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

Can Formula 1 drive to protect human rights? A case study of the Bahrain GP - By Pedro José Mercado Jaén

Editor's Note: Pedro is an intern at the Asser Institute and currently studying the Erasmus Mundus Master Degree in Sports Ethics and Integrity (KU Leuven et al.) He worked as a research fellow for the Centre for Sport and Human Rights, and his primary research interests lie in the fields of International Human Rights and sport. 


I.               Introduction

“I can’t do everything and I can’t do it alone. I need allies.” These are the words of the seven-time Formula 1 (F1) world champion, Lewis Hamilton. He was urging more support to advocate for the protection of human rights in the countries visited by Formula 1. During the last years, Hamilton together with Sebastian Vettel, have become the leaders of a movement demanding accountability and greater awareness of the impact of F1 on society.

The inclusion of the Bahrain GP on the F1 racing calendar for the first time in 2004 ignited concerns, which have grown with the inclusion of Abu Dhabi in 2007, Russia in 2014, Azerbaijan in 2017, and Saudi Arabia and Qatar in 2021. The inability and lack of commitment of state authorities to protect and respect human rights, the ineffectiveness of judicial procedures and the systematic repression of political opposition are some of the factors that make these countries prone to human rights violations. Academics and CSOs regularly argue that F1, by signing multi-million dollar contracts with these countries, is complicit in sportswashing. Those pulling the sport’s strings deny these accusations and claim that human rights are at the centre of their agenda when they visit these countries. They claim F1 can drive the improvement of human rights standards in a particular country. However, reality tells a different story. The Bahrain GP has been running for more than a decade and the situation in the country has only worsened, without any signs of F1 contributing to the improvement of the protection of human rights there.

This blog aims to provide an overview of the human rights challenges F1 is facing when hosting a Grand Prix. For this purpose, a case study of the Bahrain GP, one of the longest-running on the modern/current F1 calendar, will be carried out. This will allow us to examine in detail the historical evolution of the GP, the complaints from civil society organisations and the reaction of the Federation Internationale de l’Automobile (FIA) and other stakeholders to the ongoing allegations of human rights violations.More...



Call for papers - ISLJ Conference on International Sports Law - Asser Institute - 25 and 26 October 2022

 

Call for papers

ISLJ Conference on International Sports Law

Asser Institute, The Hague

25 and 26 October 2022


The Editors of the International Sports Law Journal (ISLJ) invite you to submit abstracts for the ISLJ Conference on International Sports Law, which will take place on 25 and 26 October 2022 at the Asser Institute in The Hague. The ISLJ, published by Springer and TMC Asser Press, is the leading academic publication in the field of international sports law. The conference is a unique occasion to discuss the main legal issues affecting international sports and its governance with renowned academic experts.


We are delighted to announce the following confirmed keynote speakers:

  • Jonathan Grix (Professor of Sport Policy and Politics at Manchester Metropolitan University), and
  • Mary Harvey (CEO at the Centre for Sport and Human Rights),
  • Ben Van Rompuy (Assistant Professor at Leiden University).


We welcome abstracts from academics and practitioners on all issues related to international sports law and governance. We also welcome panel proposals (including a minimum of three presenters) on a specific issue. For this year’s edition, we specifically invite submissions on the following themes and subthemes:

  • International sports law and governance in times of conflict:
    • The emergence of the idea(l) of political neutrality of SGBs and its translation in legal/governance practice
    • The intersection between public international law and international sports law and governance in the context of international conflicts
    • The role of sports diplomacy/conditionality in the context of international conflicts
    • International sports law and the Russian invasion of Ukraine

  • Human rights and mega sporting events (MSEs)
    • The adverse or positive impact of MSEs on (specific) human rights
    • The influence of human rights commitments on the organisation of MSEs
    • The effects of MSEs on human rights in organising countries
    • The responsibilities and strategies of SGBs to ensure respect of human rights at MSEs
    • The role and responsibilities of states in ensuring respect of human rights in the context of MSEs

  • Competition law and challenges to the governance monopoly of SGBs
    • The impact of competition law on SGBs and their governance
    • The limits of competition law on effecting change in the governance of sport
    • The specific modalities of application of competition law to sports governance
    • The legitimacy of competition authorities in challenging SGBs


Please send your abstract of 300 words and CV no later than 1 July 2022 to a.duval@asser.nl. Selected speakers will be informed by 15 July.

