Editor's note: Conor
Talbot is a Solicitor at LK Shields Solicitors in Dublin and an
Associate Researcher at Trinity College Dublin. He can be contacted at
ctalbot@tcd.ie, you can follow him on Twitter at @ConorTalbot and his research is available at
www.ssrn.com/author=1369709. This piece was first published on the humanrights.ie blog.
Sport is an integral part of the culture of almost
every nation and its ability to shape perceptions and influence public opinion
should not be underestimated. The United
Nations has highlighted the potential for using sport in reducing
discrimination and inequality, specifically by empowering girls and women. Research indicates that the benefits of sport include enhancing
health and well-being, fostering empowerment, facilitating social inclusion and
challenging gender norms.
In spite of the possible benefits, the successful
implementation of sport-related initiatives aimed at gender equity involves
many challenges and obstacles. Chief
amongst these is the way that existing social constructs of masculinity and
femininity — or socially accepted ways of expressing what it means to be a man
or woman in a particular socio-cultural context — play a key role in
determining access, levels of participation, and benefits from sport. This contribution explores recent
developments in the interaction between transgender and intersex rights and the
multi-billion dollar industry that the modern Olympic Games has become. Recent reports show that transgender people continue to suffer from the glacial pace of change in social attitudes
and, while there has been progress as part of a long and difficult journey to afford transgender people full legal
recognition through the courts, it seems clear that sport could play an increasingly
important role in helping change or better inform social attitudes.More...
Footballleaks is now operating since nearly half a year and has already provided an
incredible wealth of legal documents both on TPO (and in particular Doyen’s
contractual arrangements) and on the operation of the transfer system in
football (mainly transfer agreements, player contracts and agents contracts).
This constant stream of information is extremely valuable for academic research
to get a better grip on the functioning of the transfer market. It is also
extremely relevant for the shaping of public debates and political decisions on
the regulation of this market. As pointed out on the footballleaks website, it has triggered a series of press
investigations in major European news outlets.
In this blog, I want to come to a
closure on our reporting on Doyen’s TPO deals. In the past months, we have
already dealt with the specific cases of FC Twente and Sporting Lisbon, reviewed Doyen’s TPO deals with Spanish clubs, as well as discussed the compatibility of the TPO ban with EU law. In the Sporting
Lisbon case, Doyen has since earned an
important legal victory in front of the CAS (the ensuing award was just
published by Footballleaks). This victory should not be overstated, however, it
was not unexpected due to the liberal understanding of the freedom of contract
under Swiss law. As such it does not support the necessity of TPO as an
investment practice and does not threaten the legality (especially under EU
law) of FIFA’s ban.
In our previous blogs on Doyen’s
TPO deals we decided to focus only on specific deals, Twente and Sporting
Lisbon, or a specific country (Spain). However, nearly six months after the whole footballleaks project started, we can
now provide a more comprehensive analysis of the TPO deals signed by Doyen.
Though, it is still possible that other, yet unknown, deals would be revealed, I
believe that few of Doyen’s TPO agreements are still hidden. Thanks to footballleaks, we now know how Doyen
operates, we have a precise idea of its turnover, its return on investments and
the pool of clubs with which it signed a TPO agreement. Moreover, we have a
good understanding of the contractual structure used by Doyen in those deals.
This blog will offer a brief synthesis and analysis of this data.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...
This post
offers a basic literature review on publications on international and European
sports law in 2015. It does not have the pretence of being complete (our
readers are encouraged to add references and links in the comments under this
blog), but aims at covering a relatively vast sample of the 2015 academic
publications in the field (we have used the comprehensive catalogue of the Peace
Palace Library as a baseline for this
compilation). When possible we have added hyperlinks to the source.[1]
Have a
good read. More...
2015 was a good year for
international sports law. It started early in January with the Pechstein
ruling, THE
defining sports law case of the year (and probably in years to come) and ended
in an apotheosis with the decisions rendered by the FIFA Ethics
Committee against Blatter and Platini. This blog will walk you through the
important sports law developments of the year and make sure that you did not
miss any. 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 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...
Book Review: Vaitiekunas A (2014) The Court of
Arbitration for Sport : Law-Making and the Question of Independence,
Stämpfli Verlag, Berne, CHF 89,00
The
book under review is the published version of a PhD thesis defended in 2013 by
Andrew Vaitiekunas at Melbourne Law School. A PhD is often taking stock of
legal developments rather than anticipating or triggering them. This was
definitely not the case of this book. Its core subject of interest is the study
of the independence of the Court of Arbitration for Sport (CAS) – an issue that
has risen to prominence with the recent Pechstein ruling of January 2015 of the
Oberlandesgericht München. It is difficult to be timelier indeed. More...
The Pechstein ruling
of the
Oberlandesgericht (OLG) München rocked the sports arbitration world earlier
this year (see our initial commentary of the decision here and a longer version here). The decision has been appealed to the German
Bundesgerichtshof (BGH), the highest German civil court, and the final word on
the matter is not expected before 2016. In any event, the case has the merit of
putting a long-overdue reform of the Court of Arbitration for Sport (CAS) back
on the agenda. The last notable reform of the structure and functioning of the
CAS dates back to 1994, and was already triggered by a court ruling, namely the
famous Gundel case of the Swiss Federal Tribunal
(SFT). Since then, the role of the CAS has shifted and its practical
significance has radically changed (the growth of CAS’s caseload has been exponential). It has become the most visible
arbitration court in Switzerland in terms of the number of awards appealed to
the SFT, but more importantly it deals with all the high-profile disputes that
arise in global sport: think, for instance, of Pistorius, the recent Dutee Chand decision or the upcoming FIFA
elections.More...