Asser International Sports Law Blog

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

The Russian Ballet at the CAS Ad Hoc Division in Rio - Act IV: On Bringing a sport into disrepute

Editor's note: This is the fourth part/act of our blog series on the Russian eligibility cases at the CAS ad hoc Division in Rio.


Act IV: On Bringing a sport into disrepute

Paragraph 2 of the IOC Decision: “The IFs will also have to apply their respective rules in relation to the sanctioning of entire NFs.” 

 

In paragraph 2 of its Decision, the IOC mentioned the possibility for IFs to “apply their respective rules in relation to the sanctioning of entire NF's”.This is exactly what the International Weightlifting Federation (IWF) did when it decided on 29 July 2016 to exclude the whole Russian Weightlifting Federation (RWF) from the Rio Olympics for having brought the sport into disrepute. Indeed, Article 12. 4 of the IWF Anti-doping Policy, foresees that:

“If any Member federation or members or officials thereof, by reason of conduct connected with or associated with doping or anti-doping rule violations, brings the sport of weightlifting into disrepute, the IWF Executive Board may, in its discretion, take such action as it deems fit to protect the reputation and integrity of the sport.”More...



The Russian Ballet at the CAS Ad Hoc Division in Rio - Act III: On being sufficiently tested

Editor's note: This is the third part/act of our blog series on the Russian eligibility cases at the CAS ad hoc Division in Rio.


Act III: On being sufficiently tested 

Paragraph 2 of the IOC Decision: “The IFs should carry out an individual analysis of each athlete’s anti-doping record, taking into account only reliable adequate international tests, and the specificities of the athlete’s sport and its rules, in order to ensure a level playing field.”

Daniil Andienko and 16 other members of the Russian rowing team challenged the decision of the World Rowing Federation (FISA) to declare them ineligible for the Rio Olympics. The FISA Executive Committee took the decision on 24 July 2016 because they had not “undergone a minimum of three anti-doping tests analysed by a WADA accredited laboratory other than the Moscow laboratory and registered in ADAMS from 1 January 2015 for an 18 month period”.[1] In their submissions, the Russian applicants did not challenge the IOC Decision, and thus the criteria enshrined in paragraph 2, but only its application by FISA.[2] The Russian athletes argued that FISA’s decision deviated from the IOC Decision in that it was imposing as an additional requirement that rowers must “have undergone a minimum of three anti-doping tests analysed by a WADA accredited laboratory other than the Moscow laboratory and registered in ADAMS from 1 January 2015 for an 18-month period”.[3] The Panel acknowledged that “the IOC Executive Board decision does not refer explicitly to the requirement of three tests or to a period of 18 months”.[4] Nonetheless, it “finds that the Challenged Decision is in line with the criteria established by the IOC Executive Board decision”.[5] Indeed, the IOC’s Decision “provides that in order to examine whether the level playing field is affected or not (when admitting a Russian athlete to the Rio Olympic Games), the federation must look at the athlete's respective anti-doping record, i.e. examine the athlete's anti-doping tests” and that “[i]n doing so, the IOC Executive Board decision specifies that only "reliable adequate international tests" may be taken into account”.[6] In this regard, the Panel, and FISA, share the view that “a reliable adequate international test can only be assumed if the sample has been analyzed in a WADA-accredited laboratory outside Russia”.[7]More...



The Russian Ballet at the CAS Ad Hoc Division in Rio - Act II: On being implicated

Editor's note: This is the second part/act of our blog series on the Russian eligibility cases at the CAS ad hoc Division in Rio.

 

Act II: On being implicated


Paragraph 2 of the IOC Decision: The IFs to examine the information contained in the IP Report, and for such purpose seek from WADA the names of athletes and National Federations (NFs) implicated. Nobody implicated, be it an athlete, an official, or an NF, may be accepted for entry or accreditation for the Olympic Games.”

 

The second, and by far largest, wave of complaints involved Russian athletes barred from the game under paragraph 2 of the IOC Decision. None of those were successful in their appeals as the CAS sided with those IFs which took a tough stance with regard to the Russian State doping system. The first set of cases turned on the definition of the word “implicated” in the sense of paragraph 2 of the IOC Decision. In this regard, on 2 August the IOC sent a communication to the IFs aiming at providing some general guidelines. It reads as follows:

"In view of the recent appeals filed by Russian Athletes with CAS, the IOC considers it necessary to clarify the meaning of the notion "implicated" in the EB Decision.

The IOC does not consider that each athlete referred to in the McLaren Lists shall be considered per se "implicated. It is for each International federation to assess, on the basis of the information provided in the McLaren lists and the Independent Person Report, whether it is satisfied that the Athlete in question was implicated in the Russian State-controlled doping scheme.

To assist the International Federations in assessing each individual case, the IOC wishes to provide some information. In the IOC's opinion, an athlete should not be considered as "implicated" where:

·       The order was a "quarantine".