The selected participants will be expected to submit a draft paper by 10 October 2022. Papers accepted and presented at the conference are eligible for publication in a special issue of the ISLJ subject to peer-review. Submissions after this date will be considered for publication in later editions of the Journal.

The Asser Institute will cover one night accommodation for the speakers and may provide a limited amount of travel grants (max. 250€). If you wish to be considered for a grant, please indicate it in your submission.

Reactions of International Sport Organisations to the Russian Invasion of Ukraine: An Overview - By Daniela Heerdt & Guido Battaglia

Editor's note:

Daniela is a researcher at the Asser Institute in the field of sport and human rights. She has a background in public international law and human rights law and defended her PhD project entitled “Blurred Lines of Responsibility and Accountability – Human Rights Abuses at Mega-Sporting Events” in April 2021 at Tilburg University. She also works as independent consultant in the field of sport and human rights for the Centre for Sport and Human Rights, or the European Parliament among other clients from the sports ecosystem

As Head of Policy and Outreach, Guido is in charge of the Centre for Sport & Human Rights engagement with governments, international and intergovernmental organisations and sports organisations. He represents the Centre at conferences, events and bilateral dialogues to reach new audiences and partners and raise public awareness and understanding of the Centre’s work .



On February 24, 2022, the Russian military invaded Ukrainian territory. What followed was an escalation of the war, day by day, causing thousands of victims and forcing millions of people to flee. On March 2, the UN General Assembly overwhelmingly adopted a resolution deploring "in the strongest possible terms" Russia's aggression against Ukraine by a vote of 141 to 5, with 35 abstentions. On March 29, Russian and Ukrainian representatives met in Istanbul for another round of negotiations. No ceasefire has been agreed and hostilities continue.

Many states, international organizations and corporations quickly took measures in response to this invasion. Hundreds of companies decided to withdraw from Russia. Some countries decided to strengthen economic sanctions against Russia and Belarus and to provide military and economic help to Ukraine. Many civil society actors mobilised to organize and provide humanitarian support for Ukraine. Interestingly, international sports organisations like the International Olympic Committee (IOC), the Fédération Internationale de Football Association (FIFA), World Athletics and many other international federations, issued statements condemning the invasion and imposed bans and sanctions on Russian and Belarussian sports bodies and athletes.

This blog post provides an overview of the measures adopted by a number of international sports federations (IFs) that are part of the Olympic Movement since the beginning of the war and analyses how they relate to the statements issued by the IOC and other sanctions and measures taken by international sports organisations in reaction to (geo)political tensions and conflict.

More...





12th round of Caster Semenya’s legal fight: too close to call? - By Jeremy Abel

Editor's note: Jeremy Abel is a recent graduate of the LL.M in International Business Law and Sports of the University of Lausanne.

 

1.     Introduction

The famous South African athlete Caster Semenya is in the last lap of her long legal battle for her right to run without changing the natural testosterone in her body. After losing her cases before the Court of Arbitration for Sport (CAS) and the Swiss Federal Tribunal, she filed an application before the European Court of Human Rights (Court). In the meantime, the Court has released a summary of her complaint and a series of questions addressed to the parties of the case.

As is well known, she is challenging the World Athletics’ Eligibility Regulations for the Female Classification (Regulations) defining the conditions under which female and intersex athletes with certain types of differences of sex development (DSDs) can compete in international athletics events. Despite the Regulations emanating from World Athletics, the last round of her legal battle is against a new opponent: Switzerland.

The purpose of this article is to revisit the Semenya case from a European Convention on Human Rights (ECHR) perspective while considering certain excellent points made by previous contributors (see here, here and here) to this blog. Therefore, the blog will follow the basic structure of an ECHR case. The following issues raised by Semenya shall be analysed: the applicability of the ECHR, Semenya’s right to private life (Article 8 ECHR) and to non discrimination (Article 14 ECHR), as well as the proportionality of the Regulations. More...


[Conference] Towards a European Social Charter for Sport Events - 1 December - 13:00-17:00 - Asser Institute

Sport events, especially when they are of a global scale, have been facing more and more questions about their impact on local communities, the environment, and human rights. 

It has become clear that their social legitimacy is not a given, but must be earned by showing that sport events can positively contribute to society. During this half-day conference, we will debate the proposal of a European Social Charter for Sport Events in order to achieve this goal. 

