This post offers a basic literature review on publications on international and European sports law in 2015. It does not have the pretence of being complete (our readers are encouraged to add references and links in the comments under this blog), but aims at covering a relatively vast sample of the 2015 academic publications in the field (we have used the comprehensive catalogue of the Peace Palace Library as a baseline for this compilation). When possible we have added hyperlinks to the source.^[1]

Have a good read.

Books

Stefano Bastianon (ed.), La sentenza Bosman vent'anni dopo. Aspetti giuridico-economici della sentenza che ha cambiato il calcio professionistico europeo (Giappichelli, Torino 2015)

Stefano Bastianon (ed.), L'Europa e lo sport. Profili giuridici, economici e sociali. Atti del 4° Convegno (Bergamo, 26 novembre 2014) (Giappichelli, Torino 2015)

Frédéric Buy & al (ed.), Droit du sport (L.G.D.J, Paris 2015)

Johnny Maeschalk et al., Sportrecht (Die Keure, Brugge, 2015)

Mathieu Maisonneuve (ed.), Droit et olympisme : contribution à l'étude juridique d'un phénomène transnational, (Presses Universitaires d'Aix-Marseille, Aix en Provence 2015)

Despina Mavromati and Matthieu Reeb, The Code of the Court of Arbitration for Sport : commentary, cases and materials (Wolters Kluwer, Alphen aan den Rijn 2015)

David McArdle, Dispute Resolution in Sport: Athletes, Law and Arbitration (Routledge, Taylor & Francis Group, London, New York 2015)

Patrick Meier, Dopingsanktion durch Zahlungsversprechen: das Beispiel der Ehrenerklärungen des Weltradsportverbands UCI (Duncker and Humblot, Berlin 2015)

Mario Merget, Beweisführung im Sportgerichtsverfahren am Beispiel des direkten und indirekten Dopingnachweises (Duncker and Humblot, Berlin 2015)

Katarina Pijetlovic, EU sports law and breakaway leagues in football (Asser Press, The Hague 2015)

Moritz Tauschwitz, Die Dopingverfolgung in Deutschland und Spanien. Eine strafrechtliche und kriminologische Untersuchung (Duncker and Humblot, Berlin 2015)

Klaus Vieweg (ed.), Lex Sportiva (Duncker and Humblot, Berlin 2015)

Klaus Vieweg, Gert-Peter Brüggemann, Franz Steinle (ed.), "Techno-Doping": Leistungssteigerung durch technische Hilfsmittel aus naturwissenschaftlicher und juristischer Perspektive (Boorberg, Stuttgart 2015)

Klaus Vieweg (ed.), Impulse des Sportrechts (Duncker and Humblot, Berlin 2015)

Marjolaine Viret, Evidence in Anti-Doping at the Intersection of Science & Law (T.M.C. Asser Press, 2016)

Markus Zimmermann, Vertragsstabilität im internationalen Fußball : unter besonderer Berücksichtigung der Rechtsprechung der FIFA und des CAS (Richard Boorberg, Stuttgart 2015)

Academic Journals[2]

The International Sports Law Journal

Antonio Rigozzi, Ulrich Haas, Emily Wisnosky, Marjolaine Viret, Breaking down the process for determining a basic sanction under the 2015 World Anti-Doping Code, June 2015, Volume 15, Issue 1, pp 3-48

Elena Atienza-Macias, 2015 WADA code comes into effect: significant changes in the Spanish legal arena, June 2015, Volume 15, Issue 1, pp 49-54

Antoine Duval, Cocaine, doping and the court of arbitration for sport, June 2015, Volume 15, Issue 1, pp 55-63 

Corinna Coors, Are sports image rights assets? A legal, economic and tax perspective, June 2015, Volume 15, Issue 1, pp 64-68

Simon Boyes, Legal protection of athletes’ image rights in the United Kingdom, June 2015, Volume 15, Issue 1, pp 69-82

Tom Serby, The Council of Europe Convention on Manipulation of Sports Competitions: the best bet for the global fight against match-fixing?, June 2015, Volume 15, Issue 1, pp 83-100

Jonathan Liljeblad, Foucault, justice, and athletes with prosthetics: the 2008 CAS Arbitration Report on Oscar Pistorius,  June 2015, Volume 15, Issue 1, pp 101-111

Jacob Kornbeck, Lisbonisation without regulation: engaging with sport policy to maximise its health impact?, June 2015, Volume 15, Issue 1, pp 112-122

Sergey Yurlov, Right to participate in sporting competition: a human right or legal fiction and the Russian legal framework for sport, June 2015, Volume 15, Issue 1, pp 123-127