·       The McLaren List does not refer to a prohibited substance which would have given rise to an anti-doping rule violation or;

·       The McLaren List does not refer to any prohibited substance with respect to a given sample."

The CAS went on to address this question concretely in three cases analysed below. More...




The Russian Ballet at the CAS Ad Hoc Division in Rio - Act I: Saved by the Osaka Déjà-Vu

Since it was first introduced at the Atlanta Games in 1996,[1] the CAS ad hoc Division has never been as crowded as it was during this year’s Rio Olympics. This is mainly due to the Russian doping scandal, which has fuelled the CAS with Russian athletes challenging their ineligibility to compete at the Games. The CAS recently revealed that out of 28 awards rendered, 16 involved Russian athletes challenging their ineligibility. This Russian ballet is a direct result of the shocking findings of Richard McLaren’s Independent Person (IP) Report ordered by the World Anti-Doping Agency (WADA). McLaren’s investigation demonstrated that the Russian State was coordinating a sophisticated doping system. The revelation triggered an outrage in the media and amongst other competitors. Numerous calls (especially by WADA and various National Anti-Doping Organisations) were heard urging the IOC to ban the entire Russian delegation from the Olympics. The IAAF decided to exclude the whole Russian athletics team, [2] with the exception of Darya Klishina, but, to the disappointment of many, the IOC refused to heed these calls and decided, instead, to put in place a specific procedure to assess on a case-by-case basis the eligibility of Russian athletes.

The IOC’s Decision (IOC Decision) of 24 July foresees that the International Federations (IFs) are competent to determine whether each Russian athlete put forward by the Russian Olympic Committee (ROC) to participate in the Olympics meets a specific set of conditions. Moreover, the ROC was also barred from entering athletes who were sanctioned for doping in the past, even if they have already served their doping sanction. In the end, a majority of the Russian athletes (278 out of 389 submitted by the ROC) cleared the IOC’s bar relatively easily, but some of them did not, and many of the latter ended up fighting for their right to compete at the Rio Olympics before the CAS ad hoc Division.[3] In the following blogs, I will analyse the ten published CAS awards related to Russian athletes.[4] It is these legal fights that I suggest to chronicle in the following parts of this blog. To do so, I have divided them in five different (and analytically coherent) Acts:

International and European Sports Law – Monthly Report – August 2016. By Kester Mekenkamp.

Editor’s note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.    


The Headlines

For the world of Sport, the elsewhere known “sleepy month” of August turned out to be the total opposite. Having only just recuperated from this year’s Tour de France, including a spectacular uphill sprint on bicycle shoes by later ‘Yellow Jersey’ winner Chris Froome, August brought another feast of marvellous sport (and subsequent legal drama): The 2016 Olympic Games in Rio de Janeiro.More...


Sports arbitration and EU Competition law: the Belgian competition authority enters the arena. 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 14 July 2016, the Belgian competition authority refused to grant provisional measures to the White Star Woluwe Football Club (“The White Star”), which would have allowed it to compete in the Belgian top football division. The club was refused a licence to compete in the above mentioned competition first by the Licences Commission of the national football federation (“Union Royale Belge des Sociétés de Foootball Association” or “URBSFA”) and then by the Belgian court of arbitration for sports (“Cour Belge d’Arbitrage pour le Sport” or “CBAS”). The White Star lodged a complaint to the national competition authority (“NCA”) and requested provisional measures. The Belgian competition authority rendered a much-overlooked decision (besides one commentary) in which it seems to accept the reviewability of an arbitral award’s conformity with EU competition law (articles 101 and 102 TFEU). More...

From Lord of the Rings to Lord of the Drinks – A legal take on the downfall of Yuri van Gelder at the Rio Olympics. By Guido Hahn (Erasmus University Rotterdam)

Editor’s note: Guido graduated cum laude from the Vrije Universiteit Amsterdam. He teaches law at the Erasmus Universiteit Rotterdam. He specializes in sports law and provides legal advice for the professional sports sector.


Introduction

This blog is a commentary on a recent case that hit like a bombshell in the Netherlands (and beyond) during the recent Olympic Games in Rio. The case concerns a Dutch athlete, Yuri van Gelder, who reached the Olympic finals in his sport, got sent home by ‘his’ NOC (NOC*NSF) after a night out in Rio and launched legal proceedings in front of a Dutch court to claim back his place in the finals. This commentary will attempt to explain the Dutch ruling and evaluate whether a different legal route would have been possible and preferable. More...


Bailing out your local football club: The Willem II and MVV State Aid decisions as blueprint for future rescue aid (Part 2)

This is part two of the blog on the Willem II and MVV State Aid decisions. Where part one served as an introduction on the two cases, part two will analyze the compatibility assessment made by the Commission in two decisions.


