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

Compatibility of fixed-term contracts in football with Directive 1999/70/EC. Part 2: The Heinz Müller case. By Piotr Drabik

Introduction
The first part of the present blog article provided a general introduction to the compatibility of fixed-term contracts in football with Directive 1999/70/EC[1] (Directive). However, as the Member States of the European Union enjoy a considerable discretion in the implementation of a directive, grasping the impact of the Directive on the world of football would not be possible without considering the national context. The recent ruling of the Arbeitsgericht Mainz (the lowest German labour court; hereinafter the Court) in proceedings brought by a German footballer Heinz Müller provides an important example in this regard. This second part of the blog on the legality of fixed-term contract in football is devoted to presenting and assessing the Court’s decision.


I. Facts and Procedure
Heinz Müller, the main protagonist of this case, was a goalkeeper playing for 1.FSV Mainz 05 a club partaking to the German Bundesliga. More...


Compatibility of Fixed-Term Contracts in Football with Directive 1999/70/EC. Part.1: The General Framework. By Piotr Drabik

Introduction
On 25 March 2015, the Labour Court of Mainz issued its decision in proceedings brought by a German footballer, Heinz Müller, against his (now former) club 1. FSV Mainz 05 (Mainz 05). The Court sided with the player and ruled that Müller should have been employed by Mainz 05 for an indefinite period following his 2009 three year contract with the club which was subsequently extended in 2011 to run until mid-2014. The judgment was based on national law implementing Directive 1999/70 on fixed-term work[1] (Directive) with the latter being introduced pursuant to art. 155(2) TFEU (ex art. 139(2) TEC). On the basis of this article, European social partners’ may request a framework agreement which they conclude to be implemented on the European Union (EU, Union) level by a Council decision on a proposal from the Commission. One of the objectives of the framework agreement,[2] and therefore of the Directive, was to establish a system to prevent abuse arising from the use of successive fixed-term employment contracts or relationships[3] which lies at the heart of the discussed problem.[4] More...

UEFA’s FFP out in the open: The Dynamo Moscow Case

Ever since UEFA started imposing disciplinary measures to football clubs for not complying with Financial Fair Play’s break-even requirement in 2014, it remained a mystery how UEFA’s disciplinary bodies were enforcing the Club Licensing and Financial Fair Play (“FFP”) regulations, what measures it was imposing, and what the justifications were for the imposition of these measures. For over a year, the general public could only take note of the 23 settlement agreements between Europe’s footballing body and the clubs. The evidential obstacle for a proper analysis was that the actual settlements remained confidential, as was stressed in several of our previous Blogs.[1] The information provided by the press releases lacked the necessary information to answer the abovementioned questions.

On 24 April 2015, the UEFA Club Financial Control Body lifted part of the veil by referring FC Dynamo Moscow to the Adjudicatory Body. Finally, the Adjudicatory Body had the opportunity to decide on a “FFP case. The anxiously-awaited Decision was reached by the Adjudicatory Chamber on 19 June and published not long after. Now that the Decision has been made public, a new stage of the debate regarding UEFA’s FFP policy can start.More...

Policing the (in)dependence of National Federations through the prism of the FIFA Statutes. By Tine Misic

…and everything under the sun is in tune,

but the sun is eclipsed by the moon…[1] 


The issue

Ruffling a few feathers, on 30 May 2015 the FIFA Executive Committee rather unsurprisingly, considering the previous warnings,[2] adopted a decision to suspend with immediate effect the Indonesian Football Federation (PSSI) until such time as PSSI is able to comply with its obligations under Articles 13 and 17 of the FIFA Statutes.[3] Stripping PSSI of its membership rights, the decision results in a prohibition of all Indonesian teams (national or club) from having any international sporting contact. In other words, the decision precludes all Indonesian teams from participating in any competition organised by either FIFA or the Asian Football Confederation (AFC). In addition, the suspension of rights also precludes all PSSI members and officials from benefits of any FIFA or AFC development programme, course or training during the term of suspension. This decision coincides with a very recent award by the Court of Arbitration for Sport (CAS) in this ambit, which shall be discussed further below.[4]More...