SpuRt: Zeitschrift für Sport und Recht

Fabian Stancke, ‘Pechstein und der aktuelle Stand des Sportkartel‘ (2015), Volume 22, Issue 2, 46-51

Jan F. Orth, Martin Stopper, ‘Entscheidungsvollzug in der Verbandspyramide und Ausbildungsentschädigung‘ (2015), Volume 22, Issue 2, 51-56

Philipp Wackerbeck, ‘Das Aus der Spielervermittlerlizenz und das "Dritteigentum an Spielerrechten" - eine erste, kritische Bestandsaufnahme‘ (2015), Volume 22, Issue 2, 56-61

Michael Geistlinger, Julia Schaffelhofer, ‘Die Vierjahressperre nach dem WADC 2015 aus dem Blickwinkel der grundrechtlichen Berufsfreiheit‘ (2015), Volume 22, Issue 3, 101-105

Causa Sport: die Sport-Zeitschrift für nationales und internationales Recht sowie für Wirtschaft

Peter W. Heermann, ‘Related Parties gemäss Financial Fair Play: Erste Erfahrungen‘ (2015), Issue 1, 3-9

Markus Zimmermann, ‘Komplexe Konsequenzen bei Vertragsauflösungen im Fussball‘ (2015), Issue 1, 16-22

Patrick Redell, ‘Spielerverträge mit Minderjährigen: droht ein neuer "Bosman" Fall?‘ (2015), Issue 1, 28-36

Anne-Sophie Morand, ‘Verbote religiöser und politischer Symbole im Sport im Lichte des Persönlichkeitsrechts‘ (2015), Issue 1, 72-81

Luca Beffa & Olivier Ducrey, Review of the 2014 Case Law of the Swiss Federal Tribunal concerning Sports Arbitration (2015), Issue 2, 115-123

Marco Del Fabro, Optionen nach dem Verbot von Third Party Ownerships (2015), Issue 3, 219-230

Ralf Eckert  & Clauia Wisser, Die Genehmigungsgebühr des DLV im Lichte des <Pechstein-Urteils> des OLG München (2015), Issue 3, 238-241

Matthias Neumann, Die Lizenzbox : attraktives Steuerungsinstrument für Fußballklubs im Rahmen des Merchandising (2015), Issue 3,  295-303

Dominik Kocholl, Schiedsklauseln im internationalen Sport : gewollt oder nicht? : Anmerkungen zur Entscheidung des Gerichtshofs vom 18. Februar 2015 3 Ob 157/14f (2015), Issue 3,  311-321

Urs Scherrer, FIFA : Reflexionen zu Fakten, zu Spekulationen und zur Zukunft (2015), Issue 3, 322-325

Jonas Leder, Das Bewerbungsverfahren um die Ausrichtung der Olympischen Spiele nach der IOC-Agenda 2020 (2015), Issue 4, 339-343 

Robin van der Hout & Christian Wagner, Neue Möglichkeiten beihilferechtskonformer Finanzierung von Sportinfrastrukturen (2015), Issue 4, 344-352

Paul Lambertz, Problematische Namensveröffentlichungsregelung in Dopingfällen gemäss WADA-Code (2015), Issue 4, 369-373

Peter W. Heermann, Abstellung von Nationalspielern aus kartellrechtlicher Sicht (2015), Issue 4, 384-391

Revista española de derecho deportivo

Diego Medina Morales, ‘Derecho del deporte y normas de juego’ (2015), Volume 35, Issue 1, 11-18

Sandra L. Echeverry Velásquez, ‘Límites en la actividad publicitaria de naturaleza general y especial aplicada al deporte’ (2015), Volume 35, Issue 1, 55-78

Emilio A. García Silvero, ‘La disciplina deportiva en las federaciones deportivas internacionales: algunos aspectos básicos para su adecuada comprensión’(2015) Volume 35, Issue 1, 79-102

Rivista di diritto ed Economia dello sport

Mario Vigna, La Saga Pechstein : Tremano le colonne del tempio tas ? (2015), Issue 1, 13-30

Alessandro Coni, Le Third-Party Ownership, (2015), Issue 1, 31-68

Michele Spadini, La normativa FIFA a tutela dei minori alla luce del « caso Barcellona »
(2015), Issue 2, 17-46

Piero Sandulli, Acquisizione e valutazione della prova nel processo sportivo : Profili problematici ? (2015), Issue 2, 47-58

Luca Smacchia, Il lodo Mutu : Come il diritto europeo limita la specificità dello sport (2015), Issue 2, 75-88

Gerardo Russo, Lo sviluppo tecnico normativo nella lotta al doping e l’impatto sul rilascio delle licenze world tour UCI : Il caso Astana (2015), Issue 2, 89-116