The compatibility of the aid to MVV and Willem II (re-)assessed

Even though it was the Netherlands’ task to invoke possible grounds of compatibility and to demonstrate that the conditions for such compatibility were met, the aid granted to both Willem II and MVV was never notified. The Netherland’s failure to fulfill its notification obligation, therefore, appears to be at odds with the Commission’s final decision to declare the aid compatible with EU law. Yet, a closer look at the Commission’s decision of 6 March 2013 to launch the formal investigation shows that the Commission was giving the Netherlands a ‘second chance’ to invoke grounds that would lead to a justification of the measures.More...


Bailing out your local football club: The Willem II and MVV State Aid decisions as blueprint for future rescue aid (Part 1)

The European Commission’s decisions of 4 July 2016 to order the recovery of the State aid granted to seven Spanish professional football clubs[1] were in a previous blog called historic. It was the first time that professional football clubs have been ordered to repay aid received from (local) public authorities. Less attention has been given to five other decisions also made public that day, which cleared support measures for five football clubs in the Netherlands. The clubs in question were PSV Eindhoven, MVV Maastricht, NEC Nijmegen, FC Den Bosch and Willem II.

Given the inherent political sensitivity of State aid recovery decisions, it is logical that the “Spanish decisions” were covered more widely than the “Dutch decisions”. Furthermore, clubs like Real Madrid and FC Barcelona automatically get more media attention than FC Den Bosch or Willem II. Yet, even though the “Dutch decisions” are of a lower profile, from an EU State aid law perspective, they are not necessarily less interesting.

A few days before entering the quiet month of August, the Commission published the non-confidential versions of its decisions concerning PSV Eindhoven, Willem II and MVV Maastricht (hereinafter: “MVV”). The swiftness of these publications is somewhat surprising, since it often takes at least three months to solve all the confidentiality issues. Nonetheless, nobody will complain (especially not me) about this opportunity to analyze in depth these new decisions. More...

Fear and Loathing in Rio de Janeiro – Displacement and the Olympics by Ryan Gauthier (Thompson Rivers University)

‎Editor's Note: Ryan is Assistant Professor at Thompson Rivers University, he defended his PhD at Erasmus University Rotterdam in December 2015. His dissertation examined human rights violations caused by international sporting events, and how international sporting organisations may be held accountable for these violations.

Introduction

On Sunday, August 21, the 2016 Summer Olympic Games in Rio de Janeiro will end. The spotlight will dim not only on the athletes who return to their home countries to ply their trade in relative obscurity, but also on the country of Brazil.[1] Once the Games have ended, life will go ‘back to normal’, although for many residents of Rio de Janeiro, what is ‘normal’ is anything but. More...



Asser International Sports Law Blog | De- or Re-regulating the middlemen? The DFB’s regulation of intermediaries under EU law scrutiny at the OLG Frankfurt. By Antoine Duval and Kester Mekenkamp.

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

De- or Re-regulating the middlemen? The DFB’s regulation of intermediaries under EU law scrutiny at the OLG Frankfurt. By Antoine Duval and Kester Mekenkamp.

Football intermediaries, or agents, are again under attack in the news. For some, corrupt behaviour has become endemic in football’s culture. It is always dangerous to scapegoat a whole profession or a group of people. Many intermediaries are trying their best to lawfully defend the interests of their clients, but some are not. The key focus should be on providing an adequate legal and administrative framework to limit the opportunities for corrupt behaviour in the profession. This is easier said than done, however. We are dealing with an intrinsically transnationalized business, often conducted by intermediaries who are not subjected to the disciplinary power of federations. Sports governing bodies are lacking the police power and human resources necessary to force the intermediaries to abide by their private standards. In this context, this blog aims to review a recent case in front of the regional court of Frankfurt in Germany, which highlights the legal challenges facing (and leeway available to) national federations when regulating the profession.

Since April 2015, the FIFA Regulations on Working with Intermediaries (“Intermediaries Regulations”) entered into force. They replaced the 2008 FIFA Players’ Agents Regulation and introduced dramatic changes to the regulation of players’ agents (for a quick introduction read our short guide here). Although seeing its first light on April Fools’ Day, the Intermediaries Regulations are not to be taken lightly. On the contrary, the new rules constitute a major turning point in the governance of player and club representation. Furthermore, the question of the compatibility of the Intermediaries Regulations with EU competition law promptly arose when the Landgericht Frankfurt am Main (LG) had to rule on a challenge to the Reglement für Spielervermittlung (DFB-regulations), the national measure implementing the FIFA Regulations issued by the German Football Federation (DFB, Deutschen Fußball Bund). In its injunction of 29 April 2015 the LG found some provisions of the DFB-regulations to be contrary to Article 101 TFEU (see our earlier blog). This decision was appealed by both parties to the Oberlandesgericht Frankfurt am Main (OLG), which rendered its ruling on 2 February 2016. This blog aims to analyse the decision of the OLG, while also putting it into its wider legal and social context.

