Editor’s note: This short book review will be
published in a different format in the International Sports Law Journal, due to
its timeliness we decided to reproduce it here.
Reforming
FIFA, or Not
Antoine Duval
Book Review: Mark Pieth
(ed.), Reforming
FIFA, Dike Verlag, St. Gallen, 2014, 28.00 CHF, p.178
This
book looks back at the work of the Independence Governance Committee
(IGC). This Committee, constituted in 2011, had as
primary objective to drive a reform process of FIFA initiated by its President
Sepp Blatter. After ordering from the Swiss anti-corruption expert Mark Pieth,
a report
on the state of FIFA’s governance, FIFA decided to mandate him with the leadership
of a consulting body composed of a mix of independent experts and football
insiders, which would be accompanying and supervising the internal reform
process of FIFA. The IGC was officially dissolved
at the end of 2013, after completing its mandate. The book is composed of eight
chapters, written by former members of the IGC, including former chairman Mark
Pieth. In addition to the chapters, it includes the different reports
(available here,
here
and here)
submitted by the IGC to FIFA across the years. In the words of Pieth, this
account is “fascinating because it gives a hands-on, realistic perspective of
the concrete efforts, the achievements and the remaining challenges in the
struggle for the reform of this organization [FIFA], avoiding the usual
glorification or vilification.”[1]
This review will first summarize the core of the account of the FIFA reform
process provided by the book, before critically engaging with the outcome of
the process and outlining the deficiencies that culminated on 29 May 2015 with
the re-election of Sepp Blatter as FIFA president.More...
Introduction
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...
Introduction: FIFA’s TPO ban and its compatibility with EU competition law.
Day 1: FIFA must regulate TPO, not ban it.
Day 2: Third-party entitlement to shares of transfer fees: problems and solutions
Day 3: The Impact of the TPO Ban on South American Football.
Day 4: Third Party Investment from a UK Perspective.
Editor’s note: Finally, the last blog of our
TPO ban Symposium has arrived! Due to unforeseen circumstances, FIFA had to
reconsider presenting its own views on the matter. However, FIFA advised us to
contact Prof. Dr. Christian
Duve to author the eagerly awaited blog on their behalf. Prof. Dr. Christian Duve is a lawyer
and partner with Freshfields Bruckhaus Deringer LLP and an honorary professor
at the University of Heidelberg. He has been a CAS arbitrator until 2014. Thus, as planned, we will conclude
this symposium with a post defending the compatibility of the TPO ban with EU
law. Many thanks to Prof. Dr. Duve for having accepted this last-minute
challenge! More...
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...
Day 1: FIFA must regulate TPO, not ban it.
Day 2: Third-party entitlement to shares of transfer fees: problems and solutions
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.
On
22 December 2014, FIFA officially introduced
an amendment to its Regulations on the Status and Transfers of Players banning third-party ownership of players’
economic rights (TPO) in football. This decision to put a definitive end to the
use of TPO in football is controversial, especially in countries where
TPO is a mainstream financing mechanism for clubs, and has led the Portuguese
and Spanish football leagues to launch a complaint in front of the European
Commission, asking it to find the FIFA ban contrary to EU competition law.
Next week, we will feature a Blog Symposium
discussing the FIFA TPO ban and its compatibility with EU competition law. We
are proud and honoured to welcome contributions from both the complainant (the
Spanish football league, La Liga) and the defendant (FIFA) and three renowned
experts on TPO matters: Daniel Geey ( Competition lawyer at Fieldfisher, aka @FootballLaw), Ariel Reck (lawyer at
Reck Sports law in Argentina, aka @arielreck)
and Raffaele Poli (Social scientist and head of the CIES Football Observatory). The
contributions will focus on different aspects of the functioning of TPO and on
the impact and consequences of the ban. More...
