FIFA’s freshly adopted TPO ban entered into
force on 1 May (see our Blog symposium). Though it is difficult to
anticipate to what extent FIFA will be able to enforce the ban, it is likely
that many of the third-party investors will try to have recourse to alternative
solutions to pursue their commercial involvement in the football transfer
market. One potential way to circumvent the FIFA ban is to use the proxy of
what has been coined “bridge transfers”. A bridge transfer occurs when a club
is used as an intermediary bridge in the transfer of a player from one club to
another. The fictitious passage through this club is used to circumscribe, for
example, the payment of training compensation or to whitewash a third-party
ownership by transforming it into a classical employment relationship. This is
a legal construction that has gained currency especially in South American
football, but not only. On 5 May 2015, in the Racing Club v. FIFA case, the Court of Arbitration for Sport (CAS)
rendered its first award involving directly a bridge transfer. As this practice
could become prevalent in the coming years we think that this case deserves a
close look. More...
UEFA announced on 8
May that it had entered into Financial Fair Play settlement agreements with 10 European
football clubs. Together with the four other agreements made in February 2015, this brings the total to 14 FFP
settlements for 2015 and 23 since UEFA adopted modifications in its Procedural
rules and allowed settlements agreements to be made between the Clubs and the Chief
Investigator of the UEFA Club Financial Control Body (CFCB).[1]
In the two years during
which UEFA’s FFP regulations have been truly up and running we have witnessed the
centrality taken by the settlement procedure in their enforcement. It is
extremely rare for a club to be referred to the FFP adjudication chamber. In
fact, only the case regarding Dynamo Moscow has been referred to the adjudication chamber. Thus, having
a close look at the settlement practice of UEFA is crucial to gaining a good
understanding of the functioning of FFP. Hence, this blog offers a detailed
analysis of this year’s settlement agreements and compares them with last year’s settlements. 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...
On 15
April 2014, the Cairo Economic Court (the “Court") issued a seminal
judgment declaring the broadcasting of a football match a sovereign act of State.[1]
Background
In Al-Jazeera
v. the Minister of Culture, Minister of Information, and the Chairman of the
Board of Directors of the Radio and Television Union, a case registered
under 819/5JY, the Al-Jazeera TV Network (the “Plaintiff” or “Al-Jazeera”)
sued the
Egyptian Radio and Television Union (“ERTU” or the “Union”) et
al. (collectively, the “Respondents”) seeking compensation for
material and moral damages amounting to three (3) million USD, in addition to
interest, for their alleged breach of the Plaintiff’s exclusive right to
broadcast a World Cup-qualification match in Egypt. Al-Jazeera obtained such
exclusive right through an agreement it signed with Sportfive, a sports marketing company that had
acquired the
right to broadcast Confederation of African Football (“CAF”) World
Cup-qualification matches.
ERTU
reportedly broadcasted the much-anticipated match between Egypt and Ghana live on
15 October 2013 without obtaining Al-Jazeera’s written approval, in violation
of the Plaintiff’s intellectual property rights.
More...
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.[1]
Some
pro-active Member States have already taken steps to introduce class actions in
some fashion, like, for example, Germany.
What
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
contribute
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.
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...
Introduction
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...