I.              Back to the future: The Piau case revived

It is not the first time that the regulation of football agents/intermediaries by football federations and EU law are colliding. The previous Piau saga that started on 23 March 1998 with a complaint to the European Commission by a French agent, Laurent Piau, ended only very recently in front of the French Courts with a painful defeat for Mr. Piau. In the framework of that case, the then Court of First Instance of the EC (CFI) issued a ruling on the compatibility of the FIFA Agents Regulations with EU competition law, on appeal against the Commission’s decision to reject the complaint by Laurent Piau. In that decision, the CFI famously showed its surprise to see a private association engaging in regulatory activity without an express delegation of public power. In the words of the Tribunal, “the rule-making power claimed by a private organisation like FIFA, whose main statutory purpose is to promote football, is indeed open to question”.[1] Indeed, “[i]n principle, such regulation, which constitutes policing of an economic activity and touches on fundamental freedoms, falls within the competence of the public authorities”.[2] Yet, as many know, the world of football is special and in practice national states have very much relinquish regulatory control over it.

The CFI was pragmatic enough to recognize this unusual state of affairs. In fact, this peculiarity also enabled it to consider that the FIFA regulations, issued by a private organization, could not escape the scope of EU competition law.[3] Yet, in fine, the CFI endorsed the compatibility of the FIFA regulations with EU Competition law. It considered first that the European Commission (EC) was right in holding that it obtained the repeal of the most restrictive provisions contained in the original FIFA regulations.[4] Furthermore, the CFI supported the EC’s view that the compulsory nature of the FIFA licensing mechanism could be justified under the framework of then Article 81(3) EC [now 101(3)TFEU]. It stated that the “Commission did not commit a manifest error of assessment by considering that the restrictions stemming from the compulsory nature of the licence might benefit from an exemption on the basis of Article 81(3) EC”.[5] Finally, the CFI affirmed the applicability of Article 82 EC [now 102 TFEU] to the FIFA regulations, but concluded that “it follows from the above considerations regarding the amended regulations and the possible exemption under Article 81(3) EC that such an abuse [of a dominant position] has not been established”.[6]

Thus, based on the framework of analysis used in Piau, there is absolutely no doubt that EU competition law is applicable to the DFB-regulations (and analogically to all the other national regulations implementing the new FIFA Intermediaries Regulations).[7] The key question, however, is whether the restrictive effect on competition of those new rules can be justified. Such a justificatory framework of analysis is also broadly in line with the CJEU’s case law on competition law and sport, and in particular its Meca-Medina ruling.[8] The question of the legitimate objectives and proportionality of the new rules was rightly identified by the LG and OLG as the defining one to assess rule-by-rule the legality of the DFB’s regulations.

II.            The OLG Frankfurt and the Compatibility of the DFB regulations with EU Competition Law

The OLG’s ruling bears no clear winner or loser, as both parties can claim to have prevailed on parts of their claims. In its decision the Court clearly outlined a set of provisions that it deemed compatible with EU law, and another contrary to it. In any event, this case is again a good reminder that EU law is no golden bullet against the regulations of the Sports Governing Bodies (SGBs). Instead, their compatibility with EU law must be assessed on a case-by-case basis, bearing in mind their contexts and objectives. Nevertheless, EU law can be invoked to challenge the rationality of the SGBs’ regulations and to check any disproportionate encroachment on the economic freedom of the affected actors.

A.    The DFB rules incompatible with EU Law

In the present case, the DFB’s regulations for intermediaries faced a relatively detailed quasi-constitutional control by the OLG. The German court found that parts of the regulatory options adopted by the German federation are disproportionate to attain their objectives and therefore contrary to Article 101 TFEU. This is especially true of the rule forcing intermediaries to abide by the rules and jurisdictions of the DFB, UEFA and FIFA, and of the rule imposing a duty to provide an extended certificate of good conduct usually reserved for professions involving a risk to the integrity of minors.

In line with the decision in first instance, the OLG ruled against the provision requiring intermediaries to submit to the jurisdictions of FIFA, UEFA, DFB and its members in connection with all violations of their regulations and statutes (see point 1 of DFB Vermittlererklärung für natürliche Personen – Anhang 1, and a related notice later issued by the DFB).[9] In the OLG’s view, it would result in an impossible situation for intermediaries, as they would be required to have a ‘reasonable’ knowledge of, at least, 35 different association statutes and face being subjected to 30 different jurisdictions.[10] The court puts forward that it is necessary, as a prerequisite for the submission of non-members to the rules of an association and its jurisdiction, to be able, at any time to take knowledge, in a reasonable manner, of the content of the regulations, compliance mechanisms and sanctions. This possibility was not warranted in the present case. In other words, if the DFB wishes to subject intermediaries to its jurisdiction it is possible, but it would need to clearly define what such a submission would entail in terms both of the rules and procedures that would be applicable. In fact, as recognized by the European Parliament,[11] some type of disciplinary control by the national federations over the intermediaries is necessary to give some teeth to their regulations.

