Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

The Evolution of UEFA’s Financial Fair Play Rules – Part 1: Background and EU Law. By Christopher Flanagan

Editor's Note: Christopher is an editor of the Asser International Sports Law Blog. His research interests cover a spectrum of sports law topics, with a focus on financial regulatory disputes, particularly in professional football, a topic on which he has regularly lectured at the University of the West of England.

 

It is five years since the Union of European Football Associations (UEFA) formally introduced ‘Financial Fair Play’ (FFP) into European football through its Club Licensing and Financial Fair Play Regulations, Edition 2012. With FFP having now been in place for a number of years, we are in a position to analyse its effect, its legality, and how the rules have altered over the last half decade in response to legal challenges and changing policy priorities. This article is split into three parts: The first will look at the background, context and law applicable to FFP; Part Two will look at the legal challenges FFP has faced; and Part Three will look at how FFP has iteratively changed, considering its normative impact, and the future of the rules. More...


International and European Sports Law – Monthly Report – July and August 2017. By Tomáš Grell

 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.

 

The Headlines

ISLJ Annual Conference on International Sports Law 

On 26 and 27 October 2017, the T.M.C. Asser Institute in The Hague will host the first ever ISLJ Annual International Sports Law Conference. This year's edition will feature panels on the Court of Arbitration for Sport, the world anti-doping system, the FIFA transfer regulations, human rights and sports, the labour rights of athletes, and EU law and sport. We will also welcome the following distinguished keynote speakers:

  • Miguel Maduro, former Advocate General at the European Court of Justice and former head of the FIFA's Governance Committee;
  • Michael Beloff QC, English barrister known as one of the 'Godfathers' of sports law;
  • Stephen Weatherill, Professor at Oxford University and a scholarly authority on EU law and sport;
  • Richard McLaren, CAS Arbitrator, sports law scholar and former head of the World Anti-Doping Agency's investigation into the Russian doping scandal.

You will find all the necessary information related to the conference here. Do not forget to register as soon as possible if you want to secure a place on the international sports law pitch! [Please note that we have a limited amount of seats available, which will be attributed on a 'first come, first served' basis.] More...

FIFA's Human Rights Agenda: Is the Game Beautiful Again? – By Tomáš Grell

Editor’s note: Tomáš Grell holds an LL.M. in Public International Law from Leiden University. He contributes to the work of the ASSER International Sports Law Centre as a research intern.

 

Concerns about adverse human rights impacts related to FIFA's activities have intensified ever since its late 2010 decision to award the 2018 and 2022 World Cup to Russia and Qatar respectively. However, until recently, the world's governing body of football had done little to eliminate these concerns, thereby encouraging human rights advocates to exercise their critical eye on FIFA. 

In response to growing criticism, the Extraordinary FIFA Congress, held in February 2016, decided to include an explicit human rights commitment in the revised FIFA Statutes which came into force in April 2016. This commitment is encapsulated in Article 3 which reads as follows: ''FIFA is committed to respecting all internationally recognized human rights and shall strive to promote the protection of these rights''. At around the same time, Professor John Ruggie, the author of the United Nations Guiding Principles on Business and Human Rights ('UN Guiding Principles') presented in his report 25 specific recommendations for FIFA on how to further embed respect for human rights across its global operations. While praising the decision to make a human rights commitment part of the organization's constituent document, Ruggie concluded that ''FIFA does not have yet adequate systems in place enabling it to know and show that it respects human rights in practice''.[1]

With the 2018 World Cup in Russia less than a year away, the time is ripe to look at whether Ruggie's statement about FIFA's inability to respect human rights still holds true today. This blog outlines the most salient human rights risks related to FIFA's activities and offers a general overview of what the world's governing body of football did over the past twelve months to mitigate these risks. Information about FIFA's human rights activities is collected primarily from its Activity Update on Human Rights published alongside FIFA's Human Rights Policy in June 2017. More...

International and European Sports Law – Monthly Report – June 2017. By Tomáš Grell

 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

 
ISLJ Annual Conference on International Sports Law

On 26 and 27 October, the T.M.C. Asser Institute in The Hague will host the first ever ISLJ Annual International Sports Law Conference. This year’s edition will feature panels on the Court of Arbitration for Sport, the world anti-doping system, the FIFA transfer regulations, human rights and sports, the labour rights of athletes, and EU law and sport. More...



