The European Commission’s competition decisions in the area of sport, which set out broad principles regarding the interface between sports-related activities and EU competition law, are widely publicized. As a result of the decentralization of EU competition law enforcement, however, enforcement activity has largely shifted to the national level. Since 2004, national competition authorities (NCAs) and national courts are empowered to fully apply the EU competition rules on anti-competitive agreements (Article 101 TFEU) and abuse of a dominant position (Article 102 TFEU).

Even though NCAs and national courts have addressed a series of interesting competition cases (notably dealing with the regulatory aspects of sport) during the last ten years, the academic literature has largely overlooked these developments. This is unfortunate since all stakeholders (sports organisations, clubs, practitioners, etc.) increasingly need to learn from pressing issues arising in national cases and enforcement decisions. In a series of blog posts we will explore these unknown territories of the application of EU competition law to sport.

In this second installment of this blog series, we discuss a recent judgment of the regional court (Landgericht) of Dortmund finding that the International Handball Federation (IHF)’s mandatory release system of players for matches of national teams without compensation infringes EU and German competition law.[1] 

Background

In 2009, the Spanish Handball League (ASOBAL) and Group Club Handball (the predecessor of the Forum Club Handball (FCH); an association representing the interest of the top European handball clubs) launched a complaint with the European Commission alleging that the rules of the IHF and EHF on the mandatory release of players were in breach of Articles 101 and 102 TFEU.[2] The Commission opened a preliminary investigation. This prompted the EHF to seek an amicable solution with the complainants.

In May 2010, the EHF signed a Memorandum of Understanding with FCH, covering issues such as the terms of compensation for the release of players and the representation of clubs and other stakeholders in the bodies of the EHF:

• The EHF agreed to pay compensation to the clubs for the release of their players to the national team. Starting from the 2010 European Championship, the EHF paid a fee of 270 EUR per player per match via the national federations to the clubs (amounting to a total compensation of 400.000 EUR, i.e. 10 percent of the profits of the 2010 European Championship).[3]

The EHF agreed on the principle that “each day a player spends with the national team/selection his salary should be insured by the National Federation, EHF or IHF in case of injury in favour of the clubs”.[4]

The EHF took an important step towards more inclusive governance by creating the Professional Handball Board, a strategic platform for various stakeholders (leagues, clubs, national federations, and players). It plays an advisory role through the submission of reports and analyses to the EHF Executive Committee and contributes to the decision-making process through its chairperson (who is a full member of the Executive Committee).

Since many of the complainants’ demands were met, ASBOL and FCH withdrew their competition law complaint. Subsequently, the European Commission closed its preliminary investigation in June 2010.

The EU handball “case” is a good illustration of the remedial potential of EU competition law to strengthen good governance in sport. The mere threat of a formal investigation by the European Commission proved sufficient for the EHF to change its rules for the release of players and to establish a channel for clubs and other stakeholders to participate in its decision-making process.

In 2014, the EHF and FCH renewed the 2010 Memorandum of Understanding (MoU) until June 2018. The modified MoU, which has been the subject of negotiations for more than one year, foresees increased fees for the release of players to the European Championships.

Strengthened by the satisfactory outcome reached with the EHF in 2010, the FCH made attempts to come to a similar arrangement with the IHF. Following negotiations during the course of 2010 and 2011, the IHF for the first time in history paid compensation for the release of players to the World Championship and signed insurance for player salaries for injured players. The IHF Council also proposed to integrate the clubs as stakeholders in its bylaws. The clubs, however, did not accept with the terms and conditions of the proposal and no agreement was reached. The clubs were also dissatisfied with the amount of the compensation paid by the IHF: qualification matches were not compensated and the fee only amounted in average to 10-20 percent of the monthly salary paid by the European top clubs. The prospects of reaching an agreement between the IHF and the CFH dimmed. In March 2012, the IHF made clear that it was no longer prepared to discuss a MoU with the FCH. This prompted 30 German clubs to sue the IHF and the German Handball Federation (DHB) before the regional court of Dortmund in April 2013. 