Salvatore Civale, L'Indennità di formazione e il contributo di solidarietà nei trasferimenti internazionali dei calciatori alla luce della circolare FIFA n.1500 (2015), Issue 2, 117-126

Massimiliano Zampi & Giovanna Tassoni, Il doping tra medicina legale e diritto, osservazioni sulla liceità dei prelievi e sulle modlità di accertamento(2015), Issue 2, 135-148

Alessandro Coni, Il caso RFC Sérésien : La prima condanna per violazione del divieto di TPO (2015), Issue 2, 135-148

Sweet & Maxwell's international sports law review

James M. Dorsey, ‘To watch or not to watch? : Middle Eastern Women's Sporting Rights’ (2015) Sweet & Maxwell's international sports law review

Lauri Tarasti, ‘First International Convention against Sport Manipulation’ (2015) Sweet & Maxwell's international sports law review

Kevin Carpenter & Adam Pendlebury, ‘Tweeting the Game into Disrepute : Regulation of Social Media by Governing Bodies : Lessons from English Football’ (2015) Sweet & Maxwell's international sports law review

Ulrich Haas, ‚The Court of Arbitration for Sport in the Case Law of the German Courts’ (2015) Sweet & Maxwell's international sports law review

Others

Toine Spapens and Marjan Olfers, Match-fixing: The Current Discussion in Europe and the Case of The Netherlands (2015) European Journal of Crime Criminal Law and Criminal Justice; vol. 23, Issue. 4, 333-358

Ulrich Haas, Der Court of Arbitration for Sport im Spiegel der deutschen Rechtsprechung (2015) Zeitschrift fur Vergleichende Rechtswissenschaft; vol. 114, issue. 4, 516-544

Andrew Wacke, Spiel und Wette (insbesondere Sportwetten) in der Entwickliung des europäischen Zivilrechts (2015) Zeitschrift für europäisches Privatrecht, Issue 1, 88-104

Valerie Kaplan, UEFA Financial Fair play Regulations and the European Union Antitrust Law Complications (2015) Emory International Law Review, Volume 29, Issue 4, 799-857

Philippe Cavalieros, Janet (Hyun Jeong) Kim, Can the Arbitral Community learn from Sports Arbitration? (2015) Journal of International Arbitration, Volume 32, Issue 2, 237-260 

Ralf Eckert, Maut fürs Laufen : zur Rechtmäßigkeit einer von einem Sportverband erhobenen Abgabe (2015) Wirtschaft und Wettbewerb, Volume 65, Issue 5, 480-489

Evelyne Lagrange, L'État et les puissances privées : digressions sur la compétence plénière de l'État et "l'autonomie du mouvement sportif" in Pierre d'Argent, Béatrice Bonafé et Jean Combacau (eds.) Les limites du droit international : essais en l'honneur de Joe Verhoeven, 183-204, 2015, ISBN 9782802742913

Mark Pieth, Ist der FIFA noch zu helfen? (2015) Zeitschrift fur Schweizerisches Recht, vol. 134, Issue. 1, 135-148

Danielle Wood, Giving Competition a Sporting Chance? : The Role for Antitrust Laws in Promoting Competition from New Sporting Leagues in Australia and the United States (2015) Australian Business Law Review; vol. 43, Issue. 3, 206-227

Oliver Budzinski, Stefan Szymanski, Are restrictions of competition by sports associations horizontal or vertical in nature? (2015) Journal of Competition Law & Economics, Volume 11, Issue 2, 409-429

Phinney Disseldorp, Voetballers niet langer te koop!? : Over een verbod op Third Party Ownership (2015) Tijdschrift voor sport & recht, Issue 1, 1-7

Geoff Pearson, Sporting Justifications under EU Free Movement and Competition Law: The Case of the Football ‘Transfer System’ (2015) European Law Journal, Volume 21, Issue 2, 220–238

Ben Van Rompuy, The Role of EU Competition Law in Tackling Abuse of Regulatory Power by Sports Associations (2015) Maastricht Journal of European and Comparative Law, vol. 22, issue. 2, 179-208

Nicolaides Phedon, A Critical Analysis of the Application of State Aid Rules to Sport (2015) Maastricht Journal of European and Comparative Law, vol. 22, issue. 2, 209-223

Antoine Duval, The Court of Arbitration for Sport and EU Law: Chronicle of an Encounter (2015) Maastricht Journal of European and Comparative Law, vol. 22, issue. 2, 224-255

Richard Parrish, Article 17 of the FIFA Regulations on the Status and Transfer of Players: Compatibility with EU Law, (2015) Maastricht Journal of European and Comparative Law, vol. 22, issue. 2, 256-282

