Introduction: FIFA’s TPO ban and its compatibility with EU competition law.
Day 1: FIFA must regulate TPO, not ban it.
Day 3: The Impact of the TPO Ban on South American Football.
Day 4: Third Party Investment from a UK Perspective.
Day 5: Why FIFA's TPO ban is justified.
Editor’s note: Raffaele
Poli is a human geographer. Since 2002, he has studied the labour and transfer
markets of football players. Within the context of his PhD thesis
on the transfer networks of African footballers, he set up the CIES Football Observatory based
at the International Centre for Sports Studies (CIES) located in Neuchâtel,
Switzerland. Since 2005, this research group
develops original research in the area of football from a multidisciplinary
perspective combining quantitative and qualitative methods. Raffaele was also involved in a recent study on TPO providing FIFA with more background information on its functioning and regulation (the executive summary is available here).
This is the third blog of our Symposium
on FIFA’s TPO ban, it is meant to provide an interdisciplinary view on the
question. Therefore, it will venture beyond the purely legal aspects of the ban
to introduce its social, political and economical context and the related
challenges it faces. More...
The selling of media rights is currently a hot
topic in European football. Last week, the English Premier League cashed in
around 7 billion Euros for the sale of its live domestic media rights (2016 to
2019) – once again a 70 percent increase in comparison to the previous tender. This
means that even the bottom club in the Premier League will receive
approximately €130 million while the champions can expect well over €200
million per season.
The Premier League’s new deal has already led
the President of the Spanish National Professional Football League (LNFP),
Javier Tebas, to express his concerns that this could see La Liga lose its position as one of Europe’s leading leagues. He reiterated
that establishing a centralised sales model in Spain is of utmost importance,
if not long overdue.
Concrete plans to reintroduce a system of joint
selling for the media rights of the Primera
División, Segunda División A, and la
Copa del Rey by means of a Royal Decree were already announced two years
ago. The road has surely been long and bumpy. The draft Decree is finally on
the table, but now it misses political approval. All the parties involved are
blaming each other for the current failure: the LNFP blames the Sport
Governmental Council for Sport (CSD) for not taking the lead; the Spanish Football
Federation (RFEF) is arguing that the Federation and non-professional
football entities should receive more money and that it should have a stronger
say in the matter in accordance with the FIFA Statutes; and there are widespread rumours that the two big earners, Real Madrid and FC Barcelona, are actively
lobbying to prevent the Royal Decree of actually being adopted.
To keep the soap opera drama flowing, on 30 December 2014, FASFE (an
organisation consisting of groups of fans, club members, and minority
shareholders of several Spanish professional football clubs) and the
International Soccer Centre (a movement that aims to obtain more balanced and
transparent football and basketball competitions in Spain) filed an antitrust complaint with the European Commission against the LNFP. They
argue that the current system of individual selling of LNFP media rights, with
unequal shares of revenue widening the gap between clubs, violates EU
Class actions are among the most
powerful legal tools available in the US to enforce competition rules. With more
than 75 years of experience, the American system offers valuable lessons about
the benefits and drawbacks of class actions for private enforcement in
competition law. Once believed of
as only a US phenomenon, class actions are slowly becoming reality in the EU. After the
adoption of the Directive on damages
actions in November 2014, the legislative initiative in collective redress
(which could prescribe a form of class actions) is expected in 2017.
pro-active Member States have already taken steps to introduce class actions in
some fashion, like, for example, Germany.
is a class action? It is a lawsuit that allows
many similar legal
claims with a common interest to be bundled into a single
court action. Class actions facilitate
access to justice for potential claimants, strengthen the negotiating power and
to the efficient administration of justice. This legal mechanism
ensures a possibility to claim cessation of
illegal behavior (injunctive relief) or to claim compensation for damage
suffered (compensatory relief). More...
The Pechstein decision of the
Oberlandesgericht of Munich is “ground-breaking”, “earth-shaking”, “revolutionary”,
name it. It was the outmost duty of a “German-reading” sports lawyer to
translate it as fast as possible in order to make it available for the sports
law community at large (Disclaimer: This is not an official translation and I
am no certified legal translator). Below you will find the rough translation of
the ruling (the full German text is available here), it is omitting solely the parts,
which are of no direct interest to international sports law.
of CAS is in the balance and this ruling should trigger some serious
rethinking of the institutional set-up that underpins it. As you will see, the
ruling is not destructive, the Court is rather favourable to the function of
CAS in the sporting context, but it requires a fundamental institutional
reshuffling. It also offers a fruitful legal strategy to challenge CAS awards
that could be used in front of any national court of the EU as it is based on reasoning
analogically applicable to article 102 TFEU (on abuse of a dominant position),
which is valid across the EU’s territory.
Enjoy the read!
PS: The translation can also be downloaded at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2561297
There has been a lot
of Commission interest in potential state aid to professional football
clubs in various Member States. The huge
sums of money involved are arguably an important factor in this interest and
conversely, is perhaps the reason why state aid in rugby union is not such a
concern. But whilst the sums of money
may pale into comparison to those of professional football, the implications
for the sport are potentially no less serious.