In January 2021, a consortium of eight partners launched a three-year project, supported by the European Commission under the Erasmus+ scheme, aimed at devising a European Social Charter for Sport Events (ESCSE). The project ambitions to develop a Charter which will contribute to ensuring that sport events taking place in the European Union are socially beneficial to the local communities concerned and, more generally, to those affected by them. The project is directly inspired by the decision of the Paris 2024 bid to commit to a social charter enforced throughout the preparation and the course of the 2024 Olympics.

This first public event in the framework of the ESCSE project, will be introducing the project to a wider public. During the event we will review the current state of the implementation of the Paris 2024 Social Charter, discuss the expectations of stakeholders and academics for a European Social Charter and present for feedback the first draft of the ESCSE (and its implementing guidelines) developed by the project members. It will be a participatory event; we welcome input from the participants.

The Asser International Sports Law Centre, powered by the Asser Institute, is contributing to the project through the drafting of a background study, which we will introduce during the conference.

Please note that we can provide some financial support (up to 100 euros)  towards travel and/or accommodation costs for a limited number of participants coming from other EU Member States or the UK. To apply for this financial support please reach out to ConferenceManager@asser.nl.  `

Register HERE

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New Event! Diversity at the Court of Arbitration for Sport: Time for a Changing of the Guard? - Zoom In Webinar - 14 October - 4pm

On Thursday 14 October 2021 from 16.00-17.30 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret (University of Lausanne), will be launching the second season of the Zoom-In webinar series, with a first episode on Diversity at the Court of Arbitration for Sport: Time for a Changing of the Guard?

The Court of Arbitration for Sport (CAS) is a well-known mainstay of global sport. It has the exclusive competence over challenges against decisions taken by most international sports governing bodies and its jurisprudence covers a wide range of issues (doping, corruption, match-fixing, financial fair play, transfer or selection disputes) including disciplinary sanctions and governance disputes. In recent years, the CAS has rendered numerous awards which triggered world-wide public interest, such as in the Semenya v World Athletics case or the case between WADA and RUSADA resulting from the Russian doping scandal (we discussed both cases in previous Zoom-In discussion available here and here). In short, the CAS has tremendous influence on the shape of global sport and its governance.

However, as we will discuss during this webinar, recent work has shown that the arbitrators active at the CAS are hardly reflective of the diversity of people its decisions ultimately affect. This in our view warrants raising the question of the (urgent) need to change the (arbitral) guard at the CAS. To address these issues with us, we have invited two speakers who have played an instrumental role in putting numbers on impressions widely shared by those in contact with the CAS: Prof. Johan Lindholm (Umea University) and attorney-at-law Lisa Lazarus (Morgan Sports Law). Johan recently published a ground-breaking monograph on The Court of Arbitration for Sport and Its Jurisprudence in which he applies empirical and quantitative methods to analyse the work of the CAS. This included studying the sociological characteristics of CAS arbitrators. Lisa and her colleagues at Morgan Sports Law very recently released a blog post on Arbitrator Diversity at the Court of Arbitration for Sport, which reveals a stunning lack of diversity (based on their calculations, 4,5% of appointed CAS arbitrators are female and 0,2% are black) at the institution ruling over global sport.


Guest speakers:


Moderators:


Register for free HERE.


Zoom In webinar series

In December 2020, The Asser International Sports Law Centre in collaboration with Dr Marjolaine Viret launched a new series of zoom webinars on transnational sports law: Zoom In. You can watch the video recordings of our past Zoom In webinars on the Asser Institute’s Youtube Channel.

Investment in Football as a Means to a Particular End – Part 2: The Multiple Layers of Multi-Club Ownership Regulation in Football - By Rhys Lenarduzzi

Editor's note: Rhys was an intern at the T.M.C. Asser Institute. He now advises on investments and Notre acquisitions in sport (mainly football) via Lovelle Street Advisory. Following a career as a professional athlete, Rhys has spent much of his professional life as an international sports agent, predominantly operating in football. Rhys has a Bachelor of Laws (LL.B) and a Bachelor of Philosophy (B.Phil.) from the University of Dame, Sydney, Australia. He is currently completing an LL.M at the University of Zurich in International Business Law / International Sports Law.


Having looked at the different types of investors in football in part one of this two-part blog series, “A non-exhaustive Typology”, it is fitting to now consider the regulations that apply to investors who seek to build a portfolio of football clubs.

