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

Book Review: Questioning the (in)dependence of the Court of Arbitration for Sport

Book Review: Vaitiekunas A (2014) The Court of Arbitration for Sport : Law-Making and the Question of Independence, Stämpfli Verlag, Berne, CHF 89,00

The book under review is the published version of a PhD thesis defended in 2013 by Andrew Vaitiekunas at Melbourne Law School. A PhD is often taking stock of legal developments rather than anticipating or triggering them. This was definitely not the case of this book. Its core subject of interest is the study of the independence of the Court of Arbitration for Sport (CAS) – an issue that has risen to prominence with the recent Pechstein ruling of January 2015 of the Oberlandesgericht München. It is difficult to be timelier indeed. More...



The Court of Arbitration for Sport after Pechstein: Reform or Revolution?

The Pechstein ruling of the Oberlandesgericht (OLG) München rocked the sports arbitration world earlier this year (see our initial commentary of the decision here and a longer version here). The decision has been appealed to the German Bundesgerichtshof (BGH), the highest German civil court, and the final word on the matter is not expected before 2016. In any event, the case has the merit of putting a long-overdue reform of the Court of Arbitration for Sport (CAS) back on the agenda. The last notable reform of the structure and functioning of the CAS dates back to 1994, and was already triggered by a court ruling, namely the famous Gundel case of the Swiss Federal Tribunal (SFT). Since then, the role of the CAS has shifted and its practical significance has radically changed (the growth of CAS’s caseload has been exponential). It has become the most visible arbitration court in Switzerland in terms of the number of awards appealed to the SFT, but more importantly it deals with all the high-profile disputes that arise in global sport: think, for instance, of Pistorius, the recent Dutee Chand decision or the upcoming FIFA elections.More...

Sports governance 20 years after Bosman: Back to the future… or not? By Borja García

Editor's note:

Dr Borja García joined the School of Sport, Health and Exercise Sciences at Loughbourough University in January 2009 as a Lecturer in Sport Management and Policy. He holds a PhD in Politics, International Relations and European Studies from Loughborough University (United Kingdom), where he completed his thesis titled ‘The European Union and the Governance of Football: A game of levels and agendas’.

 

In this leafy and relatively mild autumn, we are celebrating two important anniversaries. Recently, we just passed ‘Back to the Future day’, marking the arrival of Marty McFly to 2015. In a few weeks, we will be commemorating the 20th anniversary of the Bosman ruling. Difficult to decide which one of the two is more important. As we move well into the 21st century’s second decade, these two dates should mark a moment to consider innovation. They are perhaps occasions to take stock and reflect how much sport has evolved to reach this new future… or not. More...


The 2006 World Cup Tax Evasion Affair in Germany: A short guide. By Gesa Kuebek

Editor's note:

Gesa Kuebek holds an LLM and graduated from the University of Bologna, Gent and Hamburg as part of the Erasmus Mundus Master Programme in Law and Economics and now work as an intern for the Asser Instituut.


On Monday, 9 November, the German Football Association (DFB) announced in a Press Release the resignation of its head, Wolfgang Niersbach, over the 2006 World Cup Affair. In his statement, Niersbach argued that he had “no knowledge whatsoever” about any “payments flows” and is now being confronted with proceedings in which he was “never involved”. However, he is now forced to draw the “political consequences” from the situation. His resignation occurred against the backdrop of last week’s raid of the DFB’s Frankfurt headquarters and the private homes Niersbach, his predecessor Theo Zwanziger and long-standing DFB general secretary Horst R. Schmidt. The public prosecutor’s office investigates a particularly severe act of tax evasion linked to awarding the 2006 World Cup. The 2006 German “summer fairy-tale” came under pressure in mid-October 2015, after the German magazine “Der Spiegel” shocked Fußballdeutschland by claiming that it had seen concrete evidence proving that a €6.7 million loan, designated by the FIFA for a “cultural programme”, ended up on the account of Adidas CEO Robert-Louis Dreyfuß. The magazine further argued that the money was in fact a secret loan that was paid back to Dreyfuß. Allegedly, the loan was kept off the books intentionally in order to be used as bribes to win the 2006 World Cup bid. The public prosecutor now suspects the DFB of failing to register the payment in tax returns. German FA officials admit that the DFB made a “mistake” but deny all allegations of vote buying. However, the current investigations show that the issues at stakes remain far from clear, leaving many questions regarding the awarding of the 2006 World Cup unanswered.

