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

Never let a good fiasco go to waste: why and how the governance of European football should be reformed after the demise of the ‘SuperLeague’ - By Stephen Weatherill

Editor’s note: Stephen Weatherill is the Jacques Delors Professor of European Law at Oxford University. He also serves as Deputy Director for European Law in the Institute of European and Comparative Law, and is a Fellow of Somerville College. This blog appeared first on eulawanalysis.blogspot.com and is reproduced here with the agreement of the author. 

 


The crumbling of the ‘SuperLeague’ is a source of joy to many football fans, but the very fact that such an idea could be advanced reveals something troublingly weak about the internal governance of football in Europe – UEFA’s most of all – and about the inadequacies of legal regulation practised by the EU and/ or by states. This note explains why a SuperLeague is difficult to stop under the current pattern of legal regulation and why accordingly reform is required in order to defend the European model of sport with more muscularity. More...



New Digital Masterclass - Mastering the FIFA Transfer System - 29-30 April

The mercato, or transfer window, is for some the most exciting time in the life of a football fan. During this narrow period each summer and winter (for the Europeans), fantastic football teams are made or taken apart. What is less often known, or grasped is that behind the breaking news of the latest move to or from your favourite club lies a complex web of transnational rules, institutions and practices.

Our new intensive two-day Masterclass aims to provide a comprehensive understanding of the FIFA Regulations on the Status and Transfer of Players (RSTP) to a small group of dedicated legal professionals who have the ambition to advise football clubs, represent players or join football governing bodies. The course combines theoretical insights on FIFA’s regulation of the transfer market with practical know-how of the actual operation of the RSTP distilled by hands-on practitioners.

Download the full Programme and register HERE.


The Team:

  • Dr Antoine Duval is a senior researcher at the Asser Institute and the head of the Asser International Sports Law Centre. He has widely published and lectured on transnational sports law, sports arbitration and the interaction between EU law and sport. He is an avid football fan and football player and looks forward to walking you through the intricacies of the FIFA transfer system.

  • Carol Couse is a Partner in the sports team at Mills & Reeve LLP , with extensive in-house and in private practice experience of dealing with sports regulatory matters, whether contentious or non-contentious.  She has advised on many multi million pound international football transfer agreements, playing contracts and image rights agreements on behalf clubs, players and agents.
  • Jacques Blondin is an Italian lawyer, who joined FIFA inundefined 2015, working for the Disciplinary Department. In 2019, he was appointed Head of FIFA TMS (now called FIFA Regulatory Enforcement) where he is responsible, among other things, for ensuring compliance in international transfers within the FIFA Transfer Matching System.
  • Oskar van Maren joined FIFA as a Legal Counsel in December 2017, forming part of the Knowledge Management Hub, a department created in September 2020. Previously, he worked for FIFA’s Players' Status Department. Between April 2014 and March 2017, he worked as a Junior Researcher at the T.M.C. Asser Instituut. He holds an LL.M in European law from Leiden University (The Netherlands).
  • Rhys Lenarduzzi is currently a research intern at the Asser International Sports Law Centre, where he focuses in particular on the transnational regulation of football. Prior to this, he acquired over 5 years of experience as a sports agent and consultant, at times representing over 50 professional athletes around the world from various sports, though predominantly football.




(A)Political Games? Ubiquitous Nationalism and the IOC’s Hypocrisy

Editor’s note: Thomas Terraz is a L.LM. candidate in the European Law programme at Utrecht University and a former intern of the Asser International Sports Law Centre

 

1.     Sport Nationalism is Politics

Despite all efforts, the Olympic Games has been and will be immersed in politics. Attempts to shield the Games from social and political realities are almost sure to miss their mark and potentially risk being disproportionate. Moreover, history has laid bare the shortcomings of the attempts to create a sanitized and impenetrable bubble around the Games. The first blog of this series examined the idea of the Games as a sanitized space and dived into the history of political neutrality within the Olympic Movement to unravel the irony that while the IOC aims to keep the Olympic Games ‘clean’ of any politics within its ‘sacred enclosure’, the IOC and the Games itself are largely enveloped in politics. Politics seep into the cracks of this ‘sanitized’ space through: (1) public protests (and their suppression by authoritarian regimes hosting the Games), (2) athletes who use their public image to take a political stand, (3) the IOC who takes decisions on recognizing national Olympic Committees (NOCs) and awarding the Games to countries,[1] and (4) states that use the Games for geo-political posturing.[2] With this background in mind, the aim now is to illustrate the disparity between the IOC’s stance on political neutrality when it concerns athlete protest versus sport nationalism, which also is a form of politics.