The 2014 Dortmund judgment

The IHF Player Eligibility Code provides that a club having a foreign player under contract is obliged to “release such player to his National Federation if he is called up to take part in activities of that federation's national team” (Article 7.1.2). The activities include the Olympic Games, World Championships, and continental championships as well as the qualification matches and tournaments for these events. According to Article 7.2 of the Code, a club releasing a national player “shall not have any claim to compensation”. Furthermore, the club must take out insurance coverage for the player in the event of personal injury and resulting consequences for the period for which the player has been called to his federation’s activities (Article 7.3.2). A club failing to release a player that is able to play will be penalized in accordance with the IHF Regulations Concerning Penalties and Fines and the disciplinary regulations of the Continental Confederation concerned (Article 7.4.4).

The German handball clubs, supported by the FCH, argued that the rules concerning the mandatory release of players to the national team and their application by the IHF and DHB constitute an abuse of a dominant position prohibited by Article 102 TFEU and the equivalent German competition law provision (§ 19 Gesetz gegen Wettbewerbsbeschränkungen, GWB).

The regional court of Dortmund first addressed a number of procedural issues. Considering that the DHB is bound by the rules of the IHF, the court decided to join the proceedings against the IHF and DHB. Moreover, the court did not defer to the jurisdictional exclusivity claimed by the defendants. It stressed that the internal disciplinary bodies or even the Court of Arbitration could not be considered independent and impartial for the purpose of reviewing the compatibility of the mandatory player release system with competition law.[5] According to the court, neither the IHF nor the DHB regulations could prevent the clubs from seeking direct recourse to an ordinary civil court. Lastly, the court found German law to be applicable. Even though Article 7 of the IHF Player Eligibility Code affects handball clubs worldwide, its obligations also substantially affect the German market in which the claimants operate.[6] The intimate connection between the claims against the IHF and the DHB further supported the conclusion that the regional court of Dortmund was the appropriate legal venue for hearing the case.

On substance, the court found that the IHF is a monopolist on the market for the organisation of international handball events, including the World Championships and the Olympic Games (i.e. events in which national teams compete), and on a number of other separate, but closely related, commercial markets (e.g. sponsorship). Also on the markets for the organisation of European and national handball competitions, the IHF holds a dominant position (solely and together with the EHF and the national federations).[7]

Turning to the contested rule of the IHF Player Eligibility Code (Article 7), the court stressed that the obligation for clubs to release players for matches of national teams without compensation is incompatible with the civil code rule of good faith in contractual performance.[8] In any normal business, it would be unthinkable that an undertaking would provide for free a resource, its employees, to a competitor seeking to make profits from that resource.[9] At the same time, the court found that this obligation constitutes an exploitative abuse of a dominant position prohibited by § 19 GWB and Article 102 TFEU. When recruiting top foreign-raised players, clubs must take into account the costs of paying their players while they are absent and, what is more, the costs incurred if those players would get injured during an international match. As such, uncompensated player release restricts the clubs’ contractual freedom and distorts competition between the clubs.

Although Article 102 TFEU does not contain an exemption clause similar to Article 101(3) TFEU, an undertaking may escape an abuse finding by demonstrating an objective justification or efficiency defense for its conduct. The court, however, brushed aside the arguments put forward by the IHF and DHB to this end. 

First, the defendants contended that without the player release system, clubs would not be willing to release their players to national teams. The release rules would also prevent clubs from trying to weaken foreign national teams in favor of their own national team.[10] The court stressed, however, that the mandatory release of players for national teams in itself is not being contested. It also pointed to the fact that the IHF, notwithstanding Article 7.2 of the Player Eligibility Code, decided to pay compensation for the release of players to the 2011 and 2013 World Championships. This indicates that in principle a compensation would not adversely affect the sporting or other interests of the IHF. In addition, the court made numerous references to the MoU reached between the EHF and the FCH as well as to the MoU between FIFA and the European Club Association (ECA) (i.e. the deal as a result of which the Oulmers litigation was terminated, see below). These examples indeed exemplify that an uncompensated player release system cannot be considered indispensable.