The present blog post aims to shed a light on the matter by synthetizing what we do know about the 2006 World Cup Affair and by highlighting the legal grounds on which the German authorities investigate the tax evasion. More...




Blog Symposium: Ensuring proportionate sanctions under the 2015 World Anti-Doping Code. By Mike Morgan

Introduction: The new WADA Code 2015
Day 1: The impact of the revised World Anti-Doping Code on the work of National Anti-Doping Agencies
Day 2: The “Athlete Patient” and the 2015 World Anti-Doping Code: Competing Under Medical Treatment
Day 3: Proof of intent (or lack thereof) under the 2015 World Anti-Doping Code

Editor's note
Mike Morgan is the founding partner of Morgan Sports Law LLP. His practice is focused exclusively on the sports sector. He advises on regulatory and disciplinary issues and has particular experience advising on doping and corruption disputes.

Mike acted on behalf of National Olympic Committees at three of the last four Olympic Games and has represented other sports bodies, clubs and high profile athletes in proceedings before the High Court, the FIFA Dispute Resolution Chamber, the American Arbitration Association and the Court of Arbitration for Sport. More...






Blog Symposium: Proof of intent (or lack thereof) under the 2015 World Anti-Doping Code. By Howard L. Jacobs

Introduction: The new WADA Code 2015
Day 1: The impact of the revised World Anti-Doping Code on the work of National Anti-Doping Agencies
Day 2: The “Athlete Patient” and the 2015 World Anti-Doping Code: Competing Under Medical Treatment
Day 4: Ensuring proportionate sanctions under the 2015 World Anti-Doping Code

Editor's note

Howard Jacobs is solo practitioner in the Los Angeles suburb of Westlake Village, California. Mr. Jacobs has been identified by various national newspapers and publications as one of the leading sports lawyers in the world. His law practice focuses on the representation of athletes in all types of disputes, with a particular focus on the defense of athletes charged with doping offenses.Mr. Jacobs has represented numerous professional athletes, Olympic athletes, world record holders,  and amateur athletes in disputes involving doping, endorsements, unauthorized use of name and likeness, salary issues, team selection issues, and other matters.  He is at the forefront of many cutting edge legal issues that affect athletes, winning cases that have set precedents that have benefited the athlete community. More information is available at www.athleteslawyer.com. More...





Blog Symposium: The “Athlete Patient” and the 2015 World Anti-Doping Code: Competing Under Medical Treatment. By Marjolaine Viret and Emily Wisnosky

Introduction: The new WADA Code 2015
Day 1: The impact of the revised World Anti-Doping Code on the work of National Anti-Doping Agencies
Day 3: Proof of intent (or lack thereof) under the 2015 World Anti-Doping Code
Day 4: Ensuring proportionate sanctions under the 2015 World Anti-Doping Code

Editor's Note
Marjolaine Viret: An attorney-at-law at the Geneva bar, specialising in sports and health law. Her doctoral work in anti-doping was awarded a summa cum laude by the University of Fribourg in early 2015. She gained significant experience in sports arbitration as a senior associate in one of Switzerland’s leading law firms, advising clients, including major sports federations, on all aspects of anti-doping. She also holds positions within committees in sports organisations and has been involved in a variety of roles in the implementation of the 2015 WADC. Her book “Evidence in Anti-Doping at the Intersection of Science & Law” is scheduled for publication in 2015.

Emily Wisnosky: An attorney-at-law admitted to the California bar, she currently participates in the WADC 2015 Commentary research project as a doctoral researcher. She also holds an LLM from the University of Geneva in International Dispute Settlement, with a focus on sports arbitration. Before studying law, she worked as a civil engineer. More...





Blog Symposium: The impact of the revised World Anti-Doping Code on the work of National Anti-Doping Agencies. By Herman Ram

Introduction: The new WADA Code 2015
Day 2: The “Athlete Patient” and the 2015 World Anti-Doping Code: Competing Under Medical Treatment
Day 3: Proof of intent (or lack thereof) under the 2015 World Anti-Doping Code
Day 4: Ensuring proportionate sanctions under the 2015 World Anti-Doping Code

Editor's note
Herman Ram is the Chief Executive Officer of the Anti-Doping Authority the Netherlands, which is the National Anti-Doping Organization of the country. He has held this position since 2006. After working twelve years as a librarian, Herman Ram started his career in sport management in 1992, when he became Secretary general of the Royal Netherlands Chess Federation. In 1994, he moved on to the same position at the Netherlands Badminton Federation. He was founder and first secretary of the Foundation for the Promotion of Elite Badminton that was instrumental in the advancement of Dutch badminton. In 2000 he was appointed Secretary general of the Netherlands Ski Federation, where he focused, among other things, on the organization of large snowsports events in the Netherlands. Since his appointment as CEO of the Anti-Doping Authority, he has developed a special interest in legal, ethical and managerial aspects of anti-doping policies, on which he has delivered numerous presentations and lectures. On top of that, he acts as Spokesperson for the Doping Authority. Herman Ram holds two Master’s degrees, in Law and in Sport Management. More...