The Brussels Court judgment on Financial Fair Play: a futile attempt to pull off a Bosman. By Ben Van Rompuy

On 29 May 2015, the Brussels Court of First Instance delivered its highly anticipated judgment on the challenge brought by football players’ agent Daniel Striani (and others) against UEFA’s Club Licensing and Financial Fair Play Regulations (FFP). In media reports,[1] the judgment was generally portrayed as a significant initial victory for the opponents of FFP. The Brussels Court not only made a reference for a preliminary ruling to the European Court of Justice (CJEU) but also imposed an interim order blocking UEFA from implementing the second phase of the FFP that involves reducing the permitted deficit for clubs.

A careful reading of the judgment, however, challenges the widespread expectation that the CJEU will now pronounce itself on the compatibility of the FFP with EU law. More...

A Bridge Too Far? Bridge Transfers at the Court of Arbitration for Sport. By Antoine Duval and Luis Torres.

FIFA’s freshly adopted TPO ban entered into force on 1 May (see our Blog symposium). Though it is difficult to anticipate to what extent FIFA will be able to enforce the ban, it is likely that many of the third-party investors will try to have recourse to alternative solutions to pursue their commercial involvement in the football transfer market. One potential way to circumvent the FIFA ban is to use the proxy of what has been coined “bridge transfers”. A bridge transfer occurs when a club is used as an intermediary bridge in the transfer of a player from one club to another. The fictitious passage through this club is used to circumscribe, for example, the payment of training compensation or to whitewash a third-party ownership by transforming it into a classical employment relationship. This is a legal construction that has gained currency especially in South American football, but not only. On 5 May 2015, in the Racing Club v. FIFA case, the Court of Arbitration for Sport (CAS) rendered its first award involving directly a bridge transfer. As this practice could become prevalent in the coming years we think that this case deserves a close look. More...

20 Years After Bosman - The New Frontiers of EU Law and Sport - Special Issue of the Maastricht Journal of European and Comparative Law

Editor's note: This is a short introduction written for the special Issue of the Maastricht Journal of European and Comparative Law celebrating the 20 years of the Bosman ruling and dedicated to the new frontiers of EU law and Sport (the articles are available here). For those willing to gain a deeper insight into the content of the Issue we organize (in collaboration with Maastricht University and the Maastricht Journal) a launching event with many of the authors in Brussels tomorrow (More info here).More...

ASSER Exclusive! Interview with Charles “Chuck” Blazer by Piotr Drabik

Editor’s note: Chuck Blazer declined our official interview request but thanks to some trusted sources (the FIFA indictment and Chuck’s testimony) we have reconstructed his likely answers. This is a fictional interview. Any resemblance with real facts is purely coincidental.



Mr Blazer, thank you for agreeing to this interview, especially considering the circumstances. How are you doing?

I am facing ten charges concerning, among others, conspiracy to corrupt and money laundering. But apart from that, I am doing great (laughs)!

 

It is good to know that you have not lost your spirit. And since you’ve been involved in football, or as you call it soccer, for years could you please first tell us what was your career at FIFA and its affiliates like?

Let me see… Starting from the 1990s I was employed by and associated with FIFA and one of its constituent confederations, namely the Confederation of North, Central American and Caribbean Association Football (CONCACAF). At various times, I also served as a member of several FIFA standing committees, including the marketing and television committee. As CONCACAF’s general secretary, a position I proudly held for 21 years, I was responsible, among many other things, for negotiations concerning media and sponsorship rights. From 1997 to 2013 I also served at FIFA’s executive committee where I participated in the selection process of the host countries for the World Cup tournaments. Those years at the helm of world soccer were truly amazing years of travel and hard work mainly for the good of the beautiful game. I might add that I even managed to document some of my voyages on my blog. I initially called it “Travels with Chuck Blazer” but Vladimir (Putin) convinced me to change the name to “Travels with Chuck Blazer and his Friends”. You should check it out.

 More...



Financial Fair Play: Lessons from the 2014 and 2015 settlement practice of UEFA. By Luis Torres

UEFA announced on 8 May that it had entered into Financial Fair Play settlement agreements with 10 European football clubs. Together with the four other agreements made in February 2015, this brings the total to 14 FFP settlements for 2015 and 23 since UEFA adopted modifications in its Procedural rules and allowed settlements agreements to be made between the Clubs and the Chief Investigator of the UEFA Club Financial Control Body (CFCB).[1] 

In the two years during which UEFA’s FFP regulations have been truly up and running we have witnessed the centrality taken by the settlement procedure in their enforcement. It is extremely rare for a club to be referred to the FFP adjudication chamber. In fact, only the case regarding Dynamo Moscow has been referred to the adjudication chamber. Thus, having a close look at the settlement practice of UEFA is crucial to gaining a good understanding of the functioning of FFP. Hence, this blog offers a detailed analysis of this year’s settlement agreements and compares them with last year’s settlements. More...