Second, the defendants argued that participation in international handball events increases the exposure and thus the value of the players, which indirectly benefits the clubs.[11] Also this argument failed to convince the court. If the IHF and DHB would be able to quantify this advantage, this could be taken into consideration when determining the compensation. Yet it could not objectively justify the denial of compensation for the release of players or for their potential injuries.

In light of these observations, the court declared the conditions for the release of players to foreign national teams, embedded in Article 7.2 and 7.3.2 of the IHF Player Eligibility Code, null and void. Interestingly, the court also suggested that the IHF would introduce a cap on the number of days an association would be entitled to call up players for the national team. 

A landmark judgment in the making?

Unsurprisingly, the IHF and the DHB lodged an appeal against the judgment before the higher regional court (Oberlandesgericht) of Düsseldorf. It is not unthinkable that eventually the case will trigger a preliminary reference to the Court of Justice and emerge as the successor of the abandoned Oulmers litigation against the FIFA player release system.

The regional court of Dortmund did not expressly rely on the Wouters proportionality test, transposed in Meca-Medina, to assess whether the IHF’s player release system constituted an abuse of a dominant position. The court’s analysis is, however, largely consistent with the analysis that the Court of Justice would follow. After having established that the contested rules emanate from an undertaking that has a dominant position, the court verified whether there are less restrictive means to achieve the objectives pursued by the IHF’s mandatory player release system. It did not call into question the necessity of a mandatory player release system for the organisation of international handball competitions, but the court did conclude that the current system – which leaves clubs uncompensated – could not be objectively justified.

For at least two reasons the Dortmund judgment, while not final yet, has potential to become an important precedent for many other sports.

First and foremost, it offers the first substantive assessment of the compatibility of player release rules with EU (and national) competition law. Particularly in the event of a preliminary reference to the Court of Justice, the case could serve as a much-needed wake up call to all international sports federations that currently operate a similar system. Arguably, federations could assert that the compensation should not cover all the costs incurred by the clubs. Indirect benefits to the clubs could be discounted. Yet it appears undeniable that the imposition of the burden on clubs to supply players without allowing them a fair share of the resulting benefits constitutes an abuse prohibited by Article 102 TFEU.

Second, even though sports federations usually have practical monopolies in a given sport, the remedial potential of Article 102 TFEU to tackle abusive conduct remains underexplored. This case, and even the earlier competition law complaint lodged against the EHF, reveals that it offers a powerful instrument to steer sports federations into the direction of better governance. Eventually the IHF will have to follow the path that others (e.g. EHF, FIFA) have traveled. After all, the determination of a fair compensation for player release necessitates a consensual strategy that balances the needs of stakeholders, in this case the clubs, with the needs of the federation.

We continue to follow this case closely, so stay tuned.

[1] Landgericht Dortmund, Urteil vom 14.05.2014, 8 O 46/13.

[2] Cases COMP/39659 ASOBAL v handball federations and COMP/39669 Group Club Handball v handball federations.

[3] Forum Club Handball, EHF pays compensation to the clubs, 28 February 2010.

[4] Forum Club Handball, Insurance of player salaries in case of injury, 15 June 2010.

[5] Landgericht Dortmund, Urteil vom 14.05.2014, 8 O 46/13, paras. 104-114.

[6] Idem, para. 118.

[7] Idem, paras. 121-122.

[8] German Civil Code, Section 242 (“An obligor has a duty to perform according to the requirements of good faith, taking customary practice into consideration”).

[9] Landgericht Dortmund, Urteil vom 14.05.2014, 8 O 46/13, para. 129.

[10] Idem, para. 130.

[11] Idem, para. 132.

Editor’s Note: Shervine Nafissi (@SNafissi) is a Phd Student in sports law and teaching assistant in corporate law at University of Lausanne (Switzerland), Faculty of Business and Economics (HEC).

