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

Unpacking Doyen’s TPO Deals: FC Twente's Game of Maltese Roulette. By Antoine Duval and Oskar van Maren

The first part of our “Unpacking Doyen’s TPO deals” blog series concerns the agreements signed between Doyen Sports and the Dutch football club FC Twente. In particular we focus on the so-called Economic Rights Participation Agreement (ERPA) of 25 February 2014. Based on the ERPA we will be able to better assess how TPO works in practice. To do so, however, it is necessary to explore FC Twente’s rationale behind recourse to third-party funding. Thus, we will first provide a short introduction to the recent history of the club and its precarious financial situation. More...

Unpacking Doyen’s TPO deals - Introduction

The football world has been buzzing with Doyen’s name for a few years now. Yet, in practice very little is known about the way Doyen Sports (the Doyen entity involved in the football business) operates. The content of the contracts it signs with clubs was speculative, as they are subjected to strict confidentiality policies. Nonetheless, Doyen became a political (and public) scapegoat and is widely perceived as exemplifying the ‘TPOisation’ of football. This mythical status of Doyen is also entertained by the firm itself, which has multiplied the (until now failed) legal actions against FIFA’s TPO ban (on the ban see our blog symposium here) in a bid to attract attention and to publicly defend its business model. In short, it has become the mysterious flag bearer of TPO around the world. Thanks to a new anonymous group, inspired by the WikiLeaks model, we can now better assess how Doyen Sports truly functions. Since 5 November someone has been publishing different types of documents involving more or less directly the work of Doyen in football. These documents are all freely available at http://footballleaks.livejournal.com/. By doing so, the group has given us (legal scholars not involved directly in the trade) the opportunity to finally peruse the contractual structure of a TPO deal offered by Doyen and, as we purport to show in the coming weeks, to embark upon a journey into Doyen’s TPO-world. More...

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

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

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



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

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

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

Editor's note:

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

 

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


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

Editor's note:

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


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

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




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

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

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

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






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

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

Editor's note

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





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

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

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

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





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

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

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




Asser International Sports Law Blog | FIFA's Responsibility for Human Rights Abuses in Qatar – Part II: The Zurich Court's Ruling - By Tomáš Grell

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 Responsibility for Human Rights Abuses in Qatar – Part II: The Zurich Court's Ruling - By Tomáš Grell

Editor’s note: Tomáš Grell comes from Slovakia and is currently an LL.M. student in Public International Law at Leiden University. He contributes also to the work of the ASSER International Sports Law Centre as a part-time intern.

This is a follow-up contribution to my previous blog on FIFA's responsibility for human rights abuses in Qatar published last week. Whereas the previous part has examined the lawsuit filed with the Commercial Court of the Canton of Zurich ('Court') jointly by the Dutch trade union FNV, the Bangladeshi Free Trade Union Congress, the Bangladesh Building and Wood Workers Federation and the Bangladeshi citizen Nadim Shariful Alam ('Plaintiffs') against FIFA, this second part will focus on the Court's ruling dated 3 January 2017 ('Ruling').[1] 

Before embarking on a substantive analysis of the Ruling, it is worth recalling the Plaintiffs' claims. First, the Plaintiffs requested the Court to order FIFA to redress the ongoing human rights violations by pressing the responsible Qatari authorities to abolish the controversial kafala system and ensure that human rights and fundamental freedoms of migrant workers are preserved ('Claim 1'). Alternatively, they asked the Court merely to declare the unlawfulness of those human rights violations ('Claim 2'). As regards the monetary compensation, the Bangladeshi worker Nadim Shariful Alam sought damages of USD 4,000 and a satisfaction amounting to CHF 30,000 ('Claim 3').[2] The present blog attempts to provide a clear overview of the basis on which the Court rejected the Plaintiffs' claims and to draw a few concluding remarks therefrom.

The Court's reasoning 

The Court considers at the outset of the Ruling that the case at hand immediately proves to be ripe for a decision.[3] Therefore, FIFA had not been invited by the Court to express its views before the Ruling was issued. Pursuant to the Swiss Code of Civil Procedure ('ZPO'), a court shall verify ex officio the fulfilment of the relevant procedural requirements[4], including but not limited to unambiguity of claims[5] and jurisdiction ratione materiae.[6] The following subsections of this blog will take a brief look at how the Court appraised these two procedural requirements.