Book Review: Reforming FIFA, or Not

Editor’s note: This short book review will be published in a different format in the International Sports Law Journal, due to its timeliness we decided to reproduce it here. 

Reforming FIFA, or Not

 Antoine Duval

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

 


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



Asser International Sports Law Blog | Illegally obtained evidence in match-fixing cases: The Turkish perspective - By Oytun Azkanar

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

Illegally obtained evidence in match-fixing cases: The Turkish perspective - By Oytun Azkanar

Editor’s Note: Oytun Azkanar holds an LLB degree from Anadolu University in Turkey and an LLM degree from the University of Melbourne. He is currently studying Sports Management at the Anadolu University.

 

Introduction

On 19 October 2017, the Turkish Professional Football Disciplinary Committee (Disciplinary Committee) rendered an extraordinary decision regarding the fixing of the game between Manisaspor and Şanlıurfaspor played on 14 May 2017. The case concerned an alleged match-fixing agreement between Elyasa Süme (former Gaziantepspor player), İsmail Haktan Odabaşı and Gökhan Sazdağı (Manisaspor players). The Disciplinary Committee acknowledged that the evidence relevant for proving the match-fixing allegations was obtained illegally and therefore inadmissible, and the remaining evidence was not sufficient to establish that the game was fixed. Before discussing the allegations, it is important to note that the decision is not only significant for Turkish football but is also crucial to the distinction between disciplinary and criminal proceedings in sports.

Background of the Case

During the last weeks of the 2016/2017 season in Turkish 2nd Division League, three teams, namely Manisaspor, Şanlıurfaspor and Gazişehir Gaziantep, were competing to avoid relegation. At the penultimate week, Manisaspor played against Şanlıurfaspor and won the game. Gazişehir Gaziantep also won its match. As a consequence of these results, Şanlıurfaspor was relegated to a lower division. At the end of the season, on 5 July 2017, Şanlıurfaspor claimed that the club Gazişehir Gaziantep had attempted to influence the outcomes of the games and Şanlıurfaspor appealed to the Turkish Football Federation (TFF).

Şanlıurfaspor’s claims mainly focused on the recording of the talk between Nizamettin Keremoğlu (Vice-President of Gazişehir), Elyasa Süme (a former Gaziantepspor player), Gökhan Sazdağı (Gazişehir player who was on loan at Manisaspor at the time) and İsmail Haktan Odabaşı (Manisaspor player). The recording was leaked and uploaded on Youtube. The content of the recording clearly demonstrates that incentives were provided to Manisaspor players by Gazişehir in order to encourage them to win against Şanlıurfaspor. Furthermore, Gökhan Sazdağı confessed in the recording that he had been involved in match-fixing before and that this would not be his first time. In addition, Gaziantepspor claimed that Elyasa Süme was involved in match-fixing. On 20 July 2017, based on these serious allegations and the incriminating evidence publically released, the TFF referred Şanlıurfaspor’s application to the Turkish Football Federation Ethics Committee (Ethics Committee). Following the Ethics Committee’s report, the TFF subsequently referred the case to the Disciplinary Committee for determining the possible sanctions to be imposed on Gazişehir Gaziantep, Nizmettin Keremoğlu, Elyasa Süme, Gökhan Sazdağı and İsmail Haktan Odabaşı. Finally, on 19 October 2017, the Disciplinary Committee decided that the evidence relevant for proving match-fixing was illegally obtained and the remaining evidence was not enough to establish an instance of match-fixing.

Separating Disciplinary and Criminal Proceedings

It is generally accepted that in sports law disciplinary proceedings are to be treated differently than criminal investigations.[1] In countries like Turkey, match-fixing and/or match-fixing attempts also constitute a crime. Article 11(1) of the Act on the Prevention of Violence and Disorder in Sports stipulates that a person providing advantages or benefits in order to influence the final result of a game shall be punished with imprisonment from five to twelve years. Article 11(5) of the same regulation also states that in case of commission of the offense by offering or promising incentive pay with the intention of enabling one team to win a match, only half of the punishment is to be imposed.