Introduction

The factual background

The dispute concerns a TPO contract entitled “Economic Rights Participation Agreement” (hereinafter “ERPA”) concluded in 2012 between Sporting Lisbon and the investment fund Doyen Sports. The Argentine player was transferred in 2012 by Spartak Moscow to Sporting Lisbon for a transfer fee of €4 million. Actually, Sporting only paid €1 million of the fee while Doyen Sports financed the remaining €3 million. In return, the investment company became the owner of 75% of the economic rights of the player.[1] Thus, in this specific case, the Portuguese club was interested in recruiting Marcos Rojo but was unable to pay the transfer fee required by Spartak Moscow, so that they required the assistance of Doyen Sports. The latter provided them with the necessary funds to pay part of the transfer fee in exchange of an interest on the economic rights of the player.

Given that the facts and circumstances leading to the dispute, as well as the decision of the CAS, were fully described by Antoine Duval in last week’s blog of Doyen vs. Sporting, this blog will solely focus on the decision of the Swiss Federal Supreme Court (“FSC”) following Sporting’s appeal against the CAS award. As a preliminary point, the role of the FSC in the appeal against CAS awards should be clarified.

Scope of the Federal Supreme Court’s review as for the international arbitral awards

Since the CAS has its seat in Lausanne, Switzerland, it has adopted its procedural rules in accordance with the 12^th chapter of the Swiss Private International Law Act[2], which provides a general legal framework for international arbitration in Switzerland. Under the relevant provisions of the Swiss PILA, arbitral awards are final upon their notification and can only be challenged before the Swiss Federal Supreme Court on a very limited number of grounds in order to prevent the parties to arbitrate again the dispute before a state Court.[3] Besides, in Swiss law, there is only one level of appeal against an international arbitration award before the Federal Supreme Court.[4] Thus, the FSC “ensures a uniformity in the review of arbitral awards and the development of a consistent court practice” be being the only one instance for appeals.[5] In this way, “arbitral awards are always reviewed by the same State court, ensuring consistency”.[6]

Setting aside the award may only be possible where the sole arbitrator has been improperly appointed or where the arbitral tribunal has been improperly constituted, where the arbitral tribunal has wrongly accepted or denied jurisdiction, where the arbitral tribunal has ruled beyond the claims submitted to it, or failed to decide one of the claims, where the principle of equal treatment of the parties or their right to be heard in an adversary procedure has not been observed, where the award is incompatible with public policy.[7] In casu, the examination of Sporting Lisbon's claims is based on the incompatibility of the award with public policy within the meaning of Art. 190 para. 2 let. e PILA.

As a reminder, an award is inconsistent with public policy if it disregards those essential and broadly recognized values which, according to the prevailing values in Switzerland, should be the founding stones of any legal order.[8] “An award is contrary to substantive public policy when it violates some fundamental principles of the law applicable to the merits to such an extent that it is no longer consistent with the notions of justice and system of values; among such principles are, in particular, the sanctity of contracts, compliance with the rules of good faith, the prohibition of abuse of rights, the prohibition of discriminatory and confiscatory measures, as well as the protection of incapable persons. (…). If it is not easy to define substantive public policy positively and to set its boundaries with precision, it is easier to exclude one item or another from it. The entire process of interpreting a contract and the legal consequences logically drawn therefrom are excluded; so is the interpretation of the statutory provisions of a private law body by an arbitral tribunal. Furthermore, it is not sufficient to show incompatibility with public policy – a concept more restrictive than arbitrariness – by showing that the evidence was wrongly assessed, a factual finding manifestly wrong, or a rule of law clearly violated”.[9]

Thus, the examination of this international arbitral award by the FSC is limited to the question of the compatibility of the said award with public policy, a notion more restrictive than arbitrariness.