As was mentioned in part one of this series, the very first explicit mention of politics in the Olympic Charter was in its 1946 version and aimed to combat ‘the nationalization of sports for political aims’ by preventing ‘a national exultation of success achieved rather than the realization of the common and harmonious objective which is the essential Olympic law’ (emphasis added). This sentiment was further echoed some years later by Avery Brundage (IOC President (1952-1972)) when he declared: ‘The Games are not, and must not become, a contest between nations, which would be entirely contrary to the spirit of the Olympic Movement and would surely lead to disaster’.[3] Regardless of this vision to prevent sport nationalism engulfing the Games and its codification in the Olympic Charter, the current reality paints quite a different picture. One simply has to look at the mass obsession with medal tables during the Olympic Games and its amplification not only by the media but even by members of the Olympic Movement.[4] This is further exacerbated when the achievements of athletes are used for domestic political gain[5] or when they are used to glorify a nation’s prowess on the global stage or to stir nationalism within a populace[6]. Sport nationalism is politics. Arguably, even the worship of national imagery during the Games from the opening ceremony to the medal ceremonies cannot be depoliticized.[7] In many ways, the IOC has turned a blind eye to the politics rooted in these expressions of sport nationalism and instead has focused its energy to sterilize its Olympic spaces and stifle political expression from athletes. One of the ways the IOC has ignored sport nationalism is through its tacit acceptance of medal tables although they are expressly banned by the Olympic Charter.

At this point, the rules restricting athletes’ political protest and those concerning sport nationalism, particularly in terms of medal tables, will be scrutinized in order to highlight the enforcement gap between the two. More...


“Sport Sex” before the European Court of Human Rights - Caster Semenya v. Switzerland - By Michele Krech

Editor's note: Michele Krech is a JSD Candidate and SSHRC Doctoral Fellow at NYU School of Law. She was retained as a consultant by counsel for Caster Semenya in the proceedings before the Court of Arbitration for Sport discussed above. She also contributed to two reports mentioned in this blog post: the Report of UN High Commissioner for Human Rights,  Intersection of race and gender discrimination in sport (June 2020); and the Human Rights Watch Report, “They’re Chasing Us Away from Sport”: Human Rights Violations in Sex Testing of Elite Women Athletes (December 2020).

This blog was first published by the Völkerrechtsblog and is republished here with authorization. Michele Krech will be joining our next Zoom In webinar on 31 March to discuss the next steps in the Caster Semenya case.



Sport is the field par excellence in which discrimination
against intersex people has been made most visible.

Commissioner for Human Rights, Council of Europe
Issue Paper: Human rights and intersex people (2015)


Olympic and world champion athlete Caster Semenya is asking the European Court of Human Rights (ECtHR) to make sure all women athletes are “allowed to run free, for once and for all”. Semenya brings her application against Switzerland, which has allowed a private sport association and a private sport court to decide – with only the most minimal appellate review by a national judicial authority – what it takes for women, legally and socially identified as such all their lives, to count as women in the context of athletics. I consider how Semenya’s application might bring human rights, sex, and sport into conversation in ways not yet seen in a judicial forum. More...







New Event - Zoom In - Caster Semenya v. International Association of Athletics Federations - 31 March - 16.00-17.30 CET

On Wednesday 31 March 2021 from 16.00-17.30 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret (University of Lausanne), is organising its fourth Zoom In webinar on the recent developments arising from the decision of the Swiss Federal Tribunal (SFT) in the case Caster Semenya v. International Association of Athletics Federations (now World Athletics), delivered on 25 August 2020.


Background
The participation of athletes with biological sex differences to international competitions is one of the most controversial issues in transnational sports law. In particular, since 2019, Caster Semenya, an Olympic champion from South-Africa has been challenging the World Athletics eligibility rules for Athletes with Differences of Sex Development (DSD Regulation), which would currently bar her from accessing international competitions (such as the Tokyo Olympics) unless she accepts to undergo medical treatment aimed at reducing her testosterone levels. In April 2019, the Court of Arbitration for Sport rejected her challenge against the DSD Regulation in a lengthy award. In response, Caster Semenya and the South African Athletics Federation filed an application to set aside the award before the Swiss Federal Tribunal. In August 2020, the SFT released its decision rejecting Semenya’s challenge of the award (for an extensive commentary of the ruling see Marjolaine Viret’s article on the Asser International Sports Law Blog).