One way to measure the momentum of a particular practice and how serious it ought to be taken, might be when that practice earns its own initialism. Multi-club ownership or MCO as it is increasingly known today, is the name given to those entities that have an ownership stake in multiple clubs. Within the little research and writing that has been undertaken on the topic, some authors submit that investors with minority stakes in multiple clubs ought not to be captured by the MCO definition.  This position appears problematic given some of the regulations draw the line at influence rather than stake.

There are now approximately 50 MCO’s across the football world that own approximately 150 clubs.[1] Given the way MCO is trending, one might consider it important that the regulations keep up with the developing MCO practice, so as to ensure the integrity of football competitions, and to regulate any other potentially questionable benefit an MCO might derive that would be contrary to football’s best interests.

In this blog, I focus on the variety of ways (and levels at which) this practice is being regulated.  I will move through the football pyramid from member associations (MA’s) to FIFA, laying the foundations to support a proposition that FIFA and only FIFA is positioned to regulate MCO. More...


New Event! Rule 50 of the Olympic Charter and the Right to Free Speech of Athletes - Zoom In Webinar - 14 July - 16:00 (CET)

On Wednesday 14 July 2021 from 16.00-17.30 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret, is organizing a Zoom In webinar on Rule 50 of the Olympic Charter and the right to free speech of athletes.

As the Tokyo Olympics are drawing closer, the International Olympic Committee just released new Guidelines on the implementation of Rule 50 of the Olympic Charter. The latter Rule provides that ‘no kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas’. The latest IOC Guidelines did open up some space for athletes to express their political views, but at the same time continue to ban any manifestation from the Olympic Village or the Podium. In effect, Rule 50 imposes private restrictions on the freedom of expression of athletes in the name of the political neutrality of international sport. This limitation on the rights of athletes is far from uncontroversial and raises intricate questions regarding its legitimacy, proportionality and ultimately compatibility with human rights standards (such as with Article 10 of the European Convention on Human Rights).

This webinar aims at critically engaging with Rule 50 and its compatibility with the fundamental rights of athletes. We will discuss the content of the latest IOC Guidelines regarding Rule 50, the potential justifications for such a Rule, and the alternatives to its restrictions. To do so, we will be joined by three speakers, Professor Mark James from Manchester Metropolitan University, who has widely published on the Olympic Games and transnational law; Chui Ling Goh, a Doctoral Researcher at Melbourne Law School, who has recently released an (open access) draft of an article on Rule 50 of the Olympic Charter; and David Grevemberg, Chief Innovation and Partnerships Officer at the Centre for Sport and Human Rights, and former Chief Executive of the Commonwealth Games Federation (CGF). 

Guest speakers:

  • Prof. Mark James (Metropolitan Manchester University)
  • Chui Ling Goh (PhD candidate, University of Melbourne)
  • David Grevemberg (Centre for Sport and Human Rights)

Moderators:


Free Registration HERE
Asser International Sports Law Blog | FIFA’s provision on the protection of minors - Part 1: The Early Years. By 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

FIFA’s provision on the protection of minors - Part 1: The Early Years. By Kester Mekenkamp.

Editor’s note: Kester Mekenkamp is an LL.M. student in European Law at Leiden University and an intern at the ASSER International Sports Law Centre. This blog is, to a great extent, an excerpt of his forthcoming master thesis. 


On 24 November 2016, a claim was lodged before a Zurich commercial court against FIFA’s transfer regulations by a 17-year-old African football player.[1] The culprit, according to the allegation: The provision on the protection of minors, Article 19 of the Regulations for the Status and Transfer of Players.[2] The claimant and his parents dispute the validity of this measure, based on the view that it discriminates between football players from the European Union and those from third countries. Besides to Swiss cartel law, the claim is substantiated on EU citizenship rights, free movement and competition law. Evidently, it is difficult to assess the claim’s chance of success based on the sparse information provided in the press.[3] Be that as it may, it does provide for an ideal (and unexpected) opportunity to delve into the fascinating subject of my master thesis on FIFA’s regulatory system aimed at enhancing the protection of young football players and its compatibility with EU law. This three-part blog shall therefore try to provide an encompassing overview of the rule’s lifespan since its inception in 2001. This first part will shed its light on the “birth” and “first years” of the provision, thereby illustrating the relevant developments from 2001 till 2009. The heart of this analysis is formed by two decisions of the Court of Arbitration for Sport (“CAS”): The Acuña and FC Midtjylland case. The second part shall subsequently cover the rule’s “adolescent years”, which span from 2009 to the present. Therein, the major changes put forward in the 2009, 2015 and 2016 versions of the RSTP will be addressed, together with the important CAS decisions concerning Article 19. The third, and final, part will constitute a substantive assessment of the provision under EU Internal Market law. 