Jacob Kornbeck, The Stamina of the "Bosman" Legacy : The European Union and the Revision of the World Anti-Doping Code (2011-2013) (2015) Maastricht Journal of European and Comparative Law, vol. 22, issue. 2, 283-304

Anna Sabrina Wollman, Olivier Vonk & Gerard-René De Groot, Towards a Sporting nationality? (2015) Maastricht Journal of European and Comparative Law, vol. 22, issue. 2, 305-321

Stefano Bastianon, The Striani Challenge to UEFA Financial Fair-Play. A New Era after Bosman or Just a Washout? (2015) Competition Law Review, Volume 11 Issue 1, 7-39

Beverley Williamson, Premiership Rugby Union: Through the Antitrust Looking Glass (2015) Competition Law Review, Volume 11 Issue 1, 41-60

Oskar van Maren, The Real Madrid case: A State aid case (un)like any other? (2015) Competition Law Review, Volume 11 Issue 1, 83-108

SSRN Articles

Anastasios Kaburakis, Ryan M. Rodenberg, John T. Holden, Inevitable: Sports Gambling, State Regulation, and the Pursuit of Revenue (10 January 2015)

Ben Van Rompuy, The Odds of Match Fixing - Facts & Figures on the Integrity Risk of Certain Sports Bets (22 January 2015)

Craig Dickson, Complex Rules & Inconsistent Interpretation: Duty of Care and Causation in Collision Sports (27 February 2015)

Craig Dickson, Courtsiding' in Sport: Cheating, Sharp Practice or Merely Irritating? (13 March 2015)

Kyle Mulrooney, Katinka Van de Ven, ”Muscle Profiling”: Anti-Doping Policy and Deviant Leisure (23 March 2015) 

Antoine Duval, Ben Van Rompuy, The Compatibility of Forced CAS Arbitration with EU Competition Law: Pechstein Reloaded (23 June 2015)

Michele Giannino, Can Joint Sale Agreements for Exclusive Media Rights to Sport Events Amount to Abusive Conducts? The Simbia/CLT-UFA Case in Luxembourg (10 July 2015)

Dick Pound, Sports Arbitration: How it Works and Why it Works (16 June 2015)

Kathryn Henne, Reforming Global Sport: Hybridity and the Challenges of Pursuing Transparency (20 August 2015).

Kathryn Henne, Defending Doping: Performances and Trials of an Anti-Doping Program (20 August 2015).

Thomas Margoni, The Protection of Sports Events in the European Union: Property, Intellectual Property, Unfair Competition and Special Forms of Protection (August 29, 2015).

Teresa Scassa and Benoit Séguin, Ambush Marketing Legislation to Protect Olympic Sponsors: A Step Too Far in the Name of Brand Protection? (October 7, 2015).

Others:

Bulletin TAS/CAS Bulletin 2015/1

[1] This literature review would not have been possible without the precious support of our former intern Piotr Drabik.

[2] Only the articles deemed relevant from an international sports law perspective are listed here.

Reforming FIFA, or Not

 Antoine Duval

Book Review: Mark Pieth (ed.), Reforming FIFA, Dike Verlag, St. Gallen, 2014, 28.00 CHF, p.178

This book looks back at the work of the Independence Governance Committee (IGC). This Committee, constituted in 2011, had as primary objective to drive a reform process of FIFA initiated by its President Sepp Blatter. After ordering from the Swiss anti-corruption expert Mark Pieth, a report on the state of FIFA’s governance, FIFA decided to mandate him with the leadership of a consulting body composed of a mix of independent experts and football insiders, which would be accompanying and supervising the internal reform process of FIFA. The IGC was officially dissolved at the end of 2013, after completing its mandate. The book is composed of eight chapters, written by former members of the IGC, including former chairman Mark Pieth. In addition to the chapters, it includes the different reports (available here, here and here) submitted by the IGC to FIFA across the years. In the words of Pieth, this account is “fascinating because it gives a hands-on, realistic perspective of the concrete efforts, the achievements and the remaining challenges in the struggle for the reform of this organization [FIFA], avoiding the usual glorification or vilification.”[1] This review will first summarize the core of the account of the FIFA reform process provided by the book, before critically engaging with the outcome of the process and outlining the deficiencies that culminated on 29 May 2015 with the re-election of Sepp Blatter as FIFA president.

I.               Reforming FIFA…

In his introduction to the book, Mark Pieth provides a compelling account of the reasons why FIFA needs a reform process in the first place. He talks of the ““old boys” suddenly becoming rich”[2] and of the lack of “public accountability”[3] of FIFA. This narrative is similar to the one provided by Guillermo Jorge later in the book. He highlights the fact that FIFA relies on a “solide patronage network”, creating “incentives for member associations to engage in rent seeking – which means: spend time and efforts in obtaining such funds – and, at the same time, creates incentives for incumbents to request the favour back at the ballot box.”[4] Jorge’s detailed account of the institutional features of FIFA underlying this “patronage system” is in itself of great value.