Recently, on 25 February 2021, Caster Semenya announced her decision to lodge an application at the European Court of Human Rights (ECtHR) against Switzerland on the basis of this judgment. In this context, we thought it important to organise a Zoom In webinar around the decision of the SFT and the pending case before the ECtHR. Indeed, should the ECtHR accept the case, it will be in a position to provide a definitive assessment of the human rights compatibility of the DSD Regulation. Moreover, this decision could have important consequences on the role played by human rights in the review of the private regulations and decisions of international sports governing bodies.


Speakers


Participation is free, register HERE.

New Video! Zoom In on World Anti-Doping Agency v. Russian Anti-Doping Agency - 25 February

Dear readers,

If you missed it (or wish to re-watch it), the video of our third Zoom In webinar from 25 February on the CAS award in the World Anti-Doping Agency v. Russian Anti-Doping Agency case is available on the YouTube channel of the Asser Institute:



Stay tuned and watch this space, the announcement for the next Zoom In webinar, which will take place on 31 March, is coming soon!

A Reflection on Recent Human Rights Efforts of National Football Associations - By Daniela Heerdt (Tilburg University)

Editor's Note: Daniela Heerdt is a PhD researcher at Tilburg Law School in the Netherlands. Her PhD research deals with the establishment of responsibility and accountability for adverse human rights impacts of mega-sporting events, with a focus on FIFA World Cups and Olympic Games. She published a number of articles on mega-sporting events and human rights, in the International Sports Law Journal, Tilburg Law Review, and the Netherlands Quarterly of Human Rights.

 

In the past couple of years, the Fédération Internationale de Football Association (FIFA) made remarkable steps towards embedding human rights into their practices and policies. These developments have been discussed at length and in detail in this blog and elsewhere, but a short overview at this point is necessary to set the scene. Arguably, most changes were sparked by John Ruggie’s report from 2016, in which he articulated a set of concrete recommendations for FIFA “on what it means for FIFA to embed respect for human rights across its global operations”, using the UN Guiding Principles on Business and Human Rights (UNGPs) as authoritative standard.[i] As a result, in May 2017, FIFA published a human rights policy, in which it commits to respecting human rights in accordance with the UNGPs, identifies its salient human rights risks, and acknowledges the potential adverse impacts it can have on human rights in general and human rights of people belonging to specific groups. In October 2017, it adopted new bidding regulations requiring bidders to develop a human rights strategy and conduct an independent human rights risk assessment as part of their bid. In March 2017, FIFA also created a Human Rights Advisory Board, which regularly evaluated FIFA’s human rights progress and made recommendations on how FIFA should address human rights issues linked to its activities. The mandate of the Advisory Board expired at the end of last year and the future of this body is unknown at this point.

While some of these steps can be directly connected to the recommendations in the Ruggie report, other recommendations have largely been ignored. One example of the latter and focus of this blog post is the issue of embedding human rights at the level of national football associations. It outlines recent steps taken by the German football association “Deutscher Fussball-Bund” (DFB) and the Dutch football association “Koninklijke Nederlandse Voetbalbond” (KNVB) in relation to human rights, and explores to what extent these steps can be regarded as proactive moves by those associations or rather spillover effects from FIFA’s human rights efforts. More...

New Event! Zoom In on World Anti-Doping Agency v. Russian Anti-Doping Agency - 25 February - 16:00-17:30 CET

On Thursday 25 February 2021 from 16.00-17.30 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret (University of Lausanne), organizes a Zoom In webinar on the recent award of the Court of Arbitration for Sport (CAS) in the case World Anti-Doping Agency (WADA) v. Russian Anti-Doping Agency (RUSADA), delivered on 17 December 2020.


Background
In its 186 pages decision the CAS concluded that RUSADA was non-compliant with the World Anti-Doping Code (WADC) in connection with its failure to procure the delivery of the authentic LIMS data (Laboratory Information Management System) and underlying analytical data of the former Moscow Laboratory to WADA. However, the CAS panel did not endorse the entire range of measures sought by WADA to sanction this non-compliance. It also reduced the time frame of their application from four to two years. The award has been subjected to a lot of public attention and criticisms, and some have expressed the view that Russia benefited from a lenient treatment.   

This edition of our Zoom in webinars will focus on assessing the impact of the award on the world anti-doping system. More specifically, we will touch upon the decision’s effect on the capacity of WADA to police institutionalized doping systems put in place by certain states, the ruling’s regard for the rights of athletes (Russian or not), and its effect on the credibility of the world anti-doping system in the eyes of the general public.


