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

Report from the first ISLJ Annual International Sports Law Conference - 26-27 October at the T.M.C. Asser Instituut

Close to 100 participants from 37 different countries attended the first ISLJ Annual International Sports Law Conference that took place on 26-27 October 2017 in The Hague. The two-day programme featured panels on the FIFA transfer system, the labour rights and relations in sport, the protection of human rights in sport, EU law and sport, the Court of Arbitration for Sport, and the world anti-doping system. On top of that, a number of keynote speakers presented their views on contemporary topics and challenges in international sports law. This report provides a brief summary of the conference for both those who could not come and those who participated and would like to relive their time spent at the T.M.C. Asser Institute.More...

International and European Sports Law – Monthly Report – October 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. More...

Multi-Club Ownership in European Football – Part II: The Concept of Decisive Influence in the Red Bull Case – By Tomáš Grell

 

Introduction 

The first part of this two-part blog on multi-club ownership in European football outlined the circumstances leading to the adoption of the initial rule(s) aimed at ensuring the integrity of the UEFA club competitions (Original Rule) and retraced the early existence of such rule(s), focusing primarily on the complaints brought before the Court of Arbitration for Sport and the European Commission by the English company ENIC plc. This second part will, in turn, introduce the relevant rule as it is currently enshrined in Article 5 of the UCL Regulations 2015-18 Cycle, 2017/18 Season (Current Rule). It will then explore how the UEFA Club Financial Control Body (CFCB) interpreted and applied the Current Rule in the Red Bull case, before drawing some concluding remarks.  More...

Multi-Club Ownership in European Football – Part I: General Introduction and the ENIC Saga – 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.

 

Introduction

On 13 September 2017, more than 40,000 people witnessed the successful debut of the football club RasenBallsport Leipzig (RB Leipzig) in the UEFA Champions League (UCL) against AS Monaco. In the eyes of many supporters of the German club, the mere fact of being able to participate in the UEFA's flagship club competition was probably more important than the result of the game itself. This is because, on the pitch, RB Leipzig secured their place in the 2017/18 UCL group stage already on 6 May 2017 after an away win against Hertha Berlin. However, it was not until 16 June 2017 that the UEFA Club Financial Control Body (CFCB) officially allowed RB Leipzig to participate in the 2017/18 UCL alongside its sister club, Austrian giants FC Red Bull Salzburg (RB Salzburg).[1] As is well known, both clubs have (had) ownership links to the beverage company Red Bull GmbH (Red Bull), and therefore it came as no surprise that the idea of two commonly owned clubs participating in the same UCL season raised concerns with respect to the competition's integrity. More...


International and European Sports Law – Monthly Report – September 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 

2024 and 2028 Olympic Games to be held in Paris and Los Angeles respectively

On 13 September 2017, the Session of the International Olympic Committee (IOC) held in Lima, Peru, elected Paris and Los Angeles as host cities of the 2024 and 2028 Olympic Games respectively. On this occasion, the IOC President Thomas Bach said that ''this historic double allocation is a 'win-win-win' situation for the city of Paris, the city of Los Angeles and the IOC''. The idea of a tripartite agreement whereby two editions of the Olympic Games would be awarded at the same time was presented by a working group of the IOC Vice-Presidents established in March 2017. Both Paris and Los Angeles have pledged to make the Olympic Games cost-efficient, in particular through the use of a record-breaking number of existing and temporary facilities. In addition to economic aspects, it will be worthwhile to keep an eye on how both cities will address human rights and other similar concerns that may arise in the run-up to the Olympic Games. More...

The limits to multiple representation by football intermediaries under FIFA rules and Swiss Law - By Josep F. Vandellos Alamilla

Editor’s note: Josep F. Vandellos Alamilla is an international sports lawyer and academic based in Valencia (Spain) and a member of the Editorial Board of the publication Football Legal. Since 2017 he is the Director of  the Global Master in Sports Management and Legal Skills FC Barcelona – ISDE.

I think we would all agree that the reputation of players’ agents, nowadays called intermediaries, has never been a good one for plenty of reasons. But the truth is their presence in the football industry is much needed and probably most of the transfers would never take place if these outcast members of the self-proclaimed football family were not there to ensure a fluid and smooth communication between all parties involved.

For us, sports lawyers, intermediaries are also important clients as they often need our advice to structure the deals in which they take part. One of the most recurrent situations faced by intermediaries and agents operating off-the-radar (i.e. not registered in any football association member of FIFA) is the risk of entering in a so-called multiparty or dual representation and the potential risks associated with such a situation.