It is further argued that with the scandals triggered by the Bin Hammam affair, in 2011, “Mr Blatter, realized that the governance structure needed to be adapted to the new challenges.”[5] In other words, it “was a product of the personal ambition of its president.” [6] All along the book, Pieth and other members of the IGC, consider Blatter as a key supporter of the reform process and shift the blame for its incompleteness on UEFA’s shoulders amongst others.[7]. UEFA, it is claimed, has been instrumental in blocking a centralized integrity check on FIFA officials (especially the members of the ExCo). Blatter, for his part, is said to have understood “sooner than many of his colleagues”, that “the system” was falling apart”[8] and that a “self-controlled reform seemed to be a rational response to pre-empt or delay external regulation and mitigate the risk for future, more uncertain investigations.”[9]

The substance of the reform triggered by the IGC is not discussed in great detail, nor is its implementation in practice assessed in depth. To be fair, the book chapters were probably written early 2014 and could hardly have done so. The core changes highlighted by the members of the IGC concern the function and structure of the Ethics Committee and the Audit and Compliance Committee. As claimed by Pieth, “the most tangible changes are the institutional changes in the area of the Ethics Committee and the Audit and Compliance Committee.”[10] In particular, “the independent permanent chairs and deputy chairs of the Ethics Committee and the Audit and Compliance Committee.”[11] Pieth praises the fact that “[t]he investigator and his deputy have full discretion which cases they take on and decide to investigate.”[12] Moreover, the “investigation is independent both from the FIFA administration and from the judicial chamber.”[13] This is also underlined by the contribution of Lord Peter Goldsmith focusing on the investigatory process.[14] Damian Heller discusses the core changes introduced to the Audit and Compliance Committee (ACC) in a separate chapter.[15] After the reform, the ACC has gained new important competences, e.g. drawing up the Organisation Regulation (governing the rights and obligations of FIFA’s organs), controlling the compensation policy of FIFA executives, monitoring the bidding process for the World Cup and auditing the use of the development funds. In addition to this, the independence of the Committee members has been reinforced. Thus, Pieth expect “that these independent agents within FIFA will make a big difference in the culture of the organization during their tenure.”[16]

The members of the IGC are not all positive about the changes triggered by the reform process engaged by FIFA. For Leandro Grosso, the member of IGC representing FIFPro, the football players’ union, the reform is clearly a failure.[17] Pieth himself is cautious enough to remind in his introduction “that pure self-regulation is a slow and uncertain process.”[18] He insists, that “[t]o be successful it has to change the culture of the whole organization, it needs to reach the associations in particular and it has to permeate the everyday life of the organization.”[19] Yet, throughout the book, there is still a clear sentiment that the FIFA reform process was a success. Indeed, Pieth considers that “[w]ith the new independent chairs in place, a first essential step has been taken.”[20] He adds: “it must be acknowledged that, overall, the last three years have been rather successful in bringing the regulations up to a certain standard.”[21] As another IGC member puts it “[t]he IGC has largely succeeded in its efforts to reform FIFA’s governance.”[22] After the reform, “there are far greater systems and controls and far greater ethical standards within FIFA.”[23] In short, “FIFA is today much closer to public and corporate governance standards than it was two years ago.”[24] Is this true?

II.             …Or Not

The IGC’s members’ optimism might go a bit too far. The recent events surrounding the investigation of the bidding process for the World Cup 2018 and 2022 seem to call for a critical assessment of the scope of progress made. Independent investigatory personnel make little difference if a final report is later shelved without allowing for external scrutiny of its findings as happened with the by now infamous Garcia report on the attribution of the 2018 and 2022 World Cup. Similarly, having a competent check on FIFA’s compensation policy is of little use if those rigorous accounts are not made freely available for journalists and the public to peruse them. The institutional changes celebrated by the members of the IGC are not negligible, but to gain real currency they must be coupled with a duty of transparency and the new Committees must be able to dispose of their findings independently. The resignation of Michael Garcia, who was deemed a token figure of the success of the reforms supported by the IGC, is there to remind us that even the, allegedly, best individuals are powerless if the institution is in a position to block their work. With his scorecard (see also here and the response of FIFA) on the reform process, Roger Pielke had convincingly quantified the limited nature of FIFA’s reforms. His findings are now corroborated in practice; even the few reform proposals FIFA actually implemented did not fundamentally change the institution. This is critical stance is shared by a recent report on ‘The reform of football governance’ adopted by the Parliamentary Assembly of the Council of Europe, urging FIFA to reinforce transparency and accountability across the board.