The first years, from 2001 onwards[4]

The 2001 “Commission-condoned” FIFA transfer rules included for the first time a section dedicated to the enhancement of the protection of minors.[5] An accompanying circular by FIFA stipulated that the new transfer rules imposed strict conditions “in order to provide a stable environment for the training and education of players”.[6] Moreover, stating that abuses frequent in the past had to be tackled, it seemed to inaugurate a new era of safeguarding young footballers.[7] The starting point of the new provision is a general prohibition for players under the age of 18 (“minor”) to transfer internationally.[8] The same principles apply to a so-called “first registration” of a minor who requests to be registered in a country other than that of his nationality.[9] An absolute transfer ban however was apparently deemed too radical.[10] The prohibition was therefore made subject to two exceptions. Firstly, the “parents-rule” allows for minors to transfer internationally when their family moves to a country, in which the new club is located, for “reasons not related to football”.[11] Secondly, within the territory of the EU and EEA, players younger than 18 but above the minimum working age can transfer internationally, given that their sporting and academic education is guaranteed by the new training club.[12] FIFA further stressed its intention to issue, together with UEFA, a code of conduct guiding the national associations regarding these conditional arrangements.[13] However, this self-obligation was removed from the subsequent 2005 edition of the RSTP.[14]

Only a year after the introduction of the new rules, the first adaptations were made in response to concerns raised by national associations.[15] FIFA’s Players Status Committee (“PSC”, FIFA’s competent body adjudicating any disputes on matters related to the protection of minors) decided to add a third exception, which became known as the “50 + 50-rule”.[16] Hereby it aimed at dealing with the case of players living close to national borders where “cross-border traffic is a daily matter”.[17] Those young players living within this 50 km range may attend a club of a neighbouring association if that club is similarly situated within a 50 km distance of the border, provided that these players remain living at home. The two-part FIFA Circular is rather ambiguous in its explanation, stating on the one hand that minors in this situation can solely “train” with the club situated across the border,[18] while on the other hand introducing a full exception to the transfer ban (thereby permitting a “complete” international transfer).[19] This latter view is in accordance with the regulations’ revision that entered into force on 1 July 2005.[20] Next to adding the “50 + 50-rule”, the new article 19 RSTP slightly adjusted and hence further clarified the first two exceptions. A minor can transfer internationally only if his “parents” move to another country for reasons not related to football, restricting the scope of the rule from “family” to “parents”.[21] Moreover, with respect to the “EU and EEA-rule” it set the international standard of 16 as the minimum age and spelled out several additional requirements on the arrangements made by the recruiting club for the academic education of the transferred player.[22] These oblige the club to: “provide the player with an adequate football education and/or training in line with the highest national standards”; “guarantee an academic or vocational education which will allow the player to pursue a career other than football”; “ensure that the player is looked after in the best possible way” by arranging housing with optimal living standards; and “provide its association with proof of compliance”.[23] Importantly, paragraph 4 orders national associations to safeguard compliance by clubs and paragraph 5 installs the PSC as the competent body to adjudicate in this field.[24] Hence, more explicit accountability and control was established concerning the abidance with the rules on the protection of minors.

In early 2007, FIFA issued a commentary on the RSTP in order to further clarify the separate provisions.[25] It stipulated that the international transfer of minors should be subject to stern restrictions in order to provide a stable environment for the player’s training and education.[26] Furthermore, “the term ‘parents’ has to be understood in a strict way”, a minor therefore cannot live with a close relative in the country of the new club. The document acknowledges that the “EU and EEA-rule” was adopted as to not interfere with EU free movement law.[27] National associations are once more reminded that they possess a vital role in ensuring compliance, amongst other by carrying our on-spot investigations regarding the mandatory educational arrangements if need be.[28] 


The Acuña case

These rules have not operated in a vacuum. The real effect of the provisions on the protection of minors has been shaped by the judicial practice of FIFA, through the PSC, and first and foremost the Court of Arbitration for Sport (“CAS”, the competent institution that deals with appeals contra FIFA’s internal decisions).[29]