Furthermore, the OLG also rules that agents cannot be forced to submit an extended certificate of good conduct (erweiterten Führungszeugnisses).[12] The OLG agrees with the appellant that this duty is impossible to fulfil as under German criminal law, such certificate can be issued only for occupations suitable to establish/result in contacts with children and young people. Yet, such a contact with minors is not at the heart of an intermediary’s profession, especially that, as we will see below, intermediaries cannot derive any financial compensation for a transfer or employment contract involving a minor, it seems thus impossible for he or she to obtain the requisite certificate.[13]

The OLG has clearly drawn a line in the sand. There is a limit to the obligations the DFB can impose, they must be rationally possible to fulfil and connected to the objectives pursued and must not be unreasonably burdensome for the intermediaries.

B.    The DFB rules compatible with EU Law

The judgment is rather remarkable for what it considers proportionate regulation by the DFB.

First, it endorses, contrary to the LG, the proportionality of the ban on intermediary fees for transfers or contracts involving minors.[14] This ban was a very controversial part of the new FIFA regulations, as it was deemed extremely restrictive of the economic freedom of intermediaries and potentially counter-productive. [15] However, in the view of the OLG, article 7.7 of the DFB-regulations pursues a legitimate objective: the protection of minors (der Minderjährigenschutz).[16] It aims, more specifically, to prevent the transfer of underage players based solely on the economic interests of the intermediary and/or that underage players are taken to Germany without a stable employment perspective.[17] Moreover, the OLG deems this prohibition to be necessary as the other legal protections for minors provided by the German civil code are often inapplicable.[18] Finally, the court considers this prohibition to be proportionate. First, because intermediaries are not barred from being remunerated for advising minors when this advice is not requested in the framework of the conclusion of an employment contract or a transfer. Furthermore, the OLG notes that similar measures have been adopted in all other European countries and is supportive of a uniform approach to the regulation of the role of intermediaries in transfers of minors.[19] Overall, this is not a surprising assessment. The need to combat human trafficking and to fight abuses linked to transfers of minors have been repeatedly emphasised by the European institutions in their soft law.[20] Recently, the European Parliament underlined ‘the specific vulnerability of young players and the risk of them becoming victims of human trafficking’[21]. Only time will tell whether this type of draconian measure will rein such abuses. In any event, if reducing the economic incentives of intermediaries linked to transfers of minors will most probably restrict their economic opportunities, it is also likely to diminish the connected incentives for human trafficking in football.[22]

Furthermore, the OLG’s judgment also endorses the transparency requirements imposed by the DFB. More precisely, it deemed the obligation for clubs and players to disclose the contract details covering remuneration and payments to intermediaries’ enshrined in article 6.1 DFB-regulations compatible with EU competition law.[23] The legitimate aim pursued is the transparency and traceability of the market for intermediaries. Behind this objective, lies the idea that player transfers should be primarily based on sporting, rather than financial reasons. Consequently, it deems that an obligation to disclose payments connected to intermediation is necessarily linked to the attainment of this goal. This duty to disclose is also considered proportionate. For the OLG, it does not run counter the German data protection rules, nor does it constitute a disproportionate infringement in the commercial operations of an intermediary. When balancing the interest of the intermediary to keep the financial flows secret and the interest of the DFB in unveiling these flows, the OLG finds that transparency aimed at limiting the external influence of intermediaries on transfers should prevail.[24] In the eyes of the court, the DFB has concretely demonstrated that the negotiation of transfers is linked with important fees (erheblichen Zahlungen), which are liable to trigger a transfer of a player for economic reasons, rather than sporting ones. This, the OLG argues, runs counter to the ideal of fair sporting competitions. [25] In general, striving for greater transparency/publicity in the intermediary market is at the heart of the regulatory shift intended by the new FIFA regulations.[26] In fact, a recent report by two Harvard based scholars argues that the lack of transparency in the transfer market is one of the main causes for money laundering and corruption in football.[27] This is reinforced by the concentration of the market for intermediaries, with a group of happy few constituting an oligopoly.[28] Besides, due to the inherently transnational operation of the market, it is extremely difficult to monitor for national authorities. Intermediaries rely on complex contractual structures (many of them have been recently exposed on the footballleaks website), juggling with national laws and arbitration clauses to reduce both their taxes and regulatory oversight. Though the transparency requirements imposed by the DFB are extremely limited (a first rough synthesis for 2015 is available here) and way bolder proposals must be put on the table,[29] this is an important step in the right direction. This quest for transparency and openness around the financial flows involving intermediaries is very much “applauded” by the European parliament.[30] In fact, if supporters and citizens, who are often in fine called to financial rescue when an overspending club is ailing, are expected to exercise a public check over the over-optimistic (and sometimes corrupt) management of clubs and the correlated extravagant fees paid to intermediaries, they must be able to rely on trustful data to conduct such a critical assessment.