Mitigating Circumstances and Strict Liability of Clubs in Match-fixing: Are We Going in the Wrong Direction? An Analysis of the Novara and Pro Patria Cases - By Mario Vigna


Editor’s note: Mario Vigna is a Senior Associate at Coccia De Angelis Vecchio & Associati in Rome, Italy. His main practice areas are sports law, commercial law, and IP law. He also has extensive experience in the Anti-doping field, serving as Deputy-Chief Prosecutor of the Italian NADO and as counsel in domestic and international sports proceedings. He is a frequent speaker at various conferences and workshops. He was not involved in either of the cases discussed below.


I.               Introduction 

Gambling in football is a popular and potentially lucrative activity. It also raises numerous issues. When faced with the issue of gambling, the European Court of Justice (now Court of Justice of the EU) determined that gambling was economic activity per se, notwithstanding gambling’s vulnerability to ethical issues, and thus could not be prohibited outright.[1] With the legality of gambling established, it was left to the proper legislative bodies (national legislatures, national and international federations, etc.) to regulate gambling in order to guard against fraud and corruption. Gambling was not going to disappear; the dangers inherent to gambling would require attention.  More...




Overdue payables in action: Reviewing two years of FIFA jurisprudence on the 12bis procedure – Part 2. By Frans M. de Weger and Frank John Vrolijk.

Editor's Note: Frans M. de Weger is legal counsel for the Federation of Dutch Professional Football Clubs (FBO) and CAS arbitrator. De Weger is author of the book “The Jurisprudence of the FIFA Dispute Resolution Chamber”, 2nd edition, published by T.M.C. Asser Press in 2016. Frank John Vrolijk specialises in Sports, Labour and Company Law and is a former legal trainee of FBO and DRC Database.

This second blog will focus specifically on the sanctions available for FIFA under Article 12bis. It will provide explanatory guidelines covering the sanctions imposed during the period surveyed.


Introduction

The possibility to impose sanctions under article 12bis constitutes one of the pillars of the 12bis procedure. Pursuant to Article 12bis of the RSTP, edition 2016, the DRC and the PSC may impose a sanction on a club if the club is found to have delayed a due payment for more than 30 days without a prima facie contractual basis[1] and the creditor have put the debtor club in default in writing, granting a deadline of at least 10 days.[2] The jurisprudence in relation to Article 12bis also shows that sanctions are imposed ex officio by the DRC or the PSC and not per request of the claimant.More...





Overdue payables in action: Reviewing two years of FIFA jurisprudence on the 12bis procedure – Part 1. By Frans M. de Weger and Frank John Vrolijk.

Editor's Note: Frans M. de Weger is legal counsel for the Federation of Dutch Professional Football Clubs (FBO) and CAS arbitrator. De Weger is author of the book “The Jurisprudence of the FIFA Dispute Resolution Chamber”, 2nd edition, published by T.M.C. Asser Press in 2016. Frank John Vrolijk specialises in Sports, Labour and Company Law and is a former legal trainee of FBO and DRC Database.

In this first blog, we will try to answer some questions raised in relation to the Article 12bis procedure on overdue payables based on the jurisprudence of the DRC and the PSC during the last two years: from 1 April 2015 until 1 April 2017. [1] The awards of the Court of Arbitration for Sport (hereinafter: “the CAS”) in relation to Article 12bis that are published on CAS’s website will also be brought to the reader’s attention. In the second blog, we will focus specifically on the sanctions applied by FIFA under Article 12bis. In addition, explanatory guidelines will be offered covering the sanctions imposed during the period surveyed. A more extensive version of both blogs is pending for publication with the International Sports Law Journal (ISLJ). If necessary, and for a more detailed and extensive analysis at certain points, we will make reference to this more extensive article in the ISLJ. More...

International and European Sports Law – Monthly Report – May 2017. By Tomáš Grell

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 end of governance reforms at FIFA?

The main sports governance story that surfaced in the press (see here and here) during the last month is related to significant personal changes made by the FIFA Council within the organization’s institutional structure. In particular, the FIFA Council dismissed the heads of the investigatory (Mr Cornel Borbély) and adjudicatory (Mr Hans-Joachim Eckert) chambers of the Independent Ethics Committee, as well as the Head (Mr Miguel Maduro) of the Governance and Review Committee. The decision to remove Mr Maduro was taken arguably in response to his active role in barring Mr Vitaly Mutko, a Deputy Prime Minister of Russia, from sitting on the FIFA Council due to an imminent conflict of interests. These events constitute a major setback to governance reforms initiated by the football’s world governing body in 2015. For a more detailed insight into the governance reforms at FIFA, we invite you to read the recent blog written by our senior researcher Mr Antoine Duval. More...