Unambiguity of the Plaintiffs' claims 

Should a certain claim be considered unambiguous in line with Swiss rules on civil procedure, it needs to be enforceable[7] and sufficiently specified.[8] In respect of Claim 1 (i.e. to oblige FIFA to press the competent Qatari authorities), the Court states that such claim would not be enforceable, since ''anyone who merely exerts pressure on something does not redress any susceptible ills.''[9] The Court is firmly convinced that only the sovereign State of Qatar is empowered to bring about a direct change in the country's human rights situation. In addition, the Court finds Claim 1 to be vague, because it does not specify the Qatari authorities to which FIFA should turn in order to ameliorate the humanitarian conditions for World Cup-related migrant workers.[10]

In respect of Claim 2 (i.e. to declare the illegality of the respective human rights violations), the Court is of the opinion that it does not meet the requirement of being sufficiently specified either. In particular, the Court argues that the Plaintiffs did not precisely identify what part of FIFA's conduct should be declared unlawful. According to the Court's line of reasoning, if Claim 2 were to be admitted, this would essentially make it impossible for FIFA to defend itself.[11] 

Jurisdiction ratione materiae     

Based on the above, the Court considers Claims 1 and 2 inadmissible on account of their ambiguity and does not analyse whether it may exercise jurisdiction ratione materiae over these claims. Nevertheless, in obiter dicta comments, it indicates that Claim 1 is more likely to fall within the ambit of public law.[12] More importantly, the Court does not rule out that a decision requiring a private association (i.e. FIFA) to interfere in domestic affairs of a sovereign State (i.e. Qatar) could be potentially deemed unlawful[13], and that such a decision would consequently negate the Plaintiffs' legitimate interest.[14]

Given that Claim 3 (i.e. Mr. Alam's request for monetary compensation) is clearly unequivocal, the Court proceeds to determine whether it has subject-matter jurisdiction to entertain such claim. The Commercial Courts in Switzerland are endowed with jurisdiction ratione materiae, insofar as a commercial dispute within the meaning of Article 6 (2) ZPO is concerned. A dispute is classified as commercial in accordance with the said provision, if both parties are registered with the Swiss Commercial Registry or an equivalent foreign registry and at least one of them exercises a commercial activity. Article 6 (3) ZPO further clarifies that in a situation where only the defendant is registered with the Swiss Commercial Registry or an equivalent foreign registry, the claimant is free to choose between the Commercial Court and the ordinary court.

Applied to the case at hand, Mr. Alam relies on Article 6 (3) ZPO, since he does not raise Claim 3 as a tradesman registered either with the Swiss Commercial Registry or an equivalent foreign (Bangladeshi) registry.[15] In this regard, the Court also notes that Mr. Alam is not engaged in any kind of commercial activity.[16] Perhaps surprisingly, the question of whether FIFA exercises a commercial activity in terms of Article 6 (2) (a) ZPO turns out to be less straightforward. Although FIFA generally conducts significant commercial activities, the Court underlines that ''the exercising of an alleged power to influence the political system and legal order of a foreign State and/or the neglect of such influence cannot – even interpreting the term broadly – be regarded as a commercial activity.''[17] Consequently, the Court concludes that, in the absence of a commercial dispute between Mr. Alam and FIFA, it is precluded from adjudicating on Claim 3.[18]

It follows from the above that the Court draws a rigid demarcation line between what it considers as being FIFA's commercial activities and its policy influence vis-à-vis World Cup-hosts. However, in practice, a large share of FIFA's revenue comes from FIFA-organized football tournaments, the most prominent being by far the FIFA World Cup. FIFA's Financial and Governance Report 2015 indicated that, insofar as the financial year 2015 is concerned, event-related revenue amounted to 85 % of FIFA's aggregate revenue (USD 973 million out of USD 1,152 million).[19] Especially the sale of broadcasting rights for the FIFA World Cup constitutes an irreplaceable source of FIFA's funding. Moreover, the practice shows also that FIFA is used to compel World Cup-hosts to modify their domestic laws for the benefit of tournament's sponsors, a textbook example thereof being the well-known 'Budweiser Law' which has already been discussed in the first part of this blog. Hence, it seems that FIFA's commercial activities and its policy influence vis-à-vis World Cup-hosts are much more intertwined in reality than envisaged by the Court.   

A way forward

Based on the aforementioned reasons, the Court dismissed the Plaintiffs' lawsuit in its entirety. The Plaintiffs were entitled to challenge the Ruling before the Swiss Federal Court within 30 days of its delivery.[20] For the time being, it remains unclear to us whether the Plaintiffs availed themselves of the right to appeal the Ruling or not.

It should be emphasized that the Ruling in question does not imply that FIFA generally cannot be held accountable for human rights abuses linked to the World Cup in Qatar. The Court rejected the Plaintiffs' claims on grounds of inadmissibility and lack of jurisdiction, without pronouncing itself on the merits of the case. In particular, the Court points out that the Plaintiffs' claims, as they were formulated, would not be enforceable, because FIFA is allegedly not in a position to force Qatar to amend the widely criticised labour laws.[21] That being said, the Court arguably turns a blind eye to the ever-increasing power of non-State actors in contemporary international relations.