The representation of the interests of multiple parties in football intermediation can take place for instance when the agent represents the selling club, the buying club and/or the player in the same transfer, or when the agent is remunerated by multiple parties, and in general when the agent incurs the risk of jeopardizing the trust deposited upon him/her by the principal. The situations are multiple and can manifest in different manners.

This article will briefly outline the regulatory framework regarding multiparty representation applicable to registered intermediaries. It will then focus on provisions of Swiss law and the identification of the limits of dual representation in the light of the CAS jurisprudence and some relevant decisions of the Swiss Federal Tribunal.More...



The Evolution of UEFA’s Financial Fair Play Rules – Part 3: Past reforms and uncertain future. By Christopher Flanagan

Part Two of this series looked at the legal challenges FFP has faced in the five years since the controversial ‘break even’ requirements were incorporated. Those challenges to FFP’s legality have been ineffective in defeating the rules altogether; however, there have been iterative changes during FFP’s lifetime. Those changes are marked by greater procedural sophistication, and a move towards the liberalisation of equity input by owners in certain circumstances. In light of recent statements from UEFA President Aleksander Čeferin, it is possible that the financial regulation of European football will be subject to yet further change. More...

The Evolution of UEFA’s Financial Fair Play Rules – Part 2: The Legal Challenges. By Christopher Flanagan

The first part of this series looked at the legal framework in which FFP sits, concluding that FFP occupied a ‘marginal’ legal position – perhaps legal, perhaps not. Given the significant financial interests in European football – UEFA’s figures suggest aggregate revenue of nearly €17 billion as at clubs’ 2015 accounts – and the close correlation between clubs’ spending on wages and their success on the field,[1] a legal challenge to the legality of FFP’s ‘break even’ requirement (the Break Even Requirement), which restricts a particular means of spending, was perhaps inevitable.

And so it followed.

Challenges to the legality of the Break Even Requirement have been brought by football agent Daniel Striani, through various organs of justice of the European Union and through the Belgian courts; and by Galatasaray in the Court of Arbitration for Sport. As an interesting footnote, both Striani and Galatasaray were advised by “avocat superstar” Jean-Louis Dupont, the lawyer who acted in several of sports law’s most famous cases, including the seminal Bosman case. Dupont has been a vocal critic of FFP’s legality since its inception. More...





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...

Asser International Sports Law Blog | Blurred Nationalities: The list of the “23” and the eligibility rules at the 2014 FIFA World Cup. A guest Post by Yann Hafner (Université de Neuchâtel)

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

Blurred Nationalities: The list of the “23” and the eligibility rules at the 2014 FIFA World Cup. A guest Post by Yann Hafner (Université de Neuchâtel)

In 2009, Sepp Blatter expressed his concerns that half of the players participating in the 2014 FIFA World Cup would be Brazilians naturalized by other countries. The Official list of Players released a few weeks ago tends to prove him wrong[1]. However, some players have changed their eligibility in the past and will even be playing against their own country of origin[2]. This post aims at explaining the key legal aspects in changes of national affiliation and to discuss the regulations pertaining to the constitution of national sides in general[3].

The 32 national associations engaged in the final competition are bound by two sets of rules, namely the Regulations of the 2014 World Cup – Brazil and the Regulations Governing the Application of the FIFA Statutes 2013[4]. Their common purpose is to ensure that players have a genuine, close and credible link with the national association which selects them on its roster[5]. This is primarily ensured by the permanent holding of the nationality of the country of the national association in question[6]. It means that nationality must not be pegged to the residence of the player in a certain country[7]. Naturally, sanctions may apply in the case of a breach of these stipulations[8].

The global race to secure talent meeting this nationality requirement is not new. It appears that it has however reached a new level in light of the Diego Costa case since FIFA regulations do not prevent nor address the issue of dual call-up[9]. Many players, such as Manchester United midfield Adnan Janujaz (who actually just elected to play for Belgium a few weeks ago)[10], are placed in a difficult if not untenable position. They are indeed denied the right to refuse an international selection according to FIFA regulations even if they are called-up by both national teams they are affiliated to[11].