To discuss the case with us, we are very happy to welcome the following speakers:


Participation is free, register HERE.

Revisiting FIFA’s Training Compensation and Solidarity Mechanism - Part. 5: Rethinking Redistribution in Football - By Rhys Lenarduzzi

Editor’s note: Rhys Lenarduzzi recently completed a Bachelor of Law (LL.B) and Bachelor of Philosophy (B.Phil.) at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.

 

As one may have gathered from the series thus far, the question that comes out of this endeavour for me, is whether redistribution in football would be better divorced from the transfer system?

In my introductory blog I point towards historical, cultural, and of course the legal explanations as to why redistribution was established, and why it might be held onto despite obvious flaws. In my second blog, I point out how the training compensation and solidarity mechanisms work in practice through an African case study, as well as the hindrance caused and the Eurocentricity of the regulations. The key take-away from my third blog on the non-application of training compensation in women’s football might be that training compensation should apply to both men’s and women’s football, or neither. The sweeping generalisation that men’s and women’s football are different as justification for the non-application to the women’s game is not palatable, given inter alia the difference between the richest and poorest clubs in men’s football. Nor is it palatable that the training compensation mechanism is justified in men’s football to incentivise training, yet not in women’s football.

In the fourth blog of this series, I raise concerns that the establishment of the Clearing House prolongs the arrival of a preferable alternative system. The feature of this final blog is to consider alternatives to the current systems. This endeavour is manifestly two-fold; firstly, are there alternatives? Secondly, are they better?  More...


Revisiting FIFA’s Training Compensation and Solidarity Mechanism - Part. 4: The New FIFA Clearing House – An improvement to FIFA’s training compensation and solidarity mechanisms? - By Rhys Lenarduzzi

Editor’s note: Rhys Lenarduzzi recently completed a Bachelor of Law (LL.B) and a Bachelor of Philosophy (B.Phil.) at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.

In September 2018, the Football Stakeholders Committee endorsed the idea of a Clearing House that was subsequently approved in October of the same year by the FIFA Council. A tender process commenced in July 2019 for bidders to propose jurisdiction, operation and establishment. Whilst many questions go unanswered, it is clear that the Clearing House will be aimed at closing the significant gap between what is owed and what is actually paid, in respect to training compensation and solidarity payments. The Clearing House will have other functions, perhaps in regard to agents’ fees and other transfer related business, though those other operations are for another blog. It will hence act as an intermediary of sorts, receiving funds from a signing and therefore owing club (“new” club) and then moving that money on to training clubs. Whilst separate to FIFA, to what extent is unclear.

I have landed at the position of it being important to include a section in this blog series on the soon to commence Clearing House, given it appears to be FIFA’s (perhaps main) attempt to improve the training compensation and solidarity mechanisms. As will be expanded upon below, I fear it will create more issues than it will solve. Perhaps one should remain patient and optimistic until it is in operation, and one should be charitable in that there will undoubtedly be teething problems. However, it is of course not just the function of the Clearing House that is of interest, but also what moving forward with the project of the Clearing House represents and leaves unaddressed, namely, the issues I have identified in this blog series. More...

Asser International Sports Law Blog | Case note: TAS 2016/A/4474 Michel Platini c. Fédération Internationale de Football Association. By Marine Montejo

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

Case note: TAS 2016/A/4474 Michel Platini c. Fédération Internationale de Football Association. By Marine Montejo

Editor's note: Marine Montejo is a graduate from the College of Europe in Bruges and is currently an intern at the ASSER International Sports Law Centre.

On 3 June 2015, Sepp Blatter resigned as President of FIFA after another corruption scandal inside the world’s football governing body was brought to light by the American authorities supported by the Swiss prosecutor office. Two months after Michel Platini announced he would be a candidate for the next FIFA Presidential election, on 25 September 2015, the Swiss prosecutor opened an investigation against S. Blatter on an alleged disloyal payment he authorised to M. Platini. On 8 October 2015, the FIFA Ethics Committee announced both of them were provisionally suspended upon their hearings, a suspension that was later confirmed by CAS. In the end, M. Platini was sanctioned with an eight years ban from all football activities, later reduced to a six years ban by FIFA Appeal Commission on 24 February 2016. In the meantime, he withdrew his candidacy to become the next FIFA President. On 9 May 2016, after M. Platini appealed this sanction, the CAS confirmed the suspension but reduced it to four years, leading to his resignation from the UEFA presidency and the announcement of his intention to challenge the CAS award in front of the Swiss Federal Tribunal.