Finally, and this is most interesting in light of the on-going legal battle over FIFA’s third-party ownership ban, the OLG, confirming the LG’s assessment, also recognized the legitimacy of the DFB’s ban on an intermediary having an interest in future transfer compensations.[31] Its legitimate purpose is to rein the disproportionate influence, based on personal financial incentives, of intermediaries on a player’s transfers.[32] The OLG seems to follow the LG’s view that the potentiality of obtaining a share of future transfer fees constitutes a major incentive for intermediaries to actively encourage an early termination of a player’s contract.[33] In short, the German court endorses the need to limit incentives for intermediaries to trigger contractual ruptures over their personal financial interest in a future transfer of a player. A similar logic could be applied to the proportionality assessment of the TPO ban. Indeed, this ban is also aimed at avoiding that transfers be triggered for purely financial reasons. The idea being that a club should not be in a position of dependence vis-à-vis a third-party (in practice often an intermediary) that would force it to transfer a player to satisfy its own purely economic rationale. In this regard, the OLG’s judgment is very encouraging for FIFA as it supports a logic of ‘de-financiarization’ of football. The court is very much recognizing that economic incentives should not be front-and-centre in contemporary football and that the fact that there is a clear economic dimension to sport (triggering for example the application of EU law and/or labour law) should not overshadow its other dimensions (cultural, social, ethical, educational). Conciliation is necessary, players are not amateurs anymore, transfers are possible, TV rights money can trickle down, but the rampant financiarization (and collateralization) of labour contracts seems both dangerous in terms of the economic instability it might trigger (think FC Twente) and of the unethical abuses it might incite and conceal.

Conclusion: The legal consequences of FIFA’s retreat

The new FIFA Regulations for Intermediaries are first and foremost a confession of impotence from the part of FIFA. Fifteen years after introducing a worldwide regulatory mechanism applicable to football agents, FIFA basically acknowledged its incapacity to control the profession and rein its negative externalities. The old licensing system proved unable to provide a qualitative level playing field for agents, nor was FIFA capable (or willing to invest enough resources) to truly enforce its rules. In fact, at the local level, a multitude of informal agents and practices had practically hollowed out the FIFA Regulations.[34] Yet, instead of strengthening its regulatory apparatus and enforcement mechanisms, FIFA decided to retreat and basically handed over the responsibility to regulate intermediaries to the multitude of national federations. One can be excused for doubting at first that such a re-nationalization is well suited to control an inherently transnational market.[35] Yet, there is still some room left for hope.

The re-nationalization of the Regulations will undoubtedly bring about a complex regulatory landscape with different regimes applicable in each national jurisdiction.[36] Moreover, agents/intermediaries might face an enhanced amount of red tape and administrative fees if they aim at entering each and every national market. These negative consequences can be tempered, however, by a number of things. First of all, the market for intermediaries has never been truly transnational. Sociologists have shown that it operates more as a chain of national actors rather than with truly transnational players.[37] Furthermore, the big transfer money (and thus intermediary money) in football is concentrated on a small number of national markets (mainly the European big five[38]). This means that if those markets jointly engage in a strict regulation of intermediaries it will affect disproportionately (probably positively) the profession. Due to massive TV rights revenues these national federations and leagues also dispose of the necessary (financial and administrative) resources to rigorously enforce their rules. For example, if at a European level, national federations were able to coordinate their new intermediaries regulations and provide a level regulatory field for the profession, which would involve both reducing the administrative costs to exercise it and a sharper control of its negative externalities, FIFA’s regulatory retreat would be largely compensated by a potentially more effective regulatory system.

What is the role of EU law in this regard? The Piau case is a good reminder that the CJEU is sympathetic to the need to regulate the market for intermediaries. Since then, the soft law of the European institutions (and especially the European Parliament’s position) has very much comforted this sympathy.[39] However, it would be rather naïve to believe that the EU would be able and willing to take on the task of single-handedly re-regulating such a complex transnational field. It has currently other burning priorities and crucially lacks the resources and expertise to do so. The role of EU law is rather one of a careful catalyst and counter-power, aimed at encouraging private regulations at the national or transnational level and eschewing that they go too far in scapegoating the intermediaries and in restricting their economic freedoms. In this regard, the OLG Frankfurt provided, on the basis of EU law, a rather balanced review of the DFB regulations, striking down some of the more intrusive (or arguably less rational) parts of the regulations, while recognizing the legitimacy and proportionality of others. EU law can be invoked to open up a critical discussion over the regulatory trade-offs of transnational private regulations. Not more but also not less.