The IGC’s members were probably blinded by Blatter’s apparent goodwill. In fact, Blatter may even have held these good intentions, though his new stint at the head of FIFA is there to remind us that however enlightened, he remains a power-hungry monarch. Moreover, Blatter is truly accountable to only one forum: the FIFA Congress. Thus, it is doubtful that the “patronage system” put in place to control it will go away without resistance. In fact, Blatter would probably have never been re-elected in 2015 if he had imposed a radical clean up of past (and maybe present) FIFA practices relating to the use of development funds and vote buying. In that regard, the recent decision to give to the FIFA Congress the responsibility for the election of the host state of the FIFA World Cups is a potentially dangerous move that could enhance the risk of vote-buying. It shifts even more the decisive power away from the biggest Confederations to the small peripheral FAs.

All in all, it is naturally difficult for the members of a body that was invested with the responsibility to guide FIFA’s latest reform to recognize their failure to really change the way FIFA works. Some members of the IGC have done so; Alexandra Wrage resigned in protest against FIFA's “rotten reform record”. Even though one can criticize the independence of the IGC, the IGC’s members were probably genuinely committed to changing FIFA. But the main lesson one can draw from their very limited success in doing so is that sheer commitment and expertise is not enough to transform an institution grounded on a political system that promotes inertia and to some extent corruption. The illusion of an enlightened reform of FIFA driven by insiders, especially by Mr. Blatter, has been shattered. In the case of FIFA, a revolution is needed, heads need to roll, and a radically new political system needs to be put in place. Those are not easy tasks. Triggering a revolution will take time and energy. It will involve the appliance of extreme political pressure, either through the open threat of secession of UEFA or through criminal proceedings initiated by public authorities. In the end, Pieth himself is right: “self-regulation alone rarely works”[25]. This points to ‘[t]he responsibility of the host country’.[26] The “lax regulatory attitude”[27] of the Swiss government is certainly a key disincentive to a true FIFA reform. It is Switzerland’s duty to “define the minimum standard for organizations, in particular in the areas of democracy, accountability and financial controls.”[28] As the recent raid by the Swiss Police has proven, if there is the will to intervene, there is no insurmountable legal obstacle to do so. It is true, as many members of the IGC argue, that States are not in an easy position. The power of the FIFAs and IOCs of this world is extremely strong. Through their exit option, they can blackmail national States, and in particular Switzerland, into adopting an accommodating stance. But, it is simply not true that “ISOs [International Sporting Organisations] have extensive privileges and immunities, and are not governed by national laws – so cannot generally be reached by such prosecutors and regulators”[29], as Lord Goldsmith states. Still, it makes sense that the most far-reaching interventions to date that triggered reforms of Sports Governing Bodies (SGBs) were made by the EU and the US.[30] Both are strong enough to confront the political strength of the SGBs. Hence, the recent indictment of a number of FIFA officials on various criminal grounds in the US might be the first necessary step towards truly reforming FIFA.

This book is a valuable testimony of a process that has unfortunately failed to fundamentally change FIFA for the time being. One should not radically undermine the progress done, the new institutions put in place and rules adopted might serve as a basis for an overhaul of FIFA in the future, though for that to happen it will most likely need an assist from the EU or the US.

[1] M. Pieth, ‘Reforming FIFA’ in M. Pieth (ed.) Reforming FIFA, Dike Verlag, St. Gallen, 2014, p.1

[2] M. Pieth, ‘Introduction’ in M. Pieth (ed.) Reforming FIFA, p.8. In similar terms see M. Hershman, ‘The need for reform’ in M. Pieth (ed.) Reforming FIFA, p.17-18.

[3] M. Pieth, ‘Introduction’, p.9

[4] Guillermo Jorge, ‘From Patronage to managerial accountability’ in M. Pieth (ed.) Reforming FIFA, p.53

[5] M. Pieth, ‘Introduction’, p.9

[6] G. Jorge, ‘From Patronage to managerial accountability’, p.56

[7] M. Pieth, ‘Beyond changing the code: reforming culture’, in M. Pieth (ed.) Reforming FIFA, p.60

[8] G. Jorge, ‘From Patronage to managerial accountability’, p.57

[9] Ibid.

[10] M. Pieth, ‘Introduction’, p.15

[11] M. Pieth, ‘Beyond changing the code: reforming culture’, p.61

[12] Ibid.

[13] Ibid.