Blog Symposium: The new WADA Code 2015 - Introduction

Day 1: The impact of the revised World Anti-Doping Code on the work of National Anti-Doping Agencies
Day 2: The “Athlete Patient” and the 2015 World Anti-Doping Code: Competing Under Medical Treatment
Day 3: Proof of intent (or lack thereof) under the 2015 World Anti-Doping Code
Day 4: Ensuring proportionate sanctions under the 2015 World Anti-Doping Code

On 1 January, a new version of the World Anti-Doping Code (WADC or Code) entered into force. This blog symposium aims at taking stock of this development and at offering a preliminary analysis of the key legal changes introduced. The present blog will put the WADC into a more general historical and political context. It aims to briefly retrace the emergence of the World Anti-Doping Agency (WADA) and its Code. It will also reconstruct the legislative process that led to the adoption of the WADC 2015 and introduce the various contributions to the blog symposium.More...






To pay or not to pay? That is the question. The case of O’Bannon v. NCAA and the struggle of student athletes in the US. By Zlatka Koleva

Editor's note
Zlatka Koleva is a graduate from the Erasmus University Rotterdam and is currently an Intern at the ASSER International Sports Law Centre.

The decision on appeal in the case of O’Bannon v. NCAA seems, at first sight, to deliver answers right on time regarding the unpaid use of names, images and likenesses (NILs) of amateur college athletes, which has been an ongoing debate in the US after last year’s district court decision that amateur players in the college games deserve to receive compensation for their NILs.[1] The ongoing struggle for compensation in exchange for NILs used in TV broadcasts and video games in the US has reached a turning point and many have waited impatiently for the final say of the Court of Appeal for the 9th circuit. The court’s ruling on appeal for the 9th circuit, however, raises more legitimate concerns for amateur sports in general than it offers consolation to unprofessional college sportsmen. While the appellate court agreed with the district court that NCAA should provide scholarships amounting to the full cost of college attendance to student athletes, the former rejected deferred payment to students of up to 5,000 dollars for NILs rights. The conclusions reached in the case relate to the central antitrust concerns raised by NCAA, namely the preservation of consumer demand for amateur sports and how these interests can be best protected under antitrust law. More...



Asser International Sports Law Blog | Dahmane v KRC Genk: A Rough Translation

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

Dahmane v KRC Genk: A Rough Translation

Dahmane v KRC GENK

Court of Labour of Antwerp (Hasselt district) 6 May 2014

Chamber 2

Algemeen rolnummer 2009/AH/199

 

The Facts 

  • Dahmane signed with KRC GENK on 1 July 2007 for four years (till 30 June 2011). Dahmane unilaterally terminated the contract January 2008. 
  • KRC GENK demanded from Dahmane compensation of EUR 878.888,88 (36 months wages) at the labour court of Tongeren. The demand was based on Article 5 § 2 of the Law for Professional Sportsmen (24 February 1978) and the Royal Decree of 13 July 2004 that Determines the Amount of the Compensation based on the Law for Professional Sportsmen. According to the Royal Decree (of 2004) the compensation had to be equal to 36 months of salary in the case of Dahmane. 
  • Dahmane demanded EUR 250.000,00 from KRC GENK compensation calculated in accordance with the Labour Agreements Law (03 July 1978). D. argued that according to article 40 § 1 of this law, the severance pay can only amount to 12 months of salary.  

  • 25 May 2009 - The Labour Court agreed with the demands of KRC GENK, whereas it disagreed with Dahmane’s. Dahmane placed an appeal. 

  • 22 June 2010 – Court of Labour decided that Dahmane had unlawfully unilaterally terminated the labour contract between him and KRC GENK. Dahmane had to reimburse KRC GENK with a compensation equal to 36 months of salary, because Dahmane fell under the Law regarding Labour Agreements of Professional Sportsmen of 24 February 1978. The Court rejected Dahmane’s request for damages.   