The judgement of the Federal Supreme Court of Switzerland - the merits

Sporting Lisbon’s defence

First, the Portuguese club tried to demonstrate that the CAS award violated material public policy by giving effect to one-sided and usurious contracts including excessive restriction.[10]

The claim is based on figures from the ERPA contract. Considering that Doyen Sports invested €3 million at the beginning, the company managed in all cases with 12.36% of minimum return insofar as it activated the Put Option, or 40% if the company requested payment of the Minimum Interest Fee. These two scenarios did not take into account the possibility that the player concerned by the ERPA be transferred with a capital gain, thus enabling Doyen Sports to get an investment return of about 400%, as was the case for the transfer of Marcos Rojo to Manchester United.

Sporting Lisbon compared this investment return to its own, as it would only be left with €1 million, i.e. the 5% of the transfer fee once the 75% for Doyen Sports’s share and the 20% for Spartak Moscow’s share deducted. Therefore, according to the Portuguese club, the ERPA, which it describes as a partiary loan[11], infringes the provisions on usury, would be a one-sided contract and, accordingly, would be null and void under Swiss law.[12]

Secondly, Sporting Lisbon explained that it gave up its freedom of action in an unacceptable manner under and art. 27 of the Swiss Civil Code (protection of one’s legal personality against excessive restrictions).[13] Indeed, some clauses of the ERPAs required Sporting Lisbon to accept a transfer offer deemed sufficiently high, if not Sporting would be forced to pay Doyen Sports 75% of the proposed transfer fee without receiving any fee, precisely because of the absence of any transfer.[14] According to the Portuguese club, Doyen Sports was not only in a position to ask Sporting Lisbon to transfer Marcos Rojo even if the club preferred to keep the player in its squad for purely sporting reasons, but also to require the club to make its best efforts to transfer the player before the end of his employment contract. Sporting Lisbon further underlined that the ERPA is made up of clauses stipulating that the club, conscious of the harshness and the severity of the consequences of certain clauses, takes the commitment to consider these clauses as fair and a necessary condition to Doyen’s interest in the player’s economic rights.

Thirdly, the club considers that the award of the CAS violates material public policy because it gives effect to contracts that seriously disregard the personality rights and the fundamental rights of the players. ERPA contracts would seriously undermine the players by putting pressure on the club by various clauses, including a clause obliging it to pay to Doyen Sports a minimum amount of €4.2 million (the Minimum Interest Fee) in the event that Marcos Rojo is not transferred to another club before the end of his employment contract. Such a clause would force Sporting to do everything possible to encourage the player to leave the club before the expiration of the employment contract. Thus, the player, even though he is not a party to the contract, would see his right to free economic development restricted, if not annihilated, in particular his ability to take the appropriate decisions for his sporting career and to freely choose the club for which he intends to play.[15] As regards fundamental rights, Sporting Lisbon argues that the ERPA-mechanism allows a third party to indirectly decide whether the player concerned by the ERPA must continue to play for his club or whether he must accept the conclusion of a contract with another club. Such a situation would violate the prohibition of forced labor set out in Art. 4 para. 2 ECHR and, more generally, human dignity.[16]

Finally, according to Sporting Lisbon, there should be a shared conception of moral standards in the field of sport in general and football in particular. These standards should not only prevent players from becoming an object of speculation, but also prevent investors to take advantage of the financial difficulties of the clubs. By taking advantage of clubs in financial difficulty, investors make indecent profits, while the clubs lose control of the situation from the sporting point of view. The standards would help to strengthen contractual stability, which is a cardinal principle of the transfer system.