On the other hand, match-fixing and incentives also appear in Article 58 of the Turkish Football Disciplinary Instruction. The said provision makes clear that it is forbidden to influence the outcome of the games illegally or unethically. Incentives fall also within the scope of this provision. In case of a breach, individuals will face a life-long ban. In case of an attempt at match-fixing or of the provision of unlawful incentives, clubs will be sanctioned by at least a 12 points deduction.

It is important to note that Turkish prosecutors have not yet opened a criminal investigation for the allegations related to the provision of incentives, even if the allegations and evidence are serious.

The Position of FIFA, UEFA, and CAS with respect to Match-Fixing Allegations and Binding Rules for Turkish Authorities     

FIFA as the world's governing body of football has put in place significant provisions regarding match-fixing and corruption in football. Article 69 FIFA Disciplinary Code stipulates that anyone who unlawfully influences the outcomes of football games can be banned from taking part in any football-related activity for life. Furthermore, Article 3.10 FIFA Code of Conduct also highlights the importance of zero tolerance for bribery and corruption.  

UEFA president Michael Platini announced in 2011 that a zero tolerance policy was adopted by UEFA regarding match-fixing, and that all match-fixing allegations would be seriously investigated. Moreover, as evidenced in Sport Lisboa e Benfica Futebol SAD, Vitoria Sport Clube de Guimaraes v. UEFA and FC Porto Futebol SAD, UEFA is not bound by national associations’ decisions in this regard.

A zero-tolerance policy requires that match-fixing attempts be punished heavily. This does not mean, however, that there is no standard of proof for match-fixing allegations. According to the CAS, match-fixing allegations must be proved to its comfortable satisfaction. [2] Comfortable satisfaction is defined by the CAS as a standard that is higher than the civil standard of “balance of probability” but lower than the criminal standard of “proof beyond a reasonable doubt”.[3] In my view, considering the evidence in the case of Şanlıurfaspor, in particular the recordings and the statements of the clubs, it should be accepted that the standard of proof for match-fixing allegations was met.

What is crucial in our case is that UEFA and the CAS cannot intervene in the Turkish match-fixing proceedings due to Article 64(1) of the Statutes of the Turkish Football Federation stating that “CAS shall not, however, hear appeals on violation of the laws of the game, suspensions according to relevant provisions of the FIFA and UEFA Statutes, or decisions passed by the independent and duly constituted Arbitration Committee of the TFF”. Moreover, Article 59(3) of the Turkish Constitution provides that “the decisions of sports federations relating to administration and discipline of sporting activities may be challenged only through compulsory arbitration. The decisions of the Arbitration Board are final and shall not be appealed to any judicial authority”. On the other hand, in case of a breach, FIFA has the authority, relying on its Code of Conduct and Disciplinary Code, to take important steps in order to sanction clubs and/or individuals, even where national federations fail to do so. Therefore, on 25 October 2017, Şanlıurfaspor declared that if the Arbitration Board of the TFF did not sanction clubs and individuals who were allegedly involved in match-fixing, it would apply to FIFA to do so.

The Validity of Evidence

The main reason why the Disciplinary Committee did not find the clubs and individuals guilty of match-fixing was that the evidence, which was crucial to support the allegations, was obtained illegally. Therefore, it is of primary importance to compare this position to the one adopted by UEFA, CAS, and the Swiss Federal Tribunal with respect to the validity of illegally obtained evidence in disciplinary proceedings involving match-fixing.

UEFA’s position regarding the admissibility of evidence can be derived from specific provisions in its regulations. For instance, Article 4(2) 2017/2018 UEFA Champions League Regulations expressly states that if UEFA is comfortably satisfied that a club was involved in any activity aimed at arranging or influencing the outcome of a match, such club will be ineligible for the participation. While taking its decision, UEFA can rely on the decision of a national or international sporting body, but it is not bound by these decisions. Article 4(2) allows UEFA to punish clubs, even if they have been exonerated by other sporting bodies. Therefore, it can be concluded that if UEFA is comfortably satisfied, the validity of evidence will not be questioned. The article says nothing about the validity of evidence. In addition, even if national sports governing bodies do not punish clubs and/or individuals, UEFA is not bound by national decisions even if the evidence was illegally obtained. [4]

The CAS also supports the approach of UEFA with regard to the admissibility of evidence in match-fixing cases. According to the CAS jurisprudence, “even if evidence might not be admissible in a civil or criminal court in Switzerland, this does not automatically prevent a sports federation or an arbitration tribunal from taking such evidence into account in its deliberations”.[5] This statement clearly shows that the CAS distinguishes criminal or civil court proceedings from disciplinary proceedings. As a matter of fact, it can be argued that the CAS allows national sports governing bodies to evaluate the admissibility of match-fixing evidence less strictly than in criminal proceedings.