[14] See in particular the contribution by Lord Peter Goldsmith, ‘How to investigate misbehaviour in international sports organizations’ in M. Pieth (ed.) Reforming FIFA, p.31-38

[15] D. Heller, ‘The role of the Audit & Compliance Committee’ in M. Pieth (ed.) Reforming FIFA, p.63-69

[16] M. Pieth, ‘Beyond changing the code: reforming culture’, p.61

[17] Leonardo Grosso, ‘The reform’s impact on stakeholder involvement from the players’ perspective’ in M. Pieth (ed.) Reforming FIFA, p.39-48

[18] M. Pieth, ‘Introduction’, p.16

[19]Ibid and M. Pieth, ‘Beyond changing the code: reforming culture’, p.59-62 . In similar terms, see G. Jorge, ‘From Patronage to managerial accountability’, p.58

[20] M. Pieth, ‘Introduction’, p.16

[21] M. Pieth, ‘Beyond changing the code: reforming culture’, p.59

[22] M. Hershman, ‘The need for reform’, p.20

[23] M. Pieth, ‘Introduction’, p.16

[24] G. Jorge, ‘From Patronage to managerial accountability’, p.57

[25] M. Pieth, ‘The responsibility of the host country’ in M. Pieth (ed.) Reforming FIFA, pp.23-30, p.26

[26] Ibid, pp.23-30.

[27] Ibid, p.25.

[28] Ibid, p.26

[29] Lord Peter Goldsmith, ‘How to investigate misbehaviour in international sports organizations’, p.32

[30] See for the EU, A. Geeraert & E. Drieskens, ‘The EU controls FIFA and UEFA: a principal–agent perspective’, Journal of European Public Policy, 03/2015. See for the US, R. Pielke, ‘How can FIFA be held accountable?’, Sport Management Review 16 (2013) 255–267.

Yesterday, 18 May 2016, the licensing committee of the Dutch football federation (KNVB) announced its decision to sanction FC Twente with relegation to the Netherland’s second (and lowest) professional league. The press release also included a link to a document outlining the reasons underlying the decision. For those following the saga surrounding Dutch football club FC Twente, an unconditional sanction by the licensing committee appeared to be only a matter of time. Yet, it is the sanction itself, as well as its reasoning, that will be the primary focus of this short blog.

Background

By way of reminder, FC Twente is the typical example of a professional football club who had been “punching above its weight” for years. After taking over the club in 2003, president Joop Munsterman and his fellow associates took extreme financial risks in order to overtake clubs like PSV and Ajax as the best club in the Netherlands. At first they were successful, but winning the Dutch league in 2010 did not prove enough for the overambitious executives of FC Twente. The club started spending more money than ever on the transfer marker and new massive loans were taken to upgrade the stadium to Champion League standards. Unfortunately, all this extra spending did not materialize in extra sporting successes. Furthermore, the money derived from selling players was not sufficient to service the debt incurred in the process.

Yet, the scope of FC Twente’s financial trouble did not become apparent until November 2015. It was then that footballleaks released the Economic Rights Participation Agreement (ERPA), or TPO agreement, the club had signed with the Maltese investment company Doyen. The fine prints of the ERPA, explained in our blog of 2 December, took everyone by surprise, including the KNVB’s licensing committee. More than the precarious state of the club’s finances, it was the fact that FC Twente had deliberately mislead the KNVB regarding its relationship with Doyen that shocked the Dutch federation.[1]

As an immediate reaction to Twente’s omissions, on 15 December, the licensing committee decided to conditionally withdraw FC Twente’s license, unless the club collaborates fully to an independent internal investigation into its structure and governance. Moreover, the licensing committee sanctioned FC Twente with a €45,250 fine and a three-year exclusion from participating in European competitions. The report of the internal investigation, published on 1 March 2016, highlighted the complete lack of transparency in transfer matters, i.e. all the transfers and their financing were taken care of by vice-president Van der Laan without the involvement of other board members. The ‘Additional Agreement’ signed with Doyen, for example, was never mentioned in any of the board meetings. The report also brought to light a fresh case of deliberate deceit of the licensing committee in the transfer of Dusan Tadic to Southampton the summer of 2014. According to FC Twente’s original disclosure to the KNVB, Tadic’s agent would receive €1.8 million, which was 15% of the transfer amount. However, in January 2016, a month after FC Twente promised full collaboration in the investigation, it suddenly turned out that Tadic’s agent still had a claim of €1.8 million based on a second agreement between him and the club regarding the same transfer. Not only was this second agreement never notified to the licensing committee, it was also never mentioned to the investigators during several meetings held in December 2015. 