The first (published) case before the CAS concerning a dispute on the provision’s content was Càdiz C.F. and Carlos Javier Acuña Caballero v. FIFA and Asociación Paraguaya de Fútbol.[30] In January 2005, the 16-year-old Acuña Caballero represented his Paraguayan club Olimpia in an international tournament for players under 20. His successful performance led to foreign interest, and on 14 February 2005 he, together with his family, left Paraguay for Cádiz, Spain.[31] Three days later, Cádiz C.F. (a club meandering through the Spanish second and third league) and the player signed an employment contract, and subsequently Olimpia agreed to the transfer.[32] However the Paraguayan football association refused to issue the compulsory international transfer certificate (“ITC”), referring to Acuña Caballero’s age.[33] The FIFA PSC decided upon the matter on 26 August 2005 by verifying whether the requirements of the “parents-rule” of Article 19(2)(a) RSTP were observed. By highlighting the apparent lack of intention to continue his education besides football, as well as the fact that the mother’s employment contract commenced much later than her son’s, the PSC found the case to be in total contradiction with the letter and spirit of the exemption: “the mother would have followed the player”[34], instead of the other way round. The PSC noted that the protection of minors is one of the fundamental principles of the RSTP, which requires the strict application of Article 19, and consequently refused the request of the Spanish association to register Acuña with Cádiz C.F.[35] Both the club and the player appealed this decision before the CAS, after which the tribunal organized a hearing of all parties concerned and several witnesses in order to grasp the factual context of this international transfer.[36] The CAS Panel swiftly countered the appellants’ views by stating that FIFA’s rules limiting the international transfer of minors do not violate any mandatory principle of public policy under Swiss law or any other national or international law, insofar that “they pursue a legitimate objective, namely the protection of young players from international transfers which could disrupt their lives, particularly if, as often happens the football career eventually fails or, anyways, is not as successful as expected and they are proportionate to the objective sought, as they provide for some reasonable exceptions”.[37] Subsequently it explained that, it had to be determined whether the move of the mother was related to the transfer of her son, and ergo whether the exception of article 19(2)(a) was applicable? The Panel found that “the players’ decision to move to Spain was made first”[38], by emphasizing the inconsistencies in the appellants’ statements, and as a result thereof doubting their truthfulness.[39] Furthermore, the club’s submission stated that “from all the possibilities, the offer made by CÁDIZ C.F. was the most suited to his parents’ wishes”, which lead the Panel to believe that in fact the clubs’ offer for her son made the mother look for a suitable job in Cádiz.[40] As such, the Panel established that the appellants could not benefit from the exception, since it concluded that Acuña’s family moved “for reasons linked to football”.[41]

The Acuña case exhibits a strict application of the rule. This strict application, although being in line with FIFA’s policy, lead to a disadvantageous outcome for the minor in question.[42] As argued by the player, his life in Paraguay meant living alone in a small apartment at his agent’s house and only seeing his mother two or three times a year.[43] The move to Spain allowed him to live with his mother and was therefore positive for both his career and his family. The CAS Panel addressed this matter by stating that “the task of the CAS is not to revise the content of the applicable rules but only to apply them”.[44] Moreover, it stressed that any adverse consequences in relation to the refusal to allow the player to be registered with the club were the result of the appellants own actions. The Panel finally put forward that the player would not have to face the adverse consequence for long as he would turn 18 in a couple of months.[45] 


The FC Midtjylland case

The next confrontation followed suit: the case of FC Midtjylland.[46] The Danish Superligaen club came in FIFA’s crosshairs through a FIFPro complaint concerning the signing of six young Nigerians.[47] These players were registered as amateurs and played for Midtjylland’s youth teams. Additionally, they were granted short-term residence permits as students, excluding the right to work, and enrolled in the Danish educational program.[48] The FIFA PSC emphasized that Article 19 RSTP on the protection of minors, being one of the principles included in the FIFA/UEFA and European Commission agreement and “one of the pillars of the regulations”, is applicable to both amateur and professional players.[49] Thereto, only a strict, consistent and systematically implemented interdiction subject to very limited exceptions could stop the abuse and maltreatment of many young players. The PSC hence warned the Danish Football Association (DBU) and FC Midtjylland, and subsequently refused the registration of the players.[50]

The CAS Panel addressed four main issues in relation to what had been brought to the fore in the parties’ submissions concerning Article 19 RSTP:

1. Is it applicable to both professional and amateur minor players?

2. What are the exceptions and are any of these applicable?

3. Does the application of the provision “contradict any mandatory provision of public policy or any of the provisions of EC Law”? Is there a breach of the non-discrimination principle, following the alleged inconsistent approach of FIFA?[51]