In general, the CAS is bound by Swiss law because it is domiciled in Switzerland. Therefore, the Swiss Federal Tribunal may annul the CAS awards if they are contrary to Swiss public policy. One could argue that a decision based on illegally obtained evidence violates Swiss public policy. Thus, the approach of the Swiss Federal Tribunal also needs to be taken into account. The Swiss Federal Tribunal discussed the admissibility of evidence in A. v The Football Federation of Ukraine. In this case, the appellant claimed that using illegally obtained evidence, violated Swiss public policy. As a response to this claim, the respondent (CAS) argued that there was an overriding public interest in preserving football’s integrity. Therefore, the evidence should have been admissible according to the CAS. The Swiss Federal Tribunal held that pursuant to Article 152(2) Swiss Private International Law Act (PILA), “illegally obtained evidence shall be considered only if there is an overriding interest in finding the truth”. In that particular case, the Swiss Federal Tribunal upheld the decision of the CAS and stated that if necessary to prove an instance of match-fixing, illegally obtained evidence was not inadmissible.

The Approach of Turkish Law against Match-Fixing

As explained above, the Act on the Prevention of Violence and Disorder in Sports and the Turkish Football Disciplinary Instruction contain significant provisions aimed at combating match-fixing. However, these rules say nothing about the admissibility of evidence. Pursuant to Article 38(6) Turkish Constitution, “findings obtained through illegal methods shall not be considered evidence”. Contrary to the PILA, the Turkish Constitution does not provide for exemptions. Additionally, Article 206(2) and 217(2) Turkish Criminal Procedure Code provide that illegally obtained evidence cannot be accepted by criminal courts in Turkey. Nevertheless, there is no definitive verdict about the admissibility of evidence in sporting disciplinary proceedings in Turkey. Furthermore, Turkish sports regulations do not contain specific rules for assessing the evidence in match-fixing allegations. Therefore, it can be argued that in Turkey, there is a loophole in disciplinary proceedings as to whether illegally obtained evidence is admissible or not.

Conclusion

The fight against match-fixing is vital for sports governing bodies. This article has demonstrated that UEFA, CAS, and the Swiss Federal Tribunal share the same view that illegally obtained evidence is not always inadmissible when used to evidence an instance of match-fixing. In my view, the Disciplinary Committee disregarded the approach of UEFA, CAS, and the Swiss Federal Tribunal, and instead followed the practice of the Turkish Criminal Court. Because match-fixing is also a breach of the Turkish Act on the Prevention of Violence and Disorder in Sports, it is the duty of criminal courts in Turkey to assess whether the evidence was obtained legally or not. However, as a disciplinary body, the Disciplinary Committee was not forced to deny the admissibility of illegally obtained evidence. I believe it should have followed the established practices of UEFA, FIFA, and the CAS, and assess the available evidence to determine whether it met the comfortable satisfaction standard of proof. Hence, based on the confession recorded in the YouTube video, the Disciplinary Committee should have decided that the individuals concerned, at a minimum, attempted to fix the match and it should have imposed the corresponding sanctions.   

___________________________

[1] Adam Lewis and Jonathan Taylor, Sport: Law and Practice (Bloomsbury, 3rd ed, 2014) 249.

[2] Michael J Beloff et al, Sports Law (Hart Publishing, Second edition, 2012) 188.

[3] Beşiktaş Jimnastik Kulübü v UEFA [2013] CAS 2013/A/3258 [119].

[4] Public Joint-Stock Company “Football Club Metalist” v. Union des Associations Européennes de Football (UEFA) & PAOK FC [2013] CAS 2013/A/3297 [8.8].

[5] Public Joint-Stock Company “Football Club Metalist” v. Union des Associations Européennes de Football (UEFA) & PAOK FC [2013] CAS 2013/A/3297 [2].

 

Comments are closed