The licensing committee’s decision

In a nutshell, the licensing committee decided to unconditionally withdraw FC Twente’s license, but to simultaneously grant it a new license so that it is permitted to play in the Dutch second professional league. The committee held that:

“The Dutch licensing system was repeatedly, deliberately and systematically undermined by FC Twente and the licensing committee was repeatedly, intentionally and purposely misled. This behavior undermines the functioning of the licensing system, contributes to an unfair competition between professional football clubs, creates income for FC Twente it would not have obtained under fair conditions (e.g. income from the selling of TV rights) and leads to player transfers that possibly would not have taken place had the club behaved ethically.”[2]

It added that it had already considered an unconditional withdrawal of the license in December 2015, but decided against it because it needed more information, such as an independent report. The licensing committee’s conclusions drawn from the report was twofold. On the one hand, the licensing committee praised the fact that FC Twente collaborated with the investigation, that it promised to continue with the reorganization of the club’s governance structure after  a new license was granted[3] and that it will not ask for a UEFA license for the next three seasons.[4]

On the other hand, the licensing committee felt it needed to act as a consequence of the new information regarding the Tadic transfer. The committee determined that the “Doyen Gate” was not an isolated incident, but that it fitted in a pattern of systematic unethical behavior by FC Twente’s management. Consequently, it concluded that FC Twente had breached Article 9 of the Dutch license regulation, which requires a license holder (i.e. a professional football club) to timely provide the licensing committee all the relevant information and documents regarding the club’s financial situation, transfer details, etc. Interestingly enough, the license regulation offers only two sanction possibilities for breaching Article 9: A fine of maximum €45.250 under Article 11(1); or the complete withdrawal of the license under Article 12(2)c). The option to sanction a club with a relegation to the lower divisions is currently not an option, as stipulated by the license committee in paragraph 9 of its decision.

The lack of alternative options proved to be problematic for the licensing committee because it found a fine of €45.250, given the circumstances, disproportionately light, but the decision to withdraw the license disproportionately heavy.[5] A complete license withdrawal could realistically lead to the disappearance of FC Twente, a football club with (as held by the licensing committee) an important role in the Enschede region. “The licensing committee is aware that the effects (of a collapse) could be disastrous for FC Twente, its employees, financers, supporters and professional football in the region”.[6] With this statement, the licensing committee is demonstrating that it is taking into account inter alia the guarantee issued by the municipality of Enschede on a loan of €32 million for FC Twente in December 2015, under the condition that the club would obtain a license. Without this loan, FC Twente would have gone bankrupt. In the end, the licensing committee came up with the rather pragmatic solution to withdraw unconditionally FC Twente’s license, immediately followed by the granting of a new license to participate in the second professional league, “in order to limit the disproportionate consequences of the license withdrawal”.[7]

What makes the licensing committee’s decision worthy of debate is that the regulations, strictly speaking, do not provide for the option to replace a first division license with a second division license. The committee admits that it has sought the limits of the licensing regulations, but defends its decision by stating it is sanctioning FC Twente for its past actions in a proportionate manner while taking into account the interests of the club and its stakeholders.  

Aftermath

In an official statement following the decision, FC Twente declared that its currently studying all its options. Although an appeal remains one of the possibilities, one could argue that it might be too risky for FC Twente to do so. Concretely, an appeal would probably lead to a sanction that actually exists under the regulations: A fine of €45.250 or an unconditional withdrawal of a license. A more interesting issue is whether any other professional club might consider questioning this decision. Clubs who believe to have been placed in a disadvantageous position as a result of FC Twente’s deliberate and systematic deceit, could argue that the current sanction does not address the gravity of the misconduct. Moreover, the fact that the sanction is not enshrined in the KNVB’s regulations, could make it difficult for the licensing committee to uphold it in an appeal procedure.

This decision puts the final nail in FC Twente’s coffin. The surprising rise and brutal downfall of the Dutch club exemplifies the advantages and downsides of TPO. This practice (and other financial tricks linked to the transfer system) enabled Twente to leverage up and make the impossible possible (winning the Eredivisie), but at the same time strapped it with an unsustainable debt that has brought the club to its knees. Basically, fans must choose between a few seconds (or years) of glory on the one hand, or a sustainable future for their club on the other.

[1] FC Twente had not disclosed to the KNVB an Annex, called ‘Additional Agreement’, to the ERPA that insinuated far-reaching influence by Doyen in employment and transfer-related matters, thereby breaching FIFA and KNVB Regulations.

[2] The licensing committee’s decision, page 1.

[3] In this regard it should be noted that four FC Twente board members resigned in March as a result of the report. See “FC Twente geeft toelichting op onderzoeksrapport Knüppe” (http://www.fctwente.nl/blog/2016/03/fc-twente-geeft-toelichting-onderzoeksrapport-knuppe/).

[4] The licensing committee’s decision, page 3.

[5] Ibid., page 4.

[6] Ibid., page 5.

[7] Ibid.

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).