In short, the Panel answered the first question in the affirmative, based on a textual approach together with taking due notice of the intended objective as “to apply Art. 19 of the RSTP restrictively to professional players only could result in obviating protection of young amateur players from the risk of abuse and ill treatment”.[52] As to the second question, it was noted that the codified exceptions provided in Article 19(2) RSTP were not applicable to the case at hand. Nevertheless, the Panel regarded this list not to be exhaustive and allowed for two additional exceptions relating to students: first, “where the players concerned could establish without any doubt that the reason for relocation to another country was related to their studies, and not to their activity as football players”, and second, “where the association of origin and the new club of the players concerned have signed an agreement within the scope of a development program for young players under certain strict conditions (agreement on the academic and/or school education, authorization granted for a limited period of time)”.[53] Yet, neither of these additional exceptions applied here.[54] The third issue was related to appellant’s Cotonou Agreement argument.[55] The Panel agreed that the non-discrimination rights are conferred by article 13(3) of the Cotonou Agreement to “Workers of ACP countries legally employed in its territory”.[56] Nonetheless, the Nigerian players in question are to be considered as “students”, not as “workers” legally employed in Denmark, which means they fall outside the scope of this provision.[57] The Panel moreover dismissed, based on that same reasoning, the appellant’s claim founded on the Simutenkov[58] case in their attempt for the “EU and EEA-rule” of Article 19(2)(b) RSTP to be applicable.[59] The Panel furthermore stressed with regard to this third question that agreements between the EU and third countries that prohibit discrimination in working conditions are clearly limited in scope to foreigners “legally employed in the Member States” and do not concern access to the employment market.[60] It also endorsed the Acuña case in that the FIFA rules limiting the international transfer of minor players “do not violate any mandatory principle of public policy and do not constitute any restriction to the fundamental rights that would have to be considered as not admissible”.[61] Lastly on the fourth issue, in reaction to the appellant’s allegation that FIFA’s approach was inconsistent and favoured bigger clubs (by reference to Bayern München’s registering a minor player from South America), the CAS solely pointed at the general principle “that no one can claim for equal treatment by referring to someone else who has adopted an illegal conduct, without sanction (nemini dolus alienus prodesse debet)”.[62] Concluding, FC Midtjylland was found to have breached Article 19 RSTP as the CAS favoured a strict interpretation, yet simultaneously, it allowed for two additional implicit exceptions for students.

Around this point in time, the European Commission’s attention was also drawn to the protection of minors in sport. In its white paper on sport, it  pointed at “children who are not selected for competitions and abandoned in a foreign country, often falling in this way in an irregular position which fosters their further exploitation”.[63] Even though it makes reference to neither of the two abovementioned cases, this explicit consideration by the Commission, emphasizing the importance of protecting minors, could be seen as an indirect endorsement, prima facie, of the strict interpretation of Article 19 RSTP by CAS.

The next, second, part of this blog series shall aim to cover the rule’s “adolescent years”, which span from 2009 to the present. The major changes put forward in the 2009, 2015 and 2016 versions of the RSTP will be addressed. Furthermore, important CAS decisions concerning Article 19, Muhic, Vada I and II, FC Barcelona, RFEF, and the FIFA decisions relating to Real and Atlético Madrid, will be at the centre of the attention. 




[1] CNN, 24 November 2016, “FIFA: African footballer, 17, takes world governing body to court

[2] Article 19 FIFA RSTP (2016)

[3] Eurosport, 24 November, “FIFA faces lawsuit over rules banning transfer of minors

[4] The text of this blog contribution is part of my forthcoming thesis, which shall be submitted in order to complete my master’s degree in European Law at Leiden University.

[5] Art. 12 FIFA RSTP 2001.

[6] FIFA Circular no. 769, 24 August 2001.

[7] N. St. Cyr Clarke, “The beauty and the beast: Taming the ugly side of the people’s game”, 2011 CJEL, P. 627.

[8] Art. 12(1) FIFA RSTP 2001.

[9] Art. 12(2) FIFA RSTP 2001.

[10] Press release EU Commission, IP/01/29, 14 February 2001.

[11] Art. 12(1)(a) FIFA RSTP 2001.

[12] Art. 12(1)(b) FIFA RSTP 2001.

[13] FIFA Circular no. 769, 24 August 2001.