[1] Case T-193/02, Laurent Piau v Commission [2005] ECR II-0209, paras. 112-115; Landesgericht Frankfurt am Main: Urteil vom 29. April 2015 · Az. 2-06 O 142/15, para. 77. On the Piau ruling see D. Waelbroeck & P. Ibañez-Colomo, ‘Case C-171/05 P, Laurent Piau, Order of the Court of Justice (Third Chamber) of 23 February 2006, [2006] ECR I-37’, Common Market Law Review 43: 1743–1756, 2006.

[2] Ibid., para. 78.

[3] “On the other hand, since they are binding on national associations that are members of FIFA, which are required to draw up similar rules that are subsequently approved by FIFA, and on clubs, players and players’ agents, those regulations are the reflection of FIFA’s resolve to coordinate the conduct of its members with regard to the activity of players’ agents. They therefore constitute a decision by an association of undertakings within the meaning of Article 81(1) EC (Case 45/85 Verband der Sachversicherer v Commission [1987] ECR 405, paragraphs 29 to 32, and Wouters and Others, paragraph 71), which must comply with the Community rules on competition, where such a decision has effects in the Community.” Ibid., para. 75.

[4] Ibid., paras 83-99.

[5] Ibid., para. 104.

[6] Ibid., para. 117.

[7] This is well recognized and explicated in the OLG’s judgment. See, OLG Frankfurt am Main, Urt. v. 02.02.2016, Az.: 11 U 70/15 (Kart), para. II.1.

[8] Case C-519/04 P David Meca-Medina and Igor Majcen v Commission [2006] ECR I-6991, para. 42 ff. See further S. Weatherill, ‘Anti-doping Revisited: The Demise of the Rule of ‘Purely Sporting Interest’?’ in S. Weatherill, European Sports Law, ASSER Press, Springer, 2014, pp. 379-399 and B. Van Rompuy, The Role of EU Competition Law in Tackling Abuse of Regulatory Power by Sports Associations, available at http://ssrn.com/abstract=2767467.

[9] OLG Frankfurt am Main, Urt. v. 02.02.2016, Az.: 11 U 70/15 (Kart),, II.2.b.

[10] Ibid, II.2.b

[11] The European Parliament “Underscores the finding of the study that the regulations of agents established by sports federations are basically aimed at controlling access to the profession and regulating its exercise, but that these bodies have only limited supervisory and sanctioning powers, since they lack any means of control or direct action vis-à-vis sports agents who are not registered with them; nor are they entitled to impose civil or criminal penalties”. European Parliament, Resolution on players’ agents in sports, 17 June 2010, (2011/C 236 E/14), para.8.

[12] OLG Frankfurt am Main, Urt. v. 02.02.2016, Az.: 11 U 70/15 (Kart), II.3.a

[13] Ibid, II.3.a: Art. 3.2 and 3.3 DFB-regulations

[14] Ibid, II.2.a

[15] For a good critique see N. de Marco, ‘The new FA Football Intermediaries Regulations and the Disputes Likely to arise’, at §23-25.

[16] Art. 7.7 DFB-regulations

[17] OLG Frankfurt am Main, Urt. v. 02.02.2016, Az.: 11 U 70/15 (Kart), II.2.a

[18] “Die Regelung ist auch notwendig; insbesondere bieten entgegen den Darstellungen der Klägerin die Regelungen zur beschränkten Geschäftsfähigkeit Minderjähriger gemäß §§ 104 ff BGB im vorvertraglichen Feld der Anbahnung eines möglichen Vertragsschlusses keinen Schutz. Dies erlangt Bedeutung, sofern - wie vom Beklagten dargestellt - eine Mehrzahl an potentiellen Spielern angeworben, jedoch nur einer tatsächlich vermittelt wird.” Ibid, II.2.a.

[19] “Schließlich erlangt bei der Verhältnismäßigkeitsprüfung auch Bedeutung, dass im europäischen Ausland ausnahmslos Regelungen hinsichtlich des Verbots der kostenpflichtigen Vermittlung minderjähriger Spieler verabschiedet wurden, so dass eine einheitliche Handhabung im Sinne des Minderjährigenschutzes in besonderer Weise geboten erscheint.” Ibid, II.2.a.

[20] See amongst others: European Parliament, Resolution on the future of professional football in Europe, 29 March 2007, (2006/2130(INI)), paras 35-38; European Parliament, Resolution on players’ agents in sports, 17 June 2010, (2011/C 236 E/14), para.6-7;

[21] European Parliament, Resolution on players’ agents in sports, para.6.