Following the Court's line of reasoning, the only feasible way for World Cup-related migrant workers (and trade unions acting on their behalf) to pursue effective legal redress in Switzerland is to claim damages based solely on the illegality of FIFA's decision to select Qatar as World Cup-host. An affirmative response given by the Court to such claim would undoubtedly encourage hundreds of other migrant workers currently residing in Qatar to follow the same path. Nonetheless, absent an explicit legal obligation on the part of FIFA to press the relevant Qatari authorities, it remains questionable how much impact such a decision would have on the overall human rights situation in Qatar and on those migrant workers coming to the Gulf country in the future.

Further implications for transnational corporations

From a broader perspective, this case represents an example of a transnational private actor (i.e. FIFA) being sued in a State of its domicile (i.e. Switzerland) for damages resulting from human rights abuses which occurred in another country (i.e. Qatar). Taking into account FIFA's global operation and large-scale commercial activities, an analogy between FIFA and transnational corporations can be reasonably drawn.

The underlying purpose of suing a transnational entity in a State of its domicile is to evade judicial proceedings in developing countries which might prove to be largely inefficient.[22] In the United Kingdom, a group of Nigerian plaintiffs has recently sued Royal Dutch Shell plc ('RDS'), an Anglo-Dutch multinational oil company, and its Nigerian operating subsidiary Shell Petroleum Development Company of Nigeria Ltd ('SPDC'), for damages resulting from a severe pollution allegedly caused by the SPDC (and to a certain extent also the RDS) on Nigerian soil. On 26 January 2017, Mr. Justice Fraser, sitting as a Judge in the London High Court, dismissed the lawsuit in question on jurisdictional grounds.[23] Amnesty International has subsequently denounced the judgment by stating that it ''gives green light for corporations to profit from abuses overseas.'' However, less than a year ago, Mr. Justice Coulson, sitting as a Judge in the same court, decided to grant a forum for claims brought by Zambian citizens in relation to a massive water contamination in Zambia arising out of activities performed by Vedanta Resources plc ('Vedanta'), a global mining company with its headquarters in London, and its Zambian operating subsidiary Konkola Copper Mines plc.[24] Mr. Justice Coulson concluded that ''the claimants would almost certainly not get access to justice if these claims were pursued in Zambia.''[25] It has been suggested that Mr. Justice Coulson allowed the case to proceed in British courts particularly due to a substantial involvement of the parent company Vedanta with its Zambian subsidiary, as opposed to more independent regime established between the RDS and its Nigerian subsidiary SPDC. A decision on the merits is still pending.

The two cases referred to above demonstrate that extra-territorial human rights violations are usually triggered by a direct action of a foreign-incorporated subsidiary. Yet, FIFA's case differs in that the respective human rights violations emanate rather from a direct (in)action of a sovereign State - Qatar's unwillingness or inability to set aside its controversial labour laws. Alternatively, it could be argued that, by reason of its decision to award the World Cup to the Gulf country, FIFA is complicit in human rights violations triggered by Qatar's (in)action. That being said, is the difference between FIFA's case and the two cases mentioned above really substantial? In practice, is not the relationship between FIFA and Qatar akin to that of Vedanta and its Zambian subsidiary, with a high degree of direct involvement by FIFA? Be that as it may, the importance of the Ruling with respect to transnational corporations registered both in and outside Switzerland cannot be underestimated.


[1]      Ruling of the Commercial Court of the Canton of Zurich, HG160261-O, 3 January 2017. Parts of the Ruling which are quoted in this blog were translated from German by Prof. Liesbeth Zegveld (her team), who provided us with the English version of the Ruling.

[2]      Ibid., p. 2-3

[3]      Ibid., p. 4

[4]      See Art. 60 ZPO

[5]      Ruling of the Swiss Federal Supreme Court, BGE 137 III 617 E. 4.3

[6]      See Art. 59 (2) (b) ZPO

[7]      Ruling of the Swiss Federal Supreme Court, BGE 97 II 92

[8]      Supra note 6

[9]      Supra note 2, p. 6

[10]    Ibid., p. 7

[11]    Ibid., p. 8

[12]    Ibid., p. 9

[13]    Ibid.

[14]    According to Art. 59 (2) (a) ZPO, one of the preconditions for considering a civil lawsuit is the existence of plaintiff's legitimate interest

[15]    Supra note 2, p. 10

[16]    Ibid., p. 11

[17]    Ibid., p. 15

[18]    Ibid.

[19]    FIFA's Financial and Governance Report 2015, p. 17

[20]    Supra note 2, p. 18

[21]    Ibid., p. 6

[22]    E. Brabandere, 'Human Rights and Transnational Corporations: The Limits of Direct Corporate Responsibility', (2010) 4 (1) Human Rights and International Legal Discourse 66, at 76

[23]    Judgment rendered by Mr. Justice Fraser in the High Court of Justice, Queen's Bench Division, Technology and Construction Court, 2017 EWHC 89 (TCC), 26 January 2017

[24]    Judgment rendered by Mr. Justice Coulson in the High Court of Justice, Queen's Bench Division, Technology and Construction Court, 2016 EWHC 975 (TCC), 27 May 2016

[25]    Ibid., para. 198

Comments are closed