The recent Diego Costa saga put this issue under intense media scrutiny[12]. To summarize the issue, the Brazilian-born player had gained very few international appearances in the preliminary phase, playing exclusively friendlies for his country of birth, before acquiring Spanish nationality and moving to represent Spain at the 2014 FIFA World Cup. His choice was portrayed as traitorous by some officials of the Brazilian football federation. In light of this, imagine for one second the headlines of the worldwide press if Diego Costa had defeated Brazil during the knockout phase (28 or 29 June) or the grand final on 13 July 2014, if both teams had qualified for the second phase of the tournament. In the eyes of many, FIFA is responsible for allowing Diego Costa to play against his country of birth. However, this is overlooking that the acquisition of a new nationality and change of national associations are strictly regulated, and that such regulations are actually decided collectively by the members of FIFA. In this respect, it should be mentioned that the Brazilian Football Federation has not made any official move to modify the rules so far[13].


Acquisition of a new nationality

Article 7 of the 2013 FIFA Regulations reads as follow: “Any Player who refers to art. 5 par. 1 to assume a new nationality and who has not played international football in accordance with art. 5 par. 2 shall be eligible to play for the new representative team only if he fulfils one of the following conditions: a) He was born on the territory of the relevant Association; b) His biological mother or biological father was born on the territory of the relevant Association; c) His grandmother or grandfather was born on the territory of the relevant Association; d) He has lived continuously for at least five years after reaching the age of 18 on the territory of the relevant Association”.

Under this article, the acquisition of a new nationality must be distinguished with double nationality. Dual nationals by birth may elect to represent the national association of their choice. This is notably the case of football players born in Northern Ireland for instance[14]. They can play for the Irish Football Association (Northern Ireland) or the Football Association of Ireland (Ireland) as they can claim British and Irish nationalities at birth[15]. Of note, this article applies only to player who have acquired a new nationality before their first international appearance. If this is not the case, they will not be allowed to play for their new country. 

The “granny rule” and the five-year waiting period are the most controversial eligibility regulations. Some authors find indeed that gaining eligibility through a grandparent does not offer a link close enough with the country that the player wishes to represent. Consequently, they advocate that this provision be deleted from the FIFA regulations[16]. The waiting rule was introduced in order to protect national identity and young players[17] and thus, to prevent expedited naturalization of football players. It institutes a de facto prohibition to play at international level before the age of 23 years old when naturalized. This rule was challenged twice since its coming into force in 2008. First, the United Arab Emirates (UAE) Federation and the Australian Federation sought laxer rules in order to include immigrant players in their national side. The FIFA Congress rejected this bid by 153 to 42 votes and the second submission for a change was even withdrawn before being put to vote[18]. This landslide vote shows that FIFA members are favoring the status quo.

 

Change of association

Article 8, paragraph 1, of the 2013 FIFA Regulations reads as follow: “If a Player has more than one nationality, or if a Player acquires a new nationality, or if a Player is eligible to play for several representative teams due to nationality, he may, only once, request to change the Association for which he is eligible to play international matches to the Association of another Country of which he holds nationality, subject to the following conditions: a) He has not played a match (either in full or in part) in an Official Competition at “A” international level for his current Association, and at the time of his first full or partial appearance in an international match in an Official Competition for his current Association, he already had the nationality of the representative team for which he wishes to play; b) He is not permitted to play for his new Association in any competition in which he has already played for his previous Association”

Appropriately seeking to balance the interests involved, this rule serves to monitor change of eligibility and protect the integrity of international competitions while respecting the rights of players to move from one country to another[19]. FIFA did not monitor such changes until the mid-1960s[20]. The world governing body for football introduced at that time the concept of an election of nationality and banned change of national association until 2003.


The FIFA Congress introduced a limited right to change national affiliation but it was first reserved for U-23 players only[21]. In 2008, FIFA extended this right to any player provided that they were dual nationals when they had played for their first country and had not played in an Official Competition at “A” level (i.e. with the first team of a national association)[22]. The chart indicates that the number of requests to change association increased dramatically after 2008. However, it has now stabilized at approximately 30 requests per year. In this respect, the 2014 FIFA World Cup does not seem to have had any effect compared to the 2010 edition combined with the new set of rules.

To date, 237 players have taken the opportunity to change national affiliation and 24 of them are currently participating in the 2014 FIFA World Cup. This represents approximately 10.10% of the 237 players and only 3.26% of the 736 players engaged in the competition. This figure is line with the 2004 Athens Olympics Games for instance where 2.6% of the athletes had change their sporting nationality[23]. It shows that the concerns of Sepp Blatter have not materialized and that the situation is currently under control. Therefore, there is certainly no urgent need to further strengthen the existing regulatory framework.