The FSC’s Decision

The FSC first considered the figures provided by Sporting Lisbon with regard to the calculation of the minimum return of 12.36% (insofar as the Put Option is activated) and 40% (in case Doyen requests payment of the Minimum Interest Fee), and found that these figures were based on a calculation over three and five years respectively. Consequently, if the calculation of the investment return was made over one year, this would have given interest rates lower than 15%, which would be lawful under Swiss law. In addition, the arguments based on Doyen Sports’ investment return of about 400% with the transfer of Rojo were considered as irrelevant. These figures cannot be qualified as interests, but only as a kind of remuneration of the lender, which depends on the amount of the transfer fee, thus being similar to a partiary loan paid by giving a share to the lender on the profit realized by the borrower in a subsequent transfer operation.[17] Therefore, assuming that the relationship between the two parties is a lender-borrower relationship, the fact that Doyen Sports could acquire 75% of the future transfer fee of the player for whom it had initially financed the transfer at Sporting Lisbon for an equivalent share (i.e. €3 million out of €4 million), is not an usurious, one-sided contract, nor immoral.

Finally, the particular aspect of this type of contract relates to the enormous capital gains that can be made with the transfer operation, in casu about 400%. Nevertheless, the FSC considers that this capital gain depends on predominantly random elements.[18] The fact that Marcos Rojo played well at the 2014 World Cup, and that the Argentine selection reached the final of this competition, could not be foreseen. Thus, the sudden increase in his value on the transfer market is totally uncertain and cannot be invoked as a claim against Doyen Sports.[19] Moreover, the FSC recalled that the opposite situation was also possible, i.e. a drastic loss of the value of the player based on his performance in selection and club. These elements can therefore not be objectively taken into account by the parties. At the end of its reasoning on this issue, the FSC took the liberty to criticize Sporting Lisbon by saying that the club would not have been offended by such capital gain if it had been the sole beneficiary of the transfer fee.[20]

Secondly, the FSC analyzed the argument put forward by Sporting Lisbon that the ERPA contract would seriously undermine its freedom under Art. 27 CC. It should be kept in mind that, according to case-law, a breach of that provision does not necessarily mean a violation of public policy. Such a violation is instead conceivable only in case of a blatant and grievous violation of a fundamental right.[21] It must be considered in this respect that a contractual limitation of economic freedom is disproportionate within the meaning of Art. 27 (2) CC only when the debtor submits to someone else’s arbitrariness, gives up his economic freedom or restricts it in such a way that the foundation of his economic existence is jeopardized.[22] In casu, the FSC recalls that Sporting Lisbon is not inexperienced in the sharing of economic rights insofar as Marcos Rojo was not the only Sporting player affected by this type of contract.[23] It was the club that took the initiative to contact Doyen Sports to request its financial assistance. The conclusion of the contract was also preceded by lengthy negotiations during which the club was assisted by experts and lawyers. Finally, the dispute with Doyen Sports concerning Marcos Rojo was not in itself able to deteriorate the club’s financial situation, and thus preventing it from pursuing its economic activities.

Thirdly, the FSC examined the claim concerning the personality and fundamental rights of the players concerned by an ERPA.[24] The judges considered that the club limited itself to purely theoretical reflections without, however, demonstrating in concrete terms how the ERPA contract would seriously undermine the aforementioned rights. To the extent that the FSC has limited power to review international arbitral awards, it is hardly theoretical arguments that will demonstrate that a CAS award violates public policy according to Art. 190 para. 2 let. e PIL. Moreover, Sporting Lisbon’s argument concerning the personality and fundamental rights of Marcos Rojo is incompatible with the fact that the club has used the TPO mechanism for several other players. Again, the FSC questioned the sincerity of this argument had Sporting Lisbon received the full amount of the transfer fee. Furthermore, although the FSC recognizes the quality of the club to report a violation of the player’s personality rights[25], it is not established by the judges that the players themselves have complained of any such violation. On the contrary, when he signed for Manchester United, Marcos Rojo would have welcomed the fact of joining one of the best clubs in the world. Marcos Rojo, who was earning the equivalent of €1.14 million in Sporting Lisbon, currently earns about €4 million per year at the English club. Therefore, it is somewhat bold on the part of Sporting Lisbon, according to the FSC, to put forward the prohibition of forced labor or the violation of human dignity in such circumstances.