[22] This is a truly worrying development. See A. C. Najarian, ‘"The Lost Boys": FIFA's Insufficient Efforts To Stop Trafficking of Youth Footballers’, 22 Sports Law. J. 151 2015. On the ‘muscle drain’ phenomena, see W. Andreff, ‘“Muscle Drain” in Sport and how to regulate it? A plea for a “Coubertobin” tax’ and J. Scherrens, ‘The muscle drain of African Football Players to Europe: Trade or Trafficking?’, Master Thesis 2007.

[23] OLG Frankfurt am Main, Urt. v. 02.02.2016, Az.: 11 U 70/15 (Kart), II.3.b; Art. 6.1 DFB-regulations

[24] Ibid, II.3.b

[25] “Dies widerspricht dem Grundsatz eines am fairen Wettbewerb orientierten sportlichen Wettkampfs [...]“. Ibid, II.3.b

[26] In FIFA’s own words: “The new system does not regulate access to the activity but provide a framework for tighter control and supervision of the transactions relating to transfer of football players in order to enhance transparency.” FIFA, Working with intermediaries – reform of FIFA’s players’ agents system, Background information, April 2015, p.2.

[27] M. Andrews and P. Harrington, Off Pitch: Football’s financial integrity weaknesses, and how to strengthen them, CID Working Paper No. 311 January 2016, p.68-103.

[28]“The analysis of shares highlights that the big five league players’ representation market is highly concentrated: half of the footballers are managed by 83 football agents or agencies. Our study reveals the existence of closed relational networks that clearly favors the concentration of players under the control of few agents.”R. Poli, G. Rossi & R. Besson, Football Agents in the biggest five European football markets. An empirical research report, CIES, February 2012, p.2.

[29] Andrew and Harrington suggest for example to create both a “Transfer Clearinghouse to house transfer process information” and a “centralized processes for registering and managing intermediaries”, op.cit. 27, p.96-99.

[30] The EP “[a]pplauds sport governing bodies’ efforts to bring about more transparency and supervision of financial flows.” European Parliament, Resolution on players’ agents in sports, 17 June 2010, (2011/C 236 E/14), para.11. See also European Parliament, Resolution on the European dimension in sport, 2 February 2012 (2011/2087(INI)), paras 76, 78 and 87.

[31] OLG Frankfurt am Main, Urt. v. 02.02.2016, Az.: 11 U 70/15 (Kart),, II.3.c; Art. 7.3 DFB-regulations

[32]“Zweck der Regelung ist es, einer an sachfremden, d.h. nicht sportlichen Interessen ausgerichteten Einflussnahme der Vermittler auf Spielerwechsel, insbesondere im Bereich der vorzeitigen Vertragsbeendigung, entgegenzuwirken. Die Regelung ist geboten, da dieser Zweck durch das Verbot insbesondere der Zahlung von Transferentschädigungen oder Beteiligungen an einem künftigen Transferwert eines Spielers den Anreiz zur sachfremden, finanziell motivierten Einflussnahme mindert.” Ibid, II.3.c.

[33] LG Frankfurt am Main: Urteil vom 29. April 2015 · Az. 2-06 O 142/15, paras. 83-84

[34] A finding shared by the CIES study and the Study on Sports Agents in the European Union commissioned by the EC in 2009.

[35] The European Parliament stated in its 2010 Resolution on Agents that « doing away with the existing FIFA licence system for player’s agents without setting up a robust alternative system would not be the appropriate way to tackle the problems surrounding player’s agents in football”. European Parliament, Resolution on players’ agents in sports, 17 June 2010, (2011/C 236 E/14), para. 10. The same scepticism is displayed by M. Andrews and P. Harrington, Off Pitch: Football’s financial integrity weaknesses, and how to strengthen them, CID Working Paper No. 311 January 2016, at p.98.

[36] For a preliminary rough mapping, see M. Colucci (ed.), The FIFA Regulations on Working with Intermediaries – Implementation at National Level, International Sports Law and Policy Bulletin, Issue 1-2015.

[37] This is highlighted in the CIES study of 2012.

[38] I.e. the English Premier League, the German Bundesliga, the Spanish La Liga, the Italian Serie A and the French Ligue 1.

[39] European Parliament, Resolution on the future of professional football in Europe, 29 March 2007, (2006/2130(INI)), para. 44; European Parliament, Resolution on the White Paper on Sport, 8 May 2008 (2007/2261(INI)), para. 100; European Parliament, Resolution on players’ agents in sports, 17 June 2010, (2011/C 236 E/14); European Parliament, Resolution on the European dimension in sport, 2 February 2012 (2011/2087(INI)), paras 75-78. This need for regulation is also embraced, though more carefully, by the European Commission in its White Paper on Sport, see European Commission, White Paper on Sport, COM(2007) 391, at para. 4.4. See also European Commission, ‘Commission blows the whistle over inflated football transfer fees and lack of level playing field’, 7 February 2013

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