On 19 September, the CAS finally published the full text of the award in the dispute between M. Platini and FIFA. The award is in French as M. Platini requested that the procedure be conducted in that language. You will find below a summary of the ‘highlights’ of the 63-page decision. 


Facts of the case

The detailed analysis of the facts of the case by CAS is well worth reading as it contains a precise description of the developments giving rise to the dispute. It also describes the alleged work done by M. Platini for FIFA and the related payments received from the organisation that are also investigated by Swiss authorities.

The first meeting between M. Platini (the France 1998 World Cup organising committee co-President at that time) and S. Blatter (the contemporaneous FIFA Secretary General) was held in January 1998 where the latter asked M. Platini to be the next candidate for FIFA’s Presidential election. M. Platini refused the offer. They both met a few months later (no precise date was given in the award – simply “spring 1998”) and agreed that M. Platini would support S. Blatter’s candidature for the FIFA Presidency, forming a “ticket”. In the case of a successful outcome, M. Platini would become either one of FIFA’s directors or sports advisers. During this meeting, they allegedly also discussed the remuneration for M. Platini’s future work for FIFA. The former UEFA President said that he proposed 1 million per year, leaving the choice of currency to S. Blatter. During the CAS procedure, M. Platini and S. Blatter stated they had agreed (“oral agreement”) on remuneration of CHF 1 million for M. Platini’s sports or technical advisory services, which is roughly €900,000. Jacques Lambert (the former France 1998 World Cup organising committee chief executive) said before the CAS Panel that M. Platini had told him about that oral agreement, but also acknowledged that no other person was physically present during the meeting to confirm it. 

In the award, it is noted that M. Platini participated in the campaign in an informal manner and that M. Blatter, shortly after his election, publicly announced that he would be his “Foreign Affairs Minister”. As such, the exact position of M. Platini remained uncertain at that time. With regard to these findings, the award relied on former UEFA Secretary General Gerhard Aigner’s testimony during FIFA’s internal procedure. An internal note written by Mr. Aigner, dated 19 September 1998, questioned M. Platini’s future role at FIFA and the rumours circulating about his desire to be based in Paris; it also speculated that this seemed inappropriate for the position of FIFA sports director. He likewise questioned the CHF 1 million salary. This note was given to the members of the UEFA Executive Committee Board (meeting on 12 November 1998) but no official document was received by UEFA confirming M. Platini’s salary. More importantly, the note was added to a set of documents collected for a meeting between the UEFA President (and Secretary General) and individuals from FIFA’s Executive Committee. This meeting aimed to prepare for FIFA’s Executive Committee meeting (3 and 4 December 1998), but there is no certainty that the document was actually discussed during the meeting of 3 December. Amongst these documents, another, dated 29 November 1998 and addressed only to the European members of FIFA Executive Committee, reported once again the rumours surrounding M. Platini’s future job, this time referring to his role as “the head of a development programme” or as a “personal political advisor”. In a nutshell, by the end of 1998 there was no official announcement by FIFA on M. Platini’s position and remuneration except rumours.

M. Platini’s official functions for FIFA started on 1 January 1999 but, in reality, he had commenced work for FIFA in the second part of 1998. In August 1999, M. Platini asked S. Blatter to formalise their contract (“written contract”). This was signed by M. Platini and S. Blatter (as a representative of FIFA) on 25 August 1999. This contract is the first official document where M. Platini’s role is defined as the FIFA Presidential advisor on international football issues (“la [FIFA] conseiller et l’assister, en particulier son Président, pour toutes les questions relatives au football au niveau international”). A salary of CHF 300,000 is written by hand in the document and, in the annex, daily allowances in and outside Europe are also mentioned. S. Blatter and M. Platini said that they were aware of FIFA’s financial difficulties at that time and had agreed, without formally stating the amounts and conditions for payment, that the remaining money would be paid later. M. Platini worked from his office in Paris with two other persons, and all of their expenses paid by FIFA. With S. Blatter’s authorisation, M. Platini also saw the rights from his so-called benefit plan extended. The plan was set up in 2005 for members of FIFA’s Executive Committee and remained operational for more than eight years after they left. M. Platini’s rights were exceptionally extended to the years he was the FIFA Presidential advisor; thus, it also covered 1998 to 2002 when he resigned and became a full member of FIFA’s Executive Committee.