The Olympic Games and Human Rights – Part II: Human Rights Obligations Added to the Host City Contract: Turning Point or Empty Promise? – By Tomáš Grell


This is a follow-up contribution to my previous blog on human rights implications of the Olympic Games published last week. Together with highlighting some of the most serious Olympic Games-related human rights abuses, the first part has outlined the key elements of the Host City Contract ('HCC') as one of the main legal instruments regulating the execution of the Olympic Games. It has also indicated that, in February 2017, the International Olympic Committee ('IOC') revised the 2024 HCC to include, inter alia, explicit human rights obligations. Without questioning the potential significance of inserting human rights obligations to the 2024 HCC, this second part will refer to a number of outstanding issues requiring clarification in order to ensure that these newly-added human rights obligations are translated from paper to actual practice. More...


Asser International Sports Law Blog | A New Chapter for EU Sports Law and European Citizenship Rights? The TopFit Decision - By Thomas Terraz

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

A New Chapter for EU Sports Law and European Citizenship Rights? The TopFit Decision - By Thomas Terraz

Editor’s note: Thomas Terraz is a third year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.

 

1.     Introduction

Christmas has come very early this year for the EU sports law world in the form of the Court of Justice of the European Union’s (CJEU) judgment in TopFit eV, Daniele Biffi v Deutscher Leichtathletikverband eV by exclusively analyzing the case on the basis of European citizenship rights and its application to rules of sports governing bodies that limit their exercise. The case concerned an Italian national, Daniele Biffi, who has been residing in Germany for over 15 years and participates in athletic competitions in the senior category, including the German national championships. In 2016, the Deutscher Leichtathletikverband (DLV), the German Athletics Federation, decided to omit a paragraph in its rules that allowed the participation of EU nationals in national championships on the same footing as German citizens. As a result, participation in the national championship was subject to prior authorization of the organizers of the event, and even if participation was granted, the athlete may only compete outside of classification and may not participate in the final heat of the competition. After having been required to compete out of classification for one national championship and even dismissed from participating in another, Mr. Biffi and TopFit, his athletics club based in Berlin, brought proceedings to a German national court. The national court submitted a request for a preliminary ruling to the CJEU in which it asked essentially whether the rules of the DLV, which may preclude or at least require a non-national to compete outside classification and the final heat, are contrary to Articles 18, 21 and 165 TFEU. Articles 18 and 21 TFEU, read together, preclude discrimination on the basis of nationality against European citizens exercising their free movement. The underlying (massive) question here is whether these provisions can be relied on by an amateur athlete against a private body, the DLV.

Covered in a previous blog, the Advocate General’s (AG) opinion addressed the case from an entirely different angle. Instead of tackling the potentially sensitive questions attached with interpreting the scope of European citizenship rights, the opinion focused on the application of the freedom of establishment because the AG found that participation in the national championships was sufficiently connected to the fact Mr. Biffi was a professional trainer who advertised his achievements in those competitions on his website. Thus, according to the AG, there was a sufficient economic factor to review the case under a market freedom. The CJEU, in its decision, sidelined this approach and took the application of European citizenship rights head on.

The following will dissect the Court’s decision by examining the three central legal moves of the ruling: the general applicability of EU law to amateur sport, the horizontal applicability of European citizenship rights, and justifications and proportionality requirements of access restrictions to national competitions.

 

2.     Applicability of EU Law to Amateur Sport

The CJEU has long made the distinction that sporting activity falls under the scope of EU law “in so far as it constitutes an economic activity.”[1]  Since this ruling in the 1974, treaty revisions, the natural development of the CJEU’s case law, and the increasing economic interests involved in sport has meant that defining the boundaries of EU law’s application to sport has become increasingly difficult. These borderline cases can especially arise when an amateur athlete is barred from a competition, since amateur athletes prima facie do not have an economic interest. For example, the CJEU in the Deliège case explored the extent to which amateur athletes may enjoy market freedoms. The Court ruled that amateur athletes may come within the scope of EU law when the exercise of their sporting activity is sufficiently connected to an economic sphere. In this case, an amateur athlete’s sponsorship contracts and grants were considered to be sufficient economic activity to fall within the scope of the freedom to provide services.[2] Amateur athletes in this case still needed to demonstrate that they had a minimum economic interest that was being affected by a sport rule. Sporting rules lacking economic effect would thus fall outside the scope of the market freedoms.