Finally, The FSC did not want to admit a notion of moral standards in the field of sport in general, and football in particular, in relation to the definition of the concept of material public policy.[26] Apart from the fact that it seems difficult to determine what is a moral standard in football, to adapt the concept of material public policy in relation to a particular activity and, more importantly, to a particular branch of the activity concerned - in this case, sport or football - would in some way soften the force and reduce the scope of the concept by leaving to FIFA the task of defining the notion of morality proper to football. The result would be a dilution of the notion of material public policy and, consequently, an increased difficulty in defining the contours of this concept, not to mention the formation of a casuistry that is not favorable to the predictability of the law.

In conclusion, the FSC recalls that the high mobility of professional footballers and their frequent transfers are caused by FIFA regulations, in particular the rules relating to the maximum duration of an employment contract binding a Player to a football club and the conditions of a subsequent transfer of that same player to another club, but also by the manner in which the transfer system is applied.[27]

For all these reasons, the Federal Supreme Court rejected Sporting Lisbon’s appeal against the CAS award of 21 December 2015.

Conclusion

Following the award of the CAS, the FSC confirmed the validity of the ERPA contracts under Swiss law. The mechanisms that make up the agreements signed by Doyen Sports and other companies that invest in the player transfer market are based on traditional legal instruments, including the assignment of future receivables. Thus, from a Swiss legal point of view, TPO agreements do not undergo the same moral reprimand administered by the highest football bodies, such as FIFA, UEFA or FIFPro.

Consequently, the legal battle that resulted in a victory for the “pro-TPOs” and the model proposed by the third parties, challenges the legitimacy of FIFA regulations and, more specifically, Art. 18^ter RSTP. The arguments used by Sporting Lisbon to justify the early termination of the ERPA contract are very similar, or even identical, to those presented by FIFA to justify the formal ban of the TPO in May 2015.

Nevertheless, the fact that Swiss contract law is quite liberal does not exclude the invalidation of an ERPA for material public policy reasons. As we have seen with Football Leaks, the TPO mechanism can constitute a definite threat to the financial situation of clubs, such as FC Twente. It all depends on the case brought before the courts. Indeed, the case of Sporting Lisbon was not necessarily the best opportunity to challenge the validity of the contract, as the action of Art. 21 CO was time-barred (as mentioned in the previous blog on the initial CAS award) and the player joined, voluntarily, one of the best clubs in the world.

I believe that Art. 21 of the Swiss Code of Obligations (unfair advantage) as well as Art. 27 CC and 28ss CC (personality rights) may, depending on the case before the CAS, be a legal basis for the invalidation of the contract. To the extent that a dispute arises between an inexperienced club and an investment company, the application of Art. 21 CO is not totally excluded. In addition, if a player whose economic rights have been assigned to a third party is obliged to leave the club against his will or even join a club for whom he does not wish to play, the provisions on personality rights may find an echo at the CAS.

All eyes are on other courts where ‘TPO-cases’ are pending. Most importantly, the CAS should soon issue an award in the Doyen Sports and FC Seraing United v. FIFA case. As a reminder, in January 2015, the Belgian club and Doyen Sports concluded an ERPA contract despite the FIFA ban being enacted in December 2014. As a result, the FIFA Disciplinary Committee sanctioned the Belgian club with a transfer ban (for four complete and consecutive registration periods) and a fine of CHF 150.000 for breaches relating to the third-party ownership and third-party influence. The CAS is therefore seized of an appeal against a disciplinary sanction imposed by FIFA and will be obliged to take Art. 18^ter RSTP into consideration and to judge whether the sanction is justified. It remains to be seen whether the arguments based on EU law by Doyen Sports and FC Seraing United will be taken into consideration. Indeed, both parties also filed a complaint, based on EU law, before the Belgian Courts to challenge the TPO ban.[28] For now, all these procedures have failed. It will be interesting to see how the CAS will judge the Seraing case that relates to the same mechanism although the two cases are fundamentally different. The Rojo case dealt with a contractual dispute before the ban, while the Belgian club and Doyen Sports challenged a sanction issued by FIFA and the ban as such.

