UEFA and the Belgium federation, was pending in front of the same
Brussels Court of First Instance, which had proven to be very willing to block UEFA’s
FFP regulations. Yet, the final ruling is another disappointment for Dupont
(and good news for FIFA). The Court refused to give way to Doyen’s
demands for provisional measures and a preliminary reference. The likelihood of
a timely Bosman bis repetita is
fading away. Fortunately, we got hold of the judgment of the Brussels court and
it is certainly of interest to all those eagerly awaiting to know whether
FIFA’s TPO ban will be deemed compatible or not with EU law. More...
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)
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,
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)  cannot
but invitingly evoke the spirit of 1995.
One of the aforementioned cases that also stands out
pertains to the injunction decision 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) for
being incompatible with Articles 101 and 102 TFEU.
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. More...
May 2015, the Brussels Court of First Instance delivered its highly anticipated
judgment on the challenge brought by football players’ agent Daniel Striani (and
others) against UEFA’s Club Licensing and Financial Fair Play Regulations
(FFP). In media reports,
the judgment was generally portrayed as a significant initial victory for the
opponents of FFP. The Brussels Court not only made a reference for a
preliminary ruling to the European Court of Justice (CJEU) but also imposed an
interim order blocking UEFA from implementing the second phase of the FFP that
involves reducing the permitted deficit for clubs.
careful reading of the judgment, however, challenges the widespread expectation
that the CJEU will now pronounce itself on the compatibility of the FFP with EU
Editor's note: This is a short introduction written for the special Issue of the Maastricht Journal of European and Comparative Law celebrating the 20 years of the Bosman ruling and dedicated to the new frontiers of EU law and Sport (the articles are available here). For those willing to gain a deeper insight into the content of the Issue we organize (in collaboration with Maastricht University and the Maastricht Journal) a launching event with many of the authors in Brussels tomorrow (More info here).More...
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
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. More...
On 1 April 2015, the new FIFA Regulations on
Working with Intermediaries (hereinafter referred as the Regulations) came into
force. These Regulations introduced a number of changes as regards the division
of competences between FIFA and its members, the national associations. A particularly
interesting issue from an EU competition law perspective is the amended Article 7 of the Regulations. Under paragraph 3, which regulates
the rules on payments to intermediaries (also previously referred to as ‘agents’), it is recommended that the
total amount of remuneration per transaction due to intermediaries either being
engaged to act on a player’s or club’s behalf should not exceed 3% of the
player’s basic gross income for the entire duration of the relevant employment
contract. In the case of transactions due to intermediaries who have been
engaged to act on a club’s behalf in order to conclude a transfer agreement, the
total amount of remuneration is recommended to not exceed 3% of the eventual
transfer fee paid in relation to the relevant transfer of the player.More...