The TopFit ruling changes this understanding because Mr. Biffi is an amateur athlete and instead of invoking the market freedoms, he decided to rely on his European citizenship rights. These rights derive from being a citizen of the Union and do not require the exercise of an economic activity to be applicable. Indeed, Article 21 TFEU gives the free movement of persons a whole new dimension where an economic interest is no longer a prerequisite to fall under the aegis of the fundamental freedoms.[3] The CJEU confirmed this reality in Baumbast when it declared that the introduction of Union citizenship “has conferred a right, for every citizen, to move and reside freely within the territory of the Member States” regardless of their status as economically active or nonactive.[4] Thus, the Court in TopFit states, in reference to other cases, that one’s exercise of their free movement under their European citizenship, includes the “access to leisure activities” and that Article 21 (1) TFEU also intends “to promote the gradual integration of the EU citizen concerned in the society of the host Member State.”[5] It then extends this reasoning to sport by relying on Article 165 TFEU, the Article which explicitly introduced sport into the Treaties, which “reflects the considerable social importance of sport” and that the practice of an amateur sport helps “to create bonds with the society of the State” or “to consolidate them.”[6] The Court goes even further to unequivocally state that this is the “case with regard to participation in sporting competitions at all levels.”[7] On this basis, it is possible for amateur sportspersons to rely on Article 18 and 21 TFEU.[8] Therefore, the Court has confirmed that EU law, through rights derived from European citizenship, may apply to restrictions of free movement that arise from ‘all levels’ of amateur sport, basically extending the reach of EU law applicability to all types of sports activity on the territory of the EU, provided by public authorities or (as we will see in the next section) by private ones.  

 

3.     Horizontal Applicability of European Citizenship Rights

The next issue that materializes from the ability of amateur sports persons to rely on European citizenship rights is whether these rights may be invoked against private entities, the sport governing bodies. Indeed, sports throughout the European Union is primarily governed by a network of private associations integrated in the famous pyramid of sports. Treaty articles may be relied upon horizontally, meaning against other private parties, by individuals so long as the relevant article is “sufficiently clear, precise and unconditional to be invoked by individuals.”[9] AG Tanchev rightly argued in his opinion that giving Article 21 TFEU horizontal direct effect would be a “significant constitutional step” by being the “first time this century that a provision of the Treaty has been selected to join the small number of provisions having the quality of horizontal direct effect.”[10] In particular, the AG explains that Article 21 TFEU has always been used in relation to disputes arising between an individual and the State and giving horizontal direct effect to Article 21 TFEU could damage legal certainty.[11] 

Regardless, the Court in TopFit was not dissuaded and decided to allow Mr. Biffi to rely on Articles 18 and 21 TFEU against the DLV, a private entity. It explains that the fundamental objectives of the European Union “would be compromised if the abolition of barriers of national origin could be neutralised by obstacles” emanating from private entities.[12] The Court then goes on to elaborate that this principle applies “where a group or organisation exercises a certain power over individuals and is in a position to impose on them conditions which adversely affect the exercise of the fundamental freedoms.”[13] Such an interpretation of the horizontal direct effect of Article 21 TFEU is in line with the ‘relatively’ limited horizontal direct effect already described by De Mol for Article 18 TFEU that “concerns private relations in which one party is weaker than the other party.”[14] Thus, in order for one to invoke Article 21 TFEU horizontally, it is necessary to scrutinize the nature of the relationship and power (im)balance between the parties. The more asymmetrical the relationship, the more likely Article 21 TFEU may be relied on horizontally. On the whole, TopFit confirms that not only may Article 21 TFEU have horizontal direct effect but that perhaps this horizontal effect is not completely unlimited, although it is questionable what the practical consequences of this distinction actually entails.

In the sporting context, however, the message is clear: non-economic sporting activity, such as amateur level sports with zero economic benefits derived from it, falls under the scope of EU law and Article 21 TFEU may be invoked by EU citizens against the private associations which are more often than not ruling sports at a local, regional and national level in the Member States. In short, all (economic and non-economic) sports activity is now subjected to the control of EU law (in particular with regard to anti-discrimination).


4.     Justifications and Proportionality of Access Restrictions to National Competitions

After having found that Mr. Biffi may rely on his European citizenship rights against the DLV, the Court quite readily finds that there has been a restriction to this right. It asserts that the DLV’s rules could result in non-German athletes receiving less investment from their clubs since they may not participate in the national championships in the same manner as German athletes. Consequently, “athletes of other Member States would be less able to integrate themselves” in their club and the wider society of the Member State, and the effects of this “are likely to make amateur sport less attractive for EU citizens.”[15] However, a restriction on a fundamental freedom may be justified if it pursues a legitimate objective and meets the proportionality requirements. The Court goes on to entertain several justifications put forward by the DLV and firmly rejects each as an illegitimate objective. These rejected justifications include: “the argument that the public expects that the national champion of a country will have the nationality of that country”; that the national champion is used to represent his country in the international championship (it was clear that this was not the case for those competing in the senior category); and a “need to adopt the same rules for all age categories” (since it was obvious the DLV had adopted different rules in regards to national selection depending on the age category).[16] In the end, the Court only accepts one justification concerning preventing the participation of non-nationals in the final heat specifically due to the nature of eliminatory heats in some sports. It recognizes that the participation of a non-national may prevent a national from “winning the championship and of hindering the designation of the best nationals.”[17]

