Update: On 14 April footballleaks released a series of documents concerning Sporting de Gijón. Therefore, I have updated this blog on 19 April to take into account the new information provided.
Doyen Sports’ TPO (or TPI) model has been touted as a “viable alternative source of finance much needed by the large majority
of football clubs in Europe". These are the
words of Doyen’s CEO, Nélio Lucas, during a debate on (the prohibition of) TPO
held at the European Parliament in Brussels last January. During that same
debate, La Liga’s president, Javier
Tebas, contended that professional football clubs, as private undertakings,
should have the right to obtain funding by private investors to, among other
reasons, “pay off the club’s debts or to compete better”. Indeed, defendants
of the TPO model continuously argue that third party investors, such as Doyen, only
have the clubs’ best interests in mind, being the only ones capable and willing
to prevent professional football clubs from going bankrupt. This claim constitutes
an important argument for the defendants of the TPO model, such as La Liga and La Liga Portuguesa, who have jointly submitted a complaint in front of the
European Commission against FIFA’s ban of the practice.[1]
The eruption of footballleaks provided the essential material necessary to test this claim. It allows
us to better analyse and understand the functioning of third party investment and
the consequences for clubs who use these services. The leaked contracts between
Doyen and, for example, FC Twente, showed that the club’s short term financial
boost came at the expense of its long-term financial stability. If a club is
incapable of transferring players for at least the minimum price set in Doyen’s
contracts, it will find itself in a financially more precarious situation than
before signing the Economic Rights Participation Agreement (ERPA). TPO might
have made FC Twente more competitive in the short run, in the long run it
pushed the club (very) close to bankruptcy.
More than four months after its launch, footballleaks continues to publish documents from the football
world, most notably Doyen’s ERPAs involving Spanish clubs.More...
Editor’s note: This report
compiles all relevant news, events and materials on International and European
Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section
below, feel free to add links to important cases, documents and articles we
might have overlooked.
Marine Montejo is a graduate from the College of
Europe in Bruges and is currently an Intern at the ASSER International Sports
Law Centre.
The Headlines
The Belgian Court of Appeal released its
judgment this month regarding Doyen’s legal battle against the FIFA TPO ban.
The Appeal Court confirmed the first instance decision and ruled out any provisional
measures to block the ban’s implementation (for an in depth review, see
our blog post). More importantly, the Court
reaffirmed that Swiss based sport federations are liable in front of EU Members’
States courts when EU competition law is involved. That means the next
important step for this legal battle is whether or not the European Commission
is going to open a formal proceeding (Doyen
already lodged a complaint) to assess the compatibility,
and more importantly, the proportionality of the TPO ban with EU law. Only a
preliminary ruling by the CJEU could hasten the decision if one of the European
national courts, hearing a case brought by Doyen (France or Belgium), decided
to refer a preliminary question.More...
Since
last year, Doyen Sports, represented by Jean-Louis Dupont, embarked on a legal
crusade against FIFA’s TPO ban. It has lodged a competition law complaint with
the EU Commission and started court proceedings in France and Belgium. In a first
decision on Doyen’s request for provisory measures, the Brussels Court of First
Instance rejected the demands raised by Doyen and already refused to send a
preliminary reference to the CJEU. Doyen, supported by the Belgium club Seraing,
decided to appeal this decision to the Brussels Appeal Court, which rendered
its final ruling on the question on 10 March 2016.[1] The
decision (on file with us) is rather unspectacular and in line with the first
instance judgment. This blog post will rehash the three interesting aspects of
the case.
·
The jurisdiction of the Belgian courts
·
The admissibility of Doyen’s action
·
The conditions for awarding provisory measures More...
Editor’s note: This report compiles all relevant news, events and materials on
International and European Sports Law based on the daily coverage provided on
our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section
below, feel free to add links to important cases, documents and articles we
might have overlooked.
The Headlines
The eagerly awaited FIFA Presidential elections of 26 February provided
for a “new face” at the pinnacle of international football for the first time
since 1998. One could argue whether Infantino is the man capable
of bringing about the reform FIFA so desperately needs or whether he is simply
a younger version of his predecessor Blatter. More...
Editor’s note: Our first innovation for the
year 2016 will be a monthly report compiling relevant news, events and materials
on International and European Sports Law based on the daily coverage provided
on our twitter feed @Sportslaw_asser. You are invited to complete
this survey via the comments section below, feel free to add links to important
cases, documents and articles we might have overlooked.
The Headlines
The world of professional sport has been making
headlines for the wrong reasons in January. Football’s governing body FIFA is
in such a complete governance and corruption mess that one wonders whether a
new President (chosen on 26 February[1])
will solve anything. More recently, however, it is the turn of the athletics
governing body, IAAF, to undergo “the walk of shame”. On 14 January the WADA
Independent Commission released its second report into doping in international
athletics. More...
FIFA’s Third-Party Ownership (TPO)
ban entered into force on the 1 May 2015[1].
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...
In this blog we continue unpacking Doyen’s TPO deals based on the
documents obtained via footballleaks. This time we focus on the battle between Doyen and
Sporting over the Rojo case, which raises different legal issues as the FC
Twente deals dealt with in our first blog.
I.
The context: The free-fall of Sporting
Sporting Lisbon, or Sporting Club de Portugal as the club is officially
known, is a Portuguese club active in 44 different sports. Although the club
has the legal status of Sociedade Anónima
Desportiva, a specific form of public limited company, it also has over
130.000 club members, making it one of the biggest sports clubs in the world.
The professional football branch of Sporting is by far the most
important and famous part of the club, and with its 19 league titles in total,
it is a proud member of the big three cartel, with FC Porto and Benfica,
dominating Portuguese football. Yet, it has not won a league title since 2002. More...
The first part of our “Unpacking Doyen’s TPO deals” blog series concerns
the agreements signed between Doyen Sports and the Dutch football club FC
Twente. In particular we focus on the so-called Economic Rights Participation Agreement (ERPA) of 25 February 2014. Based on the ERPA we will be able to better
assess how TPO works in practice. To do so, however, it is necessary to explore
FC Twente’s rationale behind recourse to third-party funding. Thus, we will
first provide a short introduction to the recent history of the club and its
precarious financial situation. More...
The football world has been buzzing with
Doyen’s name for a few years now. Yet, in practice very little is known about
the way Doyen Sports (the Doyen entity involved in the
football business) operates. The content of the contracts it signs with clubs
was speculative, as they are subjected to strict confidentiality policies.
Nonetheless, Doyen became a political (and public) scapegoat and is widely
perceived as exemplifying the ‘TPOisation’ of football. This mythical status of
Doyen is also entertained by the firm itself, which has multiplied the (until
now failed) legal actions against FIFA’s TPO ban (on the
ban see our blog symposium here) in a bid to attract attention and to publicly
defend its business model. In short, it has become the mysterious flag bearer
of TPO around the world. Thanks to a new anonymous group, inspired by the WikiLeaks
model, we can now better assess how Doyen Sports truly functions. Since 5 November
someone has been publishing different types of documents involving more or less
directly the work of Doyen in football. These documents are all freely
available at http://footballleaks.livejournal.com/. By doing so, the group has given
us (legal scholars not involved directly in the trade) the opportunity to
finally peruse the contractual structure of a TPO deal offered by Doyen and, as
we purport to show in the coming weeks, to embark upon a journey into Doyen’s
TPO-world. 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
Portuguese leagues
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...