[1]For a mapping of ancestral and international connections between teams, see: Brazil 2014: Visualising ancestral and international connections between teams (http://codehesive.com/wc-ancestry/).

[2] If he had been fielded, Eduardo Alves da Silva would have been the first to play against his country of birth during the opening match (Brazil – Croatia: 2 – 1).

[3] This post will not address the issue of shared nationalities (art. 6 Regulations Governing the Application of the FIFA Statutes 2013) and change of association due to states authorities nor its process (art. 8 par 2 and 3 Regulations Governing the Application of the FIFA Statutes 2013).

[4] Available at FIFA.com.

[5] McCutcheon, National eligibility rules after Bosman, in: Professional Sport in the EU: Regulation and Re-regulation TMC Asser Press (Den Haag) p. 127.

[6] Article 5 par. 1 Regulations Governing the Application of the FIFA Statutes 2013.

[7] Article 5 par. 1 Regulations Governing the Application of the FIFA Statutes 2013.

[8] Fielding an ineligible player is sanctioned by the mandatory forfeiture of the game and a CHF 6’000 fine (article 8 par. 3 the Regulations of the 2014 World Cup – Brazil and article 31 FIFA Disciplinary Code).

[9] A situation of dual call-up may occur when a player, dual national and who has not elected a sporting nationality, is called by both associations he belongs to. This raises the issue of the right to refuse an international selection.

[10] According to the project Brazil 2014: Visualising ancestral and international connections between teams, Adnan Janujaz is the most connected player.

[11] Article 3 par. 1 – Annexe 1 – Regulations on the Status and Transfer of Players 2012.

[12] See for example: Páez Romero, Regulations: Player eligibility: the Diego Costa case, in: World Sports Law Report, Vol. 12 issue 1 (January 2014); Margaritis, The Dynamics of nationality and football, in: LawInSport, 28 April 2014; Lovatt, Changing nationality in football: the FIFA rules that helped Brazilian Diego Costa play for Spain, in: LawInSport, 4 November 2013.

[13] This is probably due to the fact that the Brazilian Football Federation has lost only one player to the current FIFA regulations. It should be noted that Brazilian players who have never been selected nor have played in friendlies are not cast by FIFA statistics on change of eligibility.

[14] Hafner, La qualification des joueurs en équipe représentative au regard de la réglementation de la FIFA : le cas de la Coupe du monde 2010, n° 35.

[15] Cf. CAS 2010/A/2071 Irish Football Association v/ Football Association of Ireland, Daniel Kearns and FIFA, award of 27 September 2010.

[16] For instance: Hall, Fishing for All-Stars in a Time of Global Free Agency: Understanding FIFA Eligibility Rules and the Impact on the U.S. Men’s National Team, in: Marquette Sports Law Review, Vol. 23 Issue 1, p. 205.

[17] FIFA Congress 2011 – Minutes, p. 64.

[18] FIFA Congress 2011 – Minutes, p. 64 and FIFA Congress 2013, Minutes, p. 85.

[19] McCutcheon, National eligibility rules after Bosman, in: Professional Sport in the EU: Regulation and Re-regulation TMC Asser Press (Den Haag) p. 138. A general prohibition of change eligibility is likely to be deemed illegal. Cf. Oswald, First conclusions of the lecturers, in : La nationalité dans le sport : Enjeux et Problèmes, Editions CIES (Neuchâtel) 2006, p.201.

[20] Hall, Fishing for All-Stars in a Time of Global Free Agency: Understanding FIFA Eligibility Rules and the Impact on the U.S. Men’s National Team, in: Marquette Sports Law Review, Vol. 23 Issue 1, p. 194. Van den Bogaert, Practical Regulation of the Mobility of Sportsmen in the EU post Bosman, p. 348.

[21] Hafner, La qualification des joueurs en équipe représentative au regard de la réglementation de la FIFA : le cas de la Coupe du monde 2010, n° 44.

[22] Hafner, La qualification des joueurs en équipe représentative au regard de la réglementation de la FIFA : le cas de la Coupe du monde 2010, n° 45.

[23] Poli/Gillon, La naturalisation de sportifs et fuite des muscles. Le cas des Jeux Olympiques de 2004, in : La nationalité dans le sport : Enjeux et Problèmes, Editions CIES (Neuchâtel) 2006, p. 59.


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