  • The Court of Labour turned to the Belgian Constitutional Court with the preliminary question whether the Law for Professional Sportsmen of 24 February 1978 breaches the Articles 10 and 11 of the Belgian Constitution on Equal Treatment, as there was an inconsistency with the Labour Agreements Law of 03 July 1978 under which the severance pay can only amount to 12 months of salary. Secondly, it was questioned whether the rule in question infringed the freedom of employment.  

  • 18 May 2011 – the Belgian Constitutional Court declared itself incompetent to answer the preliminary questions because the question whether a professional sportsmen falls under either the Law for Professional Sportsmen or the Labour Agreements Law solely depended on Royal Decree on Determining the Amount of the Compensation based on the Law for Professional Sportsmen (13 July 2004). According to Belgian law, the legality of the Royal Decree has to be decided by the Court of Labour itself. 

  • Therefore, the judgment of 6 May 2014 was the second time the Court of Labour dealt with the case regarding the unilateral termination of the player’s contract between Dahmane and KRC GENK. This time it had to decide whether the Royal Decree breached the Belgian Constitution.

 

The Case 

  • The demands by Dahmane:

    • That the Court of Labour rejects the Royal Decree on Determining the Amount of the Compensation based on the Law for Professional Sportsmen (13 July 2004) because it breaches the Belgian Constitution (part II, §1).

    • That the Court of Labour asks the CJEU the preliminary question whether the Royal Decree of 2004 breaches Article 45 TFEU since the free movement of professional sportsmen is unreasonably restricted by the Royal Decree (part II, §1).

 

  • KRC GENK arguments:

    • Football has specific characteristics that can be summarized in:

      • Atypical employment market

      • Atypical professional career (part III.b. §5).

    • That the difference between labour agreements of professional sportsmen on the one hand “normal” labour agreements is based on the “specific character of labour agreements of professional sportsmen en the specific character of sport in general”.

      The “specificity of sport” forms a special statute for sport, whereby common law cannot be applied unabridged (part III.b. §6).

    • Referring to European Case Law, and the Commission’s White book on sport, KRC GENK highlighted that to achieve the objectives inherent to sport, which include avoiding competition distortions and the preservation of the stability of participating sport clubs, certain specifics measures can be taken aimed at guarantying  legal certainty of labour relationships in the sport sector (part III.b. §6).

 

  • The Court's holdings

    • Agreed that sport exhibits certain characteristics that can deviate from other labour relationships between employer and employee, but held that since the Royal Decree in question did not mention the specificity of sport, this exception is inapplicable (part III.b. §5).

    • KRC GENK did not take the economic aspect of sport (e.g. the pursuit of economic profits) into account in its arguments, and the importance of fair competition in this regard. These economic objectives are not exclusive to the sport sector but underlie the market economy in general. Therefore, the Court sees no valid reason as to why a separate Royal Decree is necessary to achieve the objectives of the sport sector when similar objectives are pursued by other economic sectors. In other words, no separate laws should be applicable to sport when it pursues economic objectives (part III.b. §6).

    • As regards KRC GENK’s arguments that for football in particular certain legislative deviations preventing richer clubs from buying all the good players from smaller clubs, thereby distorting competition, are justifiable, the Court found them to be incorrect. Even though football’s transfer system causes movement of footballers to differ from the “normal” functioning of the labour market, in this case it is important to draw a distinction between the buying and selling of players between clubs on the one hand, and the unilateral termination of a player’s contract by either club or player on the other. Yet again the Court saw no reason why the specificity of football should enable the adoption of Royal Decrees breaching article 10 and 11 of the Belgian Constitution (part III.b. §6).

    • The Court took into account that the average career of a professional sportsman is relatively short (12 years according to RKC GENK and six to eight years according to Dahmane). A compensation amounting to 36 months of salary would for many professional sportsmen be equal to 1/3 of total career revenues and is therefore not justified in the present case (part III.b. §7).

    • The Royal Decree applies to professional sports in general, not only to football, KRC GENK’s can therefore not rely on the specificity of football to justify its legality (part III.b. §6 and §7).

    • Given that the Royal Decree is declared contrary to the Constitution, the Court sees no reason to make a preliminary reference to the ECJ (part III.b. §12).

 

Conclusion: the Court considered that a Royal Decree imposing a compensation of 36 months of salary on a player breaching his contract is disproportionate. Furthermore, the Court found the Royal Decree unjustifiable under the Constitutional principle of equal treatment and non-discrimination (part III.b. §8).

 

 

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