[14] F. de Weger, “The Jurisprudence of the FIFA Dispute Resolution Chamber”, 2nd edition, Asser Press (2016), p. 14.

[15] FIFA Circular no. 801, 28 March 2002.

[16] Supra at 14, pp. 36-37.

[17] Supra at 15.

[18] Ibid.

[19] New Art. 12(1)(c) FIFA RSTP 2001 in FIFA Circular no. 801, 28 March 2002, “Amendments to the FIFA Regulations for the Status and Transfer of Players”.

[20] Art. 19(2)(c) FIFA RSTP 2005.

[21] Art. 19(2)(a) FIFA RSTP 2005.

[22] Art. 19(2)(b) FIFA RSTP 2005.

[23] C. Lembo, “FIFA Transfer Regulations and UEFA Player Eligibility Rules: Major Changes In European Football And The Negative Effect On Minors”, Emory Int'l L. Rev 2005, p. 557.

[24] Art. 19(4) and 19(5) FIFA RSTP 2005.

[25] FIFA Circular no. 1075, 18 January 2007.

[26] Commentary on the Status and Transfer of Players, p. 58.

[27] Ibid, p. 59.

[28] Ibid, p. 59.

[29] For more information see A. Duval, “The FIFA Regulations on the Status and Transfer of Players: Transnational Law-Making in the Shadow of Bosman” in A. Duval and B. Van Rompuy (Eds.) “The Legacy of Bosman”, Asser Press (2016), pp. 81-116; A. Duval “The Court of Arbitration for Sport and EU Law. Chronicle of an Encounter”, MJ 2015, pp. 224-256.

[30] CAS 2005/A/955 Càdiz C.F., SAD v FIFA and Asociación Paraguaya de Fútbol and CAS 2005/A/956 Carlos Javier Acuña Caballero v/FIFA and Asociación Paraguaya de Fútbol.

[31] Ibid, para. 2.5.

[32] Ibid, paras. 2.6-2.7.

[33] Ibid, para. 2.10.

[34] Ibid, para. 2.16.

[35] Ibid, para. 2.17.

[36] Ibid, paras. 3.6-3.17.

[37] Ibid, para. 7.2.

[38] Ibid, para. 7.3.1.

[39] Ibid, paras. 7.3.2-7.3.5; Especially the circumstances surrounding the mother’s search for a job, the agreement between her and her employer, and the reasons why she decided to take up work in Cádiz while, being a cook, she could have worked anywhere in Spain, did not assist to their case.

[40] Ibid, para. 7.3.6.

[41] Ibid, para. 7.3.8.

[42] FIFA Circular no. 801, 28 March 2002.

[43] Supra at 30, para. 3.3.5 and 3.11.

[44] Ibid, para. 7.3.10.

[45] Ibid, para. 7.3.10.

[46] CAS 2008/A/1485 FC Midtjylland A/S v. Féderation Internationale de Football Association.

[47] A. Wild, “Young Football Players: Protection of Minors” in “CAS and Football: Landmark Cases”, Asser Press (2012), p. 249.

[48] Ibid, p. 250.

[49] Supra at 46, p. 3.

[50] Ibid, p. 4.

[51] Ibid, para. 10.

[52] Ibid, para. 15.

[53] Ibid, paras. 19-21.

[54] Ibid, para. 22.

[55] The Cotonou agreement between the EU and certain African, Caribbean and Pacific States, including Nigeria; Ibid, paras. 30-31.

[56] Supra at 46, para. 35.

[57] Ibid, para. 36.

[58] Case C-265/03 Simutenkov v Ministerio de Educación y Cultura and RFEFl [2005] ECR I-2579, Therein the ECJ ruled that non-EU/EEA sportsmen can challenge nationality clauses if: they are legally employed in a host EU Member State and “can rely upon a directly effective equal treatment provision included in an international agreement establishing a partnership between the EU and their country of origin, regardless of whether accession to the EU is envisaged or not”, see S. Van den Bogaert, “From Bosman to Bernard” in J. Anderson (Ed.), “Leading Cases in Sports Law”, T.M.C. Asser Press (2013), p. 104.

[59] Supra at 46, para. 40.

[60] Ibid, para. 41.

[61] Ibid, para. 45; Supra at 30, para. 7.2.

[62] Supra at 46, paras. 47-49.

[63] The White Paper on Sport (COM 2007) 391 final, point 4.5; European Parliament, Report on the on the future of professional football in Europe (2006/2130(INI)), p. 25.

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