In 2010, M. Platini sought the payment of the full amount he was due in conformity with the oral agreement. He explained that FIFA was financially stable and, notably, that its executives’ salaries had been raised substantially. An invoice was sent to FIFA that requested payment of the balance for the four years, amounting to CHF 2,000,000. The CAS Panel raised an important query at that point surrounding the amount claimed – namely, for a salary of CHF 1,000,000 per year over a period of 4 years, the Panel suggested that the amount claimed ought to have been CHF 2,800,000. M. Platini waved away the divergence by saying that he thought he received CHF 500,000 p.a. from FIFA and not only CHF 300,000. However, he had previously stated that he mentioned to S. Blatter at the time the written contract was signed that the salary was less than the one they had previously agreed to, so he should have known how much he was paid. S. Blatter explained that he did not check the accuracy of the invoice and authorised the payment. The payment was included in FIFA’s 2010 account which was approved during FIFA’s Finance Commission meeting of 2 March 2011, to which M. Platini attended as the UEFA representative. During the Swiss investigation, M. Angel Villar Llona, UEFA’s Vice-President, stated that M. Julio Grondona, President of the FIFA Finance Commission at the time, told him about the payment owed to M. Platini because the full amount could not be written down for political reasons. The payment was made on 19 November 2012.

The CAS award then discussed the presidential atmosphere around FIFA and the opening of the Swiss investigation as well as the procedure before FIFA against M. Platini. As a reminder, let’s recall that the former UEFA President was first sentenced to an eight year ban by the Adjudicatory Chamber of the FIFA Ethics Committee for several breaches of the FIFA Code of Ethics (“CEF”). This sanction was later reduced to a six year suspension by the FIFA Appeal Committee.


Substance of the case

The CAS Panel first rejected the alleged procedural wrongs raised by M. Platini’s defence after the disciplinary proceedings before FIFA. The arbitrators recalled that the Panel shall have the full power to review the facts and the law.[1] As such the appeal cures any procedural breaches that might have occurred earlier. The arbitrators also spent some time on the legal debate around the notion of proof. This discussion concerned whether FIFA needed to prove that M. Platini violated the CEF as the payment he received was without any basis and that M. Platini bears the burden to prove that such grounds existed.

- Concerning the violation of article 20 CEF (“Offering and accepting gifts and other benefits”), the FIFA Appeal Committee decision concluded that M. Platini received a CHF 2,000,000 payment in 2011 that could not be based on a contractual agreement. Consequently, this payment was said to be undue and constituted an infringement of article 20 CEF. The CAS Panel likewise came to the conclusion that there wasn’t sufficient proof to establish the existence of an oral agreement. As a consequence, the amount was paid pursuant to a non-existent legal obligation, which constituted a breach of article 20 CEF. The CAS Panel even went a step further and found that the extension of the benefit plan was also a breach of that same provision.

First, with regard to the oral agreement, the CAS award highlights that there is no direct or contemporaneous proof that such an agreement was made.[2] The only and closest element of proof the CAS Panel could find is the written contract of August 1999, which establishes the CHF 300,000 salary for M. Platini as FIFA advisor. The arbitrators also stated that this contract constitutes unambiguous proof that there was not, unless otherwise proven, another contract that stipulated a CHF 1,000,000 salary.[3] As such, the CAS Panel ruled out M. Lambert’s testimony as it is indirect and cannot constitute proof that such an agreement was legally concluded. Moreover, the Panel noted that he had first mentioned this agreement in 2015. It also did the same with the two notes coming from UEFA and M. Villar Llona’s testimony, finding that they were only proof that negotiations were ongoing at the time for M. Platini to become an advisor at FIFA; they could not constitute an actual official confirmation of the alleged remuneration. Furthermore, the CAS Panel[4] put forward that M. Blatter, during his audition before CAS, said that the oral contract was a “gentlemen’s agreement” and, as such, not legally binding. Additionally, he stated that he was not sure he had the sole competence at the time, as FIFA’s Secretary General, to negotiate such an agreement. The CAS Panel then drew the conclusion that at no point was a clear commitment given by M. Blatter regarding the alleged remuneration. The Panel also considered that the fact that FIFA paid M. Platini is not a proof that the oral agreement existed. It highlights Blatter’s “centralised and old fashioned” [5] management and concluded that the other executives at FIFA did not have any option other than to execute the orders, namely the payment of M. Platini’s bill.