On 21 January 2015, the Court of
arbitration for sport (CAS) rendered its award in the latest avatar of the Mutu case, aka THE sports law case that
keeps on giving (this decision might still be appealed to the Swiss Federal
tribunal and a complaint by Mutu is still pending in front of the European
Court of Human Right). The decision was finally published on the CAS website on
Tuesday. Basically, the core question focuses on the interpretation of Article
14. 3 of the FIFA Regulations on the Status and
Transfer of Players in its 2001 version. More precisely, whether, in case of a dismissal of a player
(Mutu) due to a breach of the contract without just cause by the
player, the new club (Juventus and/or Livorno) bears the duty to pay the
compensation due by the player to his former club (Chelsea). Despite winning maybe
the most high profile case in the history of the CAS, Chelsea has been desperately
hunting for its money since the rendering of the award (as far as the US), but
it is a daunting task. Thus, the English football club had the idea to turn
against Mutu’s first employers after his dismissal in 2005, Juventus and
Livorno, with success in front of the FIFA Dispute Resolution Chamber (DRC),
but as we will see the CAS decided otherwise[1]. More...
It took only days for the de facto immunity of the Court of
Arbitration for Sport (CAS) awards from State court interference to collapse
like a house of cards on the grounds
of the public policy exception mandated under Article V(2)(b) of the New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards . On 15 January 2015, the
Munich Court of Appeals signalled an unprecedented turn in the
longstanding legal dispute between the German speed skater, Claudia Pechstein,
and the International Skating Union (ISU). It refused to recognise a CAS
arbitral award, confirming the validity of a doping ban, on the grounds that it
violated a core principle of German cartel law which forms part of the German public
policy. A few weeks before, namely on 30 December 2014, the Court of Appeal of Bremen held a CAS award, which ordered the German Club, SV Wilhelmshaven, to
pay ‘training compensation’, unenforceable for non-compliance with mandatory
European Union law and, thereby, for violation of German ordre public. More...
Due
to the legitimate excitement over the recent Pechstein
ruling, many have overlooked a previous German decision
rendered in the Wilhelmshaven SV case
(the German press did report on the decision here
and here).
The few academic commentaries (see here
and here)
focused on the fact that the German Court had not recognized the res judicata effect of a CAS award.
Thus, it placed Germany at the spearhead of a mounting rebellion against the legitimacy
of the CAS and the validity of its awards. None of the commentators weighed in
on the substance of the decision, however. Contrary to the Court in Pechstein, the judges decided to evaluate
the compatibility of the FIFA rules on training compensations with the EU free
movement rights. To properly report on the decision and assess the threat it
may constitute for the FIFA training compensation system, we will first
summarize the facts of the case (I), briefly explicate the mode of functioning
of the FIFA training compensation system (II), and finally reconstruct the
reasoning of the Court on the compatibility of the FIFA rules with EU law
(III).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.
The future
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!
Antoine
PS: The translation can also be downloaded at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2561297
More...
In
autumn 2011, the Finnish cross-country skier Juha Lalluka, known as a “lone-wolf” because of his training habit, showed an
adverse analytical finding with regard to human growth hormone (hGH). The timing
was ideal. As the FINADA Supervisory Body in view of the A and B positive
samples initiated disciplinary proceedings against Lalluka for violation of
anti-doping rules, the Veerpalu case was pending before the
CAS. At the athlete’s request, the Supervisory Board postponed the proceedings until
the CAS rendered the award in the Veerpalu
case. Indeed, on 25 March 2013, the CAS
shook the anti-doping order: it cleared Andrus Veerpalu of an anti-doping rule
violation for recombinant hGH (rhGH) on the grounds that the decision limits
set by WADA to define the ratio
beyond which the laboratories should report the presence of rhGH had not proven
scientifically reliable.
The
Veerpalu precedent has become a
rallying flag for athletes suspected of use of hGH and confirmed some concerns raised about the application of the hGH test. Not surprisingly, Sinkewitz and Lallukka followed
the road that Veerpalu paved and sought to overturn their doping ban by
alleging the scientific unreliability of the hGH decisions limits. Without
success, however. With the full text of the CAS award on the Lallukka case released
a few weeks ago[1]
and the new rules of the 2015 WADA Code coming into force, we grasp the opportunity to outline the ambiguous approach of CAS on
the validity of the hGH test. In short: Should the Veerpalu case and its claim that
doping sanctions should rely on scientifically well founded assessments be
considered as a fundamental precedent or as a mere exception? More...