At the end of the
2012/2013 season, Biarritz Olympique (Biarritz) were relegated from the elite
of French Rugby Union, the Top 14 to the Pro D2. By the skin of their teeth, and as a result
of an injection of cash from the local
council (which amounted
to 400,000€), they were spared administrative relegation to the amateur league
below, the Fédérale 1, which would have occurred as a result of the financial
state of the club.More...
The year 2015 promises to be crucial, and possibly revolutionary, for
State aid in football. The European Commission is taking its time in concluding
its formal investigations into alleged State aid granted to five Dutch clubs
and several Spanish clubs, including Valencia CF and Real Madrid, but the final decisions are due for 2015.
A few months ago, the Commission also received a set of fresh State aid complaints originating from the EU’s newest Member State
Croatia. The complaints were launched by a group of minority shareholders of
the Croatian football club Hajduk Split, who call themselves Naš Hajduk. According to Naš Hajduk, Hajduk Split’s eternal rival, GNK Dinamo
Zagreb, has received more than 30 million Euros in unlawful aid by the city of
Zagreb since 2006.More...
Editor's note (13 July 2015): We (Ben Van Rompuy and I) have just published on SSRN an article on the Pechstein ruling of the OLG. It is available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2621983. Feel free to download it and to share any feedback with us!
On 15 January 2015, the earth must
have been shaking under the offices of the Court of Arbitration for Sport (CAS)
in Lausanne when the Oberlandesgericht München announced its decision in the
Pechstein case. If not entirely unpredictable, the decision went very far
(further than the first instance) in eroding the legal foundations on which
sports arbitration rests. It is improbable (though not impossible) that the
highest German civil court, the Bundesgerichtshof (BGH), which will most likely
be called to pronounce itself in the matter, will entirely dismiss the
reasoning of the Oberlandesgericht. This blogpost is a first examination of the
legal arguments used (Disclaimer: it is based only on the official press release, the full text of the ruling will be published in
the coming months).More...
1. Antitrust/Competition Law and Sport
G Basnier, ‘Sports and competition law: the case of the salary
cap in New Zealand rugby union’, (2014) 14 The
International Sports Law Journal 3-4, p.155
R Craven, ‘Football and State aid: too important to fail?’ (2014) 14 The International Sports Law Journal 3-4, p.205
R Craven, ‘State Aid and Sports Stadiums: EU Sports Policy or
Deference to Professional Football’ (2014) 35 European Competition Law Review Issue 9,
2. Intellectual Property Rights in Sports law /
Betting rights/ Spectators’ rights/ Sponsorship Agreements
W T Champion and K
DWillis, Intellectual property law in the
sports and entertainment industries (Santa Barbara, California; Denver, Colorado;
Oxford, England: Praeger 2014)
and F Rizzo, Les contrats de sponsoring
sportif (Lextenso éditions 2014)
On 8 August, U.S. District
Judge Claudia Wilken ruled in favour of former UCLA
basketball player O'Bannon and 19 others, declaring that NCAA's longstanding refusal
to compensate athletes for the use of their name, image and likenesses (NILs) violates
US antitrust laws. In particular, the long-held amateurism
justification promoted by the NCAA was deemed unconvincing.
14 November, the NCAA has appealed the judgment, claiming that federal judge erred in law by
not applying a 1984 Supreme Court ruling. One
week later, the NCAA received support from leading antitrust professors who are challenging the
Judge Wilken’s reasoning in an amicus curiae. They are concerned that the judgment may jeopardize
the proper regulation of college athletics. The professors argued that if
Wilken’s judgment is upheld, it
“would substantially expand the power of the federal courts to alter
organizational rules that serve important social and academic interests…This
approach expands the ‘less restrictive alternative prong’ of the antitrust rule
of reason well beyond any appropriate boundaries and would install the
judiciary as a regulatory agency for collegiate athletics”.
Commission’s competition decisions in the area of sport, which set out broad
principles regarding the interface between sports-related activities and EU
competition law, are widely publicized. As a result of the decentralization of
EU competition law enforcement, however, enforcement activity has largely
shifted to the national level. Since 2004, national competition authorities
(NCAs) and national courts are empowered to fully apply the EU competition
rules on anti-competitive agreements (Article 101 TFEU) and abuse of a dominant
position (Article 102 TFEU).
NCAs and national courts have addressed a series of interesting competition
cases (notably dealing with the regulatory aspects of sport) during the last
ten years, the academic literature has largely overlooked these developments.
This is unfortunate since all stakeholders (sports organisations, clubs,
practitioners, etc.) increasingly need to learn from pressing issues arising in
national cases and enforcement decisions. In a series of blog posts we will
explore these unknown territories of the application of EU competition law to
In this second installment of this blog series, we discuss a recent
judgment of the regional court (Landgericht) of Dortmund finding that the
International Handball Federation (IHF)’s mandatory release system of players
for matches of national teams without compensation infringes EU and German
competition law. More...