Subsequently, the CAS moved to apply Swiss national law (article 55 of the Swiss Civil Code). M. Platini said that M. Blatter acted on behalf of FIFA. The Panel firmly disagreed with him: firstly, by saying that M. Platini had not acted in good faith as he knew the written contract did not disclose the full amount he supposedly was due after the oral agreement; and, secondly, the Panel discussed the possible abuse of power by M. Blatter as he supposedly gave authorisation for remuneration that was even higher than his own and the Secretary General’s, concluding that he probably diverged from the normal course of business[6] and, as such, could not have represented FIFA’s will. As a consequence, the only valid agreement was the written contract of August 1999. Furthermore, the arbitrators could not find any proof of the alleged deferment of the final amount payable in that oral agreement and held that the only remuneration M. Platini was due was the one in the written contract. The CAS Panel was even more severe with M. Platini, of whom it found was not an “athlete without experience” but an “experienced manager in football” who should have known the importance of such a contract; this tended to demonstrate that there wasn’t any oral agreement.[7] The CAS Panel insisted that M. Platini’s claim that he waited until 2010 to ask for the full payment because of FIFA’s bad financial situation was contradicted by the facts. Moreover, M. Platini’s claims that FIFA’s executives received bonuses without justification meant that he did not act in the interest of FIFA but only in his own.[8] Finally, concerning the fact that M. Platini allegedly miscalculated the rest of his salary (CHF 500,000 per year instead of CHF 700,000) the Panel was, to say the least, not convinced by his explanation and concluded that both incoherencies on the amount and on the date of the invoice contradict M. Platini’s position.

Finally, regarding the extension of the benefit plan, the CAS Panel was straightforward by finding that M. Platini was not entitled to it during his years as FIFA’s Presidential advisor because this plan is only for members of the Executive Committee. This extension only occurred due to S. Blatter’s decision.[9] Even though no payment has been made yet as a result of this plan, the extension was also held to be a breach of article 20 CEF. 

- With regard to the violation of article 19 CEF (“Conflicts of interest”), the FIFA Appeal Committee decision concluded that M. Platini was in a situation of conflict of interest when he signed M. Blatter’s statement of support in May 2011 after he received the contested payment. He also participated in a meeting of FIFA’s Finance Commission without notifying the organisers that he was personally affected by the payment inserted into the agenda of the meeting.

On the topic of M. Blatter’s statement of support, the CAS Panel outlined that the declaration was signed by M. Platini as UEFA President and not as a FIFA official. As a consequence, article 19 CEF cannot apply in that case. However, the CAS Panel was, once again, severe with M. Platini by stating that, even though article 19 CEF cannot apply in these circumstances, there was nonetheless a conflict of interest in this case, albeit to UEFA’s disadvantage in this instance.[10]

To support his participation at FIFA’s Finance Commission in March 2011, M. Platini argued he had to replace the UEFA executive that fell sick (M. Marios Lefkaritis, UEFA treasurer). The CAS Panel concluded that M. Platini was in a situation of conflict of interest when he took part in the meeting that approved the 2010 annual report containing the CHF 2,000,000 payment he was not entitled to received. Even though the payment did not appear individually on the document, M. Platini should have disclosed during the meeting that he was personally affected. Hence, the CAS Panel stated that M. Platini could not act with integrity, independence and determination as a member of FIFA’s Finance Commission, because he had a personal interest in obfuscating that payment and making sure that FIFA’s 2010 account were adopted .[11] 

- With regard to the violation of articles 13 CEF (“General rules of conduct”) and 15 CEF (“Loyalty”), the CAS Panel did not follow the FIFA Appeal Committee decision. The arbitrators used the lex specialis derogat generali principle through which, if a behaviour falls under a general and a specific rule, only the latter rule will apply. Both provisions were applied because the acts in breach of articles 19 and 20 (specific provisions) and were not separate facts falling under articles 13 and 15 (general provisions). As a consequence, the CAS Panel concluded that there were no breaches of articles 13 and 15, but it did not spare M. Platini – it specifically stated that the Panel didn’t condone M. Platini’s behaviour nor were the former UEFA President’s actions ethical or loyal (§328 and §335). 

- Concerning the sanction. The Panel reduced the sanction to a three year suspension for the breach of article 20 CEF because of a number of mitigating circumstances. These include the added value M. Platini has given over the years to football, his cooperation in the procedure before the Panel and the fact that he is at the end of his career. The CAS Panel also took into account the fact that FIFA already knew about the undue payment in 2011 but did not start an investigation until 2015.[12]

By contrast, the CAS Panel found that the high level positions M. Platini occupied in football constituted an aggravating factor for the sanction. Likewise, the fact that he did not express any regret was also counted against him.[13] He was also sanctioned by a one year suspension for the breach of article 19 CEF which brings the total suspended period to four years (as from 8 October 2015) and a CHF 60,000 fine.