In any event, TPO deals have rarely been so much under the public spotlight since their ban, and the legal suspense goes on…

[1]     Economic rights are the rights to future transfer fees from the transfer of the player to another club, and, unlike federative rights, economic rights can be divided between multiple parties. See, among others, W. Tyler Hall, After the Ban: The Financial Landscape of International Soccer After Third-Party Ownership, Oregon Law Review, Vol. 94, 2015, pp. 179 – 221.

[2]     Hereinafter “PILA”.

[3]     Mavromati, Despina, The Role of the Swiss Federal Tribunal and Its Impact on the Court of Arbitration for Sport (CAS), 29 September 2016.

[4]     Antonio Rigozzi, L'arbitrage international en matière de sport, Bâle, (Helbing & Lichtenhahn), 2^ème édition, 2005.

[5]     Niederer Kraft & Frey, Swiss Arbitration – Practical Aspects and New Developments, Publication 19, 2015, p. 28.

[6]     Ibidem.

[7]     Art. 190 para. 2 PILA.

[8]     ATF 132 III 389 consid. 2.2.3.

[9]     Judgment of the FSC, 4A_116/2016, December 13rd 2016, par. 4.1. The English translation is based on the Judgment of the FSC, 4A_304/2013, March 3rd 2014, par. 5.1.1 made by http://www.swissarbitrationdecisions.com (emphasis added).

[10]    Judgment of the FSC, 4A_116/2016, December 13rd 2016, par. 4.2.1.

[11]    Under Swiss law, the “partiary” loan is a form of loan in which the remuneration of the lender consists in a share of the borrower’s earnings. The “partiary” loan has a random element: the remuneration of the lender depends on the success of a specific business or transaction of the borrower. In casu, the ERPA can be qualified as a “partiary” loan insofar as the transaction depends on the profit made by Sporting in case of a transfer of Marcos Rojo and provides for a share of Doyen in Sporting’s success. See, Bovet / Richa, CO 312 N 6 in : Commentaire romand Code des obligations I, Pierre Tercier / Marc Amstutz (édit.), 2^ème édition, Bâle, 2012 ; Pierre Tercier / Laurent Bieri / Pascal G. Favre, Les contrats spéciaux, 5^ème édition, Genève Zürich Bâle (Schulthess) 2016, N 2539.

[12]    Judgment of the FSC, 4A_116/2016, December 13rd 2016, par. 4.2.1.

[13]    Hereinafter “CC”.

[14]    Judgment of the FSC, 4A_116/2016, December 13rd 2016, par. 4.2.1.

[15]    Judgment of the FSC, 4A_116/2016, December 13rd 2016, par. 4.3.1.

[16]    Ibidem.

[17]    Judgment of the FSC, 4A_116/2016, December 13rd 2016, par. 4.2.3.

[18]    Ibidem.

[19]    Ibidem.

[20]   Judgment of the FSC, 4A_116/2016, December 13rd 2016, par. 4.3.3.

[21]    Judgment of the FSC, 4P.12/2000, June 14^th 2000, par. 5b. aa.

[22]    Ibidem.

[23]    In March 2013, 35 to 40 players' economic rights were shared with various investment funds. See CAS 2014/0/3781, par. 217.

[24]   Judgment of the FSC, 4A_116/2016, December 13rd 2016, par. 4.3.3.

[25]    According to the exceptio de jure tertii principle, see Judgment of the FSC, 4A_304/2013, March 3rd 2014, par. 3.

[26]   Judgment of the FSC, 4A_116/2016, December 13rd 2016, par. 4.2.3.

[27]    Judgment of the FSC, 4A_116/2016, December 13rd 2016, par. 4.3.3.

[28]   Patricia Moyersoen, La décision du TAS du 21 décembre 2015 à propos des contrats de TPO passés entre le Sporting Club du Portugal et la société Doyen Sports Investments, http://www.droitdusport.com/; http://www.rfc-seraing.be/audience-au-tas-de-lausanne/.