Having found a legitimate justification, the Court moves on to considerations of proportionality and reasons that “non-admission of non-nationals to the final must no go beyond what is necessary”, and it recalls the fact that the exclusion of non-nationals is only recent.[18] In other words, the Court essentially finds it rather strange that a sudden rule change became necessary to prevent the participation of non-nationals in the finals and, in light of this, finds the means to be unnecessary and generally disproportionate to the aim sought.

Next, it also recalls that participation of non-nationals was also subject to the authorization of the organizers and had resulted in Mr. Biffi’s complete exclusion in one competition. The Court explains that such an authorization scheme must “be based on objective and non-discriminatory criteria which are known in advance” to be justified. In regard to proportionality, it finds that “total non-admission” of a non-national athlete to the national championship in this circumstance to be disproportionate because due to the DLV’s own admission, there were ways for athletes to compete in the competition, either in the preliminary heats and/or outside classification. None of the DLV’s justifications were able to survive the proportionality requirements.

However, this does not mean that there could never be a legitimate justification that can meet the proportionality requirements. Interestingly, before it examined any of the DLV’s submitted justifications, the Court essentially gave a hint to sport governing bodies wishing to introduce nationality restrictions to the organization of their national competitions. It states that it is legitimate to limit the award of the national title to a national of the relevant Member State because the nationality requirement is an essential feature of holding the title.[19] Thus, it seems the Court would readily accept a restriction to the ability of non-national athletes to actually win the title.


5.     Conclusion

The CJEU took full advantage of the case before it by demonstrating how a lack of an economic interest does not give sport governing bodies full reign to prevent amateur athletes seeking to further integrate themselves in their host Member State’s society through amateur sport. It also signals the Court’s willingness to observe and take into consideration the specific characteristics of the sport and competition structure in question. Additionally, TopFit has opened exciting new judicial avenues for the exercise and enforcement of European citizenship rights against powerful private entities. In particular, sport governing bodies should pay close attention to the TopFit ruling because it further illustrates how they may exercise their regulatory autonomy provided they follow the analytical framework imposed by the CJEU in its control of discriminatory restrictions to market freedoms and European citizenship rights.


[1] Case 36-74 B.N.O. Walrave and L.J.N. Koch v Association Union cycliste internationale, Koninklijke Nederlandsche Wielren Unie and Federación Española Ciclismo [1974] ECR 1974 –01405 para 4.

[2] Joined Cases C-51/96 and C-191/97 Christelle Deliège v Ligue francophone de judo et disciplines associées ASBL, Ligue belge de judo ASBL, Union européenne de judo [2000] ECR I-02549 para 51.

[3] See Section III, Ferdinand Wollenschlager, ‘A New Fundamental Freedom beyond Market Integration: Union Citizenship and its Dynamics for Shifting the Economic Paradigm of European Integration’ [2011] European Law Journal 1.

[4] Case C-413/99 Baumbast and R v Secretary of State for the Home Department [2002] ECR I-08091 para 81 and 83.

[5] Case C-22/18 TopFit e.V. Daniele Biffi v Deutscher Leichtathletikverband e.V. [2019] ECLI:EU:C:2019:497 para 31-32.

[6] ibid para 33-34.

[7] ibid para 34.

[8] ibid para 35.

[9] Case C-438-05 International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti [2007] ECR I-10779 para 66; see also Paul Craig and Gráinne de Búrca, EU Law: Text, Cases, and Materials (6th edn, OUP 2015) 192.

[10] Case C-22/18 TopFit e.V. Daniele Biffi v Deutscher Leichtathletikverband e.V. [2019] ECLI:EU:C:2019:181, Opinion of AG Tanchev, para 56 and 100.

[11] ibid para 101 and 103.

[12] TopFit (n 5) para 38.

[13] ibid para 39.

[14] Mirjam de Mol, ‘The Novel Approach of the CJEU on the Horizontal Direct Effect of the EU Principle of Non-Discrimination: (Unbridled) Expansionism of EU law?’ [2011] Maastricht Journal of European and Comparative Law 109.

[15] TopFit (n 5) para 46-47.

[16] ibid para 54 and 56-57.

[17] ibid para 61.

[18] ibid para 62

[19] ibid para 50.

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