Conclusion

The arbitral award is very detailed and the justifications given by M. Platini, S. Blatter and their lawyers were examined at great length by the arbitrators. The description of the facts and the discussion of the grounds of the decision are precise and meticulous. It is striking how M. Platini’s defence appears to be the one of someone who was not very well informed about his own financial affairs. He extensively said that he was not a man of means and his arguments portrayed him as careless, negligent or even indifferent, which does not sit well with a former UEFA President. The arbitrators are not buying any of it and are severe, to say the least, in their appreciation. In particular, regarding the breach of article 20 CEF for which they highlighted that it was the most serious offense of M. Platini. However, the arbitrators, at the sanctioning stage, found mitigating factors to reduce the sanction that are surprising. Finally, after a third examination of its case, M. Platini’s sanction seems to keep on reducing whereas the offenses identified remained more or less the same.




[1] §223. « … la Formation rappelle qu’en vertu de l’article R57 du Code, le TAS jouit d’un plein pouvoir d’examen en fait et en droit… » §224. « Ainsi, la procédure devant le TAS guérit toutes les violations procédurales qui auraient pu être commises par les instances précédentes. »

[2] §234. « …qu’il n’existe aucune preuve directe et contemporaine de la conclusion dudit accord. »

[3] §235. « … Devant cet élément indiscutable, la Formation examinera ci-dessous si des éléments de preuve supplémentaires pourraient venir appuyer les explications de M. Platini et pourraient renverser la preuve résultant du texte univoque de la Convention écrite. »

[4] §253. « … au vu du style de management centralisateur et à l’ancienne de M. Blatter, les autres intervenants au sein de la FIFA n’avaient que peu de marge de manœuvre face à une instruction de ce dernier… ».

[5] §238 and 239

[6] §257. « … un contrat du type de celui de l’Accord oral dépasserait le cadre des affaires que peut conclure un représentant diligent d’une personne morale ».

[7] §274. « … puisqu’au moment des faits… [M. Platini] n’était pas un jeune athlète sans expérience, mais un ancien footballeur de très haut niveau, ancien sélectionneur de l’Equipe de France et ancien co-Président du comité d’organisation de la Coupe du Monde FIFA en France, c’est-à-dire un dirigeant expérimenté dans le domaine du football, qui devait savoir qu’un contrat de l’importance de celui qu’il prétend avoir conclu devait être couché sur papier… Ceci démontre encore l’invraisemblance de l’Accord oral. »

[8] §276. « … En faisant cette déclaration, M. Platini semble sous-entendre que constatant que d’autres dirigeants avaient obtenu des paiements sans justification particulière, il avait lui aussi tenté de le faire. Ce faisant, il ne démontre pas avoir agi dans l’intérêt de la FIFA, dont il était membre du Comité exécutif, mais uniquement dans son intérêt personnel. »

[9] §293. « … Les courriers de M. Valcke et M. Kattner de 2009 font clairement apparaître que l’inclusion des années 1998 à mi-2002 était inhabituelle et résultait de la seule décision de M. Blatter. »

[10]§304. « … le conflit d’intérêt (qui existait bien, de l’avis de la Formation) … ».

[11] §311. « Il est ainsi évident que M. Platini ne pouvait agir avec intégrité, indépendance et détermination en tant que membre de la Commission des finances, puisqu’il avait un intérêt personnel à cacher l’existence du paiement de CHF 2'000 000 dont il avait bénéficié, afin que les comptes 2010 soient adoptés sans que ce paiement soit évoqué. »

[12] §358. « … Enfin, la Formation prend également en compte le fait que la FIFA n’a débuté l’investigation contre M. Platini qu’en 2015, et de surcroît uniquement après que l’enquête du MPC a débuté, alors qu’elle avait connaissance du paiement concerné en 2011 (même si elle ignorait à ce moment-là le véritable motif du paiement). »

[13] §359. « En revanche, la Formation considère comme facteurs aggravants le fait que M. Platini a exercé des fonctions très élevées tant à la FIFA qu’à l’UEFA et qu’il avait donc un devoir accru de respecter les règles internes de ces organisations. De surcroît, il n’a manifesté aucun repentir.

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